author: SPAETH, President Judge: SHOYER, Judge, CIRILLO, Judge,

text:
    502 A.2d 1383
    COMMONWEALTH of Pennsylvania v. Subramanyam VEDAM, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed Dec. 27, 1985.

      John R. Carroll, Philadelphia, for appellant.

      Ray Gricar, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before SPAETH, P.J., and CIRILLO and SHOYER, JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

This appeal is from a judgment of sentence for first-degree murder. Appellant assigns some nine trial errors, but we need address only two: 1) whether the evidence presented was sufficient to sustain the jury’s verdict; and 2) whether the trial court committed reversible error by admitting evidence of appellant’s prior misconduct. We have concluded that the evidence was sufficient, but we agree with appellant that the trial court committed reversible error in admitting evidence of appellant’s prior misconduct. We therefore vacate the judgment of sentence and remand for a new trial.

-1-

The evidence implicating appellant in the death of Thomas Kinser was entirely circumstantial. Nevertheless, circumstantial evidence may satisfactorily prove any or all of the elements of a crime beyond a reasonable doubt. Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979). Our task is to review the evidence in the light most favorable to the Commonwealth, “accepting] as true all evidence and all reasonable inferences upon which, if believed, the factfinder could have properly based its verdict____” Id., 488 Pa. at 540, 412 A.2d at 1364.

The Commonwealth established at trial that appellant was the last known person to see Thomas Kinser alive. On December 14, 1980, Kinser borrowed a van from his family to drive appellant, who was his friend and former roommate, to nearby Lewistown. According to Kinser’s mother, appellant had requested this favor a few days earlier. The van was found early the next morning in the parking lot of the apartment building where Kinser lived, but Kinser had disappeared.

When questioned by Kinser’s girlfriend and family, appellant gave conflicting explanations of the disappearance. He told Kinser’s girlfriend that Kinser had left him at approximately five o’clock, after they had returned from Lewis-town, and that he had paid Kinser in drugs for the trip. He suggested to Kinser’s mother that Kinser might have traveled south because of the cold weather. When Mrs. Kinser asked appellant whether her son had money with him, appellant said that he did not know of any. A short time later, however, appellant telephoned Mrs. Kinser to assure her that Kinser was carrying about two hundred dollars. When Kinser’s father asked appellant to discuss the stories about the drugs and the two hundred dollars, appellant refused.

Almost a year later, on September 27,1981, a decomposed body partially covered with logs and debris was discovered by teenagers in a wooded area. The remains were identified through dental charts as those of Thomas Kinser. An autopsy revealed a single bullet hole through the top of the skull. According to medical testimony, death could have occurred any time between December 1980 and April 1981.

A bullet from a .25 caliber handgun was found with Kinser’s remains. Using a metal detector, police also uncovered a .25 caliber shell casing in the immediate area. This shell casing was linked to a gun purchased by appellant about a week before Kinser’s disappearance. Appellant had test-fired the .25 caliber weapon before buying it. The seller was able to show police where the test-firing had occurred, and another .25 caliber bullet and another shell casing were recovered from that site. A ballistics expert testified that the two casings — the casing found in the immediate area of Kinser’s body and the casing found at the test-firing site — were fired from the same gun. These casings were also of the same vintage as the gun and ammunition sold to appellant. The bullet found with the body could not be compared with the bullet found at the test-firing site because of the deterioration of the bullet found with the body. No gun was ever produced at trial.

The Commonwealth also presented evidence of a motive for the murder. In May 1980 appellant stole a fourteen pound synthetic ruby from a display case in the Materials Research Laboratory at Pennsylvania State University. The ruby was valued at between two and three hundred dollars but one witness testified that appellant told him it was worth one or two million dollars. Appellant hid the ruby in the woods, where it was later found, sometime that fall, by a woodcutter, who took it home with him. Thomas Kinser had seen the ruby and during the summer spoke of it admiringly to his mother. Also, Kinser was familiar with the area where the ruby was hidden. Coupled with this evidence was testimony suggesting that appellant was the sort of person who would lure someone who had betrayed him into the woods and shoot him.

The preceding evidence was sufficient to convict appellant of murder in the first degree. Appellant’s opportunity to kill Kinser was shown. Kinser was last known alive in the company of appellant. Moreover, appellant’s subsequent accounts of their day together were suspicious. From the autopsy and ballistics testimony, the jury could have found that a bullet fired from appellant’s .25 caliber gun was the cause of death. The jury also could have found that appellant had fired the gun, because it was his gun, and had done so with intent to kill Kinser, the intent being inferred from the evidence of the bullet hole in the skull. See Commonwealth v. Crowson, supra. Further evidence of intent was the evidence of the purchase of the gun. .The evidence regarding appellant’s prior theft of the ruby, and the evidence suggesting that appellant would deal with someone who betrayed him by luring him into the woods and shooting him, further supported the Commonwealth’s case, for it tended to prove both motive and disposition.

-2-

In considering the admissibility of the evidence regarding the ruby and luring someone into the woods, we may start with the general rule that evidence of prior offenses is generally inadmissible in a criminal trial because “ ‘[t]he presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectively strip him of the presumption of innocence’ ”, but it nevertheless may be admissible to show “(1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the accused as the perpetrator, (5) [absence of] accident or (6) lack of mistake.” Commonwealth v. Styles, 494 Pa. 524, 527-28, 431 A.2d 978, 980 (1981) (quoting Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978)).

The Commonwealth argues that the evidence of appellant’s prior theft of the ruby falls within the exception for motive, and also within the “same transaction” exception articulated in Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975), because the theft “ ‘formed part of a chain, or was one of a sequence of acts, or became part of the natural development of the facts.’ ” Id., 462 Pa. at 591, 342 A.2d at 90 (quoting Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932)). The Commonwealth further argues that the probative value of the evidence outweighed any prejudice to appellant.

We are not persuaded by this reasoning. Its premise, as acknowledged by the Commonwealth, is that appellant “had reason to believe that Kinser had stolen the ruby from its hiding place.” Brief for Commonwealth at 25. This premise, however, is not supported by the evidence. There is no evidence — and the Commonwealth does not claim otherwise — that Kinser did in fact steal the ruby. While it is true that Kinser knew of the campsite in the woods where appellant hid the ruby, there is no evidence that he knew that appellant had hidden the ruby there, much less that he knew the exact hiding place. Moreover, others knew of the campsite. As one of the Commonwealth’s witnesses testified on cross examination:

Q. And you’re familiar that other people went up to that spot as well, aren’t you?
A. Yeah, it’s pretty popular.
Q. It’s known to a lot of people?
A. Yeah.
R. R. 3504a.

It is apparent, therefore, that any of many people might have found the ruby and taken it from its hiding place — just as, later, a woodcutter found it at the campsite. Of course, if appellant believed that Kinser had stolen the ruby, it would not matter whether in fact Kinser had stolen it; appellant’s belief that he had might be sufficient reason for appellant to want to kill him. The evidence, however, fails to show that appellant did believe that Kinser had stolen the ruby. There is no evidence, for example, that appellant ever said anything suggesting such a belief. It is true that Kinser was shown the ruby. Mrs. Kinser testified that her son had told her “[t]his kid” had shown him the ruby, without naming the “kid”; she further testified that “[this] indicated to me that it was not somebody I knew” (she knew appellant). R.R. 3499a-3500a. Even so, the jury might have inferred that it was appellant who showed Kinser the ruby, but that inference could not support the further inference that because appellant had shown Kinser the ruby he believed Kinser was responsible for its later disappearance. Such a further inference might be warranted if Kinser were the only person to whom appellant had shown the ruby, but the evidence is that he was not. Thus, Charles Thomas testified that in May 1980 appellant came to his apartment and showed him the ruby, and asked whether he would help sell it. R.R. 3512a-20a. Moreover, given that appellant showed the ruby to appellant and Thomas, it follows that he may have shown it to still others.

We therefore conclude that the evidence of appellant’s prior theft of the ruby was, if relevant, so marginally relevant that its admission was error. We need not decide whether this error would by itself require a new trial, for the evidence of the prior theft was not offered, and admitted, by itself but as one piece of an evidentiary pattern. This is explained by the Commonwealth in its argument:

In other words, if as the evidence would indicate, appellant had reason to believe that Kinser had stolen the ruby from its hiding place, what might appellant do in response? For the answer to that question, one must look at the testimony of Michael Shoemaker, Seth Rosenberg and Michael Latta. Their testimony shows the history of a peculiar plan contemplated by appellant, from its origin to its possible application to real situations in the life of appellant.
Brief for Commonwealth at 25-26.

Initially, we note that the fallacy in this argument is that the evidence does not prompt the question, “what might appellant do in response?”, for as we have just discussed, it does not “indicate [that] appellant had reason to believe that Kinser had stolen the ruby____” We do not, however, rest our decision on this point. Instead, as the Commonwealth urges, we shall look at the testimony of Shoemaker, Rosenberg, and Latta so that we may decide whether it shows, as the Commonwealth asserts, “the history of a peculiar plan”, which was eventually carried out by appellant’s killing Kinser.

