author: POPOVICH, Judge: WIEAND, Judge, KELLY, Judge,

text:
    550 A.2d 213
    COMMONWEALTH of Pennsylvania, Appellee, v. Dorothy FINLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed Oct. 31, 1988.

      Catherine M. Harper, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case is on remand from the United States Supreme Court, which, in reversing a three-judge panel of this Court, concluded that federal constitutional law did not require that Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), be made applicable to collateral proceedings under the Post Conviction Hearing Act (PCHA).

We perceive our role now to be one of assessing whether PCHA counsel’s “no-merit” letter and the PCHA court’s independent review of the evidence in light of the pro se PCHA request for relief comport with Finley’s entitlement to effective counsel under Pennsylvania law so as to sanction the withdrawal of PCHA counsel.

Our task is facilitated by the pronouncement in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), wherein our Supreme Court “clarified”, and for all intents and purposes established, the procedures to be followed henceforth under Pennsylvania law when it comes to the allowance of withdrawal of appointed or privately-retained counsel in collateral proceedings, be it in a PCHA context, “in a trial or appellate court.” Id., 518 Pa. at 495, 544 A.2d at 929.

Of interest to us is that the Turner Court made specific reference to Superior Court’s panel decision in Commonwealth v. Finley, supra at note 2, and our attempt to fashion a procedural formula which adopted the federal standard of Anders to collateral proceedings wherein PCHA counsel sought to withdraw, and its reversal by the United States Supreme Court in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

As is herein relevant, our Supreme Court endorsed the PCHA court’s independent review of the record as a followup to counsel’s “no-merit” letter itemizing his/her in-depth examination of the case and the reasons for concluding that the petition was meritless. No further inquiry, notification to the petitioner or a finding that the claims of the petitioner were “wholly frivolous” was deemed necessary.

Rather, “ ‘an independent review of the record by competent counsel....’” was all the petitioner was entitled to receive under state law, at least according to the Majority of the United States Supreme Court. See Turner, supra, 518 Pa. at 494, 544 A.2d at 928, quoting Pennsylvania v. Finley, supra, 481 U.S. at 558, 107 S.Ct. at 1995, 95 L.Ed.2d at 548. This view has been adopted by our highest Court in its holding that the actions of counsel and the PCHA court in Commonwealth v. Finley, 380 Pa.Super. 313, 479 A.2d 568 (1984) (Rowley, J. dissenting), rev’d sub nom Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), in other words the case which is before us now for review, were proper in ensuring the petitioner’s right to effective representation. More particularly, the “independent review” necessary to assure a withdrawal request by PCHA counsel required proof of:

1) A “no-merit” letter by PCHA counsel detailing the nature and extent of his review;
2) The “no merit” letter by PCHA counsel listing each issue the petitioner wished to have reviewed;
3) The PCHA counsel’s “explanation”, in the “no-merit” letter, of why the petitioner’s issues were meritless;
4) The PCHA court conducting its own independent review of the record; and
5) The PCHA court agreeing with counsel that the petition was meritless.

Once counsel for the petitioner determines that the issues raised under the PCHA are “meritless”, and the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed on his own or with the aid of private counsel to pursue a review of the ruling entered, if he/she so wishes. See Turner, supra.

Instantly, inasmuch as our review is of facts which already have been (explicitly) addressed by the Court in Turner, and found to be consonant with effective representation on the strength of counsel’s and the PCHA court’s actions in Commonwealth v. Finley, supra, the course for us to pursue is clearly lit. Accordingly, we are in agreement with the actions taken by PCHA counsel below and the PCHA court’s affirmance of the same.

Order affirmed.

WIEAND, J., files a concurring opinion joined by OLSZEWSKI, J.

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

WIEAND, Judge,

concurring:

I concur in the decision of the majority to affirm the order of the trial court which dismissed appellant’s P.C.H.A. petition without hearing.

Dorothy Finley was tried non-jury and was found guilty of murder of the second degree, robbery, weapons offenses, and criminal conspiracy. The judgment of sentence was affirmed by the Supreme Court of Pennsylvania. See: Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978). Finley then filed a P.C.H.A. petition, which the trial court dismissed without a hearing and without appointing counsel. The Supreme Court of Pennsylvania, on appeal, remanded with instructions to the P.C.H.A. court to determine whether Finley was indigent and, if so, to appoint counsel. See: Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981).

The succeeding proceedings were described by the P.C. H.A. court as follows:

Following the above-mentioned remand by our Supreme Court, court-appointed counsel ... reviewed the notes of testimony, Quarter Sessions file, issues of fact and law forwarded by Defendant herself, spoke with Defendant, conducted his own review for contentions which only a trained legal mind would discover, and concluded that no arguably meritorious issues existed. He then sought advice from this Court.
Counsel was instructed that he must take his client as he finds her; that the mere fact of having been appointed to represent a pro se Petitioner could not guarantee the existence of arguable contentions which might entitle the Defendant to post-conviction relief; that acceptance of the responsibility of a court-appointment in no way requires that he “find” an issue (e.g., manufacture an issue or present an issue not arguably meritorious); and that he must proceed as a responsible advocate and exercise his best professional judgment.
Counsel was instructed that where he had completed a comprehensive review of the entire record and the applicable law, and had interviewed Defendant and concluded that the record was devoid of arguably meritorious contentions, counsel should write this Court in letter form detailing not only the nature and extent of his review, but also listing each issue Defendant herself wished to have raised, followed by an explanation why those issues were meritless. At that point, this Court would conduct its own independent review and, if our conclusions coincided with counsel’s, the Petition would be dismissed without a hearing and Defendant would be apprised of her appellate rights.
Here, this procedure was followed and the Petition was dismissed without a hearing. Counsel was relieved with new counsel appointed to prosecute the instant appeal.

On appeal by new counsel, a panel of this Court, having accepted an argument advanced by appellant, held that P.C.H.A. counsel had been ineffective for failing to follow the requirements set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Commonwealth filed a petition for allocatur, which was granted by the Supreme Court of Pennsylvania. Subsequently, however, the Supreme Court dismissed the appeal as having been improvidently granted. See: Commonwealth v. Finley, 510 Pa. 304, 507 A.2d 822 (1986). Certiorari was then granted by the United States Supreme Court.

In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the Supreme Court of the United States held that the Anders decision, which had been based on the constitutional right to appointed counsel as established in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), is not applicable to collateral attacks on convictions. Where a state chooses, nevertheless, to provide appointed counsel for the purpose of assisting an indigent criminal launch a collateral attack on his conviction, the United States Constitution does not dictate the form which such assistance must take. Therefore, the judgment of the Superior Court was reversed and the matter remanded for further proceedings.

Finley's right to appointed counsel in P.C.H.A. proceedings rests upon Pa.R.Crim.P. 1503 and 1504. Neither these rules nor any other criminal rule imposes upon appointed counsel a duty to proceed in the manner directed by Anders.

Finley has been convicted and, therefore, is no longer protected by the presumption of innocence. Consequently, the burden is on her in a collateral attack on her conviction to show that her conviction was invalid. See: 42 Pa.C.S. § 9543. The lawyer who represents her in collateral proceedings, whether retained or appointed, “has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court, so if he believes in good faith that there are no ... arguments that he can make on his client’s behalf he is honor-bound to so advise the court and seek leave to withdraw as counsel.” McCoy v. Court of Appeals of Wisconsin, District 1, — U.S. —, —, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440, 452 (1988), quoting United States v. Edwards, 777 F.2d 364, 365 (7th Cir.1985). When retained counsel concludes that a collateral attack via P.C.H.A. petition would be frivolous, he or she has a duty to inform the client that it would be a waste of money for the client and unethical for the lawyer to pursue it. When appointed counsel comes to the same conclusion, he or she also has an obligation not to pursue the collateral attack. “Appointed counsel, however, is presented with a dilemma because withdrawal is not possible without leave of court, and advising the court of counsel’s opinion that the [collateral attack] is frivolous would appear to conflict with the advocate’s duty to his client. It is well settled, however, that this dilemma must be resolved by informing the court of counsel’s conclusion.” McCoy v. Court of Appeals of Wisconsin, District 1, supra, — U.S. at —, 108 S.Ct. at 1901, 100 L.Ed.2d at 452. As the Supreme Court of the United States explained in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981),

[Appellant’s] argument assumes that a private lawyer would have borne no professional obligation to refuse to prosecute a frivolous appeal. This is error. In claiming that a public defender is peculiarly subject to divided loyalties, [appellant] confuses a lawyer’s ethical obligations to the judicial system with an allegiance to the adversary interests of the State in a criminal prosecution. Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals. [Appellant] has no legitimate complaint that his lawyer refused to do so.

Id. at 323, 102 S.Ct. at 452-53, 70 L.Ed.2d at 519-520 (footnote omitted).

Every P.C.H.A. lawyer, whether privately retained or appointed by the court, has essentially the same professional responsibility. He or she must communicate with the client, examine the record, research the law, and identify arguments which can be pursued via collateral attack. In so doing, counsel must serve the best interests of the client. If, after such an evaluation, counsel comes to the conclusion that a collateral attack is “wholly frivolous,” he may inform the court and seek to withdraw. McCoy v. Court of Appeals of Wisconsin, District 1, supra, — U.S. at —, 108 S.Ct. at 1901, 100 L.Ed.2d at 452.

