author: CIRILLO, Judge:

text:
    501 A.2d 671
    COMMONWEALTH of Pennsylvania v. Richard SYRE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1983.
    Filed Nov. 29, 1985.

      F. FitzPatrick, Jr., Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

Appellant was convicted of witness tampering. The Superior Court, 322 Pa.Super. 416, 469 A.2d 1059, found the evidence insufficient to support the conviction and reversed. The Supreme Court, 507 Pa. 299, 489 A.2d 1340, found the evidence sufficient and reversed the Superior Court. The case is now before us on remand to address the remaining claims. One of appellant’s contentions is that the jury which convicted him was improperly influenced. We agree and therefore reverse and remand for a new trial.

Testimony from the jurors themselves revealed several significant contacts between court officer Helen Wolf and members of the jury. Initially, we must pass upon the propriety of such juror testimony. It is true that as a general rule, a juror may not impeach his verdict after the jury has been discharged; a juror is not generally competent to testify to what went on in the jury room. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978); see also Commonwealth v. Fuller, 336 Pa.Super. 507, 485 A.2d 1197 (1984); Commonwealth v. Boden, 337 Pa.Super. 108, 486 A.2d 504 (1984). However, as our Supreme Court went on to explain in Sero, supra, this general rule does not apply to cases like the one before us: “[W]e have carved out a narrow exception to the cannon of “no impeachment,” allowing post-trial testimony of extraneous influences which might have affected the jury during their deliberation.” (Citations omitted). Commonwealth v. Sero, supra 478 Pa. at 448, 387 A.2d at 67.

The alternate juror, when asked about a statement made to him by one of the other jurors, responded: “She told me that a court officer, Helen Wolf, had stated to her that a person who asked for a trial by jury is guilty.” Another juror related a separate incident:

I said, “Helen, you know, how much longer are we actually going to be here? You know, when we were sequestered, the Judge made a remark about three or four days.” I said, “Tomorrow is going to be the fifth day and if Mr. Syre is not done already, we are going to be here for the weekend and into next week and it’s just too much not being able to see my family and all.”
And Helen kind of comforted me. That’s when she gave me the statement when we were walking down the steps, “Look, if everybody paid attention and listened to the tapes, it shouldn’t take you long to make up your mind.”

This incident was related back to the alternate juror, who further testified: “Well, she told me that Helen Wolf had told her that deliberations should only take five minutes (because) he’s guilty.” Additional testimony revealed that the jurors discussed among themselves their uneasiness about Ms. Wolf’s comments.

The Constitution of this Commonwealth specifically entitles an accused to an impartial jury. Article 1, section 9, as amended. The Sixth Amendment to the U.S. Constitution, via the enabling clause of the Forteenth Amendment, confers the same right. Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972). Indeed, no right is more fundamental to the American justice system. Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 504, 387 A.2d 425, 435-36 (1978), cert. denied, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979) (citing U.S. Const. Amend. VI; Pa. Const, art. I, § 9); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). Thus, when an accused is denied a fair trial because of jury partiality, even the most minimal standards of due process have been violated. See Cornitcher, supra; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See also Witherspoon v. Illinois, 391 U.S. 510, 518, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968); Turner v. Louisiana, 379 U.S. 466, 470-72, 85 S.Ct. 546, 548-49, 13 L.Ed.2d 424 (1965); cf. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Before us is a situation wherein extra-judicial information reached the jurors after they were sworn. Unlike those instances in which damaging material reaches the jury before trial, that which comes to the jury’s attention during trial is not subject to the voir dire screening process. Unless it is immediately brought to the court’s attention, such information is not subject to cross-examination or a curative instruction, and the declarant cannot be confronted. As a result, a stringent standard of review is essential. It is the only way to avoid a violation of due process rights. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); United States v. Williams, 568 F.2d 464 (5th Cir.1978).

As our Supreme Court recently re-affirmed in Commonwealth v. Elmore, 508 Pa. 81, 494 A.2d 1050 (1985), the applicable standard lies midway between a requirement that any ex parte contact requires reversal and a requirement that actual bias must be shown. In other words, we look only for a “reasonable likelihood of prejudice.” Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983). Of course, if we do find a reasonable likelihood that the error contributed to the conviction, such error cannot be deemed harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). It is incumbent upon the Commonwealth to prove beyond a reasonable doubt that the error was harmless. Commonwealth v. Elmore, supra.

When the subject matter of the ex parte contact with the jury is somehow related to the case before them, such “reasonable likelihood” of prejudice is automatically found. As the Supreme Court held in Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954):

any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. (Emphasis added).

See also United States v. Myers, 626 F.2d 365 (4th Cir. 1980); United States v. Forrest, 620 F.2d 446 (5th Cir. 1980); Sullivan v. Fogg, 613 F.2d 465 (2d Cir.1980); United States v. Fleming, 594 F.2d 598 (7th Cir.), cert. denied, 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979); United States v. Moten, 582 F.2d 654 (2d Cir.1978); Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); United States v. Brasco, 516 F.2d 816 (2d Cir.) (per curiam), cert, denied, 423 U.S. 860, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975); United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973); Ellie v. Oklahoma, 430 F.2d 1352 (10th Cir.1970), cert, denied, 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971).

We hold that in the case sub judice, this presumption of prejudice simply cannot be overcome by the Commonwealth. The evidence, which overwhelmingly demonstrates that a representative of the court discussed the accused’s guilt with those who would ultimately decide his fate, went beyond a likelihood of prejudice to an outright showing of actual prejudice. In a factually similar case (bailiff talking with jurors), the United States Supreme Court in Parker v. Gladden, supra, concluded:

The official character of the bailiff — as an officer of the court as well as the state — beyond question carries great weight with a jury. We believe that the unauthorized conduct of the bailiff “involves such a probability that prejudice will result that it is deemed inherently lacking in due process,” Estes v. Texas, 381 U.S. 532, 542-543, 14 L.Ed.2d 543, 549, 550, 85 S.Ct. 1628 [1636] (1965).

Virtually every jurisdiction has adopted Parker’s view that such outside interference is in violation of due process rights. See and compare Willie v. Maggio, 737 F.2d 1372 (5th Cir.1984); United States v. Dean, 667 F.2d 729 (8th Cir.1982); Fortenberry v. Maggio, 664 F.2d 1288, 1292 (5th Cir.1982); United States v. Bruscino, 662 F.2d 450, 458 (7th Cir.1981); Gibson v. Clanon, 633 F.2d 851 (9th Cir.1980); United States v. Moten, 582 F.2d 654, 661 (2d Cir.1978); United States v. Doe, 513 F.2d 709-711 (1st Cir.1975); Jones v. Norvell, 472 F.2d 1185 (6th Cir.1973); Gafford v. Warden, U.S. Penitentiary, Leavenworth, Kansas, 434 F.2d 318 (10th Cir.1970); Alford v. State of North Carolina, 405 F.2d 340, 343 n. 7 (4th Cir.1968); Lacy v. Gabriel, 567 F.Supp. 467 (1983) cert. denied, — U.S. —, 105 S.Ct. 195, 83 L.Ed.2d 128 affirmed 732 F.2d 7; Tobias v. Smith, 468 F.Supp. 1287 (W.D. New York 1979); United States ex rel. Spero v. Wenzel, 397 F.Supp. 597 (E.D.New York 1975); United States v. Dioguardi, 361 F.Supp. 954 (D.C.N.Y.1973); United States v. Driscoll, 276 F.Supp. 333 (S.D.New York 1967); Brummitt v. State, 44 Ala.App. 78, 203 So.2d 133 (1967); Wamser v. State, 652 P.2d 98 (Alaska 1982); People v. Hogan, 31 Cal.3d 815, 183 Cal.Rptr. 817, 647 P.2d 93 (1982); State v. Brigandi, 186 Conn. 521, 524, 442 A.2d 927, 937-938 (1982); Oliver v. State, 25 Md.App. 647, 650, 334 A.2d 572, 574 (1975); Commonwealth v. Hunt, 392 Mass. 28, 465 N.E.2d 1195 (1984); State v. Holly, 350 N.W.2d 387 (Minn.App.1984); Crowe v. State, 84 Nev. 358, 441 P.2d 90, 93 (1968); State v. Mann, 112 N.H. 412, 297 A.2d 664 (1972).

When such interference is found, the courts almost uniformly demand that the verdict be set aside. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954); United States ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir.1974); United States v. Brumbaugh, 471 F.2d 1128 (6th Cir.1973); United States v. Gersh, 328 F.2d 460 (2d Cir.1964); Wheaton v. United States, 133 F.2d 522 (8th Cir.1943). See also Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); Snyder v. Lehigh Valley R.R. Co., 245 F.2d 112 (3d Cir.1957); United States v. Pittman, 449 F.2d 1284 (9th Cir.1971).