The first of these three witnesses to testify was Rosenberg. He testified that in May 1980 appellant told him that “he had planned to take [Charles Thomas] out into the woods and shoot him and dump his body.” R.R. 3413a. The second witness was Latta. He testified that in the summer of 1980 he had agreed to receive a package that appellant planned to send from India. When the package never arrived, he said, he asked appellant whether “he [felt] that I had ripped him off____ He assured me that he didn’t think that I had ripped him off; that if he had thought that I had ripped him off, he wouldn’t have been talking with me at that time. He would have just taken me out in the woods and shot me.” R.R. 3604a. The last witness, Shoemaker, recounted a conversation he had had with appellant in 1978. He said that one Josh Novak “was bothering my girlfriend quite a bit” and that he had told appellant about this. R.R. 3617a-18a. When asked what he had told appellant, he answered that he had “expressed a desire to kill Mr. Novak”, R.R. 3518a, and had gone on to tell appellant how he would do it:

I would say to Josh, “Let’s let bygones b[e] bygones.” And go up in the hills somewhere in a secluded area since we were both underage, and become inebriated, and after that, I would stand up and go off in the woods to, you know, relieve myself, and come back, and while the person’s back was turned, to murder the fellow.
R.R. 3619a.

When asked whether appellant participated in this conversation, Shoemaker replied, “He was mostly just listening.” Id. On cross-examination, when asked, “Did he [appellant] ever indicate that he had even heard what you said,” Shoemaker replied, “No, he never really showed any indication that it affected him one way or the other.” R.R. 3623a.

In considering this testimony, we may begin by noting that it does not present a case of appellant having done anything. Evidence that the defendant has committed a distinctive prior crime may be admissible on the issue of identity, if the prior crime is “so unusual and distinctive as to be like a signature”. McCormick on Evidence § 190 (1984). Shooting some one in the woods, especially in an area as heavily wooded as Centre County, where the murder here in question was committed, does not seem so unusual and distinctive, but putting that aside for the moment, the fact remains that the most the evidence shows is that on one occasion appellant said he had “planned” to take Thomas into the woods and shoot him, and on another, that “if he had thought” that Latta had “ripped him off”, he “would have” taken him into the woods and shot him. Appellant never acted on these statements. If appellant had shot Thomas in the woods, then the issue would arise whether proof of that fact would be admissible to show that he had also shot Kinser in the woods; as we have indicated, admissibility would at best be doubtful, given that shooting some one in the woods is hardly a “signature” crime. Given, however, that appellant did not shoot Thomas in the woods, or Latta, the Commonwealth’s argument becomes attenuated: since appellant planned to shoot Thomas in the woods he also planned to shoot Kinser in the woods; although he did not shoot Thomas, he did shoot Kinser. The “although” is a non sequitur. There is no evidence that appellant had a plan to shoot Kinser in the woods. Moreover, the Commonwealth’s argument permits the inference that since appellant did not act on his plan to shoot Thomas in the woods, neither did he act on his plan to shoot Kinser in the woods.

Nor does Shoemaker’s testimony about how he would like to kill Novak — he did not in fact kill Novak — add substance to the Commonwealth’s argument. If Shoemaker had described a “signature” way of killing someone, say, the use of a particular poison, and if Kinser had been killed in that particular way, then proof of appellant’s knowledge that that was a way to kill someone might be relevant to show appellant’s identity as the killer. Shoemaker, however, did not describe a “signature” way of killing someone. Anyone who decided to kill Kinser might have decided to shoot him in the woods; to prove that appellant knew that one might commit a murder by shooting the victim in the woods only proved that appellant knew what anyone else would know.

The trial court in its opinion acknowledges that the testimony of Rosenberg, Latta, and Shoemaker was not admissible as evidence of appellant’s identity as the person who killed Kinser. Slip op. of tr. ct. at 27. The court states, however, that the testimony was nevertheless “properly admitted as relevant circumstantial evidence.” Id. In support of this statement the court cites Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cert. den., 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961); Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1949); and Commonwealth v. Kaster, 300 Pa.Super. 174, 446 A.2d 286 (1982). These cases, however, are inapposite.

Kravitz stands for the general proposition that a conviction of murder may rest on circumstantial evidence, but its facts were so different from those of this case that we may assume that the trial court cited it only for this general proposition. In Minoff the Supreme Court upheld the admission of testimony of threats that the defendant had made towards members of a rival church faction six months before he killed two members of this rival faction. In Glover the Court upheld the admission of testimony of an incident in which the defendant had harassed and threatened male friends of his former girlfriend; the defendant was convicted of killing one of his former girlfriend’s friends a few weeks later. In Raster this court, on a charge of attempted murder of a police chief, upheld the admission of a drawing made by the defendant, depicting the hanging of a police officer. In each of these three cases the threats were directed against a class to which the victim clearly belonged. In the present case, however, as we have discussed, the Commonwealth has not shown that appellant believed that Kinser had taken the ruby from its hiding place or had betrayed him in any way. Thus it may not be said that Thomas, Latta, and Kinser were members of a class of betrayers, analogous to the church faction in Minoff, the male companions in Glover, or the police in Kaster.

We are therefore unable to uphold the trial court’s admission of the evidence regarding the ruby and killing someone in the woods. The evidence was highly prejudicial, for it portrayed appellant as a thief and suggested that he was a violent man, disposed to kill people in the woods. Against this, the relevance of the evidence was at best marginal. It therefore may not be said that the prejudicial effect of the evidence was outweighed by its probative value. Nothing, in short, takes this case out of the general rule that evidence of prior offenses should not be admitted because “[t]he presumed effect ... is to predispose the minds of the jurors to believe the accused guilty____” Commonwealth v. Styles, supra; Commonwealth v. Spruill, supra.

Judgment of sentence vacated and case remanded for new trial.

SHOYER, J., files a concurring opinion.

CIRILLO, J., files a dissenting opinion.

SHOYER, Judge,

concurring:

The evidence as to the theft of the ruby by defendant as justifying the creation of a motive was not harmless hearsay. As well stated by President Judge Spaeth in his Opinion (p. 1386):

“... Of course, if appellant believed that Kinser had stolen the ruby, it would not matter whether in fact Kinser had stolen it; appellant’s belief that he had might be sufficient reason for appellant to want to kill him. The evidence, however, fails to show that appellant did believe that Kinser had stolen the ruby. There is no evidence, for example, that appellant ever said anything suggesting such a belief____”

Revenge is always accepted as a valid motive in proof of a criminal act. But you must prove either (1) that the victim committed the alleged wrong against defendant; or (2) that the defendant suspected him of having committed the wrong. You cannot hypothesize existence of the motive but must first prove its existence by legally admissible evidence.

In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), the Court said:

“ ‘[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a “reasonable possibility” that an error “might have contributed to the conviction,” the error is not harmless. Commonwealth v. Davis, 452 Pa. [171, 178], 305 A.2d [715, 719 (1973)], quoting Chapman v. California, 386 U.S. [18, 24], 87 S.Ct. [824, 828, 17 L.Ed.2d 705 (1967)].’ ”

As in Commonwealth v. Story, supra, I am not convinced that “the evidence of guilt was so overwhelming and the error of admitting the prejudicial testimony so inconsistent by comparison, that the error was harmless beyond a reasonable doubt.”

I Join in President Judge Spaeth’s remand for a new trial.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

It is well established that the admission or exclusion of evidence is committed to the sound discretion of the trial court. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). A trial court’s evidentiary ruling will not be disturbed on appeal unless the ruling amounts to an abuse of discretion. Commonwealth v. Jackson, supra; Commonwealth v. Miller, supra; Commonwealth v. Krajci, supra.

In the case sub judice, the trial judge allowed evidence of appellant’s prior criminal activity and reputation in the community to be admitted. I do not believe this evidentiary decision was an abuse of the trial court’s discretion.

It is firmly established that evidence of unrelated criminal conduct of an accused is generally inadmissible to prove he committed the crimes for which he is being tried. Commonwealth v. Styles, 494 Pa. 524, 431 A.2d 978 (1981); Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). In Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978), the Supreme Court expounded on the rationale behind this rule:

“[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.”

Id., 480 Pa. at 604-05, 391 A.2d at 1049-50, quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975) and Commonwealth v. Clark, 453 Pa. 449, 452-53, 309 A.2d 589, 590-91 (1973). However, there are some instances when evidence of past crimes is admissible, as where it is used to prove 1) motive, 2) intent, 3) a common plan or scheme, 4) identity of accused as the perpetrator, 5) accident, 6) lack of mistake. Commonwealth v. Brown, supra; Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972).

Pennsylvania case law also permits the admission of evidence of a crime other than the one for which the accused is on trial if it is part of a chain or sequence of events which leads up to the criminal activity for which the accused is being tried. See Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932); Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985); Commonwealth v. Evans, 343 Pa.Super. 118, 494 A.2d 383 (1985); Common wealth v. Nolen, 330 Pa.Super. 366, 479 A.2d 595 (1984); Commonwealth v. Detrie, 263 Pa.Super. 75, 397 A.2d 2 (1979). In the case at bar the Commonwealth presented evidence of a chain of events which lead to the murder of Thomas Kinser. Yiewing all of the evidence presented as a whole, I believe a showing was made that appellant had a motive for murding Kinser. See generally Commonwealth v. Speller, 311 Pa.Super. 569, 458 A.2d 198 (1983). It is therefore my conclusion that the evidence in question was properly admitted and the weight afforded such evidence was properly left for the jury to decide.

The majority admits that the evidence presented at trial was sufficient to convict appellant of murder in the first-degree. It was proven that appellant was the last known person to see the deceased alive and that he had the opportunity to kill Kinser. Most importantly, the shell casing found near the deceased body was linked to the gun purchased by appellant one week prior to Kinser’s disappearance. This evidence alone absent the evidence establishing motive is enough to let appellant’s conviction for murder stand.

Alternatively, if it was error to admit the questioned evidence, I believe it was harmless error.