In the instant case, appointed counsel consulted with his client, examined the client’s allegations of error, reviewed the record to determine whether those allegations of error or other arguments could be pursued, and concluded that there were no arguably meritorious issues which could be advanced. Counsel thereupon notified the court by letter that appellant had no meritorious argument. The P.C.H.A. court then made an independent review of the record and also concluded that there were no meritorious arguments to support a collateral attack on appellant’s conviction. The court, therefore, dismissed the P.C.H.A. petition without a hearing.

On appeal to a three judge panel of this Court from the P.C.H.A. court’s order, appellant argued only that prior P.C.H.A. counsel had been ineffective because he “failed to file an amended P.C.H.A. petition or a brief on behalf of his client and chose instead to outline for tlie court reasons why a P.C.H.A. petition would be meritless.” Statement of Questions Presented in Appellant’s original brief. Upon remand by the United States Supreme Court and reargument before this Court, sitting en banc, appellant filed a supplemental brief in which her argument was summarized and entitled as follows:

Appellant was denied the effective assistance of court-appointed PCHA counsel that she was entitled to under both Pennsylvania law and the remand order of the Pennsylvania Supreme Court when court-appointed counsel filed a “no merit” letter with the PCHA court instead of following the Anders procedure.

This issue has been properly raised on appeal, for this is the first opportunity to do so at which appellant has not been represented by counsel who is alleged to have been ineffective. See: Commonwealth v. Payne, 327 Pa.Super. 139, 143, 475 A.2d 137, 139 (1984); Commonwealth v. Moore, 321 Pa.Super. 442, 448-449 n. 1, 468 A.2d 791, 794 n. 1 (1983).

Appellant’s argument, however, is lacking in merit. In Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), the Supreme Court said:

Under Pennsylvania law, where the PCHA petitioner’s right to counsel is established by rule of this Court, Pa.R.Crim.P. 1503, 1504, we hold that the procedure followed in the Finley case accorded the PCHA petitioner all the protection incorporated in the right to appointed counsel in collateral proceedings under the PCHA. Thus, the implication by Superior Court that the requirements of Anders and [Commonwealth v. ] McClendon supra [495 Pa. 467, 434 A.2d 1185 (1981)], governed the withdrawal of counsel in this case is erroneous. When, in the exercise of his professional judgment, counsel determines that the issues raised under the PCHA are meritless, and when the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed pro se, or by privately retained counsel, or not at all. The same procedure should be followed at any stage of the collateral proceedings, whether in a trial or appellate court. Inasmuch as the United States Supreme Court decided in Pennsylvania v. Finley, supra, that the federal constitutional considerations underlying the tortuous procedures of Anders do not apply under the PCHA, we deem these less rigid requirements for withdrawal of counsel to satisfy Pennsylvania law in collateral attacks on criminal convictions.

Id., 518 Pa. at 495, 544 A.2d at 928-29.

Therefore, I concur in the decision of the majority to affirm the order of the trial court. However, I do not join what appears to be an attempt by the majority to use the facts of the instant case to formulate a five step procedure to be followed in the future by counsel appointed to represent an indigent defendant who seeks to pursue a nonmeritorious collateral attack on a conviction. It is enough in this case that P.C.H.A. counsel provided effective professional assistance and that appellant’s P.C.H.A. petition was properly dismissed.

KELLY, Judge,

concurring and dissenting:

In light of our Supreme Court’s unequivocal statement that “the procedures followed in the Finley case accorded the PCHA petitioner all the protection incorporated into the right to appointed counsel in collateral proceedings under the PCHA,” our disposition of this appeal is a foregone conclusion. See Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928 (1988).

I nonetheless dissent from that portion of the majority opinion which suggests that counsel seeking to withdraw in future PCHA appeals will be required to explain why petitioner’s issues were meritless. It is true that neither federal nor Pennsylvania law precludes court-appointed counsel from including in his Finley letter accompanying his motion to withdraw as counsel an explanation of the absence of merit in the petitioner’s issues. See McCoy v. Court of Appeals, 486 U.S. —, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). It is quite a different thing, however, to suggest that such an explanation is required. Our Supreme Court has not promulgated a rule like that at issue in McCoy (which explicitly required such an explanation).

While Turner permits substitution of a Finley letter for an Anders brief, I find nothing in Turner to require inclusion of such an explanation, or indeed to preclude continued disapproval of a counsel’s usurpation of the prosecutorial function and “sandbagging” of his client by including in a Finley letter a gratuitous explanation of the absence of merit of his client’s issues. Cf. Commonwealth v. Jones, 451 Pa. 69, 75, 301 A.2d 811, 815 (1973); Commonwealth v. Green, 355 Pa.Super. 451, 460, 518 A.2d 1008, 1012 (1986); Commonwealth v. Brockington, 268 Pa.Super. 54, 58, 407 A.2d 433, 435 (1979).

If the petitioner’s issues are truly frivolous that fact will be apparent and counsel’s explanation will do nothing to enhance judicial review of the motion to withdraw or the appeal, yet it may do much to undermine the appearance of fairness which counsel’s original appointment was intended to communicate to the petitioner and to the community as a whole. While actual prejudice to the accused does not arise from such an explanation, a distinct and unnecessary appearance of unfairness does.

Consequently, though I am inclined to agree with Judge Wieand that the promulgation of a rule for future cases is unnecessary to the disposition of this case and beyond the function of this Court, in response to the suggestion of the majority regarding Turner’s implications for future cases, I note that I would definitely not construe Turner to require that a Finley letter contain an explanation of “why petitioner’s issues were meritless.”

      . Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

      . Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984) (Rowley, J. dissenting).

      . 42 Pa.C.S. § 9541 et seq.

      . As made mention of by the Turner Court, the procedures referred to therein are to embrace all proceedings in which (appointed or privately-retained) counsel seeks to withdraw. It necessarily follows that the initial court before whom the request to withdraw is pleaded would logically be the tribunal making the ruling. Cf. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) (Trial court is to determine whether double jeopardy claim is meritorious; presence of frivolous claim renders order denying motion to dismiss interlocutory and appellate review of the same must await completion of trial). This assessment, as always, would be subject to appellate scrutiny to assure that the object of the withdrawal request complies with the strictures of the law, as was clarified in Turner, supra.

      . Pa.R.Crim.P. 1503 is as follows:
      Appointment of Counsel
      (a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him. The court, on its own motion, shall appoint counsel to represent a petitioner whenever the interests of justice require it.
      (b) Where counsel has been appointed, such appointment shall be effective until final judgment, including any proceedings upon appeal from a denial of collateral relief.

      . Pa.R.Crim.P. 1504 is as follows:
      Summary Dispositions
      Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.

      . Whether P.C.H.A. counsel can be said to have been ineffective for failing to identify and assert a specific defect in the proceeding leading up to appellant’s conviction is not before this Court, and with respect thereto no opinion is expressed.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    550 A.2d 219
    COMMONWEALTH of Pennsylvania v. Gerard Joseph KUBIAC, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Submitted Sept. 1, 1988.
    Filed Nov. 2, 1988.

      Howard B. Elbling, Assistant Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Allegheny County, sentencing the appellant, Gerard J. Kubiac, to consecutive terms of imprisonment for convictions on two counts of involuntary deviate sexual intercourse, to be followed by two consecutive terms of five years of probation for convictions on charges of corruption of minors and criminal conspiracy. The trial court sustained a demurrer to a charge of indecent assault.

Jennifer K. was removed from her father’s custody because of incorrigibility, and placed in the foster care of Rhonda and Gerard Kubiac in June of 1985. She was then fifteen years of age. In February of 1986, a sexual relationship between Gerard Kubiac and Jennifer began, and continued until October of that year, when Jennifer became pregnant, and was removed from their care. According to Jennifer’s testimony, Rhonda Kubiac joined in the sexual activity in March, after having suggested to Jennifer that she have a child with Gerard.

Initially, Jennifer refused to press charges against the Kubiacs, believing that Gerard would obtain a divorce and live with her and the child. When Gerard, who had, in fact, filed for divorce, resumed his relationship with his wife, Jennifer agreed to bring charges against them.

The cases against Rhonda and Gerard Kubiac were joined for trial. They were convicted by a jury, and sentenced. Gerard Kubiac then filed a timely motion for a new trial and/or in arrest of judgment. He filed a motion for the commitment of a drug dependant person pro se. Both motions were denied. After sentencing, Mr. Kubiac filed a motion to modify sentence, which was also denied, and an untimely pro se motion to reconsider sentence. He appealed to this court from his sentences on convictions on charges of criminal conspiracy and corruption of minors, but failed to appeal the convictions on the two counts of involuntary deviate sexual intercourse. The trial judge, however, granted Mr. Kubiac’s Post-Conviction Hearing Act petition, and reinstated his appellate rights nunc pro tunc. He then took a timely appeal to this court. Both appeals were consolidated.

On March 17, 1988, the trial judge, the Honorable Robert E. Dauer, entered an order stating that there had been a clerical error in the order of sentencing entered October 13, 1987, and correcting the sentence to impose a maximum of twenty years imprisonment. The original order of sentencing had stated that Mr. Kubiac had been sentenced to two consecutive terms of five to ten years imprisonment for involuntary deviate sexual intercourse. Mr. Kubiac petitioned this court for permission to file an amended brief, claiming that he only became aware of this change after reading the Commonwealth’s brief. Permission was granted.