Only last year we re-asserted our duty to uphold the sanctity of the jury trial:

[It] is imperative that we promote public confidence in our judicial system by vigilantly protecting the integrity of our jury system. “Trial by jury presupposes that the jury works in a controlled environment, untouched by any influence other than that properly permitted by the trial judge.” Hobson v. Wilson, [737 F.2d 1, D.C.Cir. 1984]. To safeguard zealously this controlled environment, we must see to it that “each juror enters a case impartial, and throughout trial remains uncontaminated by outside pressures.” Id.; Code of Professional Responsibility EC 7-29. We must take every “precaution against evil communication which may corrupt [the jury].” Mix v. North America Co., [209 Pa. 636, 645, 59 A. 272, 274-75 (1904) ].

Colosimo v. Pennsylvania Electric Co., 337 Pa.Super. 363, 369, 486 A.2d 1378, 1381 (1984). Given the court officer’s flagrant violation of these principles in the case before us, the verdict cannot stand.

Reversed and remanded. Jurisdiction is relinquished.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    501 A.2d 675
    COMMONWEALTH of Pennsylvania v. George HART, Appellant. COMMONWEALTH of Pennsylvania v. Ann ROBINSON, Appellant
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1985.
    Filed Dec. 6, 1985.

      Daniel H. Greene, Philadelphia, for appellants.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, HESTER and LIPEZ, JJ.
   HESTER, Judge:

George Hart and Ann Robinson both appeal a five to ten-year sentence for third degree murder and related offenses arising from the merciless abuse of two of their children which resulted in the death of a three-year-old daughter, Misty, and serious injuries to a two-year-old son, Leif. Appellants raise three issues challenging the sufficiency of the evidence. We hold that there is sufficient evidence to support the convictions and affirm the judgments of sentence.

On January 5, 1983, in response to a call, Philadelphia police arrived at appellants’ residence where Hart was holding his daughter, Misty Hart, in his arms. The three-year-old child appeared to have been beaten; her face was bruised and swollen. Hart told the officers that Misty had fallen from her crib and that he had beaten her because she would not eat and was “bad.” The police took Hart and the child to the hospital, while his common-law wife, Robinson, remained at home with the couple’s four other children.

At the hospital, doctors considered Misty to be in critical condition. She was transferred to a children’s hospital for surgery, but died within hours. Her father was taken into custody at the hospital and transported to the police station. En route, Hart told the officers that he had beaten the baby to make her eat.

While in custody, Hart gave two statements to homicide detectives which were introduced at appellants’ bench trial. He admitted having beaten his daughter repeatedly during the preceding week because she had a cold and would not eat. He hit the child with a belt, and spanked her on the legs, arms, buttocks and back. He also slapped her numerous times in the face with sufficient force to knock her down. He denied that anyone other than he and his wife had beaten Misty and stated that both “smacked her in the face.” Hart claimed that Misty had fallen several times from her bed the night before her death, so he put her in a crib from which she had again fallen.

Robinson was tried as Hart’s codefendant. On the day of Misty’s death, Robinson had given a written statement to police which was also introduced in evidence. She denied knowing how Misty suffered her head wound, although she had earlier told the police that she, rather than Hart, had beaten Misty. Robinson acknowledged beating Misty repeatedly during the six months prior to her death with a belt, a shoe and a paddle. She admitted seeing marks on the child as a result of the beatings. She also admitted beating Leif with a belt, a shoe and a paddle.

In appellants’ residence, detectives found a crib and several beds formed of milk crates. There was virtually no other furniture in the apartment, nor was there any food. An officer found appellants’ two-year-old son, Leif, in bed. His legs and feet were swollen and inflamed, his stomach distended, his ribs protruding. There was a lump on his head, a scar over his right eye, a burn scar on his right knee, whip marks, a belt buckle scar on his back, and what appeared to be cigarette burns below his stomach. The officer testified, “His whole body was full of old scars.”

Leif was taken to the hospital, where he was admitted for treatment. On the following day, Leif still could not stand; he had to be held at all times. Photographs taken the day after his admission depicted burn marks on his lower abdomen, black and blue bruises on his buttocks and back, a burn scar on his right knee, and a scar over his right eye. Leif had scars and bruises over his entire body: arms, legs, back and stomach.

Medical examiner Robert L. Catherman, M.D., performed a postmortem examination of Misty Hart’s body on the day after her death. He testified that, in addition to old scars all over her body, there were fourteen recent external injuries. His internal examination disclosed a fractured skull, a bruise over the right side and back of the head, a subdural hematoma, and extensive diffuse bleeding into the soft tissue and muscles of the buttocks and thighs.

The doctor concluded that the internal injuries to the buttocks and thighs as well as the fourteen external injuries were all blunt-force injuries. The head injuries indicated a substantial blunt force over the back of the head consistent with the moving head striking a fixed object, rather than a moving object striking the head in a stationary position. He expressed these conclusions with “reasonable medical certainty.”

The doctor then expressed his opinion, to “a reasonable degree of medical certainty,” that death resulted from “multiple injuries of the head, trunk, and limbs.” Finally, he expressed his opinion, with the same level of certainty, that the manner of death was homicide.

During cross-examination, he stated that the head injuries could have been caused by a fall from the height of Misty’s crib, but repeatedly expressed his opinion that the injuries did not occur in that fashion. He based his opinion on his training and on substantial experience in examining similar injuries. He also conceded that the head injuries were the primary cause of death and without those injuries, the child probably would not have died, though the injuries to the buttocks and thighs contributed to the death.

The trial judge explicitly resolved all matters pertaining to the credibility of witnesses, and the weight to be given their testimony, in favor of the Commonwealth. Slip opinion, 7/28/85, 10; slip opinion 8/2/85, 11. Based on the foregoing evidence, he found appellants guilty of murder in the third degree, aggravated assault, criminal conspiracy, two counts of endangering the welfare of children, and recklessly endangering another person.

On July 10, 1984, the court heard and denied post-verdict motions and sentenced each appellant to five to ten years confinement for murder in the third degree; seven years probation for criminal conspiracy, consecutive to the murder sentence; and shorter concurrent sentences for the remaining crimes. The sentence of each appellant for recklessly endangering another person was merged with that for aggravated assault.

Appellants argue that the evidence was insufficient to establish beyond a reasonable doubt, first, that Misty Hart’s death was the result of a criminal act; second, that they were guilty of aggravated assault involving their son Leif; and third, that appellants were guilty of criminal conspiracy.

“When sufficiency of the evidence claims are raised, an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); see also Commonwealth v. Gordon, 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347 (1984). While a conviction may not be based on suspicion or surmise, the Commonwealth need not establish guilt to a mathematical certainty and may rely wholly on circumstantial evidence. Id.; Commonwealth v. Madison, 263 Pa.Super. 206, 209-10, 397 A.2d 818, 820 (1979). In light of these standards, we hold the evidence sufficient to support all of appellants’ convictions.

Appellants’ challenge to their convictions of murder is an attack on the testimony of the medical examiner. Doctor Catherman was unable to state' the cause and manner of Misty’s death with absolute certainty, but he repeatedly stated that he held his opinion with “a reasonable degree of medical certainty.” Notwithstanding appellants’ argument, the doctor’s testimony established far more than a probability that Misty’s death was caused by a criminal act.

In a similar case, the supreme court stated:
In this jurisdiction we have held that where an adult is given sole custody of a child of tender years for a period of time, and, during that time the child sustains injuries which may have been caused by a criminal agency, the finder of fact may examine any explanation offered and, if they find that explanation to be wanting, they may reject it and find the person having custody of the child responsible for the wounds. Commonwealth v. Pa-quette, 451 Pa. 250, 301 A.2d 837 (1973).

Commonwealth v. Meredith, 490 Pa. 303, 306, 416 A.2d 481, 482-83 (1980). In Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980), the accused admitted having beaten the two-year-old victim but denied inflicting the head injuries which caused death. While the medical examiner “acknowledged the remote possibility that a contusion to the child’s head could have been caused by a fall, he discounted that possibility.” Id., 491 Pa. at 624, 421 A.2d at 1059 (emphasis in original). The court concluded that “[t]he reasonable inferences arising from the evidence overwhelmingly negate the possibility of accidental head injuries.” Id. The same is true of the evidence in appellants’ trial; we hold it sufficient to prove beyond a reasonable doubt that Misty’s death was not accidental.

Appellants’ second argument is that Leif’s injuries amounted only to simple assault, not to aggravated assault. This argument is frivolous. A person is guilty of aggravated assault if he or she “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; ...” 18 Pa.C.S. § 2702(a)(1). The evidence of the brutal injuries inflicted on two-year-old Leif is more than sufficient to prove the offense of aggravated assault. See Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978).

Finally, appellants argue that there was insufficient evidence to show that a conspiracy to commit murder existed. Their position is that there was no proof of an agreement between them to commit murder.

The illicit agreement needed to establish a conspiracy “may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties ____” Commonwealth v. Gordon, 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347 (1984) (citations omitted). It is well settled that an agreement need not be proven explicitly; circumstantial evidence alone will support a conspiracy conviction. “The agreement required for conspiracy can seldom be directly proved, nor need it be. A conspiracy may be inferentially established by showing the relationship, conduct or circumstances of the confederacy which demonstrates a unity of purpose to accomplish an unlawful act.” Commonwealth v. Taraschi, 327 Pa.Super. 179, 190-91, 475 A.2d 744, 750 (1984) (citations omitted). See also Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 929-30 (1982).