The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that “[a] defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593.

Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981). The evidence presented at trial proving appellant's guilt was so overwhelming that the evidentiary rulings in question are insignificant by comparison. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). I would therefore affirm the judgment of sentence.

      . Rosenberg also testified that appellant had indicated displeasure with him in a letter of September 1980 because certain actions of Rosenberg apparently had caused appellant to live with Kinser longer than he had planned. Rosenberg testified, however, that the letter did not directly express any animosity on the part of appellant toward Kinser. This testimony was the only evidence presented by the Commonwealth concerning appellant’s feelings about Kinser.

      . The Commonwealth suggests in its brief that because the evidence is merely of threats, "the guidelines for offering evidence of other real criminal conduct [sh]ould be relaxed in the case, such as the one at bar, wherein the evidence in question only shows that the accused once considered committing a crime.” Brief for Commonwealth at 31-32. We cannot agree. Evidence of prior misconduct, whether illustrated through criminal convictions or unacted-upon threats, is never admissible to show the accused’s disposition for crime; it is only admissible under the specified exceptions already indicated. See Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972); Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1949).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    503 A.2d 1
    Leonard CHAPLISKI and Walter Folger t/d/b/a Ranshaw Transportation and Auto Wreckers Company, Appellees, v. CHURCHILL COAL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued April 17, 1985.
    Filed Dec. 27, 1985.
    Christopher J. Foust, Milton, for appellant.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

Appellant, Churchill Coal Corporation, defendant below, appears before us seeking to vacate the order of'the court below. For the following reasons, we vacate that order and remand for further proceedings.

The facts and procedure of this case are long and involved and clearly set out in President Judge Krehel’s opinion.

On 28 November 1977, Plaintiffs and Defendant entered into a Security Agreement to purchase certain equipment and real estate.
On 22 May 1980, Plaintiffs filed a Complaint against the Defendant averring that the Defendant violated the terms of the security agreement and that judgment be entered on Plaintiffs’ behalf.
On 1 July 1980, the Defendant filed an Answer and the action was listed for trial for the next Civil Trial List on 14 October 1980.
The next occurrence was a Hearing that occurred on 18 June 1981. At that time Plaintiffs and Defendant entered into a Stipulation to which the Defendant agreed to pay One Hundred and Twenty-five Thousand ($125,-000.00) Dollars. The Defendant also agreed to pay six (6%) percent interest per annum. In return the Plaintiffs agreed to drop the Mortgage Foreclosure action. Defense Counsel at that time made no comment about a “Federal” matter which was pending at that time.
On 29 June 1981, the Defendant filed a Petition in Bankruptcy, under Chapter 11, in the United States Bankruptcy Court for the Southern District of New York. No notice of this proceeding was given to Plaintiffs, their Counsel, or this Court.
On 7 July 1981, this Court, by President Judge Peter Krehel, entered an Order nunc pro tunc to 29 June 1981, granting a Verdict against the Defendant and for the Plaintiffs authorizing judgment against the Defendant.
On 13 July 1981, the Plaintiffs, through their Counsel, praeciped to have and did have the Prothonotary enter the judgment in accordance with this Court’s Order dated 7 July 1981.
On 28 January 1982, Plaintiffs filed an adversary proceeding seeking to lift the automatic stay provision of 11 U.S.C. § 362 in the Southern District of New York.
On or about 21 April 1982, Plaintiffs’ adversary proceedings were dismissed with prejudice.
On 10 September 1982, the Honorable Edward J. Ryan of the United States Bankruptcy Court entered an Order directing the Plaintiff and the Defendant to settle and compromise. It also stated that “if the debtor fails to comply with the terms of the Order, the Plaintiff may institute in this court a new adversary proceeding under 11 U.S.C. § 362 to modify the stay of the foreclosure and other proceedings between the parties in the Court of Common Pleas of Northumberland County, Pennsylvania
* * * * * *
On 17 February 1984, the Bankruptcy Proceedings filed in the Southern District of New York were dismissed without prejudice.
On 13 April 1984, Plaintiffs filed a Praecipe for Writ of Execution directed to the Sheriff of Northumberland County. The amount due was Eight Hundred and Nineteen Thousand ($819,000.00) Dollars and One Hundred and Twenty Thousand ($120,000.00) Dollars in Attorney’s Fees, for a total of Nine Hundred and Thirty-nine Thousand ($939,000.00) Dollars.
On 11 May 1984, the Defendant filed a Petition and Rule to Show Cause why the Writ of Execution filed to Ex. 84-31 should not be suspended and terminated.
* * * * * *
On 10 October 1984, this Court filed an Order dated 30 May 1984, stating that the pleadings were reviewed and that the Court Denied Defendants’ Petition to Show Cause.

The issue is whether the Automatic Stay provision of the Bankruptcy Code, 11 U.S.C. § 362 barred the Court of Common Pleas from entering the retroactive order of July 7, 1981. We reluctantly find that it did. Since this issue is dispositive of the matter we do not address the other issue raised by appellant.

Section 362(a)(1) provides:

“(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.”

Ordinarily, we would uphold the trial court’s power to enter an Order retroactively (or as the trial court characterized it, nunc pro tunc) where the purpose of such an action is to avoid an injustice. See Fitzgerald v. Stewart, 53 Pa. 343 (1866) (“... the court has the power, in order to do justice, to enter judgment at their discretion, as of a time when it ought to have been entered.” Id. at 347.) Yet where such an order is in direct conflict with the plain meaning of the Bankruptcy Act’s stay provision, it cannot be given effect. “[I]t is also well established that any action taken by a non-bankruptcy forum in violation of the automatic stay including judgments or decrees are legal nullities and have no force and effect. 2 Collier on Bankruptcy Para. 362:11, Note 2; In re Cramer, 7 B.R. 133 (Bkrtcy.D.Col.1980).” Matter of Johnson, 16 B.R. 193, 195 (Bankr.M.D.Fla.1981) (emphasis added).

The broad goal of the automatic stay provision is to protect debtors from harassment during reorganization and “to promote orderly administration of the estate.” Aaron, Bankruptcy Law Fundamentals 5-2 (1985). “The import of [section 362(a)(1) ] is that all legal actions being taken or to be taken against the debtor are halted. The section is inclusive. Every proceeding of a judicial or quasi-judicial nature is affected.” In re Jose DeLisi Fruit Co., 11 B.R. 694, 695 (Bankr.D.Minn.1981). “The automatic stay ‘is extremely broad in scope and aside from the limited exceptions of subsection (b) should apply to almost any type of formal or informal action against the debtor or the property of that estate.’ 2 Collier on Bankruptcy, Para. 362.04 (15th ed. 1982) (footnote omitted).” In re Wallingford’s Fruit House, 30 B.R. 654, 659 (Bankr.D.Me.1983).

We conclude that the Order dated July 7, 1981 must be vacated as it was entered after the filing of appellant’s petition in Bankruptcy. Since that action is concluded, however, the stay is now lifted and the matter may again be dealt with by the Court of Common Pleas. We therefore remand this case for further proceedings.

Order is vacated and. case remanded. Jurisdiction is relinquished.


author: HOFFMAN, Judge: SPAETH, President Judge,

text:
    503 A.2d 3
    COMMONWEALTH of Pennsylvania v. Fred SARGENT, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Jan. 3, 1986.

      Dennis H. Eisman, Philadelphia, for appellant.
    Harriet R. Brumberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for robbery and criminal conspiracy. Appellant contends that (1) he is entitled to a new trial because the prosecutor injected her opinion into her closing argument to the jury, and (2) the Mandatory Minimum Sentencing Act, 42 Pa.C. S.A. § 9713, is unconstitutional for the following reasons: (a) § 9713(c), which dictates the burden of proof to be employed at sentencing, violates Article V, § 10(c) of the Pennsylvania Constitution, which gives the judiciary exclusive control over matters of practice and procedure in the courts; (b) the Act denies him due process because it does not require the Commonwealth to provide notice of its intention to invoke the Act prior to trial, but only after conviction; (c) the Act denies him due process because the prosecution need only prove by a preponderance of the evidence that the offense occurred in or near public transportation; and (d) the Act gives the prosecutor unbridled discretion to decide whether to invoke the Act. For the following reasons, we affirm the judgment of the court below.

On December 5, 1983, appellant was arrested and charged with criminal conspiracy and robbery in connection with the robbery of a taxicab driver. The Commonwealth filed a notice of intention to proceed under 42 Pa.C.S.A. §§ 9712 and 9713, two mandatory minimum sentencing provisions, sixteen days after appellant’s arrest. Following a jury trial, appellant was found guilty of both charges and was sentenced to a terra of five-to-ten years imprisonment for robbery in accordance with 42 Pa.C.S.A. § 9713, and a concurrent term of two-to-five years imprisonment for criminal conspiracy. This appeal followed.

Appellant first contends that the following remark made by the prosecutor during her closing argument to the jury was prejudicial:

I am asking you not to let all the work and the performance of the duties of all of the people in this case go for naught. I ask you to do your duty and to return a just verdict in this case; and I believe that from all of the evidence that has been presented in this case, that the only just verdict is guilty on both Bills, Conspiracy and Robbery.