Mr. Kubiac argues six issues to us on appeal: (1) whether the trial court committed reversible error by allowing Jennifer K. to testify that he had allowed her to use alcohol and marijuana when those offenses were not charged in the information; (2) whether the trial judge erred in refusing to grant his pretrial motion for a postponement; (3) whether the trial court erred in refusing to grant his pre-sentence motion for commitment as a drug dependent person under Act 64; (4) whether the trial court erred in failing to merge the crimes of corruption of minors and criminal conspiracy with the crime of involuntary deviate sexual intercourse and whether the sentence imposed was therefore illegal; (5) whether the sentence imposed was a manifest abuse of discretion; and (6) whether the trial court violated his right to be free from double jeopardy by correcting the order of sentence, increasing the term to be served.

Mr. Kubiac complains that the trial court erred in permitting Jennifer’s testimony that the Kubiacs had permitted her, as well as another minor, to smoke marijuana and drink alcohol in their presence. He argues that this was error because this testimony went to the general charge of corruption of minors, and not the specific charge brought against him — corrupting morals through oral sexual intercourse. Because we agree with the trial court’s determination that this evidence was relevant, and because we find that Mr. Kubiac was not prejudiced by this testimony, we find his claim to be meritless.

The admission or exclusion of evidence is within the sound discretion of the trial court; we will not overturn that determination absent an abuse of discretion. Commonwealth v. Underwood, 347 Pa.Super. 256, 262, 500 A.2d 820, 823 (1985). An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Id.; Commonwealth v. Niemetz, 282 Pa.Super. 431, 445 n. 12, 422 A.2d 1369, 1376 n. 12 (1980).

A review of the record indicates that that is not the case here. Jennifer did testify that the Kubiacs allowed her and another foster child to smoke marijuana and drink alcohol. Mr. Kubiac argues that this testimony was irrelevant, that is, that it did not tend to prove the specific crimes charged in the information against him. The trial judge found that the testimony in question was relevant to demonstrate the nature of the relationship between Jennifer and the Kubiacs. According to the trial judge, this testimony tended to show that that relationship was such that the charged conduct could have occurred. We find that this determination was not manifestly unreasonable, and hold that the trial court did not abuse its discretion in admitting the testimony.

Mr. Kubiac also contends that Jennifer’s testimony mentioned prior criminal activity on his part, and that, therefore, a mistrial should have been granted. The decision to grant or deny a mistrial depends upon whether or not improper evidence was admitted at trial that would so prejudice the fact finder that it would be unable to remain impartial, thereby prejudicing the accused beyond a reasonable doubt. Commonwealth v. Larkins, 340 Pa.Super. 56, 63, 489 A.2d 837 (1985). That decision is within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. Id.; Commonwealth v. Fields, 317 Pa.Super. 387, 400, 464 A.2d 375, 382 (1983).

In this case, Jennifer testified to acts by the Kubiacs — permitting alcohol and drug consumption — which were presumably illegal. Although references to other criminal activities of an accused may be particularly prejudicial, there is no per se rule which demands a finding of such prejudice in every case in which references to criminal conduct occur. Commonwealth v. Morris, 513 Pa. 169, 175-76, 519 A.2d 374, 377 (1986); Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981). Prejudice arises in cases where the testimony conveys to the jury, either expressly or by implication, the fact that a prior criminal offense has occurred. Morris, 513 Pa. at 176, 519 A.2d at 377. Where the statements may be termed merely “passing references,” no reversal is warranted unless the record illustrates that the defendant has been prejudiced by the testimony. Commonwealth v. Thomas, 361 Pa.Super. 1, 15, 521 A.2d 442, 449 (1987).

Here, although Jennifer’s testimony might have conveyed to the jury the fact that criminal offenses were occurring in the household, we do not find that her statements that she was permitted to drink and use drugs in the presence of the Kubiacs deprived them of a fair and impartial trial. We agree with the Commonwealth’s contention that the testimony included very brief and very generalized references to the alleged criminal activity, Commonwealth v. Heaton, 504 Pa. 297, 302, 472 A.2d 1068, 1071 (1984), and that such references could not have prejudiced Mr. Kubiac.

More importantly, we are convinced that no prejudice could have arisen from Jennifer’s testimony because of the trial court’s instruction to the jury on that subject. The trial court’s instruction limited the effect of that evidence and effectively dissipated whatever prejudicial effect Jennifer’s testimony could have had. See Morris, 513 Pa. at 178, 519 A.2d at 377 (1986) (cautionary instruction cured prejudice caused by mention of prior criminal activity); Richardson, 496 Pa. at 527, 437 A.2d at 1165 (prejudicial effect of reference to prior burglary cured by instruction). The trial court charged the jury that:

In these cases each of the defendants is charged with corruption of minors. Ladies and gentlemen, I am going to read to you exactly what they are charged with. You heard a lot of talk in the courtroom here, testimony about drinking and marijuana and whatever. That really is not charged in this case, ladies and gentlemen, the only reason I permitted it was to show that atmosphere in which the people lived. I think that’s important in this case, but that is not charged against the defendants, but what you must find if you find the defendants guilty is that the defendants corrupted the morals of Miss K[.] by engaging in the act of involuntary deviate sexual intercourse.
Mr. Kubiac is charged a little bit differently [than his wife]. He’s also charged with corruption of minors in that it is alleged that between February, 1986 and June, 1986, he, being eighteen years of age or older, corrupted or tended to corrupt the morals of Jennifer K[.], a child under the age of 18 years, by the act of performing oral intercourse with the victim, Jennifer K[.].

This charge clearly set out what offenses were charged against Mr. Kubiac, and clearly limited the use of the evidence in question here. We find that the trial court’s instruction properly informed the jury to what extent it could consider that portion of Jennifer’s testimony, and that Mr. Kubiac therefore was in no way prejudiced by the admission of that evidence.

Mr. Kubiac also claims that the trial court erred in refusing to grant his request for a postponement of the trial. We adopt the opinion of the trial court which states in pertinent part:

Just prior to commencement of testimony defense counsel noted his objection [to the denial of his motion for postponement] of record. There, he expressed the apparent belief that some time was required to complete negotiations for a plea bargain, and that a continuance would be needed for that purpose.
The Commonwealth indicated that when it became clear no plea agreement was possible it informed defense counsel the case would have to be tried. None of these developments were known to the court. As far as the Court was aware, this case was scheduled to be tried on September 1, 1987. On that date the parties appeared for trial and the Commonwealth pronounced itself ready to proceed. Only then did the defense counsel request a postponement. Additionally, he did not on the record allege any particular prejudice resulting from being required to proceed as scheduled.
A request for a continuance is, of course, directed to the sound discretion of the Court, and will not be reversed in the absence of a showing of real prejudice. Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981). In this case the offenses charged were unwitnessed except by the victim and the co-defendants. The Commonwealth’s case took three days to present. Counsel had been appointed in sufficient time to prepare for trial. On this record no real prejudice is apparent from the court’s ruling.

We find that the trial court did not abuse its discretion in refusing to grant the continuance.

Mr. Kubiac then argues that the trial court erred in summarily dismissing his “Motion for Commitment of Treatment Act 64 Pre-Trial Application for Relief of Drug Dependant Person.” Although the caption uses the words “Pre-Trial Application for Relief,” Mr. Kubiac did not present the motion until after the verdict, and just prior to sentencing. He argues that we should take into account the fact that the motion was filed pro se, and that therefore it should be construed liberally. See Commonwealth v. Garrison, 303 Pa.Super. 555, 557, 450 A.2d 65, 66 (1982) (pro se PCHA petitions should be read liberally). According to Mr. Kubiac, the motion should be treated as a request for relief under 35 Pa.S. § 780-118(f), which authorizes post-conviction relief. We agree that the motion, filed pro se, must be treated liberally, and we agree with both the Commonwealth and Mr. Kubiac that this is the only section of the act under which the motion could have been made. We find, however, that Mr. Kubiac’s failure to raise this claim in his Motion to Modify Sentence failed to preserve the issue for our review.

There is very little caselaw in the Commonwealth discussing section 780-118(f), and none discussing the proper method of preserving a claim that the trial court erred in refusing to grant a motion under it. Examination of that subsection leads us to the conclusion that the decision whether or not to permit treatment in lieu of incarceration is a part of the sentencing procedure left to the sound discretion of the trial judge. Section 780-118 states:

§ 780-118. Disposition in lieu of trial or criminal punishment
(f) If, after conviction, the defendant requests probation with treatment or civil commitment for treatment in lieu of criminal punishment the court may appoint a qualified physician to advise the court in writing whether it would be preferable for the purposes of treatment and rehabilitation for him to receive a suspended sentence and probation on the condition that he undergo education and treatment for drug abuse and drug dependency, or to be committed pursuant to the Mental Health and Mental Retardation Act of 1966 for treatment in lieu of criminal punishment, or to receive criminal incarceration. A copy of the physician’s report shall be furnished the court, the defendant, and the government attorney. The court shall exercise its discretion whether to accept the physician’s advice.