In this case, appellants were jointly responsible for the care of Misty. Both admitted beating their child regularly, and each was aware that the other did so. These beatings finally caused Misty’s death. From the relationship between appellants, their pattern of conduct and the circumstances of the child’s death, the trial judge properly concluded that appellants were united in killing Misty.

The judgments of sentence are affirmed.

      . Although appellants docketed two separate appeals, they were tried as codefendants, their cases involve a common set of facts, and their arguments on appeal are identical. We have therefore consolidated the appeals for disposition in this Opinion.


author: WIEAND, Judge:

text:
    501 A.2d 679
    Helen M. BEASLEY, Appellee, v. James E. BEASLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Dec. 6, 1985.

      Richard Sprague, Philadelphia, for appellant.
    Larry I. Haft, Philadelphia, for appellee.
    Before WIEAND, BECK and ROBERTS, JJ.
   WIEAND, Judge:

Is an order denying a petition to bifurcate economic claims from a cause of action for divorce an appealable order? We conclude that it is neither final nor appealable; and, therefore, we quash the appeal taken from such an order.

Helen M. Beasley commenced an action in divorce against her husband, James E. Beasley, on October 29, 1981. She alleged that the marriage was irretrievably broken and suggested that she would file an affidavit of consent after ninety days. Numerous ancillary petitions were thereafter filed and argued before the trial court. Decisions thereof were frequently appealed. On September 13, 1983, James Beasley filed a “Motion to Sever Divorce Claims From Other Claims, to Compel Helen M. Beasley to File an Affidavit of Consent, and to Enter a Final Divorce Decree.” The trial court, after argument, entered an order denying the motion to sever. Beasley appealed.

It is “well settled that an appeal will lie only from a final order unless otherwise permitted by statute.” Pugar v. Greco, 483 Pa. 68, 72, 394 A.2d 542, 544 (1978). See also: T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977); Sutliff v. Sutliff, 326 Pa.Super. 496, 499, 474 A.2d 599, 600 (1984); Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983). “A final order is one which usually ends the litigation, or alternatively, disposes of the entire case.” Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 544-545. “Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). See also: Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 545; Praisner v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258.

An order denying a petition to bifurcate economic claims from a divorce claim is not a final order. It does not decide or end either the divorce claim or the economic claim; and it does not put either party out of court. Even appellant concedes that the order denying bifurcation did not finally determine the pending action in which divorce and economic claims are still pending.

Appellant argues, however, that the order in this case is appealable under an exception to the final judgment rule adopted by the Supreme Court of the United States in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and followed by the courts in this Commonwealth. See: Fried v. Fried, 509 Pa. —, 501 A.2d 211 (1985); Pugar v. Greco, supra; Bell v. Beneficial Consumer Discount Company, supra; Praisner v. Stocker, supra, 313 Pa.Super. at 342, 459 A.2d at 1260-1261. Under Cohen, an order which is separable from and collateral to a cause of action may become appeal-able under certain circumstances. Those circumstances, all of which must be present, are as follows: “[the order is] separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225-1226, 93 L.Ed.2d at 1536. See also: Pugar v. Greco, supra; Bell v. Beneficial Consumer Discount Company, supra, 465 Pa. at 228-229, 348 A.2d at 736; Praisner v. Stocker, supra.

The order from which the appeal in this case was taken does not involve a right which is too important to be denied immediate review. Neither does it involve a claimed right which will be irretrievably lost. A decision to bifurcate is meaningful only when a decree in divorce is to be entered. Bifurcation “accelerates the actual dissolution of a marriage found to be irretrievably broken since the time needed to obtain a divorce is substantially shorter than the time needed for the disposition of marital property.” Wolk v. Wolk, 318 Pa.Super. 311, 314, 464 A.2d 1359, 1360 (1983). Unless a decree in divorce is entered, there can be no equitable distribution of marital property. Laxton v. Laxton, 345 Pa.Super. 450, 455, 498 A.2d 909, 912 (1985); Dech v. Dech, 342 Pa.Super. 17, 21-22, 492 A.2d 41, 43 (1985). Therefore, until a decree in divorce is to be entered, an order bifurcating or refusing to bifurcate the divorce and economic claims does not realistically affect either claim or the status of the parties. This was recognized in Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985), where this Court observed that an “order which grants a bifurcation has no bearing on the parties’ status nor does it realistically affect them in any way.” Id,., 341 Pa.Superior Ct. at 118, 491 A.2d at 178. It is only when the court enters a bifurcated divorce that an order is entered which becomes final and appealable. Id., 341 Pa.Superior Ct. at 120, 491 A.2d at 179.

In the instant case, the divorce claim has not gone forward. In the meantime, the parties have engaged in an acrimonious and tumultuous debate over economic issues. There is at present no decree in divorce that is about to be entered. The order denying Beasley’s request for bifurcation does not affect either the status of the action or the rights of the parties in any way. It does not even represent a final determination of the bifurcation issue, for bifurcation may yet be allowed. The present order denying bifurcation, therefore, is interlocutory and is not appealable.

The right of appeal is intended to confer upon an appellate court the power of review; it has never been intended to vest in an appellate court the power to intervene in matters pending before the trial court. So long as actions remain open, undetermined and unfinished, this court will not intrude by deciding premature appeals. See: Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed. at 1536. See also: Fried v. Fried, supra.

Appeal quashed.


author: WATKINS, Judge:

text:
    501 A.2d 681
    In the ESTATE OF Elizabeth KREMPASKY (or) Krompaski. Appeal of Lydia Elizabeth Vrablova WANAMAKER.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1984.
    Filed Dec. 6, 1985.

      Edward F. Peduzzi, Pittsburgh, for appellant.
    Before BROSKY, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Orphans’ Court Division of the Court of Common Pleas of Cambria County and involves the issue as to whether a valid joint tenancy with the right of survivorship was created in certain certificates of deposit prior to a decedent’s death.

The decedent, Elizabeth Krempasky, died on June 8, 1979 at 2:45 P.M. while a patient at a hospital. She was 82 years of age at the time of her death. She died of heart failure and cardiovascular disease. In her will she devised the residue of her estate to her niece, Lydia Elizabeth Yrablova Wanamaker, who was also appointed executrix. The decedent owned a residence in Nanty Glo which was sold for $24,000. She also had four bank certificates of deposit worth $5,000 each which she kept in a metal box at her home. The executrix testified at trial that the certificates of deposit were not found in the metal box after decedent’s death. Upon further inquiry the executrix discovered that the name of Anna A. Parana had been added to the four certificates on the very day of her death. The executrix then filed a petition requesting that the certificates of deposit be ordered returned to the estate as estate .property. After hearing, the court below denied the petition and directed a verdict in favor of Parana. After exceptions to the order were dismissed by the court below, the executrix took the instant appeal.

At trial the executrix testified that she had come to Nanty Glo from Czechoslavakia in 1976, had lived with and cared for the decedent for several years prior to decedent’s death, and had moved to Texas with the decedent where the executrix had found a job. She stated that she had attempted to find employment in Nanty Glo, but could not do so. The decedent moved back to Nanty Glo a short time before her death. The executrix also produced the testimony of Louise Kachik, a neighbor and acquaintance of the decedent, and Thomas Sabo, Assistant Vice President of the United States Bank, Nanty Glo office, at which bank decedent had invested in the certificates of deposit. Ms. Kachik testified that she knew the decedent very well for five or six years, that she often took her to the doctor and hospital, and that on June 8, 1979, Anna Parana called her and asked her to take the decedent to the hospital. At the hospital she observed the decedent and described her condition as “unbelievable”, “like a zombie”, “dragged around” and “sick”. She stated that the decedent was not herself at that time, but that Anna Parana said that there was nothing wrong with the decedent and she was brought home. The decedent died the next day. When asked to describe the relationship between decedent and Anna Parana, Ms. Kachik stated that, “it’s everybody’s relationship”, “just like me and you would have or me and him or everybody. It was no lovey dovey thing, it was just that type of relationship.”

Appellant argues that the evidence establishes a confidential relationship and undue influence between Anna Parana and the decedent. The court below held that no confidential relationship nor had undue influence been established. When the circumstances make it clear that the parties to a transaction did not deal on equal terms, but that on the one side there was an overmastering influence, or, in the other, weakness, dependence or trust, justfully reposed, a confidential relationship exists. Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975). We agree with the court below that the relationship shown to exist between the decedent and Anna Parana was not a confidential one. Nor was any undue influence established.