(N.T. May 4, 1984 at 352). Specifically, appellant argues that he was deprived of a fair trial because the prosecutor expressed her personal belief as to appellant’s guilt. We disagree. A prosecutor must have “reasonable latitude” in arguing a case to the jury, and his or her remarks may contain deductions and inferences from the testimony presented. Commonwealth v. Brown, 332 Pa.Superior 35, 44, 480 A.2d 1171, 1176 (1984). “[The prosecutor] may always argue to the jury that the evidence establishes the defendant’s guilt.” Id. See also Commonwealth v. Womack, 307 Pa.Superior 396, 407, 453 A.2d 642, 647 (1982) (prosecutor permissibly argued that evidence proved defendant’s guilt, not that the jury should find defendant guilty simply because the prosecutor believed he was). In the instant case, we find that the prosecutor permissibly argued that the evidence established appellant’s guilt. In addition, even if the prosecutor’s remark prejudiced the jury against appellant, that prejudice was cured by the lower court’s jury instruction that “your determination of the facts and rendering of a verdict should not be based on your sense of anyone else’s duty in this matter, but only on your own duty to render a fair and impartial verdict.” (N.T. May 4, 1984 at 371-72).

Appellant also contends that the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. § 9713, is unconstitutional. His arguments that the Act violates due process because it requires only proof by a preponderance of the evidence and that it gives the prosecutor unfettered discretion were considered and rejected by our Supreme Court in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985). We find appellant’s remaining arguments merit-less.

First, appellant argues that the Act is unconstitutional because § 9713(c) violates Article V, § 10(c) of the Pennsylvania Constitution and thus violates the doctrine of separation of powers. Article V, § 10(c) vests certain powers in the judiciary and provides in relevant part: “[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules ... neither abridge, enlarge nor modify the substantive rights of any litigant____” The provision further states that “[a]ll laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.” Id. Appellant contends that § 9713(c), which dictates the burden of proof to be applied at sentencing, is a statute that controls the practice and procedure in the courts and is, therefore, under Article V, § 10(c), a matter within the exclusive authority of the Supreme Court.

Because this is a constitutional challenge to the validity of a statute, appellant must overcome the strong presumption that it is constitutional. “A statute is presumed to be constitutional and will not be declared otherwise unless it clearly, palpably and plainly violates the Constitution of the Commonwealth or the United States.” Spidle v. Livingston Construction Co., 311 Pa.Superior 201, 208, 457 A.2d 565, 568 (1983). “One who challenges the constitutionality of a statute is faced with a difficult task since there is a presumption of constitutionality, and the burden is on the challenger to prove that the statute clearly and plainly violates the constitution.” Id., 311 Pa.Superior Ct. at 207, 457 A.2d at 567. Our Legislature, unlike Congress, has jurisdiction to legislate on all subjects about which it is not prohibited from legislating. Ruano v. Barbieri, 42 Pa. Commonwealth 67, 74, 400 A.2d 235, 239 (1979). “[A] power does not inhere to the legislature if it has specifically been withheld or entrusted to another co-equal branch of government.” Commonwealth v. Sutley, 474 Pa. 256, 273, 378 A.2d 780, 788 (1977). Therefore, because Article V, § 10(c) grants to the Supreme Court the power to prescribe rules of practice and procedure, “ ‘the legislature ... is without power to control procedure.’ ” In re 42 Pa.C.S. § 1703, 482 Pa. 522, 529, 394 A.2d 444, 448 (1978), quoting Garrett v. Bamford, 582 F.2d 810, 814 (3d Cir.1978). Appellant must therefore prove that § 9713(c) is a rule governing practice, procedure, or court conduct, which does not modify a litigant’s substantive rights.

A statute establishing a burden of proof is difficult to classify as either a procedural rule or a rule affecting substantive rights and seems to contain elements of each. Cf. Commonwealth v. Sorrell, 500 Pa. 355, 364, 456 A.2d 1326, 1331 (1982) (NIX, J., dissenting) (right to trial by jury neither purely procedural nor substantive but falls within gray area between substance and procedure). The thrust of appellant’s argument is that because § 9713(c) establishes the burden of proof to be utilized at sentencing, it dictates to the courts how to conduct a sentencing hearing and it is thus a matter of practice or procedure. (Brief for Appellant at 20-21). The burden of proof standard, however, may also be characterized as a . sustantive rule of law affecting substantive rights. For instance, for purposes of determining whether state or federal law applies in diversity cases, there is a long line of cases referring to the burden of proof as substantive. See, e.g., Dick v. New York Life Insurance Co., 359 U.S. 437, 446, 79 S.Ct. 921, 927, 3 L.Ed.2d 935 (1959); Coastal Plains Feeders, Inc. v. Hartford Fire Insurance Co., 545 F.2d 448, 450-51 n. 5 (5th Cir.1977); Fireman’s Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1174-75 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Boone v. Royal Indemnity Co., 460 F.2d 26, 29 (10th Cir.1972). See generally, 1A Pt. 2 Moore’s Federal Practice ¶ 0.314[2] (2d ed. 1985) (burden of proof is substantive within the meaning of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) case). In addition, Pennsylvania courts have referred to the burden of proof as substantive or affecting substantive rights in several cases. See Stratford v. Boland, 306 Pa.Superior 475, 478 n. 1, 452 A.2d 824, 825 n. 1 (1982) (resort to common law procedure does not change substantive burden of proof borne by a plaintiff); Miller v. Hild, 303 Pa.Superior 332, 335 n. 2, 449 A.2d 714, 716 n. 2 (1982) (amended procedural rule altered burden of proof and therefore affected substantive rights); Ryan v. MacDonald, 151 Pa.Superior 607, 609, 30 A.2d 662, 663 (1943) (burden of proof that shifted to the plaintiff is not governed by a procedural rule, but is a substantive rule of law). Of course these cases are not conclusive in the determination whether § 9713(c) is a rule of substance or procedure for purposes of determining the bounds of a court’s rulemaking authority and consequential limits of the legislature’s power because, “[t]he line between ‘substance’ and ‘procedure’ shifts as the legal context changes,” Hanna v. Plummer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965). However, because appellant does not refer us to any authorities for his proposition that the burden of proof is procedural and there is persuasive authority characterizing the burden of proof as substantive, we find that appellant has not sustained his burden of affirmatively establishing that § 9713(c) is a statute governing procedure in the courts and hence beyond the authority of the Legislature to enact. Accordingly, we hold that § 9713 is not unconstitutional on this ground.

Finally, appellant argues that § 9713 unconstitutionally denies his right to due process of law because the Commonwealth is not required to provide notice of its intention to invoke the Act until after trial. However, because appellant received notice from the Commonwealth of its intention to invoke the Act prior to trial, see Notice of Mandatory Minimum Sentence Case (filed December 21, 1983), appellant does not have standing to raise this issue. See Commonwealth v. Bonadio, 490 Pa. 91, 94 n. 2, 415 A.2d 47, 49 n. 2 (1980) (one unharmed by feature of statute may not raise its unconstitutionality); Commonwealth v. Dodge, 287 Pa.Superior 148, 153, 429 A.2d 1143, 1146 (1981) (no standing to object to constitutionality of statute unless one is affected by particular feature alleged to be unconstitutional). See also Commonwealth v. Anderson, 345 Pa.Superior Ct. 407, 498 A.2d 887 (1985) (court will not reach constitutionality of notice provision in 42 Pa.C.S.A. § 9712 where defendant was notified before trial), allocatur granted. This claim is therefore without merit.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

SPAETH, President Judge, files a concurring statement.

SPAETH, President Judge,

concurring:

I do not regard the prosecutor’s argument as “permis-. sibl[e]”, maj. op. at 5, but I agree that its impropriety was cured by the trial court’s instruction to the jury. Otherwise, I join in the majority’s opinion.

      . Section 9713 provides in relevant part:
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of [robbery as defined in 18 Pa.C.S. § 3701(a)(i), (ii) or (iii) (relating to robbery) ], or who is convicted of attempt to commit any of these crimes, shall be sentenced to a minimum sentence of at least five years of total confinement if the crime occurs in or near public transportation____
      42 Pa.C.S.A. § 9713(a). Appellant also contends that 42 Pa.C.S.A. § 9712, which mandates a five-year minimum sentence when the accused visibly possessed a firearm during the commission of certain enumerated offenses, is unconstitutional. The lower court did not find § 9712 applicable to the instant case, however, because "a weapon was never actually seen by the complainant during the course of this crime." See Lower Court Opinion at 16. Therefore, we will not consider appellant’s arguments with respect to § 9712.

      . In Commonwealth v. Wright, supra, the Court considered these arguments as they relate to 42 Pa.C.S.A. § 9712, but we believe that the reasoning of Wright is controlling here as well.

      . Section 9713(c) provides in relevant part:
      (c) Proof at Sentencing. — ____The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
      42 Pa.C.S.A. § 9713(c).

      . Appellant also argues that § 9713(c) governs court procedure because it dictates that the court at sentencing shall consider the evidence presented at trial and any. additional evidence that the parties present.

      . In this line of cases, the courts were referring to which party bears the initial burden of producing evidence. Appellant here appears to be challenging § 9713(c) because it sets forth the quantum of proof (a preponderance of the evidence) that the Commonwealth must present. While these are two different elements of the burden of proof, we see no reason to distinguish between them for purposes of determining the legislative authority to establish these standards. In any event, a standard determining which party bears the burden of proof is arguably closer to a rule of procedure than is a standard establishing the necessary quantum of proof.