35 Pa.S. § 780-118(f) (emphasis added). Clearly, this section is to be considered by the court before imposing sentence. The court is to use its discretion in making the decision to first appoint a physician, and later, to accept that physician’s advice. Acceptance of a physician’s advice that the accused would benefit from treatment would result in a suspended sentence and probation. Should the court determine that the appointment of a physician is unnecessary, the sentencing would proceed as usual. These determinations come within the discretionary power of the court to sentence the convicted defendant. See Commonwealth v. Waters, 361 Pa.Super. 154, 155, 522 A.2d 60, 62 (1987) (legislature had limited trial court’s discretionary authority to impose suspended sentence and probation under section 780-118 by imposing mandatory minimum sentence for drunken driving).

Since Mr. Kubiac failed to include any claim that the trial court improperly refused to appoint a physician to advise it in his motion to modify sentence, or in his untimely pro se motion to reconsider sentence, we find that claim waived. Commonwealth v. Turecki, 278 Pa.Super. 511, 515-16, 420 A.2d 658, 660 (1980). We note further that by failing to bring this claim to the attention of the trial court, no discussion of the reasons that that court had for denying the motion appear on the record. We are, therefore, precluded from effective appellate review of this issue. See Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982) (so-called procedural violations may preclude court from exercising meaningful appellate review); Commonwealth v. Holmes, 315 Pa.Super. 256, 266-67, 461 A.2d 1268, 1273 (1983) (specificity of post-trial motions is required to enable court to review merits).

Even if we were to reach the merits of this claim, we would find Mr. Kubiac’s arguments to be meritless. In Commonwealth v. Waters, we stated that section 780-118 did not apply to drunken drivers since 75 Pa.C.S. § 3731, which was enacted after section 780-118, provides for a mandatory minimum sentence of imprisonment. We pointed out that legislative enactment of a statute requiring a mandatory sentence removed from the trial judge the discretion to impose probation and a suspended sentence. Waters, 361 Pa.Super. at 155-56, 522 A.2d at 62-63. We find the same reasoning to be applicable here. The legislature enacted 42 Pa.C.S. § 9718 after the effective date of section 780-118. Section 9718 provided a mandatory five year sentence for defendants convicted of certain crimes against infants. Therefore, the trial judge had no discretion to apply section 780-118 in Mr. Kubiac’s case. Moreover, we note that section 780-118 was meant to apply only in cases of nonviolent offenders. See 35 Pa.S. § 780-118(a). Mr. Kubiac was convicted of the offense of involuntary deviate sexual intercourse, committed against his fifteen year old foster daughter. As we stated in Waters, section 780-118 simply does not, and should not apply in this situation.

Mr. Kubiac next complains that the trial court erred in failing to merge the crimes of criminal conspiracy and corruption of minors with the two counts of involuntary deviate sexual intercourse charged against him for sentencing purposes. The Commonwealth is willing to concede that the offenses of corruption of minors and involuntary deviate sexual intercourse should have merged for sentencing, and requests that we vacate the sentence imposed for the conviction of corruption of minors. The Commonwealth argues, however, that there is no merit to the claim that the charge of criminal conspiracy should have merged with the involuntary deviate sexual intercourse offenses.

Because criminal conspiracy never merges with the offense which was the object of the conspiracy, Commonwealth v. Brachbill, 363 Pa.Super. 615, 626, 527 A.2d 113, 119 (1987), we find the first portion of Mr. Kubiac’s argument to be meritless. We find, however, that the Commonwealth is too quick to concede that the corruption of minors offense should merge with the crime of involuntary deviate sexual intercourse for the purposes of sentencing.

In order to determine whether separate statutory offenses merge for sentencing purposes, we must first determine whether the crimes in question necessarily involve each other. If that proves to be the case, we must then consider whether or not the statutes defining the crimes charged were directed to substantially the same harm or evil. Commonwealth v. Williams, 344 Pa.Super. 108, 126-27, 496 A.2d 31, 41-42 (1985) (en banc). In determining whether both offenses necessarily involve each other, we consider the elements of both offenses, but more importantly, we must examine the facts of both cases to determine if “the two crimes were so intimately bound up in the same wrongful act that as a practical matter of proof of one crime necessarily proves the other, so that they must be treated as the same offense.” Id., 344 Pa.Superior Ct. at 125, 496 A.2d at 40 (emphasis in the original); Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818, 820 (1980).

Examination of the requisite elements of each crime shows that for both offenses, it is necessary to prove the act of deviate sexual intercourse. The corruption of minors offense requires proof of an act “corrupting or tendfing] to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices, or encourages any such minor in the commission of any crime____” 18 Pa.C.S. § 6301(a). The crime of involuntary deviate sexual intercourse requires a showing that the person charged “engaged in deviate sexual intercourse with another person____” 18 Pa.C.S. § 3123. Here, each count of involuntary deviate sexual intercourse and the count of corruption of minors charged Mr. Kubiac with performing acts of oral intercourse on Jennifer. It would also be necessary to prove that Jennifer was less than eighteen years of age on the corruption of minors charge, and less than sixteen on the charges of involuntary deviate sexual intercourse. In fact, Jennifer was less than sixteen years of age. Proof of her age would satisfy elements of both offenses.

As a practical matter, then, the offenses can be said to necessarily involve each other. This, however, is not the only factor, nor is it the determinative factor in finding that offenses should merge for sentencing purposes. We must consider the purposes of the statutes in question. If there are substantially different interests at stake, and the defendant has harmed each of those interests, then even if each offense necessarily involves the other, they will not merge. Commonwealth v. Williams, 514 Pa. 124, 135, 522 A.2d 1095, 1101 (1987); Commonwealth v. Heckman, 366 Pa.Super. 224, 229, 530 A.2d 1372, 1374 (1987). Mr. Kubiac claims that each statute is concerned with the same interest: punishment of deviate sexual intercourse with minors. We disagree, and find that the case is controlled by Commonwealth v. Heckman, supra.

In Heckman, appellant was charged and convicted, inter alia, with corruption of minors and involuntary deviate sexual intercourse for the sexual assault of a five year old child. A panel of this court, relying on Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980) and Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986), held that the crimes of corruption of minors and involuntary deviate sexual intercourse did not merge for sentencing purposes:

[W]e find that, even if these crimes necessarily involve one another, substantially different Commonwealth interests have been injured by the appellant’s act. At stake with respect to the offense of involuntary deviate sexual intercourse is the Commonwealth’s interest in preventing people from being forced against their will to submit to sexual conduct and in preventing minors from being sexually used by adults, see Commonwealth v. Bonadio ... while ... the offense of corruption of minors involves the Commonwealth’s interest in protecting minors from corrupting influences, “the consequences of which may follow them all their days,” Commonwealth v. Sayko____ These are substantially different interests, in our view, each of which has been injured by appellant’s conduct in this case.

Id., 366 Pa.Superior Ct. at 229-30, 530 A.2d at 1374 (footnote omitted) (emphasis added).

The panel in Heckman perhaps stated the purpose behind the corruption of minors statute more generally than is appropriate here. The purpose behind 18 Pa.C.S. § 6301, proscribing the corruption of minors, clearly includes corruption by sexual acts. Any other interpretation would ignore this court’s previous decisions holding that the offenses of statutory rape and corruption of minors merge for the purposes of sentencing. Commonwealth v. Stafford, 307 Pa.Super. 278, 283-84, 453 A.2d 351, 353-54 (1982); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 325, 404 A.2d 697, 702 (1978); Commonwealth v. Cox, 209 Pa.Super. 457, 466, 228 A.2d 30, 35 (1967). According to the supreme court in Bonadio, both of these offenses protect minors from being sexually used by adults:

The state clearly has a proper role to perform in protecting the public from inadvertent offensive displays of sexual behavior, in preventing people from being forced against their will to submit to sexual contact, in protecting minors from being sexually used by adults, and in eliminating cruelty to animals. To assure these protections, a broad range of criminal statutes constitute valid police power exercises, including proscriptions of indecent exposure, open lewdness, rape, involuntary deviate sexual intercourse, indecent assault, statutory rape, corruption of minors, and cruelty to animals.

Bonadio, 490 Pa. at 95, 415 A.2d at 49 (emphasis added).

While one provision of the involuntary deviate sexual intercourse statute also protects minors from being sexually used by adults, see 18 Pa.C.S. § 3123(5), the purpose of that general section is more broadly drawn. Unlike those statutes which proscribe statutory rape and corruption of minors, it clearly protects persons, not only minors, from being forced against their will to submit to sexual conduct. See Heckman, 366 Pa.Super. at 229-30, 530 A.2d at 1374; Commonwealth v. Maute, 336 Pa.Super. 394, 409, 410, 485 A.2d 1138, 1146 (1984). This is similar to the situation in Commonwealth v. Sayko, supra. In that case, the supreme court stated:

In the instant case ..., there were two fundamentally different Commonwealth interests involved when the defendant committed the act comprising indecent exposure in the presence of his minor victim. Not only did the defendant violate the Commonwealth’s interest in proscribing exhibitionism and in shielding any victim from such conduct, he also violated the Commonwealth’s interest in protecting minors from corrupting influences, the consequences of which may follow them all their days.