Appellant’s second argument is that the addition of the name of Anna A. Parana to the four certificates of deposit by the bank after the decedent’s death did not create a valid inter-vivos gift and was, therefore, a nullity. Where a depositor creates a joint savings instrument at a bank or other financial institution with the right of surviv-orship and a signature card or other document is signed by both the depositor and the other party, a prima facie inter-vivos gift to the other party in a joint tenancy with the right of survivorship is established. Cilvik Estate, 439 Pa. 522, 267 A.2d 836 (1970). It is also possible to establish a joint tenancy with the right of survivorship in an account which was held in only one name by adding the name of the donee to the account. Dzierski Estate, 449 Pa. 285, 296 A.2d 716 (1972).

In the instant case the name of Anna A. Parana was added to the instruments by the bank on the very day of the decedent’s death. The name was added pursuant to an authorization form containing the decedent’s signature and brought to the bank by Anna Parana. Anna Parana had also prepared the authorization forms. A bank official testified that Anna Parana had brought the form to the bank in the “late afternoon”, “about 3 o’clock” on the date of the decedent’s death and the name of Anna Parana was added to the instrument between 3:00 P.M. and 4:00 P.M. when the bank closed. However, the testimony also revealed that the decedent died on June 8, 1979 at 2:45 P.M. Thus, when the addition of the other name to the certificates took place the decedent was dead.

“It is well established as the general rule that the death of the principal operates, as an instantaneous and absolute revocation of the agent’s authority or power, unless the agency is coupled with an interest. Hence, any act done by the agent, as such, after the principal’s death will not affect the estate of the latter.” 3 Am Jur 2d 453 § 51.

It is well settled that the death of the principal puts an end to the agency and terminates the agent’s authority to act for the principal unless the agency is coupled with an interest. Provident Life & Trust Co. v. Spring Garden Ins. Co., 53 Pa. Superior 66 (1913). 1 P.L.E. Agency 25, Page 494. In our case the decedent died before her agents created the joint tenancy. Anna Parana had no interest in the certificates of deposit at the time of the decedent’s death. Thus, her death terminated both Parana’s and the bank’s authority to change the account. For that reason we agree with the appellant’s contention that the four certificates of deposit belong to the decedent’s estate. Although appellee cites 5 P.L.E., Banks and Banking 65 page 235 for the proposition that an owner of a bank account can direct the bank to assign the account at any time, we do not find that principle controlling in the instant case where the assignment is carried out by others after the decedent’s death.

Thus, we sustain the appeal and direct that the four certificates of deposit be awarded to the estate.


author: JOHNSON, Judge:

text:
    501 A.2d 683
    William H. VOGEL, Appellant v. Carol A. KUTZ, Jeff Nowosielski and James Sulecki.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Dec. 13, 1985.

      John J. Barber, Erie, for appellant.
    Roger H. Taft, Erie, for Nowosielski, appellee.
    Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

May a writ or a complaint filed in a civil action at law be served, pursuant to Pa.R.C.P. 1009(a), by a constable who is not acting on the sheriffs behalf? Because the answer to this inquiry is “No”, we affirm the order of the Court of Common Pleas of Erie County which dismissed Appellant's complaint.

In the instant case service of the Writ of Summons and later the Complaint was attempted when Michael Domkowski, a duly elected constable, personally delivered copies of these documents to the defendants. Domkowski, at the times service was attempted, was not acting for or on behalf of the sheriff of Erie County.

Pa.R.C.P. 1009(a) states in relevant part:
(a) The writ, or the complaint if the action is commenced by complaint or the complaint is used as alternative process as provided by Rule 1010(e), shall be served by the sheriff within thirty (30) days after issuance or filing. When the sheriff is a party to the action service shall be made by the coroner or other officer authorized by law to perform the duties of coroner.

Id. (emphasis added).

The rule is quite clear that only the sheriff can properly effectuate service.

Appellant in his brief concedes that service was “technically defective,” but argues that technical errors should not deny Appellant a determination of the merits of his case where delivery of documents in question was actually made. Pa.R.C.P. 126 is cited by Appellant to support his contention that Rule 1009(a) should be liberally construed in the interests of justice.

Appellant’s contentions are without merit. In Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966), our supreme court held that “(t)he rules relating to service of process must be strictly followed.” We agree. Pa.R.C.P. 1009 requires service by the sheriff (or deputy sheriff). Attempted service by anyone else — even a duly elected constable — does not constitute effective service under Rule 1009(a).

Order affirmed.


author: CERCONE, Judge:

text:
    501 A.2d 684
    RIDGEWAY COURT, INC. v. JAMES J. CANAVAN INSURANCE ASSOCIATES, INC., and Aetna Insurance Company and James J. Canavan, Jr., and Alleva Insurance Company, Inc. Appeal of JAMES J. CANAVAN INSURANCE ASSOCIATES, INC., and James J. Canavan, Jr. John MATELYAN and Sheila Matelyan v. JAMES J. CANAVAN INSURANCE ASSOCIATES, INC., and Aetna Insurance Company and James J. Canavan, Jr., and Alleva Insurance Company, Inc. Appeal of JAMES J. CANAVAN INSURANCE ASSOCIATES, INC., and James J. Canavan, Jr. John MATELYAN and Sheila Matelyan, Appellants v. JAMES J. CANAVAN INSURANCE ASSOCIATES, INC., and Aetna Insurance Company and James J. Canavan, Jr., and Alleva Insurance Company, Inc. RIDGEWAY COURT, INC., Appellant v. JAMES J. CANAVAN INSURANCE ASSOCIATES, INC., and Aetna Insurance Company, and James J. Canavan, Jr., and Alleva Insurance Company, Inc.
    Superior Court of Pennsylvania.
    Argued April 18, 1985.
    Filed Dec. 13, 1985.

      Michael D. Gallagher, Philadelphia, for appellants (at 2501 & 2502) and for appellees (at 2503 & 2504).
    Marshall A. Bernstein, Philadelphia, for appellants (at 2503 & 2504) and for appellee (at 2501 & 2502).
    Charles W. Craven, Philadelphia, for Aetna, appellees.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   CERCONE, Judge:

Appellants, John and Sheila Matelyan (Matelyan), brought an action for professional negligence against James J. Cana-van Insurance Associates, Inc. (Canavan), a corporation engaged in the business of brokering insurance coverage. On November 18, 1971, John Matelyan was seriously injured on a job site owned and controlled by Ridgeway Court, Inc. and D. Falcone, Inc. (the two corporations). Matelyan initially brought suit for his injuries against the two corporations, who had earlier retained James J. Cana-van Insurance Associates, Inc., to provide them with full and adequate liability insurance coverage. After extensive discovery depositions and medical reports were produced, Matelyan entered into a settlement with the two corporations. A judgment was entered in the Matelyans’ favor and against the two corporations in the amount of $1,250,000.00.

However, there was only $100,000.00 in insurance coverage and this amount was paid by Aetna Insurance Company, an appellee in the instant case, but against whom appellants have not requested relief. As part of the settlement, each defendant corporation assigned to Matelyan its claim against Canavan for its failure to provide adequate insurance. Another agreement provided the corporations with relief from any further liability regardless of the outcome of the instant case of Matelyan, assignee, against Canavan for professional negligence.

The Matelyans, in the instant case, allege that Canavan negligently and carelessly failed to advise the corporations properly and negligently failed to provide the full and adequate coverage which would have enabled the two corporations to pay the agreed judgment of $1,250,000.00.

In the proceedings below, the trial court sitting without a jury, heard testimony from James J. Canavan, Jr., who had been an officer of Canavan at the time of the incidents which gave rise to this suit. Marie Franchetti, an employee of Canavan, also testified. Dominic Falcone, an officer of two corporations was called as a witness. The lawyer who represented the two corporations in the settlement negotiations testified as to the background and reasons for the settlement. The lawyer representing Ridgeway Court, who was suing Canavan for attorney’s fees, also testified. Called as experts were an attorney who testified as to the reasonableness of the $1,250,000.00 settlement, and an insurance company executive who expressed his opinion that Canavan did not conform to insurance industry standards in its representation of the corporations. The Matelyans did not appear in the trial in the instant case.

At every opportunity, Canavan objected on the grounds of hearsay to every deposition or medical record introduced by Matelyan in the attempt to substantiate the underlying tort claim of Canavan’s negligence in not providing adequate insurance coverage. Moreover, Canavan had submitted a pretrial brief which stated its ongoing objection to the evidence and asserted, under Martinique Shoes, Inc. v. New York Progressive Wood Heel Co., 207 Pa.Superior Ct. 404, 217 A.2d 781 (i960), that the facts and circumstances of Mr. Matelyan’s accident were required to be proved by direct evidence in the professional negligence trial.

The trial court continually ruled against Canavan, but ultimately ruled in Canavan’s favor as to this issue. However, it decided that Canavan was indeed negligent when it did not at least offer Dominic Falcone, officer of one of the two corporations, a $1,000,000.00 umbrella policy, which the court found Falcone would have accepted had it been offered. The court also concluded that the $1,250,000.00 settlement figure was reasonable based primarily on the expert testimony of the lawyer who evaluated the underlying case involving Matelyan’s injuries.