      . Because the Legislature is presumed to have enacted statutes that are constitutional, see Spidle v. Livingston Construction Co., supra, the existence of numerous statutes dictating burdens of proof for various proceedings is further evidence that the Legislature did not act outside of its legislative authority in enacting § 9713(c). See, e.g., 42 Pa.C.S.A. § 5349(b) (burden of proof on petitioner to show condition in custodial household harmful to child); id. § 6704(d) (burden of proof in paternity action is by preponderance of the evidence); id. § 8343 (burden of proof in defamation action); id. § 9711 (c)(l)(iii) (at sentencing, following conviction for first degree murder, aggravating circumstances must be proved by Commonwealth beyond a reasonable doubt; mitigating circumstances must be proved by defendant by a preponderance of the evidence).


author: WIEAND, Judge:

text:
    503 A.2d 8
    James GARDNER, Appellant, v. Kenneth CLARK & Ann Clark, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Jan. 3, 1986.

      Jerome M. Feinberg, Philadelphia, for appellant.
    Alan M. White, Philadelphia, for appellees.
    Before WIEAND, CERCONE and ROBERTS, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a court may award reasonable counsel fees where homeowners, represented by Community Legal Services, Inc., have prevailed in protracted proceedings to enforce a confessed judgment against their residential real estate. The trial court held that counsel fees were recoverable and made an award of $1,830.00. We affirm.

In June, 1966, Public Acceptance Corporation confessed judgment against Kenneth and Ann Clark for the unpaid balance of an automobile loan. In 1971, the judgment was assigned to Phillip Palmer, a straw party for Dennis Weismer and Stephen Greenstein, trading as Commonwealth Mortgage Company. The judgment was revived in 1971, 1976 and 1979. On December 6, 1979, a writ of execution was issued on the judgment; and on January 7, 1980, the residence of Kenneth and Ann Clark at 2952 Stillman Street, Philadelphia, was sold by the sheriff to James Gardner. He, too, was a straw party for Dennis Weismer and Stephen Greenstein, trading as Commonwealth Mortgage Company.

After the sheriffs sale, the Clarks remained in possession of their home. On July 3, 1980, Gardner commenced an action against the Clarks to quiet title to the Stillman Street property. The Clarks defended the action by using the services of Community Legal Services, Inc. They contended that the execution had been void because it had been based upon a confessed judgment, without an original action as required by Section 407(a) of the Act of January 30, 1974, P.L. 13, No. 6, 41 P.S. § 407(a). Before the action had proceeded to trial, Gardner voluntarily discontinued the action. He contended that the discontinuance had been prompted by a settlement which he was able to effect with his title insurance company. The Clarks argued that the discontinuance had been compelled by the merits of their defense. In any event, it appears that the residential real estate was conveyed to Gardner’s title insurance company, which, in turn, returned the title to the Clarks.

The Clarks next filed a petition requesting the court to award counsel fees. They contended that the recovery of reasonable counsel fees had been authorized by Sections 407(b) and 503 of the Act of 1974. Section 407(b) provides as follows:

“Any debtor who prevails in any action to remove, suspend or enforce a judgment entered by confession shall be entitled to recover reasonable attorney’s fees and costs as determined by the court.”

Similarly, section 503 provides:

§ 503. Reasonable attorney’s fees recoverable
(a) If a borrower or debtor, including but not limited to a residential mortgage debtor, prevails in an action arising under this act, he shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred on his behalf in connection with the prosecution of such action, together with a reasonable amount for attorney’s fee.
(b) The award of attorney’s fees shall be in an amount sufficient to compensate attorneys representing debtors in actions arising under this act as provided in subsection (a) of this section. In determining the amount of the fee, the court may consider:
(1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case.
(2) The customary charges of the members of the bar for similar services.
(3) The amount involved in the controversy and the benefits resulting to the client or clients from the services.
(4) The contingency or the certainty of the compensation.
(c) Any time attorneys’ fees are awarded pursuant to any provision of this act, a borrower or debtor shall not be entitled to duplicate recovery of attorneys’ fees under this section, sections 407 or 504 or any other provision of this act.

As a general rule, each party must pay his or her own counsel fees unless a statute provides otherwise. McDevitt v. Terminal Warehouse Company, 346 Pa.Super. 186, 190, 499 A.2d 374, 376 (1985); Hankin v. Hankin, 338 Pa.Super. 442, 457, 487 A.2d 1363, 1371 (1985); Estate of Wanamaker, 314 Pa.Super. 177, 179, 460 A.2d 824, 825 (1983). By section 407(b) of the Act of 1974, the legislature has authorized the recovery of counsel fees by “[a]ny debtor who prevails in any action to remove, suspend or enforce a judgment entered by confession.” (emphasis added). Section 503(a) provides for the recovery of reasonable counsel fees if a debtor “prevails in an action arising under [the Act of 1974].”

It is correct, as appellant argues, that his action to quiet title was one step removed from the execution proceedings commenced to enforce the confessed judgment. It is also true that the action to quiet title was terminated by a discontinuance and not by an adverse decision of a court. In view of the fact that Gardner was a straw party for the judgment creditor’s assignee, however, it is readily apparent that the action to quiet title was part of a continuing effort to enforce a confessed judgment against appellees’ residence. It is also apparent that appellees’ defense in the action to quiet title was merely an assertion of rights guaranteed by the Act of 1974. Finally, it seems clear that appellees have successfully resisted appellant’s attempt to enforce the judgment against their residence. The statute does not require that there be an adverse, judicial decision in order to support an award of counsel fees. To hold otherwise would compel either the submission of each case to a full trial for the purpose of effectuating the fee provision or the loss to the debtor of the full measure of protection afforded by the legislature. See: Poussard v. Commercial Credit Plan, 479 A.2d 881, 883 (Me.1984). We hold, therefore, that a party prevails if he or she succeeds in obtaining substantially the relief sought. Cf. Hensley v. Eckerhardt, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In this proceeding to enforce the judgment against appellees’ residence, it was appellees who were the “prevailing” parties.

Appellant also contends that appellees have not “prevailed” because the underlying judgment continues to be a valid obligation owed by appellees. He would thereby add a condition to a court’s ability to award counsel fees which the legislature did not prescribe. Irrespective of future attempts to collect this judgment, appellant’s present attempt to enforce it against appellees’ residence has been successfully resisted by appellees. By whatever means appellant seeks to disguise his attempt to enforce the judgment against the residence at 2952 Stillman Street, one fact remains clear. Appellees have prevailed. This is not changed by the lingering possibility that appellant may at some time in the future collect the judgment by other means.

Finally, the legislature has not made an award of reasonable counsel fees contingent upon an obligation to pay counsel fees by the prevailing party. Thus, it is not a bar to an award of counsel fees that the prevailing party in this case was represented by Community Legal Services, Inc., which charged appellees no fee. See: Manning v. Princeton Consumer Discount Co., Inc., 533 F.2d 102, 106 (3rd Cir.1976), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), reh. denied, 429 U.S. 933, 97 S.Ct. 342, 50 L.Ed. 303 (1976); Sellers v. Wollman, 510 F.2d 119, 123 (5th Cir.1975); Johnson v. 2nd National Fund Corp., 515 F.Supp. 1380 (E.D.Pa.1981).

Order affirmed.

CERCONE, J., did not participate in the consideration or decision of this appeal.

      . This section provides as follows:
      As to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, whether by amicable action or otherwise, or on a note, bond or other instrument in writing confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedure, files an appropriate action and proceeds to judgment or decree against defendant as in any original action. The judgment by confession shall be changed as may be appropriate by a judgment, order or decree entered by the court in the action. After the above mentioned original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment. The parties to the action shall have the same rights as parties to other original proceedings. Nothing in this act shall prohibit a residential mortgage lender from proceeding by action in mortgage foreclosure in lieu of judgment by confession if the residential mortgage lender so desires.

      . 41 P.S. §§ 407(b), 503.


text:
    503 A.2d 11
    COMMONWEALTH of Pennsylvania, Appellee, v. Felix Berrios RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1984.
    Filed Dec. 20, 1985.

      John D. Kuhn, Public Defender, Harrisburg, for appellant.
    Gary E. Hartman, District Attorney, Gettysburg, for Com., appellee.
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE, JJ.
   WIEAND, Judge:

When this appeal was previously before the Superior Court, we remanded with directions to the trial court to complete the trial record so that we could fulfill our responsibility as a reviewing court. Commonwealth v. Rivera, 339 Pa.Super. 242, 488 A.2d 642 (1985). A transcript of the trial was then prepared and has now been forwarded to us for review. The issues requiring our attention are (1) whether the evidence was sufficient to sustain the jury’s finding that Felix Berrios Rivera was guilty of recklessly endangering another person; and (2) whether it was error for the court to tell the jury that there was no evidence to support a finding of a lesser degree of robbery as argued by the defense.

The Commonwealth’s evidence showed that Rivera had been one of four persons who entered the home of Maybelle Jacoby on December 28, 1981 and, at rifle point, demanded the combination to her safe. When the intruders were unable to extract the combination from Mrs. Jacoby, they tied her up, along with Mrs. Decker, a tenant. The intruders then searched the Jacoby home and gathered such valuables as they could find. Before leaving, the robber who was holding the gun, a man known as Luis, asked in English and within the hearing of all whether the women should be shot. He was told not to shoot them, and the robbers departed. At trial, Kathy Laughman, who had been one of the robbers, testified as a Commonwealth witness and identified appellant as a participant in the robbery. Indeed, he had held the gun during a part of the robbery. He was found guilty of burglary, robbery, recklessly endangering another person and criminal conspiracy.