Sayko, 511 Pa. at 616, 515 A.2d at 897 (emphasis added). Two interests were also involved here, the interest of the Commonwealth in preventing persons from being forced against their will to participate in sexual conduct, as well as the Commonwealth’s interest in proscribing the sexual use of minors by adults, which would obviously subject them to corrupting influences. Merely because the elements of the crimes were the same in this particular instance, that is, because the particular subsection of 18 Pa.C.S. § 3123 proscribed deviate sexual conduct with persons under the age of sixteen, see 18 Pa.C.S. § 3123(5), and Jennifer K. was under the age of sixteen at the time the offenses were committed, does not mean that the offenses merge. Here, the statutes were not directed at the same harm or evil. Williams, 344 Pa.Super. at 126-27, 496 A.2d at 41-42.

Mr. Kubiac also complains that the trial court abused its discretion in imposing sentence. He has complied with Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f), and has included a statement of reasons relied on for appeal in his brief. We find, however, that his statement still does not raise a substantial question that the Sentencing Code as a whole has been compromised. Tuladziecki, 513 Pa. at 515, 522 A.2d at 20.

In his statement, Mr. Kubiac has included both the crime for which he was convicted and the length of sentence-imposed, in accordance with Commonwealth v. Cummings, 368 Pa.Super. 341, 343-44, 534 A.2d 114, 115 (1987). The remainder of his statement only complains that the circumstances of the case — by which we take to mean the age of the victim and her consent to the deviate sexual activity— should have precluded the trial judge from imposing consecutive rather than concurrent sentences. “It is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 20. Statements that a court failed to imbue elements picked by appellant out of the whole factual picture with the proper amount of importance are not sufficient to raise a substantial question. For this reason, we find that Mr. Kubiac has waived this portion of his appeal.

Mr. Kubiac’s final argument concerns the correction made by Judge Dauer to the sentencing order. Although the judge stated on the record at the sentencing hearing that Mr. Kubiac was sentenced to a term of imprisonment of five to twenty years, the sentencing order signed by the judge stated that the sentence was five to ten years imprisonment. Mr. Kubiac claims that this correction violates the protection against double jeopardy because the court increased the sentence after he began to serve it.

The double jeopardy clause of the fifth amendment of the federal constitution protects an individual from being subject to the hazards of trial and possible conviction more than once for the same offense, Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), and also prevents imposition of multiple punishments for the same offense, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Mr. Kubiac argues here that his right to be free from multiple punishments was violated because the sentencing court in correcting what it stated was a clerical error in the sentencing order, but which, in fact, increased his sentence as stated in that order from a ten-year maximum to twenty years on each of the two counts of involuntary deviate sexual intercourse.

In this case, at the sentencing hearing, on the record, the trial court sentenced Mr. Kubiac to a twenty-year maximum term of imprisonment for each of the involuntary deviate sexual intercourse offenses. However, it is well-settled that the signed sentencing order takes precedence over oral statements of the sentencing court not incorporated into that order. Commonwealth v. Isabell, 503 Pa. 2, 12, 467 A.2d 1287, 1292 (1983); Commonwealth v. Adams, 350 Pa.Super. 506, 511, 504 A.2d 1264, 1266 (1986). It is equally clear that the sentencing court may correct clerical errors regarding a sentence. Isabell, 503 Pa. at 12, 467 A.2d at 1292; Adams, 350 Pa.Super. at 511, 504 A.2d at 1266; Commonwealth v. Meyer, 169 Pa.Super. 40, 43, 82 A.2d 298, 200 (1951). This power, is, however, bounded by considerations of timeliness on the part of the trial court, see 42 Pa.C.S. § 5505 (court may modify or rescind order within thirty days if no appeal is taken), and on the part of the aggrieved party, see Pa.R.Crim.P. 1410 (appellant must file motion to modify sentence within ten days). The supreme court of this Commonwealth has also indicated that that power is bounded by constitutional considerations, chiefly, double jeopardy concerns. Brown v. Brown, 455 Pa. 274, 276-77, 314 A.2d 506, 509 (1974); Commonwealth v. Allen, 443 Pa. 96, 103-04, 277 A.2d 803, 806 (1971).

In Commonwealth v. Allen, the appellant was sentenced on one bill of indictment to not less than two and one-half to no more than eight years imprisonment, and on another to not less than one to no more than two years imprisonment. He filed a Post Conviction Hearing Act Petition challenging the lawfulness of his sentences; the trial court then switched the sentences from each bill of indictment to the other.

The supreme court discussed the question of whether the trial court could properly augment an existing sentence. It rejected the Commonwealth’s argument that the trial judge had merely transposed the sentences, and was attempting to correct them to conform to her original intentions. It declined to create an exception in this case to the rule that modification of a sentence imposed on a criminal defendant which increased the punishment constituted double jeopardy. Allen, 443 Pa. at 103-104, 277 A.2d at 806. That court stated:

First, the record reveals those sentences were orally imposed and recorded on the indictments. Moreover, no attempt was made to correct these sentences for over one year. Thus, there is at least a possibility that the sentences originally imposed by the second judge did no.t represent a “slip of the tongue.”
Second, the Supreme Court long ago concluded that increasing a sentence after the defendant has commenced to serve it is a violation of the double jeopardy clause, Ex Parte Lange .and we are in agreement with those jurisdictions holding there is no exception to Lange in the situation where the increase is allegedly designed to reflect the judge’s true intent____ Nor can the instant appeal be equated with the situation in Commonwealth v. Meyer ..., wherein it was held that a trial judge could correct a clerk’s erroneous docket entry.

Id., 443 Pa. at 104, 277 A.2d at 806-807 (emphasis in original).

This same result was reached by that court in Commonwealth v. Brown, supra, where again, the trial court attempted to augment an existing sentence. The court originally imposed a sentence of eight and one-half to ten years, resentencing the appellant on the order of the federal district court, and then three days later attempted to correct the sentence by increasing the maximum to twenty years imprisonment. The Commonwealth argued, again, that the first sentence was a mere “slip of the tongue.” Again, the supreme court refused to create an exception, relying, in part, on Allen, and the United States Supreme Court decision of Ex Parte Lange, 85 U.S. (18 Wall) 163, 21 L.Ed. 872 (1873), cited in that case. As it had in Allen, the court expressed its concern that “ ‘such alleged inadvertence cannot be tolerated as a matter of public policy. As best stated by the Second Circuit, “[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners.” ’ ” Brown, 455 Pa. at 278, 314 A.2d at 509 (quoting Allen, 443 Pa. at 105, 277 A.2d at 807 and United States v. Sacco, 367 F.2d 368, 370 (2nd Cir.1966)).

Our own court has followed this rationale in Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971). In that case, the trial judge orally sentenced the appellant to a term of imprisonment of not less than one year to not more than three years on Bill # 33, and suspended sentences on Bills # 34 and # 35. The indictments on Bills # 33 and # 34 which the judge had signed, however, stated “11-1-67 Sentence suspended Sentence on Bill No. 35,” and on the indictment on Bill # 35, the sentence was listed as a term of imprisonment of not less than one year to not more than three years. A panel of this court held that to allow amendment of the sentence would be to create double jeopardy problems. The panel quoted extensively from Allen, and held that Meyer, allowing clerical revisions, was distinguishable because here, the error was not clerical, but was the error of the sentencing judge. Id., 219 Pa.Superior Ct. at 27, 280 A.2d at 652-53.

It would seem that our course, then, is to vacate the sentence calling for a mandatory twenty years imprisonment, and reinstate the sentence originally written on, the indictment, which set the maximum term at ten years imprisonment. There are two factors which we must consider before deciding to reach that disposition. Firstly, Ex Parte Lange, the Supreme Court case upon which Allen, and therefore Brown and Thomas, rely, has ■ since been limited to its facts by that Court. In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Supreme Court held that Lange did not state a blanket rule that the trial judge could never increase a sentence if the defendant had begun to serve that sentence. Id. at 138-39, 101 S.Ct. at 438-39. A panel of this court in Commonwealth v. Adams, supra, has pointed out that the Supreme Court’s decision in DiFrancesco throws into some doubt the rationale and holding in both Allen and Thomas, and has accepted the less expansive reading of the double jeopardy rule espoused by the DiFrancesco Court. The Adams court held that the error in recording sentences on the wrong bills of indictment was clerical, and therefore could be corrected. Adams, 350 Pa.Super. at 513, 504 A.2d at 1268, relying on Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (trial court incorrectly sentenced appellant to three inchoate offenses which merged with ultimate crime, correction of sentence did not result in double jeopardy because merely substituting new sentences for vacated sentence) and Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977) (trial court found offenses to merge which did not, permitting trial court to correct error of law did not increase punishment, but merely modified sentence to base it on valid conviction). Further, although the Adams court stated, in dicta, that an increase in sentence would violate the double jeopardy clause, id., it is not clear that that is the case here. We do not agree that the correction here increases the sentence. The sentence given and recorded at the sentencing hearing was five to twenty years on the involuntary deviate sexual intercourse counts, and Mr. Kubiac was aware of that fact, as is evident from his untimely motion to reconsider sentence.

Secondly, while the supreme court in Brown did note that the thrust of the Allen opinion was toward a prophylactic rule, id., to apply that rule here would be illogical. In Allen, the trial court attempted to change a sentence orally given, and written on the indictment. Id., 448 Pa. at 104, 277 A.2d at 806. Brown involved a similar scenario. Brown, 455 Pa. at 275, 314 A.2d at 507-508. Here, the sentence was stated initially at twenty years maximum on both counts of involuntary deviate sexual intercourse. This is reflected by the record of the sentencing hearing, the judge’s notes, the court reporter’s notes, and the notes of the institution. Further, in his untimely motion for reconsideration of sentence, Mr. Kubiac stated that his sentence was ten to forty years imprisonment. With such documentation, no abuse is possible. We are not dealing with a “slip of the tongue” on the part of the sentencing judge, as were the Allen and Brown courts. We believe that the remarks of the Allen court stating that to allow corrections would be against public policy and that “ ‘[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners,’ ” Allen, 443 Pa. at 105, 277 A.2d at 807 (quoting United States v. Sacco, 367 F.2d 368, 370 (2nd Cir.1966), have no relevance here.