The court entered judgment against Matelyan and in favor of Canavan in that the evidence presented by Matel-yan pertaining to his injuries was based on hearsay evidence. The court concluded that this evidence did not meet the quantum of proof required by Martinique Shoes, supra. Thus, these appeals represent Matelyan’s claim that the court erred in following Martinique Shoes, supra, and on cross-appeal, Canavan’s claim that the court was in error in finding Canavan negligent and the $1,250,000.00 settlement reasonable. Canavan asserts that because the court found that Matelyan did not meet its burden of proof, that the court should not have reached the other issues. However, the court did so in order to expedite a judgment n.o.v. in the event it had erred on the hearsay issue.

So far as the important issue in this case is concerned, i.e., the hearsay issue, we are persuaded of the continuing viability of Martinique Shoes, supra. In that case, Mrs. Witt’s accident was the underlying injury of a subsequent assumpsit suit for indemnity. Progressive Wood Heel Company manufactured a particular heel which Martinique, maker of shoes, affixed to a shoe. Mrs. Witt bought such a shoe from Hahn and subsequently brought suit against Hahn to recover damages for personal injuries sustained when the heel allegedly split on the first occasion she wore it. Hahn demanded that Martinique assume the defense, and Martinique demanded the same of Progressive Wood, the manufacturer of the heel. Neither Martinique nor Progressive Wood defended and, subsequently, Hahn settled with Witt for an amount which Martinique paid upon formal demand by Hahn.

Principles of law set forth in the Martinique Shoes case in which Martinique sued Progressive to recover the amount it paid Hahn are applicable in the instant case, in that everything was sufficiently proven except how Mrs. Witt’s accident happened. The significance of this omission in Martinique lay in the fact that the underlying suit had been settled, and thus no record was established upon which to determine Martinique’s and/or Progressive’s liability, if any. As the court quoted,

“... when a cause is settled the record of the* action is not sufficient to establish an indemnitee’s claim against the indemnitor and the indemnitor is entitled to a trial by jury and a determination by it as to whether or not liability did, in fact, exist and then, whether or not it follows that the contract of indemnity had been breached. M. Shapiro and Son, Inc. v. Warwick, 189 Pa.Superior Ct. 445, 150 A.2d 386 (1959). Martinique Shoes, supra, 207 Pa.Superior Ct. at 407, 217 A.2d at 782-3.

Thus, the trial court concluded that

“the introduction of the deposition of the plaintiff in the other law suit for the purpose of proving liability in fact, was clearly hearsay and plaintiffs are, therefore, left with a record that cannot sustain a verdict in their favor.”

The trial court cited fairness to Canavan as another basis for its decision. Canavan never participated in the settled case and had not even been notified of it. Thus, the trial court held that Canavan was entitled to a non-hearsay proof of liability in the instant action since evidence in the settled case was hearsay in the instant trial.

Matelyan attempts to distinquish the instant case from the Martinique case on the ground that the instant case involves two torts (the negligence of the Falcones at the construction site and the professional negligence of Cana-van).

The distinction between Martinique Shoes and this case as involving two separate torts is obvious. However, the significance of this difference pales in light of the rationale underlying the necessity of presenting some quantum of evidence to support proof of Matelyan’s injuries. Because the first action in which Canavan was not a party was resolved by settlement, the second action, Matelyan v. Canavan and Ridgeway Court v. Canavan, could only be tried by admissible evidence against Canavan, in order for Matelyan’s suit to be cognizable as sufficient in fact and law. It is not enough for Matelyan to argue Canavan is not entitled to an opportunity in the instant case to challenge the underlying tort because Canavan’s negligence caused the second tort. Canavan should have been allowed an opportunity to challenge the facts which resulted in the settlement which only Canavan was now being sued to furnish. Faced with Martinique Shoes, we can do nothing else than affirm judgment for Canavan.

As for Canavan’s cross-appeal, it argues that the trial court erred in finding both that Canavan was negligent and that, if the trial court was wrong in determining the records and depositions in the settled case to be hearsay on the liability issue, that the amount of settlement was reasonable. Since we agree with the trial court’s findings that plaintiffs’ case was predicated on hearsay evidence, and that they are, therefore, left with a record that cannot sustain a verdict in their favor, we need not address these findings.

Order affirmed.

      . For example, in one instance, the court said:
      "I have previously overruled your objection on the grounds of hearsay. Since this is a non-jury case, I will reserve the right, upon my adjudication in this case, to study the problem more deeply. And if I think you are correct, it will appear in my adjudication. But for the purpose of the present ruling, your objection is overruled."


author: SPAETH, President Judge:

text:
    501 A.2d 687
    COMMONWEALTH of Pennsylvania v. Otto Martin JENSCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1985.
    Filed Dec. 13, 1985.

      Lawrence J. Hracho, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com.
    Before SPAETH, President Judge, and McEWEN and BECK, JJ.
   SPAETH, President Judge:

This is an appeal from an order denying a petition for relief under the Post-Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541 et seq. The only issue is whether the trial court incorrectly instructed the jury that appellant bore the burden of proving entrapment by a preponderance of the evidence. We affirm.

Appellant was convicted in 1981 of possession with intent to deliver and delivery of marijuana. We affirmed the judgment of sentence, Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983), and the Supreme Court denied appellant’s petition for allocatur. In 1984 appellant filed a PCHA petition alleging that trial counsel had been ineffective in failing to object to the trial court’s instruction on the burden of proving entrapment, thereby waiving the issue for appellate review. See Pa.R.A.P. 302(b). The PCHA court found that because the issue was of arguable merit, counsel was ineffective in failing to object. The court refused to award appellant a new trial, however, because it concluded that the trial court’s instruction was in accordance with the entrapment statute, 18 Pa.C.S. § 313, and Pennsylvania case law.

The trial court’s instruction was indeed in accordance with § 313(b), and with this court’s decision in Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976), where we rejected a due process challenge to § 313(b). Appellant argues, however, that § 313(b) and Jones were effectively overturned in Commonwealth v. Loccisano, 243 Pa.Super. 522, 366 A.2d 276 (1976). In Loccisano, decided two months after Jones, we reversed a conviction for sale of marijuana because the trial court had instructed the jury that the defendant had the burden of proving entrapment by a preponderance of the evidence.

Appellant’s reliance on Loccisano is misplaced. As pointed out by the PCHA court, since the crime in Loccisano occurred before the adoption of the 1972 Crimes Code, § 313(b) could not apply. This inapplicability was, moreover, at least implicitly recognized in Loccisano, for we noted there that “[t]he trial judge charged the jury on entrapment defining the defense as it existed in the case law of this Commonwealth prior to the new Crimes Code”, and that “[a]t the time the alleged offense in the present case was committed, the law on entrapment was in accord with the position of the majority of the United States Supreme Court.” Commonwealth v. Loccisano, supra, 243 Pa.Superior Ct. at 531-32, 366 A.2d at 280-81. The law thus alluded to employed a subjective test, focusing on the defendant’s disposition to commit the crime. In Loccisano we equated disposition to commit the crime with criminal intent, from which the conclusion followed that since intent was an element of the offense, it was the Commonwealth’s burden to disprove entrapment (or lack of intent) beyond a reasonable doubt. The entrapment defense was undeniably altered, however, by § 313, “shiftpng] in emphasis ... to an evaluation of the police conduct, an objective test____” Commonwealth v. Jones, supra, 242 Pa.Super. at 311, 363 A.2d at 1285. Under § 313, “entrapment does not negate an element of the offense, [and] it is [thus] constitutionally permissible to place the burden of proving an entrapment on the criminal defendant.” Id., 242 Pa.Superior Ct. at 314, 363 A.2d at 1286-87.

Since Jones and Loccisano, the propriety of the preponderance of the evidence burden has been recognized by this court in several cases. See Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985); Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984); Commonwealth v. Suggs, 289 Pa.Super. 44, 432 A.2d 1042 (1981). As appellant’s offense was committed in 1977, well after the effective date of the Crimes Code, the jury instruction on entrapment at his trial was correct. Trial counsel was therefore not ineffective in failing to object to the instruction.

Affirmed.

      . Appellant argued the propriety of the trial court’s charge in his initial appeal to this court, but we refused to reach the issue because it had not been preserved. Commonwealth v. Jensch, supra, 322 Pa.Superior Ct. at 316, 469 A.2d at 638.

      . § 313(b) provides that “[e]xcept as provided in subsection (c) of this section, á person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.”

      . While the PCHA court found the instruction proper, its order provided that appellant “be allowed to file an appeal to the Superior Court of Pennsylvania raising the issue of the trial court’s charge placing the burden of proving the defense of entrapment on [appellant]____" Order of Court, September 13, 1984.

      . Appellant also cites several federal cases placing the burden of disproving entrapment beyond a reasonable doubt on the government. On this issue, however, a Pennsylvania court is not bound by federal law. See, e.g., United States v. Jannotti, 729 F.2d 213 (3d Cir.), cert, denied, — U.S. —, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984).


author: OLSZEWSKI, Judge:

text:
    501 A.2d 689
    COMMONWEALTH of Pennsylvania v. Joyce LOGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 6, 1985.
    Filed Dec. 13, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com.
    Before BROSKY, ROWLEY, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, imposed January 30, 1985. Appellant was convicted of retail theft, theft by receiving stolen property, robbery, and criminal conspiracy. She now challenges her conviction for criminal conspiracy claiming insufficiency of evidence and violation of due process. We agree that appellant was improperly convicted of conspiracy and vacate her sentence as to this charge.