In reviewing the sufficiency of the evidence, we view all the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the Commonwealth, which has won the verdict. In this case, we must determine whether the evidence, viewed as aforesaid, is sufficient to permit a finding beyond a reasonable doubt that each element of the offense of recklessly endangering another person was present. Commonwealth v. Davis, 331 Pa.Super. 59, 62, 479 A.2d 1077, 1079 (1984). See: Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718, cert. denied, — U.S. —, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984); Commonwealth v. Carpenter, 330 Pa.Super. 382, 384, 479 A.2d 603, 604 (1984).

A person commits the crime of recklessly endangering another person “if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. This statutory provision was directed against reckless conduct entailing a serious risk to life or limb out of proportion to any utility the conduct might have. This Court held, in Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), that recklessly endangering another person is a crime of assault which requires the “creation of danger.” As such, the Court concluded, there must be an “actual present ability to inflict harm.” Id., 261 Pa.Superior Ct. at 115, 395 A.2d at 1340. To point an unloaded BB gun at another person, the Court held, did not alone constitute a violation of the statute. In a later decision, the Superior Court expanded the holding in Trowbridge and held that a defendant could not be convicted of recklessly endangering another person where the charge had been based on an alleged threat to shoot another person with a gun but there had been no evidence that the gun was in fact loaded. Commonwealth v. Smith, 292 Pa.Super. 443, 437 A.2d 757 (1981). See also: Commonwealth v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129 (1981) (evidence disclosed that shotgun which defendant had pointed at other persons had been unloaded).

Appellant argues in the instant case that because the evidence failed to disclose that the gun had been loaded, the evidence was insufficient to sustain his conviction for recklessly endangering another person. We granted en banc review to consider this argument in light of our earlier decisions that a person could not be guilty of recklessly endangering another person by pointing a gun at another person unless it were also established that the gun was loaded. After reviewing the record, we conclude that the judgment of sentence should be affirmed. Even under our prior decisions, the evidence in the instant case was sufficient to support a finding that there had been a reckless endangerment of the women who had been tied up and threatened with death or serious injury by shooting.

When the evidence is viewed in the light most favorable to the Commonwealth, it seems clear that it was sufficient to support an inference that the robbers had placed their victims in a situation where the risk of death or serious bodily injury was real, not merely apparent. While Mrs. Jacoby’s home was being ransacked, the gun was used to prevent her from interfering. It was pointed at her at all times, primarily at her face, so that she was forced to look into the barrel of the gun. As a result, she began screaming. . She was told to “shut up.” The gun was also used to threaten her in an effort to induce her to reveal the combination to the safe. Finally, she was physically forced to submit to being tied up before the robbers left. Mrs. Jacoby tried to resist by kicking at her tormentors but accomplished nothing but the loss of her shoe. It was then that Luis suggested that the women be shot. There was no reason to believe that this was merely an idle threat which he was incapable of carrying out. His accomplices did not deem it so, for they cautioned Luis and told him that the women were not to be shot. This evidence was sufficient to permit a finding that the victims were in “actual” danger, not merely “apparent” danger, from the pointed gun and that the robbers were , in a position whereby they could, in fact, shoot the victims of the robbery. It was not necessary for the Commonwealth to show by direct evidence that a projectile was in the chamber of the gun.

Appellant also argues that the trial judge invaded the province of the jury when he commented to the jury that there had been no evidence to support a finding that appellant was guilty only of robbery, a felony of the third degree, as charged in the third count of the information. In this count, appellant had been charged with unlawfully taking property physically from the person of another by force. See: 18 Pa.C.S. § 3701(a)(l)(v). The record shows that when, during its deliberations, the jury asked the court to explain the elements of robbery under Section 3701(a)(l)(v), the court said:

I have told you that you are the sole judges of the facts in the case. That’s why I have been a little reluctant to tell you this up until this point but obviously you’re dealing with something that I feel in all fairness I must explain.
There is no evidence in this case that could substantiate a finding of guilty of count 3. The elements of that offense require the taking of property from the person of another. The section was added by the legislature in 1976, and it really covers purse snatching. There is no evidence in this case that anybody took anything from the person of either Miss Jacoby or the other lady.
However,; if you disagree with my recitation of facts and if you find that there is evidence, and I again tell you that your finding of the facts is what governs and not mine.

(N.T. 6/30/82 at 38-39). The court then reiterated the elements of Section 3701(a)(l)(v). These comments, appellant argues, left an “indelible imprint” on the jurors which could not have been erased by telling them that they could disregard the judge’s comments if their recollection of the facts differed from his.

In Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976), the Supreme Court reviewed a similar expression of opinion by a trial judge. There, the trial judge, after telling the jury that they could find the defendant guilty of voluntary manslaughter if they found that the killing had been committed in the heat of passion after adequate provocation, said “I don’t see any of those facts in this case at all.” Id., 468 Pa. at 318, 362 A.2d at 224. The Supreme Court reviewed the evidence and agreed with the trial judge’s assessment of the facts. The Court then stated that when the charge was read as a wholé, the trial judge’s comment was not error. The Court said:

■While informing the jury that in his opinion no facts existed to support a verdict of voluntary manslaughter, the trial court fully informed the jury .of its ability to return such a verdict; specifically told them that only their recollection of the facts controlled; and stated that they were the sole finders of facts. Such a circumscribed statement cannot be said to have impermissibly infringed upon the jury’s function.

Id., 468 Pa. at 320, 362 A.2d at 225. See: Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977); Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977); Commonwealth v. Rivera, 470 Pa. 131, 367 A.2d 719 (1976). In Commonwealth v. Paoli, 327 Pa.Super. 564, 476 A.2d 411 (1984), this Court followed Supreme Court decisions and held that there had been no error where the trial court, after telling the jury that there had been no evidence of any of the elements of manslaughter, repeatedly told the jury that they were not bound by the court’s opinion.

In the instant case, the trial court informed the jury that they were not bound by the court’s recollection of the facts and that it was the jury’s recollection of the facts, and not the court’s recollection, which was controlling. The clear import of the court’s comments was that if the jury found the elements of 18 Pa.C.S. § 3701(a)(l)(v) to be present, it could nevertheless find appellant guilty of robbery under the third count of the information. Under these circumstances, the trial court did not improperly invade the province of the jury, and a new trial is not warranted. Judgment of sentence affirmed.

CERCONE, J., did not participate in the decision of this appeal.

      . The court did not impose a separate sentence for recklessly endangering another person. Instead, the court imposed a single sentence of not less than four nor more than eight years.

      . The provisions of 18 Pa.C.S. § 3701 are as follows:
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of the first or second degree;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
      (v) physically takes or removes property from the person of another by force however slight.
      (2) An act shall be deemed "in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
      (b) Grading. — Robbery under subsection (a)(l)(iv) is a felony of the second degree; robbery under subsection (a)(l)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.


author: HOFFMAN, Judge:

text:
    503 A.2d 14
    COMMONWEALTH of Pennsylvania v. Everett Scott STEVENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1985.
    Filed Jan. 10, 1986.

      Michael J. Malloy, Assistant Public Defender, Media, for appellant.
    Sandra G. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before JOHNSON, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for retail theft and criminal conspiracy. Appellant contends that the lower court abused its discretion in sentencing him outside of the sentencing guidelines, see 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721, solely because of his prior record. Appellant argues that his prior record was already taken into account in his prior record score, which is used in determining the recommended sentencing ranges under the sentencing guidelines. (Brief for Appellant at 9). For the following reasons, we affirm in part, vacate in part, and remand for resentencing.

Following a jury trial, appellant was convicted and sentenced to a term of two-and-one-half-to-five years imprisonment for retail theft and a concurrent term of one-to-two years imprisonment for criminal conspiracy. A motion to modify the sentence was timely filed and denied. This appeal followed.

We agree with appellant that he was sentenced outside of the sentencing guidelines for the offense of retail theft. Appellant’s prior record score is six, see N.T. February 7, 1985 at 4, and the offense gravity score for a first conviction for retail theft, a misdemeanor of the first degree, is three, 204 Pa.Code § 303.8. For these scores, the sentencing guidelines provide for a minimum range of eight-to-twelve months, a mitigated minimum range of four-to-eight months, and an aggravated minimum range of twelve-to-eighteen months. Id. at § 303.9. Therefore, appellant’s minimum sentence of two and one-half years was one year longer than the longest sentence provided for in the guidelines.

A sentencing “court shall ... consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing____” 42 Pa.C.S.A. § 9721(b). “The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth.” Commonwealth v. Royer, 328 Pa.Superior Ct. 60, 66, 476 A.2d 453, 456 (1984). When computing a sentence under the sentencing guidelines, the sentencing court first determines a defendant’s prior record score, which is a score based on the number of the defendant’s prior criminal convictions and juvenile adjudications. See 204 Pa.Code § 303.7. That score is then used in conjunction with the offense gravity score, a score based on the severity of the present offense, see id. § 303.8, to determine the relevant sentencing ranges. See id. § 303.2. A sentencing court may, of course, sentence outside the guidelines, but when doing so, must provide a contemporaneous written statement to explain the reason(s) for that action. 42 Pa.C.S.A. § 9721(b); 204 Pa. Code § 303.1(h).

The Implementation Manual of the Pennsylvania Commission on Sentencing provides sentencing courts with additional guidance on using the sentencing guidelines. With reference to sentencing within the aggravated or mitigated ranges of the Sentencing Guidelines, the manual states that, “[ojrdinarily, sentences should not be aggravated or mitigated for circumstances incorporated in other provisions of the guidelines, such as deadly weapon possession or prior record score.” Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual, Part V at 15 (1982). It follows, then, that if sentences should not be imposed in the aggravated or mitigated ranges because of circumstances incorporated in other provisions of the guidelines, a sentencing court should not impose a sentence entirely outside of the guideline ranges solely based on a criterion already incorporated in other provisions of the guidelines.