While we are aware that the trial judge had signed the order, and therefore ideally should have known of the error, we believe that to make such a decision contravenes common sense, and creates an injustice. “The same may be said here as was said of the appellant in [Commonwealth v.] Bailey [, 250 Pa.Super. 402, 378 A.2d 998 (1977)]: He would receive an undeserved windfall if the trial court could not correct its sentence. It would be undeserved because it would be based on a clerical error — the trial court’s mistake in correcting its order____” Adams, 350 Pa.Super. at 513, 504 A.2d at 1268. We cannot accept the reasoning in Thomas that an oral sentence which is on the record, written incorrectly by the clerk of courts, and then corrected by the trial judge, is not a clerical error. The error here was clearly a clerical one, and subject to correction under Commonwealth v. Meyer, supra.

For the foregoing reasons, the judgment of sentence is affirmed.

      . No objection was made to the sentences at sentencing, or in Mr. Kubiac’s motion to modify sentence or his untimely motion to reconsider sentence. This is, however, an issue of legality of the sentence, and can be raised at any time. Commonwealth v. Norris, 498 Pa. 308, 319 n. 9, 446 A.2d 246, 251 n. 9 (1982); Commonwealth v. Cherpes, 360 Pa.Super. 246, 269, 520 A.2d 439, 450 (1987).


author: TAMILIA, Judge:

text:
    550 A.2d 231
    John CONRADY v. Elva CONRADY, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Oct. 31, 1988.

      Craig E. Wynn, Aliquippa, for appellant.
    Matthew J. Carl, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order granting appellee John Conrady’s petition for enforcement of settlement agreement.

On April 7, 1977, appellant Elva Conrady filed an accounting action in the Court of Common Pleas of Beaver County against her husband, appellee. In that action, appellant sought an accounting from appellee for one-half the value of various jointly owned savings bonds which appellee had appropriated. Following a trial on the matter, judgment was entered in favor of appellant, on November 1, 1977, in the amount of $2,350.

In September, 1982* appellee filed a complaint in divorce against appellant in the Court of Common Pleas of Allegher ny County. Appellant filed an answer in which she raised claims for equitable- distribution, alimony, counsel fees and costs. The parties filed affidavits of consent and on October 6, 1983, a divorce Decree was entered which incorporated an earlier property settlement agreement dated September 26, 1983.

In 1987, appellant sought to enforce the Beaver County judgment entered against appellee in November, 1977. In response, appellee filed a petition for enforcement of settlement agreement in which he requested the court order the judgment be marked satisfied based on language in the property settlement agreement. By an Order of court, dated October 1, 1987, the trial court granted appellee’s petition by construing the property settlement agreement as a release of the Beaver County judgment. Following the denial of appellant’s post-trial motions, the court below entered its October 1, 1987 Order as a final Order of court and final judgment. This timely appeal followed.

Appellant raises two issues on appeal. First, appellant argues the trial court erred in not holding that the judgment entered in her favor and against appellee was intangible personal property which was not subject to the release language of the parties’ marriage settlement agreement. Second, appellant claims the trial court erred in not interpreting the marriage settlement agreement against the party who prepared it.

In her first argument, appellant asserts the 1977 judgment entered in her favor against appellee acted as a legal division of a portion of the parties’ marital property. Appellant claims the verdict awarded her in 1977 converted the marital property, which was the subject of the accounting action, into separate nonmarital property which was not subject to equitable distribution in the subsequent divorce action. Appellant further argues the release of claims language contained in the parties’ property settlement agreement did not release appellee from the effectiveness of the judgment against him. We agree with appellant that the Beaver County judgment transferred entireties property into separate property, but we do not agree the property is not subject to equitable distribution under the Divorce Code of 1980, 23 P.S. § 101 et seq., and the provisions of the parties’ property settlement agreement.

The question presented in this appeal is whether an existing or prior Order partitioning entireties property pursuant to an accounting action, acts to remove the separate property from consideration in fashioning a later equitable distribution award in a subsequent divorce action.

The law in Pennsylvania on the partitioning of entireties property is well settled:

It is a general principle of the law of this Commonwealth that neither spouse may partition entireties property prior to divorce. Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 173 (1966); Livingston v. Livingston, 288 Pa.Super. 22, 430 A.2d 1193 (1981). An exception exists where one spouse has wrongfully appropriated entireties property for his or her own use and to the exclusion and detriment of the other spouse. Shapiro, supra; Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934); Gray v. Gray, 275 Pa.Super. 131, 418 A.2d 646 (1980); Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978). Such an appropriation ‘works revocation of the estate by the fiction of appropriation’s being an offer of an agreement to destroy the estate and an acceptance of that offer when the spouse starts suit; the property is then fit for accounting and division.’ Stemniski, supra 403 Pa. at 42, 169 A.2d at 53. The entireties property subject to partition is then divided equally, Lindenfelser v. Lindenfelser, 396 Pa. 530, 534-35, 153 A.2d 901, 905 (1959), with each spouse becoming the sole owner of his or her partitioned share of the property. Stemniski, supra; Fitzpatrick v. Fitzpatrick, 181 Pa.Super. 581, 124 A.2d 709 (1956).

Goldstein v. Goldstein, 354 Pa.Super. 490, 493, 512 A.2d 644, 646 (1986); see Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986) (reaffirming the concept that a partition action constitutes an implied agreement to terminate a tenancy by the entireties resulting from a misappropriation of entireties property by one co-tenant).

Since the advent of the equitable distribution provisions of the 1980 Divorce Code, our courts have reconciled the consequences a partition of entireties property has on the dissolution of the marital estate. Most notably, in Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986), and Goldstein, supra, we dealt with the procedural connection between an independent partition of entireties property and equitable distribution under the Code.

In Goldstein, prior to separation, the husband brought an action to partition entireties property allegedly misappropriated by the wife. The wife brought a subsequent divorce action seeking, inter alia, equitable distribution of the marital property. The trial court sustained the wife’s objections to the partition action and dismissed it on the grounds that the partition action was superseded by the equitable distribution request of the divorce action. We reversed, holding a pending action in equity to partition property owned by the entireties is not superseded or preempted by a subsequent action in divorce containing a request for equitable distribution of marital property. Goldstein, supra 354 Pa.Super. at 498, 512 A.2d at 649.

Similarly, in Marinello, the husband filed a complaint in divorce in one county and subsequently brought an action for partition of certain entireties property in a second county. After the filing of the partition action, the parties amended their pleadings, with the wife requesting equitable distribution. Without a final resolution of the partition action being achieved, the first county court granted the divorce and entered a distribution Order, which included the property involved in the partition action, from which the husband appealed. Although we did not reverse the court’s distribution Order due to the circumstances presented in the case, we held that when a partition action of entireties property has not proceeded to judgment prior to a divorce action coupled with a claim for equitable distribution, the partition action will be stayed by the divorce court sua sponte or by motion of either party, and transferred to the divorce court for disposition, in consolidation and conjunction with the equitable distribution request, as the equities of the matter require. Marinello, supra 354 Pa.Super. at 485, 512 A.2d at 642.

Although the instant case has an existing partition Order and does not involve a question to the procedural effect a partition action has on the jurisdiction of a divorce court, our discussions in Marinello and Goldstein on the status of entireties property rendered separate through a partition action are directly applicable. Once a Berhalter-Vento, supra, partition of entireties property occurs, the separate property held by each spouse loses its designation as entire-ties property and is no longer “marital property” under 23 P.S. § 401(e). As we explained in Marinello, supra at 482, 512 A.2d at 640-41, this does not mean the partitioned property is not considered in equitable distribution under 23 P.S. § 401(d):

Partition creates separate property whether it be prior to the divorce or subsequent to it. Once it is separate property, it is subject to the provisions of 401(d)(8) ‘The value of property set apart to each party,’ as one of the considerations in equitable distribution. This is so because pre-divorce partition is identical in effect to an agreement of the spouses during coverture to dissolve the entireties and to take the divided shares as separate property of each.... Since partition during marriage is a legal determination of an agreed division by the parties of their entireties property, each acquires a separate estate which is subject to one of the exceptions to the presumption created by the Divorce [C]ode, that all property is presumed to be marital property.

Section 401(e)(2) provides:

(e) For purposes of this chapter only ‘marital property’ means all property acquired by either party during the marriage except:
2.) Property excluded by valid agreement of the parties entered into before, during or after marriage.
Partition then, by operation of law, creates the valid agreement to hold the partitioned property separately and not as marital property and brings into operation its exclusion from consideration of equitable distribution under sections 401(d)(8) and 401(e)(2).

(Emphasis in original.) The nature of the partition of entireties property being a legal fiction of offer and acceptance to destroy the entireties estate, Vento, supra, removes from the court the ability to consider the property as marital property, limiting its consideration of the separate property to one of the factors under section 401(d).