The criminal complaint filed against appellant alleged that appellant acted “in concert with Lewis Terry” in perpetration of the offenses cited. On June 21, 1984, appellant and Mr. Terry were in the women’s sportswear department of Ports of the World store in Philadelphia. A store detective saw appellant conceal two dresses and leave the store with Mr. Terry. The detective followed, identified himself as a security officer and requested that the pair return to the store because of their failure to pay for the goods. As appellant began to walk away, the detective grabbed her. Terry shoved the detective, yelled “leave my wife alone,” and threatened the detective with a knife. Terry entered the driver’s side and appellant the passenger’s side of a vehicle occupied by Theodore Scott. The detective tried to pull appellant from the vehicle, but was unable to do so because Mr. Scott had his arms around appellant. Upon the arrival of police, appellant and Mr. Terry were arrested and charged. Mr. Scott, who was present, was neither arrested nor charged. Mr. Terry, appellant’s husband, was tried with her, but was acquitted of conspiracy.

Appellant argues that since the criminal complaint only mentions her involvement with Terry, the criminal information cannot expand the charges against her to include a conspiracy with Mr. Scott. We have addressed a similar argument in Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344 (1980). In that case, the complaint erroneously named an individual as co-conspirator. Over the objection of defense counsel, Commonwealth was permitted to amend the complaint at the preliminary hearing. We held that:

an outright substitution of a named co-conspirator in a complaint constitutes ‘a different set of events’ and could require ‘materially different defenses’ of the accused. A charge of conspiracy with one (person) to commit certain offenses must necessarily embrace a unique factual setting which is radically altered when the Commonwealth seeks to charge that appellant conspired with (a second person) and not (the first).

Id., 278 Pa.Superior Ct. at 48, 419 A.2d at 1349; Commonwealth v. McIntosh, 328 Pa.Super. 255, 476 A.2d 1316 (1984).

This provision must apply to the present case. When appellant was charged only as a conspirator with Lewis Terry, it would be improper to infer a conspiratorial relationship with Theodore Scott for which she could be held criminally liable. Although a crime formally charged in an information need not be precisely the same as the offense stated in the complaint, it must nevertheless be substantially the same as or cognate to the offense charged in the criminal complaint, since a defendant cannot be required to answer a charge different from or unrelated to the one for which he was arrested and held to bail. Pa.R.Crim.P. 225(b)(5); Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Finding appellant guilty of conspiracy with Mr. Scott, as the lower court opinion suggests, is finding her guilty of a separate offense, noncognate to the one charged in the complaint. The fact that the criminal information employs boilerplate language and charges conspiracy with certain “unknown” persons does not allow substitution of Mr. Scott as a co-conspirator.

Judgment of sentence vacated as to the charge of conspiracy; jurisdiction relinquished.

ROWLEY, J., concurs in the result.

      . On the day of sentencing, the lower court granted appellant’s motion in arrest of judgment as to the theft by receiving stolen property. All other post verdict motions were denied.


author: PER CURIAM:

text:
    501 A.2d 691
    Maryjane Patricia FRASCH, Appellant, v. Raymond Arthur FRASCH.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Dec. 13, 1985.

      Anthony J. Rosini, Assistant District Attorney, Shamokin, for appellant.
    Vincent V. Rovito, Shamokin, for appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.
   PER CURIAM:

Raymond Arthur Frasch, appellee, works for the postal service and supports two of his children with a bi-weekly support order of $226.00. He also paid a spousal support order of $234.00 bi-weekly for his wife Maryjane Patricia, but at a January 1985 hearing before President Judge Peter Krehel the spousal support order was vacated and this appeal followed.

Appellant presents the following issues for our consideration:

1. Did the lower court err in vacating the prior order of support in this matter without taking testimony at the time of the hearing.
2. Did the actions of the lower court in deciding this matter without taking testimony exhibit a degree of bias, prejudice, lack of impartiality or the appearance thereof, capricious disbelief or prejudgment such as to raise doubts as to the [lower] court’s ability to preside objectively and fairly upon remand.

Brief for Appellant at 3.

We answer both questions in the affirmative.

At the hearing held before Judge Krehel, on January 18, 1985, both parties and thier respective counsel were present. Counsel for Maryjane Patricia desired to present testimony in opposition to the requested vacation of the order of spousal support, but his request was denied. Mr. Rosini, appellant’s counsel, said:

It’s my understanding from the discussion at Sidebar and with this Court’s Clerk that the Court does not desire to take testimony, and for the purpose of the record I would like to submit my objection to that on behalf of my client.
THE COURT: We will note the objection and it’s on the record.
MR. ROSINI: The Court has indicated that it would accept a statement of the party’s position and without doing any deference to my objection I would for the Court state my client’s position.
Mrs. Frasch lives at home with her two children, who are still minors and are still subject to support. She also has two other children who don’t live at home full time, but who are attending college or technical training. I would note that Mr. Frasch is not paying any support towards either of those children, despite the fact they’re seeking higher education. They do spend some time at home, particularly weekends and holidays.
Mrs. Frasch will testify that she has expenses, some of which are extraordinary for braces for the two children who are subject to the Support Order here today, Randy and Michael, in the amount of $100.00 a month, and I believe the total amount being $2,500.00 for the braces.
She does have a mortgage which she’s paying which is approximately $105.00 a month. She has had low income loans and has had [remodeling] work done to the home through the Redevelopment Authority and Community Affairs grants. She pays approximately $80.00 a week for groceries. Her water bill quarterly is approximately $40.00. She pays approximately $1,500.00 a year for heat. She pays school tuition for her two children, one $450.00 for the first child — I believe they attend Lordes Regional Hospital — and the second one is $115.00. She pays $29.50 for her cable. She has insurance expenses for the home of $209.00 a year. She has auto insurance of $246.00 a year. She spends for clothing approximately $500.00 a year for the children, and approximately $700.00 a year for herself. She has a sewage bill which is quarterly of (inaudible). She just had to spend $75.00 for eye glasses for one of her children and she just had to spend approximately $230.00 for glasses for herself. She has a $52.28 a month bill from the Pennsylvania Power and Light Company. She had at one time a $45.00 expense from the Geisinger Medical Center for one of her children. Her husband has in the past provided medical insurance. However, there is some question whether this would continue and she would request the Court to have him provide medical insurance for the children and the wife. She’s been paying the difference between the deductible and the amount of insurance he provides. She also has expenses for life insurance, $40.60 a month. She has her driver’s license expense, $24.00. She spends approximately $450.00 a year in automobile expenses and $31.00 a month in telephone expenses, and the large amount of that is due to the fact she has two children who are out of the area attending school.
It’s my understanding that Mr. Comes from the Domestic Relation’s Office would testify that Mr. Filer made a recommendation for support and had an Order entered for $996.66. We would submit that under the circumstances of Mr. Frasch’s income, which I believe is biweekly, a gross income of $1,137.00, which would work out on a yearly basis to approximately — Your Honor, can I speak with Mr. Comes a second? I don’t have that information in front of me. The Domestic Relation’s Office only has income reports through September of 1984. I would note that Mr. Frasch works for the United States Post Office and has recently received a raise. Since it has not been verified through Domestic Relations, we do not have—
THE COURT: Do you have a monthly income that is alleged here?
MR. ROSINI: The last month income available, gross income is $1,137.00 from September of 1984. Now, Mr. Frasch would have received an increase recently. However, we do not have a record of that. We would submit based on Mr. Frasch’s income and his obligation to support the spouse and children, that the Court should sustain the Order which was recommended by the Domestic Relation’s Office, which is $996. Thank you, Your Honor.

Record at 2-5.

!{: 5Í: S[í }¡C $
President Judge Krehel ruled:
THE COURT: Alright, even if we allowed testimony, the bottom line would be just the way it’s been capsulized by both sides here, and we do have to depend in part on what our Domestic Relation’s Section of Family Court provides for us. I see it this way, that at the time in September of 1984, when the Domestic Relation’s Section was faced with a gross earnings of $1,137.00 by Mr. Frasch and zero earnings by Mrs. Frasch, that such an Order would be set up for $996.00 for spousal support, or at least the accumulation of spousal and children support.
With the ongoing $226.00 bi-weekly for the children, I see no reason why this Court should put the burden on Mr. Frasch after so diligently paying since 1977, $46,-900.00, and maintaining the children’s support right along with it to get his wife an education to where she could manage to get in the labor market herself.
I’m going to leave the matter open for sixty days to give Mrs. Frasch an opportunity to find a job in the sixty days. Otherwise, she has a bad education somehow, especially in a technical field like Computer Science, because that is pretty much in demand. I think it would be burdensome for this Court to put something additional on Mr. Frasch at this time. I will keep it in mind this way that a Temporary Order will be “zero" for Mrs. Frasch — she has to go seeking employment, and if in sixty days she hasn’t gotten any employment we will review the case administratively first and bring to the Court’s attention that poor Mrs. Frasch doesn’t get a job after going to all the places and that nobody wants her after all these places, and she can’t take care of herself.
I’m sure the medical, eye glasses and whatever insurance coverage Mr. Frasch has been providing and will be providing, it won’t be a burden on Mrs. Frasch, though she should be doing half the sharing of the cost of the children. This is the time that women asked for equal rights. Let them have equal responsibilities as well. That’s all we are going to do in this matter today.