Here, the sentencing court stated on the record that it was sentencing appellant outside of the guidelines because of appellant’s continual involvement with the criminal justice system since 1965 and “to protect society [because] [a]s long as [appellant] is in jail he can’t be out committing crimes____” (N.T. February 7, 1985 at 14-16). The court then enumerated a series of appellant’s prior offenses. {Id. at 15). Thus, in the written statement explaining why appellant was sentenced outside of the guidelines, the sen-fencing court relied on a single factor: appellant’s prior record. The court should not have relied on his prior record alone, however, because it was a factor already accounted for in the sentencing guideline ranges. Therefore, the sentencing court, in effect, accorded double weight to appellant’s prior record in determining his sentence.

Accordingly, because the court below relied solely on appellant’s prior record to impose a sentence outside of the sentencing guideline ranges for retail theft, that sentence must be vacated and this case remanded for resentencing. The sentence for criminal conspiracy is affirmed.

Judgment of sentence for criminal conspiracy affirmed. Judgment of sentence for retail theft vacated and remanded for resentencing. Jurisdiction is relinquished.

      . We need not consider appellant’s claim of error regarding his sentence for criminal conspiracy because the sentence imposed by the court below was not outside the sentencing guideline ranges. The offense gravity score for criminal conspiracy, here a misdemeanor of the second degree, is two. 204 Pa.Code § 303.8. The sentencing ranges for a prior record score of six and an offense gravity score of two are as follows: the minimum range is five-to-twelve months, the mitigated minimum range is two-and-one-half-to-five months, and the aggravated minimum range is the statutory limit, here twelve months. Id. at § 303.9. With regard to the latter range, we note that the statutory limit referred to in § 303.9 is the "longest minimum sentence permitted by law.” Id. For a sentence of total confinement, the minimum sentence cannot exceed one-half of the maximum sentence imposed. 42 Pa.C.S.A. § 9755(b). Therefore, because the maximum sentence that can be imposed for a misdemeanor of the second degree is two years, 18 Pa.C.S.A. § 1104(2), the statutory limit is one year. Here, appellant’s minimum sentence of one year for criminal conspiracy was within both the minimum and the aggravated minimum ranges.

      . In Commonwealth v. Mills, 344 Pa.Superior Ct. 200, 496 A.2d 752 (1985) we rejected a similar argument. In that case, however, we did not agree with the defendant that the sentencing court had considered only his prior convictions in sentencing him outside of the sentencing guideline ranges. There, we stated that the sentencing court considered that the defendant had been sentenced repeatedly for burglary offenses, that prior attempts at rehabilitation had failed, that he had been on probation when he committed the burglary for which he was being sentenced, that he had established a pattern of disrespect for the homes and property of others, and that he had been sentenced outside of the guideline ranges for his last burglary offense. Id., 344 Pa.Superior Ct. at 200, 496 A.2d at 752. Therefore, we find Mills distinguishable from the instant case.


author: CAVANAUGH, Judge:

text:
    503 A.2d 17
    COMMONWEALTH of Pennsylvania, Appellee, v. Eric M. RAYNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 12, 1985.
    Filed Jan. 10, 1986.

      Ronald M. Puntil, Jr., Altoona, for appellant.
    Ellen L. Cohen, Assistant District Attorney, Williamsport, for Com., appellee.
    Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   CAVANAUGH, Judge:

Appellant, Eric M. Raynes, was arrested and subjected to multiple charges on three different dates in 1981. On September 1, 1982 he entered pleas of guilty to certain of these charges and was sentenced as follows:

(A) “Time served” to two years imprisonment. Jail sentence then imposed, suspended, and appellant placed on two years probation.
(B) One year probation consecutive to (A).
(C) Two years probation consecutive to (A) and (B).
On September 15, 1983 the September 1, 1982 sentences

were duly revoked and appellant was given:

(A) Two years probation.
(B) One year probation consecutive to (A).
(C) Two years probation consecutive to (A) and (B).
On March 7, 1984 the September 15, 1983 probation

sentences were duly revoked and appellant was given:

(A) Two years probation.
(B) One year probation consecutive to (A).
(C) Two years probation consecutive to (A) and (B).

Finally, on December 21, 1984, the March 7, 1984 probation sentences were duly revoked and appellant was given:

(A) Two to four years incarceration.
(B) One to two years incarceration concurrent to (A).
(C) Two to four years incarceration consecutive to (A) and (B).

Raynes appeals from the denial of his motion for modification of sentence. The sole issue raised on appeal relates to the sentence (A) imposed on December 21, 1984. Appellant does not challenge the right of the court to revoke the probation, but argues that since, at the time of the initial sentence on September 1, 1982, he was given a sentence of incarceration with a maximum of two years, albeit it was suspended in favor of a probation sentence, he may not now be given a sentence in excess of the September 1, 1982 maximum. Thus, it is argued that the two to four year sentence of December 21, 1984 is improper and must be vacated.

Several cases merit consideration. In Commonwealth v. Tomlin, 232 Pa.Super. 147, 336 A.2d 407 (1975) a defendant was given a one to five year prison sentence. It was promptly vacated and a seven year probation sentence was later imposed. The Superior Court reversed a three and one-half to seven year sentence given following a violation of probation. Our court held that, even though the trial court’s sentence was subsequently vacated, the maximum term of sentence on the violation of probation is limited to the maximum term of the original sentence. The court, applying double jeopardy principles, held that it made no difference whether the original sentence was “vacated” or “suspended.” Later, Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978) was a case where defendant was given a sentence with a maximum of four years which was vacated in favor of a sentence of four years probation. Upon violation of probation, defendant was given a sentence of one and one-half to three years (appellant argued that this was harsher than the original sentence, since the minimum was substantially higher). The Supreme Court majority, without reference to Commonwealth v. Tomlin, supra, held that after an order vacating sentence, the sentence becomes a nullity and the court is free to sentence more severely than the original sentence so long as justified by conduct subsequent to the original sentencing. The last condition was deemed necessary in obedience to double jeopardy principles. See Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974). The Colding court, therefore, recognized that the act of vacating a sentence was crucial. At the same time the court in Colding approved a distinction set forth in Commonwealth v. Cole:

“If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited, however, to the maximum term under which the defendant was originally sentenced. Our Supreme Court has held that a ‘modification of a sentence imposed on a criminal defendant which increases the punishment constitute^] further or double jeopardy.’ Commonwealth v. Silverman, 442 Pa. 211, 215, 275 A.2d 308 (1971); see also Commonwealth v. Davy, 218 Pa.Super. 355, 280 A.2d 407 (1971).
“The instant case does not involve a situation where appellant was re-sentenced after a suspended sentence. By exercising the statutory option of imposing a period of probation in lieu of sentencing, the court defers sentencing a defendant to a fixed term of imprisonment until such time as the defendant has violated the conditions of his probation. In other words, the setting of the term of probation is not a term of sentence, and may not act as a limitation on the court to impose a sentence for a term of years greater than the probationary period, not in excess of the maximum fixed by law for the particular offense. The sentence imposed by the court in the instant case — a period of imprisonment of not less than three years nor more than ten years — was within the court’s power as authorized by law. It was not a violation of the double jeopardy clause to sentence the appellant to the maximum prison sentence allowable at the time of the original sentencing.” Commonwealth v. Cole, 222 Pa.Super. 229, 231-232, 294 A.2d 824, 825-826 (1972) (footnotes omitted). See also Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943).

Commonwealth v. Colding, 482 Pa. 112, 116-17, 393 A.2d 404, 407 (1978); quoting Commonwealth v. Cole, 222 Pa.Super. 229, 231-232, 294 A.2d 824-886 (1972) (footnotes omitted).

The court thus approved the distinction between “suspended” and “vacated” sentences, and held that in vacating a sentence it became a nullity and the court was free to sentence to a term more severe than the original sentence. When the sentence is suspended and not vacated the result is otherwise. In Commonwealth v. Scheetz, 217 Pa.Super. 76, 268 A.2d 193 (1970), a defendant was given a term jail sentence which was then suspended in favor of a sentence of probation. Upon violation of probation, the sentencing court gave him a sentence more severe than the suspended sentence. On appeal, this court held that the court could not sentence more severely than the sentence originally imposed.

The relevant portion of Raynes’ original (September 1, 1982) sentence is as follows:

It is HEREBY ORDERED, DIRECTED AND DECREED that as to the charge of Burglary at C.A. # 353 of 1981, the defendant, Eric M. Raynes, is sentenced to pay the costs of prosecution and to pay a fine in the amount of One Hundred Fifty Dollars ($150) and he is sentenced to time served (to two years). The jail sentence here imposed is suspended and the defendant is placed on probation for a period of two (2) years under the direction of the Pennsylvania Board of Probation and Parole.

Under Scheetz, supra, it is clear that since the sentence was suspended and not vacated upon the first violation of probation, the sentence could not exceed the original suspended sentence term. In fact, the sentence given at that time, September 15, 1983, did not exceed the suspended sentence term, but was, in fact, a lesser sentence — two years probation. On March 7, 1984, when appellant was again in violation of probation, it was the probation sentence of September 15, 1983 that was violated, and, in turn, when he was given the disputed prison sentence on December 21,1984, it was because he was found in violation of the March 7, 1984 sentence of probation. The sentence given on December 21, 1984 was from the sentence of probation unencumbered by a suspended sentence. The theory of the suspended sentence is that its imposition is deferred while the defendant is given the opportunity to prove himself on probation. It is reasonable that the sentencing court should be held to the limits of its prescribed sanction upon the violation of probation. However, when a new sentence of probation was given, the limitation was not renewed and upon subsequent violation, the court is only bound by the sentencing strictures relating to the probation sentence which was violated. We decide, therefore, that the court was free to give the two to four year sentence on December 21, 1984, and was not limited to imposing the sentence suspended on September 1, 1982.