Here, the parties reached a valid property settlement agreement, which was approved by the court and incorporated into the divorce Decree. The parties’ settlement agreement provided for mutual release of claims as follows:

RELEASE OF CLAIMS
(a) Wife does hereby remise, release, quit-claim and forever discharge Husband and the estate of Husband from any and every claim that she now has, may hereafter have or can have at any time, against Husband, or in and to or against his estate, or any part thereof, whether arising out of any former contracts, engagements or liabilities of Husband, or by way of dower or claim in the nature of dower, widow’s right or under the intestate laws, or the right to take against Husband’s will, or for support or maintenance, or for any other nature whatsoever, except only any rights accruing to Wife under this Agreement, including any claim for alimony, alimony pendente lite, marital property, counsel fees or expenses, as defined by the Divorce Code.
(b) Husband does hereby remise, release, quit-claim and forever discharge Wife and the estate of Wife from any and every claim that he now has, may hereafter have or can have at any time, against wife, or in and to or against her estate, or any part thereof, whether arising out of any former contracts, engagements or liabilities of Wife, or by way of courtesy or claim in the nature of courtesy, widower’s rights or under the intestate laws, or the right to take against Wife’s will, or in any other manner whatsoever, except only pursuant to this Agreement, including any claim for alimony, alimony pendente lite, marital property, counsel fees or expenses, as defined by the Divorce Code.

In addition, in a “FULL DISCLOSURE” clause, the agreement states the parties’ desire that the agreement finally settle all claims and rights each party possessed which arose “out of their marriage or otherwise”:

FULL DISCLOSURE
Husband and Wife agree that each has made to the other, a full disclosure of the property and assets owned by each of them. Each declares that he or she is not acting under duress, compulsion or mistake, and that he or she desires to make a full and final settlement of all of their respective rights, claims, demands and obligations arising out of their marriage or otherwise pursuant to this Agreement.

“A property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally.” De Witt v. Kaiser, 335 Pa.Super. 258, 262, 484 A.2d 121, 123 (1984); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981). A contractual release is to be interpreted according to the intent of the parties. Hertzog v. Jung, 363 Pa.Super. 439, 526 A.2d 425 (1987). “The intention of the parties to a written release is paramount, and in construing a release, a court should adopt an interpretation which, under all of the circumstances, ‘ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished’.” Sparler v. Fireman’s Insurance Company of Newark, New Jersey, 360 Pa.Super. 597, 601, 521 A.2d 433, 435 (1987) (citations omitted); see In re Estate of Kirk, 369 Pa.Super. 515, 535 A.2d 669 (1988), and Buttermore v. Aliquippa Hospital, 368 Pa.Super. 49, 533 A.2d 481 (1987) (both quoting Sparler). The court determines whether terms of a contract or a release are clear or ambiguous, and the terms are not ambiguous if the court can determine its meaning from the language itself while attributing the language an ordinary meaning under the facts presented. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986); see Metzger v. Clifford Realty Corporation, 327 Pa.Super. 377, 476 A.2d 1 (1984).

We agree with the trial court that the release and full disclosure provisions are unambiguous. As expressed in the preamble to the agreement and stated in the full disclosure provision, the parties intended the property settlement agreement to be a “full and final settlement of all of their respective rights, claims, demands, and obligations arising out of their marriage or otherwise ” (emphasis added). The objective of a property settlement agreement entered into pursuant to a divorce is to finally settle all claims each party has or may have against the other. As is evident from the ordinary meaning of the release language itself, all such claims were to be laid to rest by the agreement. By signing the agreement as written, appellant released and discharged all claims she had against appellee. We agree that appellee could reasonably expect any claim which appellant wished to maintain against him beyond the agreement should have been raised as required by the full disclosure provision, allowing him to either deal with it or have it excepted from the agreement.

Turning to appellant’s remaining claim, we find her argument that the terms of an agreement should be construed against the party preparing it is waived for failure to present it in post-trial motions below. Ecksel v. Orleans Construction Company, 360 Pa.Super. 119, 519 A.2d 1021 (1987); Pa.R.C.P. 227.1.

ORDER AFFIRMED.


author: OLSZEWSKI, Judge:

text:
    550 A.2d 236
    COMMONWEALTH of Pennsylvania v. Albert DeSANTO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Nov. 10, 1988.

      Howard Kaiser, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence following appellant’s conviction for theft of industrial valves from a Gulf Oil Refinery. We affirm.

The facts giving rise to appellant’s arrest and conviction are summarized below. In December of 1984, Gulf Oil received information that a number of large industrial valves were disappearing from the refinery. The fire mar-shall at the refinery, Timothy Stell, also received anonymous phone calls advising him to be on the lookout for a blue Chevy van which was seen on the refinery premises. Based on this information, the fire marshall and a security lieutenant undertook a surveillance operation at the valve areas.

On December 31, 1984, appellant entered the refinery premises in a blue Chevy van. From about 70 yards away, Stell observed appellant and another man loading valves into the blue van. The van, driven by appellant, then left the valve area. Stell radioed his observation to the security lieutenant who, upon stopping the van, observed four valves in the back. When stopped by the lieutenant, appellant first claimed he was on the premises in the employ of a contractor. Then, however, appellant sped away in the van. A chase ensued with appellant driving the van at speeds up to 50 m.p.h. through the narrow lanes of the refinery. Finally, appellant crashed his van through a padlocked chain link gate and proceeded onto a public highway. A short time later, one of the valves was recovered on the highway which was used by appellant as his escape route. The three remaining valves were recovered still later in the back of a pickup truck. Appellant was ultimately traced through the license plate of the van and charged with theft by unlawful taking and receiving stolen property.

Appellant waived his jury trial right and appeared before the Honorable John A. Geisz on April 12, 1985. Appellant pled guilty to the charges entered, but testified that he stole only one valve which he pushed out of the van after crashing through the padlocked gate. The court found that appellant had stolen all four valves, valued in excess of $3,800.00. As no post-trial motions were filed, the court sentenced appellant to eighteen to thirty-six months imprisonment on June 25, 1985. Appellant, who had been released on bail on January 25, 1985, continued on bail pending sentence which was to commence on July 1, 1985. On July 1, 1985, appellant filed a petition for vacation or modification of sentence stating that he would cooperate with the District Attorney’s office in regard to other persons who may have been involved in taking property from Gulf Oil Corporation. The sentence of the court was vacated and a new date for sentencing was scheduled for August 15, 1985. This date, however, was continued again until November 8, 1985, as the prosecutor informed the court that appellant was cooperating with the police in a further investigation. Finally, on November 8, 1985, the court’s sentence of June 25, 1985 was reimposed. On November 15, Í985, appellant filed another petition for vacation or modification of sentence. This petition was denied on December 4, 1985. Notice of appeal to the Superior Court was filed on January 2, 1986. This appeal was dismissed on September 19, 1986, for failure of counsel to file an appellate brief. Commonwealth v. DeSanto, No. 89 Philadelphia 1986. On December 28, 1987, appellant filed a petition under the Post Conviction Hearing Act requesting leave to appeal to the Superior Court nunc pro tunc. This petition was granted on January 26, 1988, and nunc pro tunc notice of appeal was filed on February 17, 1988.

Appellant presents the following two issues for our review:

1. Whether the trial court erroneously applied the sentencing guidelines and otherwise abused its discretion in imposing sentence, and/or whether trial counsel was ineffective for failing to advocate and/or preserve this issue for appeal.
2. Whether the sentence imposed should be vacated and the case remanded for resentencing pursuant to Commonwealth v. Sessoms, and/or whether trial counsel was ineffective for failing to advocate and/or preserve this issue for appeal.

Appellant’s brief at 3.

As appellant is challenging the discretionary aspects of his sentencing, we must initially determine whether he has complied with Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Concisely stated, Tuladziecki requires an appellant to set forth, in a separate section of his brief, reasons why his appeal should be granted. See Pa.R.A.P. 2119(f). Appellant must indicate these reasons because an attack upon the discretionary aspects of sentencing is not a basis for an appeal as of right, but instead a basis for a discretionary appeal. Tuladziecki, supra.; 42 Pa.C.S. § 9781(b). If an appellant has articulated reasons relied upon for allowance of appeal relating to the discretionary aspects of sentencing, the Superior Court must make an assessment as to whether a “substantial question” exists before it embarks on a examination of the merits of the appeal. A “substantial question” exists, and an appeal may be permitted, only when appellant demonstrates that a particular sentence raises doubts that the sentencing code as a whole has been compromised. Tuladziecki, supra.

For the limited purpose of determining whether a substantial question exists, the Superior Court must accept appellant’s assertions of fact as true. Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987). Although proceeding along this line may reveal the appearance of a substantial question; however, this does not automatically entitle appellant to allowance of appeal. 42 Pa.C.S.A. § 9781(b) provides:

Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
(Emphasis added.).
Thus, while the appearance of a substantial question under 42 Pa.C.S.A. § 9781(b) determines whether allowance of appeal may be granted, the sound discretion of this Court shall determine whether it will be granted.
In exercising this discretion we may, of course, look to the trial court opinion and/or the record. When the allegations set forth in the separate, concise statement of reasons for allowance of appeal are unsupported or contain material omissions apparent from the face of the record, this Court may deny allowance of appeal despite the appearance of a substantial question based upon appellant’s unfounded or misleading allegations.