Record at 7-8 (emphasis added).

Our duty is clear in matter of this nature. The rights of the wife and mother were clearly and directly affected by the court’s vacation of her spousal support order — and she was not permitted to be heard. No evidence was taken. We find this action to be clear abuse of discretion, i.e., the vacating of the spousal support order without taking and giving consideration to testimony. As Judge Hoffman said in Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983):

Because we find the record insufficient to support the order, we vacate the order of the lower court and remand for further evidentiary hearings.

Id., 318 Pa.Superior Ct. at 425, 465 A.2d at 28.

Reversed and remanded for an evidentiary hearing. Prior order of spousal support is reinstated retroactive to January 18, 1985. All arrearages are to be paid within 120 days of the date of this opinion. This case shall be assigned to a different judge. Jurisdiction is relinquished.

      . Michael age 14 and Robert age 10, reside with their mother. A divorce action is pending. Separation occurred in 1977. Two older children are emanicipated.

      . As we said in Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 607, 489 A.2d 804, 807 (1985):
      In reviewing support orders, an appellate court will defer to the court below in the absence of a showing of a clear abuse of discretion. Machen v. Machen, 278 Pa.Super. 135, 420 A.2d 466 (1980); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super 32, 457 A.2d 98 (1983). The scope of review in support cases is very narrow. Commonwealth v. Goodyear, 270 Pa.Super. 326, 411 A.2d 550 (1979).


text:
    501 A.2d 1116
    COMMONWEALTH of Pennsylvania, Appellant v. John R. NEAL.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed Oct. 25, 1985.
    Reargument Denied Jan. 3, 1986.

      Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald Bronstein, Assistant Public Defender, Philadelphia, for appellee.
    Before ROWLEY, WATKINS and GEISZ , JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WATKINS, Judge:

This appeal comes to us from the Court of Common Pleas of Philadelphia County and involves a Commonwealth appeal from an order dismissing charges against the defendant, John R. Neal, due to a Rule 1100 violation.

A review of the record demonstrates that the defendant was not tried within 180 days of his arrest. The complaint against the defendant was filed on March 3, 1983. Thus, the original run date was August 30, 1983. However, the Commonwealth did not file its petition to extend the time in which to bring defendant to trial until December 29, 1983. Since the petition was not filed until after the “run date” the court below automatically denied the petition and discharged the defendant.

Further review of the record reveals beyond a shadow of a doubt that the Commonwealth exercised due diligence in attempting to bring defendant to trial. Initially, the defendant’s preliminary hearing had been postponed for twelve (12) days due to the fact that he had failed to secure counsel. Thus, this twelve-day delay is attributable to the defendant.

The trial was first scheduled for May 11, 1983, but was not heard because the Public Defender’s Office, by whom the defendant was being represented, informed the Court Administrator that the Public Defender’s Office did not staff the court room in which the trial was to be held. Thus, this delay is also attributable to the “lack of availability” of the defendant’s counsel. The case was again scheduled for trial on July 1, 1983 in another court room, but was again continued on a motion by the trial court due to the trial judge’s attendance at a judicial conference. Trial was then scheduled for July 22, 1983 in Judge Maier’s court room, but was not held because this was the court room not staffed by the Public Defender’s Office, defendant’s counsel. Trial was at that time set for October 4, 1983, but the defendant failed to appear resulting in the issuance of a bench warrant for defendant’s arrest. On October 31,1983, the bench warrant was withdrawn and trial set for Decern-ber 29, 1983, the earliest possible date available. The Commonwealth then filed its Petition to Extend Time for Trial on December 29,1983. A hearing thereon was held on that date after which the trial court denied the Commonwealth’s petition and discharged the defendant. The Commonwealth then took this appeal alleging that it had exercised due diligence in attempting to bring defendant to trial and that the trial court’s discharge of the defendant pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure was erroneous.

We agree that the Commonwealth exercised due diligence in attempting to bring the defendant to trial and that it was responsible for none of the delay in not trying the defendant within the 180-days after his arrest. Although the trial court appeared to agree with this contention, it discharged the defendant because the Commonwealth’s Petition to Extend was not filed until after the original “run date” had expired.

The issue in the instant case is whether Rule 1100 mandates that charges brought against a defendant must be dismissed in cases where the Commonwealth does not file its petition to extend the time in which to bring defendant to trial until after the original “run date” even where it is plain from the record that the Commonwealth exercised due diligence in attempting to bring defendant to trial and was not responsible for any of the delay.

While “judicial delay” does not excuse the Commonwealth from filing its petition for extension of time, delay which is attributable to the defendant or his attorney does extend said period of time. In determining the period for commencement of trial there shall be excludable therefrom, inter alia, such period of delay at any stage of the proceedings as results from the unavailability of the defendant or his attorney. Pa.Rule Crim.Pro. 1100(d)(3)(i). All of the delay during the period from October 4, 1983 to December 29, 1983 was due to the defendant’s “unavailability” occasioned by his failure to appear for trial on October 4, 1983. In addition, the defendant is charged with the twelve-day delay in holding his preliminary hearing and was responsible for the delay for the period from May 11, 1983 until July 1, 1983 since his counsel was “unavailable” for trial which had been scheduled for May 11, 1983. The defendant was further responsible for the delay during the period of July 22, 1983 (when his counsel was again “unavailable”) until October 4, 1983 when his trial was re-scheduled. Thus, the delay attributable to the defendant amounts to 213 days. The period from July 1, 1983 until July 22, 1983, a period of 21 days, is attributable to “judicial delay” because the court below had re-scheduled trial on his own motion. Therefore, said 21-day period, although chargeable to the Commonwealth for “due diligence” purposes, does not act to extend the time within which the Commonwealth can file its petition to extend. Since the original “run date” was August 30,1983 and since 213 days are attributable to delays occasioned by the defendant or his counsel, the Commonwealth’s Petition, filed on December 29, 1983, was timely. This is so because the period from the original “run date” until December 29, 1983 amounted to only 121 days and the defendant is responsible for 213 days of delay which extends the period for “commencement of trial” and therefore extends the period of time within which the Commonwealth had to file its petition to extend. See Rule 1100(d)(3)(i). Thus, we are holding that “judicial delay”, although not attributible to the Commonwealth, does not extend the time period in which the Commonwealth can file its petition to extend. However, delays occasioned by the defendant or his counsel to extend the period of time “for commencement of trial” and therefore extend the period of time in which the Commonwealth can file its petition to extend time. Since the Commonwealth in this case filed its petition prior to the expiration of the 213 days after the original “run date”, the petition was timely filed and the court below erroneously discharged the defendant.

Order reversed and case remanded for trial. Jurisdiction relinquished.


author: BROSKY, Judge:

text:
    501 A.2d 1119
    COMMONWEALTH of Pennsylvania, Appellant v. Dwight Cameron JOHNSTON. COMMONWEALTH of Pennsylvania v. Dwight Cameron JOHNSTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 29, 1985.
    Petition for Allowance of Appeal Granted May 7, 1986.

      William R. Shaffer, Assistant District Attorney, Butler, for Commonwealth, appellant (at 1541) and appellee (at 1545). ■
    Frank W. Ittel, Jr., Pittsburgh, for appellant (at 1545) and appellee (at 1541).
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

These cross-appeals are from the judgment of sentence imposed after appellee was found guilty in a bench trial of possession with intent to deliver and simple possession. Appellee contends that: (1) his motion to suppress evidence should have been granted because the totality of the circumstances did not establish probable cause for issuance of a search warrant; and (2) his demurrer should have been sustained because the Commonwealth did not adduce evidence from which it could be concluded beyond a reasonable doubt that he constructively possessed the contraband recovered in this case. Appellant contends that the sentencing court erred in imposing a sentence for the offense of possession with intent to deliver which was in the mitigated minimum range of the Sentencing Guidelines instead of the minimum range without stating any reasons for doing so. We find no merit to either appeal, but do find that the crime of simple possession should have been merged for sentencing purposes with the crime of possession with intent to deliver. Accordingly, we vacate the judgment of sentence for simple possession and affirm the judgment of sentence for possession with intent to deliver.

On November 1, 1984, appellee was sentenced to five to ten months imprisonment and two years probation for the crime of possession with intent to deliver. An identical concurrent sentence was imposed for the crime of simple possession. The Commonwealth timely filed a motion for modification of sentence which was denied by the lower court. This appeal timely followed.