Judgment of sentence affirmed.

      . To the extent that Pennsylvania cases which prohibit the imposition of more severe sentences after imposing a lesser sentence have been grounded on federal constitutional double jeopardy principles they may no longer be controlling authorities. Pennsylvania v. Goldhammer, — U.S. —, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), reversing Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985).

      . It is clear that a more severe sentence may be given upon a finding that an order of probation has been violated or its conditions not met. Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967).


text:
    503 A.2d 20
    COMMONWEALTH of Pennsylvania v. John C. VOYTKO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Jan. 10, 1986.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   WIEAND, Judge:

John Voytko was tried by jury and was found guilty of third degree murder in connection with the shooting death of Robert Cole. On direct appeal from the judgment of sentence, the principal arguments advanced are that the trial court erred in allowing the jury to examine photographs of the interior of the decedent’s truck following the shooting, and that the trial court inadequately instructed the jury on the offense of voluntary manslaughter.

The evidence presented at trial showed that approximately seven weeks prior to the shooting, Voytko had found his wife, Michelle, in bed with Robert Cole at the latter’s home. Six weeks later, about a week before the shooting, Voytko and Cole became involved in a fight. About the same time, Voytko and his wife had an argument, and she left the marital home to return to the home of her parents. On May 23, 1983, at or about 5:00 a.m., Cole returned Michelle to her parents’ home following a date. As Cole was parking his truck, Voytko pulled in behind him, stopped and walked over to the truck. He screamed that his wife should get out of the truck. When Cole opened the door on the driver’s side of the truck, Voytko shot Cole in the head with a shotgun. Voytko then retreated to the back yard of the home, threatening to commit suicide. Police were summoned and, after an extensive conversation with Voytko, were able to persuade him to dismantle the gun and surrender. Cole died later the same day.

Appellant’s first contention is that the trial court erred when it allowed into the jury room two black and white photographs depicting the interior of Cole’s truck after the shooting. These photographs, appellant argues, were inflammatory, and their prejudicial effect outweighed any evidentiary value they might have had.

In Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984), the Supreme Court said:

The admission into evidence of photographs depicting the corpse of the homicide victim or the location and scene of the crime lies within the sound discretion of the trial judge. See Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980); Commonwealth v. Gilman, 485 Pa. 145, 152, 401 A.2d 335, 339 (1979); Commonwealth v. Gidaro, 363 Pa. 472, 474, 70 A.2d 359, 360 (1950). A photograph which is judged not inflammatory is admissible if “it is relevant and can assist the jury in understanding the facts.” Commonwealth v. Gilman, 485 Pa. at 153, 401 A.2d at 339. A gruesome or potentially inflammatory photograph is admissible if it is of “such essential evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982) (quoting Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 [1974]). The fact that blood is visible in a photograph does not necessarily require a finding that the photograph is inflammatory. Commonwealth v. Hudson, 489 Pa. at 631, 414 A.2d at 1387; Commonwealth v. Sullivan, 450 Pa. 273, 281, 299 A.2d 608, 612, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973).

Id., 505 Pa. at 313, 479 A.2d at 478. A trial court, in determining whether to admit photographs must apply a two-part analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors.

Commonwealth v. Hudson, supra, 489 Pa. at 630, 414 A.2d at 1386 (citations omitted).

The black and white photographs challenged by appellant in the instant case were not inflammatory. They were photographs of the front seat and dashboard of the victim’s truck. Although there were spots depicted on the seat, they can be identified as blood or flesh only by oral testimony identifying them as such. Because the photographs were black and white, the spots themselves did not render them inflammatory. The trial court held that the photographs had probative value because there was a “factual dispute concerning where defendant stood and how the victim was situated at. the moment the shot was fired.” Trial court opinion at p. 5.

In Commonwealth v. Howard, 324 Pa.Super. 443, 471 A.2d 1239 (1984), the Commonwealth offered and the trial court received four black and white photographs depicting the interior of the vehicle where a policeman had been shot. Shown on the photographs were spots which, appellant contended, were blood, teeth and bone fragments of the victim. This Court determined that “[t]he possibility of inflaming the juror’s [sic] minds and passions with the black and white photographs admitted by the trial court is virtually non-existent. Additionally, the photographs do have evidentiary value. Our review finds that the trial court properly admitted these photographs.” Id., 324 Pa.Superior Ct. at 456, 471 A.2d at 1245. For similar reasons, the trial court in this case could properly admit the black and white photographs depicting the interior of the victim’s truck.

Appellant also argues that the trial court erred in permitting the photos to go out with the jury during its deliberations. “Pa.R.Crim.P. 1114 vests discretion in the trial judge to determine which, if any, exhibits shall be taken out with the jury during its deliberations.” Commonwealth v. Datesman, 343 Pa.Super. 176, 188, 494 A.2d 413, 419 (1985). The trial court’s determination with respect thereto will be reversed only where an abuse of discretion is shown. Commonwealth v. Merbah, 270 Pa.Super. 190, 196, 411 A.2d 244, 247 (1979); Commonwealth v. Whyatt, 235 Pa.Super. 211, 218, 340 A.2d 871, 875 (1975). We have already concluded that the trial court did not err in admitting the photographs. For the same reasons, there was no abuse of discretion in the court’s permitting the jury to examine the same during its deliberations.

Voluntary manslaughter is defined by the Crimés Code as a killing committed without lawful justification but “under a sudden and intense passion resulting from serious provocation[.]” 18 Pa.C.S. § 2503(a). The term passion “means any of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflectionf.]” Commonwealth v. Colandro, 231 Pa. 343, 351, 80 A. 571, 574 (1911), quoting 6 Words & Phrases, p. 5227.

The primary factual determination to be made by the jury in this case was whether appellant’s act of shooting Robert Cole had been deliberate and premeditated or whether it had been an act committed during the heat of passion caused by adequate provocation. In support of the Commonwealth’s argument that it had been an intentional killing, evidence was presented that four days before the shooting, police had been summoned and found appellant in a wooded area behind the home of his wife’s parents. When asked what he was doing, appellant explained that he was checking up on his wife because of marital problems which they had been experiencing. This evidence was relevant to show appellant’s state of mind. Therefore, it was properly received. It was not excludable, as appellant contends, on the grounds that it showed prior bad conduct on the part of the appellant.

“In making the objective determination as to what constitutes sufficient provocation [to reduce a homicide to voluntary manslaughter] reliance may be placed upon the cumulative impact of a series of related events. The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was ‘incapable of cool reflection.’ ” Commonwealth v. McCusker, 448 Pa. 382, 389-390, 292 A.2d 286, 290 (1972) (footnotes omitted). See also: Commonwealth v. Henderson, 273 Pa.Super. 51, 416 A.2d 1084 (1979).

Appellant requested a jury instruction that was consistent with the foregoing language from MeCusker, The trial court refused the requested instruction. Instead, the trial court charged:

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. A provocation cannot be considered serious if there is enough time between the provocation and the killing so that the passion of a reasonable person would have cooled.

(N.T. 1/24-27/84, at pp. 416-417.)

“Where there is evidence of a series of related events which tend to establish adequate provocation, the trial court should, give [a] requested [McCusker] instruction.” Commonwealth v. Solomon, 471 Pa. 417, 418, 370 A.2d 372, 373 (1977). However, “a trial court is free to use any language of its choice, so long as it covers the issues in terms understandable to the jury.” Commonwealth v. Henderson, supra, 273 Pa.Super. at 54, 416 A.2d at 1085. In the instant case, there was evidence of a series of events upon which appellant relied to establish adequate provocation. Those events were similar in kind to the events which had preceded the killing in Commonwealth v. McCusker, supra. Here, appellant had found his wife in an act of adultery with Cole, had physically fought with Cole, had argued with his wife, had been deserted by his wife and, finally, had found her in Cole’s company, returning from a date, at 5:00 a.m. While the trial court was free to use its own language to define the crime of voluntary manslaughter, it was required to instruct the jury regarding the significance of the series of events relied upon by appellant to show provocation. It failed to do so. The trial court’s instructions did not at any time or in any manner tell the jury that serious provocation could be found from the cumulative effect of a series of related events. This was error of sufficient proportions to require that a new trial be granted.

In view of the fact that a new trial is necessary, we do not review the sentence imposed by the trial court. Similarly, we do not consider appellant’s averments that trial counsel rendered ineffective assistance. Indeed, we cannot. Ineffective assistance is not apparent from the record, and appellant is represented, as he was at trial, by the Allegheny County Public Defender’s Office.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . Appellant requested the trial court to instruct the jury as follows:
      The ultimate test for adequate provocation remains whether a reasonable man, confronted with a series of related events, became impassioned to the extent that his mind was incapable of cool reflection.
      If the defendant inflicted the wounds in a sudden transport of passion, excited by what the deceased then said and by the preceding events which, for the time, disturbed his reasoning faculties and deprived him of the capacity to reflect, or while under the influence of some sudden or uncontrollable emotion excited by the final culmination of his misfortunes, as indicated by the train of events which have been related, the act did not constitute murder in the first degree. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286, 290 (1972).