Commonwealth v. Darden, 366 Pa.Super. at 603-04, 531 A.2d at 1147 (emphasis in original).

Instantly, appellant has supplied the following concise statement of reasons relied upon for appeal:

SUBSTANTIAL QUESTION
THERE IS A SUBSTANTIAL QUESTION THAT THE SENTENCE IMPOSED ON DECEMBER 4, 1985 IS NOT APPROPRIATE UNDER THE SENTENCING CODE.
Defendant was sentenced in accordance with the Sentencing Guidelines, 204 Pa.Code Ch. 303.
The sentencing court erroneously applied the sentencing guidelines by applying a prior record score of “4” under the sentencing guidelines. This was based on a two-count conviction (or two convictions) for forgery and attempted forgery on June 19, 1978, for which defendant was sentenced on February 7, 1979. The trial court’s prior score of “4” was based upon two separate forgery convictions, each graded an “F-2,” and hence computed as two points each in the prior record score; however, each conviction involved a commercial instrument. Hence, said convictions should have been graded “F-3” prior convictions, computed as one point each. Furthermore, said convictions were prosecuted concurrently with common and coincident aspects and should have been considered as having arisen out of the same criminal transaction; hence, said convictions should have been scored as a single conviction under Section 303.7(c).
The trial court misperceived appellant’s criminal record as including guilty pleas to five offenses; one of these was a Section 17 disposition under the controlled substance Act. Appellant pled guilty to at most four offenses.
The trial court relied upon insufficient, improper, and inaccurate information under the Sentencing Code, including effectively penalizing appellant for asserting a defense and failing to cooperate with the authorities.
The trial court failed to fully consider the standards and principles of the Sentencing Code, including the specific factors pertaining’ to each of the sentencing alternatives. These criteria are set forth at, inter alia, 42 Pa.C.S.A. Secs. 9721, 9722, 9724, 9725, 9781. The trial court underestimated or disregarded factors pertaining to the history and characteristics, including rehabilitative needs, of the defendant; it overestimated and overemphasized the nature and circumstances of the subject offense.
The trial court sentenced defendant in the aggravated range of the sentencing guidelines where this was clearly unreasonable.
The trial court imposed a sentence, 1-1/2 to 3 years total confinement in a state correctional facility, which was manifestly excessive and constituted an abuse of discretion.

Appellant’s brief at pp. 15-16.

Accepting as true all of appellant’s assertions of fact contained in the above statement, we find that he has presented the appearance of a substantial question. We are unable, however, to grant review in this case for the reason that several of appellant’s contentions are either based on assertions of fact not included in the record or are misstatements of recorded facts. Although appellant has appended documents to his brief purporting to support his claims, these documents are not properly before us as it is well established that facts outside the record may not be considered on appeal. Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494 (1980); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Mitchell, 314 Pa.Super. 364, 460 A.2d 1182 (1983); Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983); Commonwealth v. Griffis, 310 Pa.Super. 547, 456 A.2d 1071 (1983) (facts, even though not in dispute, when not part of record may not be considered on appeal); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981) (allegations in brief, even when not substantially challenged are not part of record).

Reviewing appellant’s bases for allowance of appeal, we make the following observations. Appellant’s argument that the trial court improperly computed his prior record score by mischaracterizing two prior forgery convictions is based on facts outside the record which may not be considered by this Court. Next, appellant contends that the trial court failed to consider evidence presented by a presentence investigator, Naughton, and a psychologist who recommended probation. The reports of these individuals also are not in the record and, therefore, may not be considered by this Court in reviewing appellant’s claim.

Appellant next contends that the trial court misperceived appellant’s criminal record as including five guilty pleas. Appellant claims that the trial court incorrectly counted a Section 17 disposition under the controlled substances act as a guilty plea. Appellant argues that according to the statute, a Section 17 disposition “shall not constitute a conviction for any purpose whatever.” There is nothing in the record or the trial court’s opinion to support appellant’s implied assertion that the trial court considered the Section 17 disposition as a conviction. Furthermore, there was nothing improper in the trial court’s consideration of appellant’s parole without verdict disposition for sentencing purposes. Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983) (a court may consider criminal activity or preparation for crimes as factors in sentencing even though no arrest or conviction resulted).

Next, appellant contends that the trial court penalized him for asserting a defense and failing to cooperate with the authorities. The trial court expressly acknowledged in its opinion that every defendant is entitled to present a defense. It then stated that no penalty for taking such action is reflected in the sentence of the court. Appellant has presented no argument or evidence supporting an attack on the veracity of this statement. Appellant’s belief that he was being penalized, therefore, is unsupported by evidence of record. The trial court also related a litany of appellant’s promises and subsequent reneging on these promises to law enforcement authorities to evidence the unstable credibility of the appellant. Although we believe that the court’s statement that no penalty was imposed for these actions also pertains to appellant’s history of broken promises, we do not feel that consideration of such actions for sentencing purposes would be improper. See, Commonwealth v. Thurmond, 268 Pa.Super. 283, 407 A.2d 1357 (1979) (allocatur denied) (trial court may consider false testimony in sentencing).

The remainder of appellant’s statement of reasons supporting an allowance of appeal consists of a recitation of numerous sections of the sentencing code with the contentions that the trial court failed to properly consider and apply the various criteria and standards of the code, unreasonably sentenced the appellant in the aggravated range, and imposed a sentence which constituted an abuse of discretion. These contentions are boilerplate allegations which do not present a substantial question.

Although we have determined that appellant is not entitled to a review of the discretionary aspects of his sentencing, we must still review his claim that his sentence should be vacated and the case remanded for resentencing because the guidelines were declared invalid by Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Instantly, appellant has failed to properly preserve a challenge to the constitutionality of the sentencing guidelines, therefore, Sessoms is inapplicable. Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987); Commonwealth v. Woodward, 368 Pa.Super. 363, 534 A.2d 478 (1987).

Next, appellant presents the last gasp claim that trial counsel was ineffective for failing to preserve the issue that the trial court abused its discretion in sentencing and that the sentencing guidelines are unconstitutional. Appellant’s argument with regard to the abuse of discretion in sentencing consists of the following:

[A]ppellant is alternatively couching this issue in terms of an ineffectiveness claim, if and to the extent that trial counsel may be deemed to have been ineffective for failing to raise and/or argue and/or advocate and/or preserve any of the arguments presented to appellant herein. Trial counsel, Mr. Freeman, did file two petitions to modify sentence, which are of record, and wherein he did assert that the sentence imposed was “contrary to the sentence guideline.” This ineffectiveness claim is the logical complement to the straightforward discretionary aspect of sentencing claim, with the hopes of ensuring consideration by this Honorable Court of all the arguments presented herein.

Appellant’s brief at 30.

With respect to appellant’s Sessoms issue, he presents the following in support of the claim of ineffectiveness of trial counsel:

It appears that trial counsel did not argue the unconstitutionality of the sentencing guidelines before the lower court, as the defendant did in Sessoms. For this reason appellant herein alternatively couches this claim in terms of ineffectiveness of trial counsel to preserve this issue for appeal. It is recognized that appellate courts have refused to deem counsel ineffective for failing to anticipate changes in the law, in varying contexts; it is further recognized that the effect of Sessoms may not have been automatic entitlement to vacation and resentencing for all pre-Sessoms sentences imposed under the guidelines now on appeal. Nevertheless, appellant believes that this issue has arguable merit.

Appellant’s brief at 31.

Appellant’s ineffectiveness of counsel claims are raised in a vacuum. He is not factually specific nor does he allege actual prejudice on issues of arguable merit. See, Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983). A naked allegation, without more, will not support a claim of ineffectiveness. Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986) citing Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983). Furthermore, counsel will not be held ineffective for failing to pursue a meritless claim. Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1982).

Furthermore, we note that trial counsel filed a petition to vacate or modify sentence which claimed that the sentence was arbitrary and capricious, and contrary to the sentencing guidelines. We are of the opinion that this language is sufficient to preserve the claim that the sentencing guidelines were improperly applied and the trial court abused its discretion.

Finally, appellant acknowledges that counsel cannot be held ineffective for failing to predict changes in the law. Still, he requests that we do just that in this case. We decline to do so. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

Judgment of sentence affirmed.

      . There is no transcript of sentencing proceedings in the record of the instant case. Appellant states in his brief that communications with common pleas reporters have established that this transcript cannot be located. Despite the lack of a transcript, we feel the trial court opinion contains sufficient documentation of its reasons for the imposition of sentence to provide for adequate review. See, Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (should not assume that where sentencing court is in possession of facts that the facts were not applied in the instant case; sentencing court’s discretion will not be disturbed where it can be demonstrated that judge had degree of awareness of sentencing considerations and that the weighing process took place in meaningful fashion).

      . Appellant contends that the forgery convictions involved a commercial instrument and, therefore, should have been graded as “F-3” rather than “F-2.” Appellant also contends that these convictions arose out of the same transaction and, therefore, should have been scored as a single conviction. There is nothing in the record to support these claims. The only evidence in the record pertaining to the prior forgery convictions is appellant’s court history in which he pled guilty to counts of forgery.

      . A section 17 disposition arises under The Controlled Substance, Drug, Device and Cosmetic Act 35 P.S. § 780-117. This section provides in pertinent part that, “a person ... is eligible for probation without verdict if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act.”