Appellant argues that the minimum range established by the Sentencing Guidelines for appellee’s sentence was 8 to 12 months imprisonment. It contends that the minimum sentence of five months imposed by the lower court was in the mitigated minimum range and since the sentencing court did not give any reasons for sentencing within this range, the case should be remanded for resentencing.

We agree with the Commonwealth that if a sentencing court sentences outside of the minimum range (in the aggravated minimum range or the mitigated minimum range) or outside of the guidelines entirely, it must explain its reasons for doing so. See Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984); 42 Pa.C.S. § 9721(b); Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual at 15. However, we find that the Commonwealth has miscalculated the minimum range that applies in this case and that appellee was, in fact, sentenced in the minimum range provided by the Sentencing Guidelines.

Initially, we note appellee’s argument that appellate review and a possible subsequent increase in his sentence are precluded by double jeopardy considerations. This argument has already been considered and rejected by this Court.

Jurists and legal scholars have long deplored the absence of appellate review of trial court determinations fixing criminal sentences. Stern, Government Appeals of Sentences: A Constitutional Response to Arbitrary and Unreasonable Sentences, 18 Amer.Crim.L.Rev. 51, 52. Because of gross and unjustifiable disparity in sentences imposed, a consensus has emerged in Pennsylvania in favor of sentencing guidelines. Those guidelines will be virtually meaningless and uniformity will not be achieved without a right of appellate review. This right to obtain appellate review of sentences has been given equally to defendants and the Commonwealth. Because this right exists, no sentence is final until the right of appellate review has been exhausted or waived. Accordingly, double jeopardy considerations do not preclude the application of Pa.R.Crim.P. 1410 to the Commonwealth.

Commonwealth v. Anderson, 304 Pa.Super. 476, 481-82, 450 A.2d 1011, 1014 (1982) (footnote omitted).

Turning to the merits of the Commonwealth’s appeal, we agree with the Commonwealth that the proper offense gravity score to be given to appellee’s violation of 35 Pa.C.S. § 780-113(a)(30) was six. Appellee had one previous conviction for violating § 780-113(a)(30). Therefore, the second or subsequent offense section of the Drug Act applied, 35 Pa.C.S. § 780-115. Also, the contraband involved in the current offense was marijuana, a Schedule I, non-narcotic controlled substance. § 303.8 of the Sentencing Guidelines provides that a violation of 35 Pa.C.S. § 780-113(a)(30), where the drug involved is a Schedule I, non-narcotic drug and where 35 Pa.C.S. § 780-115 applies, is assigned an offense gravity score of six.

The Commonwealth further argues that the sentence range chart provides that the minimum range for an offense with an offense gravity score of six and a prior record score of two is eight to twelve months. It concludes that appellant should be assigned a prior record score of two because of his prior conviction under Pa.C.S. § 780-113(a)(30). It notes that 35 Pa.C.S. § 780-113(f)(2) provides that a violation of § 780-113(a)(30) with respect to a Schedule I, non-narcotic substance is a felony and that § 303.-7(b)(2)(h) of the Sentencing Guidelines provides that two points are added to the prior record score for each prior felony violation of The Controlled Substance, Drug, Device and Cosmetic Act (35 Pa.C.S. §§ 780-101, to 780-144).

In concluding that appellee’s prior conviction should have given him a prior record score of two, the Commonwealth has, however, overlooked the effect of § 303.7(f) of the Sentencing Guidelines.. This section provides as follows:

Past convictions. When the grading of the current offense is dependent upon past convictions, those convictions shall not be used in computing the prior record score. For example: retail theft, some violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 Pa.C.S. §§ 780-101-780-144), and some motor vehicle offenses take a higher statutory classification when the defendant has been previously convicted of the same offense.

In the instant case, as discussed above, the fact that appellant had previously violated § 780-113(a)(30) meant that § 780-115 applied to this case. Under § 780-115, appellee was subject to twice the term of imprisonment that he was subject to for his first violation of § 780-113(a)(30).

§ 780-113(f)(2), as noted above, provides that violation of § 780-113(a)(30) is a felony. It also provides for a term of imprisonment not exceeding five years. Thus, for appel-lee’s current offense, his second violation of § 780-113(a)(30), he would be subject to a term of imprisonment not exceeding ten years.

The question before us thus becomes whether the fact that appellee’s past conviction under § 780-113(a)(30) subjects him to a maximum of ten years imprisonment instead of a maximum of five years imprisonment results in the grading of the current offense being dependent upon appel-lee’s past conviction. In order to answer this question, we must first determine what the grading is of an initial violation of § 780-113(a)(30). Although § 780-113(f)(2) classifies such a violation as a felony, it does not indicate whether the felony is of the first, second, or third degree. However, 18 Pa.C.S. § 106(e) provides as follows:

(e) Section applicable to other statutes. — An offense hereafter defined by any statute other than this title shall be classified as provided in this section.

Therefore, in order to classify the offense in question, we turn to the provisions of 18 Pa.C.S. § 106.

18 Pa.C.S. § 106(b)(4) states the following:
A crime is a felony of the third degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than seven years.

Since an initial violation of 35 Pa.C.S. § 780-113(a)(30) is punishable by a maximum of five years imprisonment, we conclude that such a violation is a felony of the third degree.

We must next determine the grading of a subsequent violation of § 780-113(a)(30). As already noted, a subsequent violation is punishable by a maximum of ten years imprisonment. 18 Pa.C.S. § 106(b)(3) provides that:

A crime is a felony of the second degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than ten years.

Therefore, we conclude that a subsequent violation of § 780-113(a)(30) is a felony of the second degree.

In the instant case, appellee’s past conviction means that his current offense is classified as a second degree felony instead of as the third degree felony it would have been absent the past conviction. Since the grading of the current offense is thus dependent upon appellee’s past conviction, under § 303.7(f) of the Sentencing Guidelines that conviction cannot be used in computing appellee’s prior record score. Absent appellee’s past conviction, under § 780-113(a)(30), his prior record score was zero since that was his only past conviction. The sentencing guidelines chart provides that the minimum range for an offense with an offense gravity score of six and a prior record score of zero is four to twelve months. Since the minimum sentence imposed on appellee was five months, the court below did, in fact, sentence appellee in the minimum range applicable under the Sentencing Guidelines. We therefore find no merit in the Commonwealth’s appeal.

We do, however, raise, sua sponte, the question of merger of the offenses of simple possession with intent to deliver. The record indicates that both charges stemmed from the same act of possession and, therefore, the crimes should have been merged for sentencing purposes. See Commonwealth v. Edwards, 302 Pa.Super. 522, 449 A.2d 38 (1982).

When crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greatest penalty. Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Since violation of 35 Pa.C.S. § 780-113(a)(16) (simple possession) is a misdemeanor, see 35 Pa.C.S. § 780-113(b), and violation of 35 Pa.C.S. § 780-113(a)(30), (possession with intent to deliver) is a felony, appellee should only have been sentenced for the crime of possession with intent to deliver.

Where a case requires a correction of a sentence, this Court has the option of remanding for resentencing or amending the sentence directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Since the court in the case sub judice imposed identical concurrent sentences for both offenses, we will simply vacate the sentence imposed for the crime of simple possession.

Accordingly, the judgment of sentence for simple possession is vacated. The judgment of sentence for possession with intent to deliver is affirmed.

      . For clarity, we will refer to Dwight Cameron Johnston as appellee and to the Commonwealth as appellant throughout this opinion.

      . 35 Pa.C.S. § 780-113(a)(30).

      . 35 Pa.C.S. § 780-113(a)(16).

      . See 42 Pa.C.S. § 9721.

      . After a thorough and careful review of the record we find that the opinion of the court below adequately disposes of the issues raised by appellee in his appeal. We would only supplement that opinion as follows. We find appellee’s argument as to his demurrer to be in essence one which focuses on what additional evidence the Commonwealth could have brought forward rather than on the proper inquiry of whether the evidence it did adduce was sufficient to withstand a demurrer. Appellee’s concentration on one facet of the Commonwealth’s proof of constructive possession ignores the principle that while “individually, the circumstances may not be decisive ... in combination they may justify an inference that the accused had both the power to control and the intent to exercise that control, which is required to prove constructive possession." Commonwealth v. DeCampli, 243 Pa.Super. 69, 75, 364 A.2d 454, 457 (1976) (citation omitted). In other words, constructive possession may be shown by the totality of the circumstances. See Commonwealth v. Davis, 308 Pa.Super. 431, 454 A.2d 612 (1982). We agree with the court below that considering the totality of the circumstances the evidence of constructive possession was sufficient to withstand appellee’s demurrer.

      . See § 303.8 of the Sentencing Guidelines.

      . § 780-115 provides in relevant part as follows:
      (a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

      . 303.9 of the Sentencing Guidelines.

      . § 303.7 of the Sentencing Guidelines.

      . Although appellee has never raised this issue, it is one which this Court may raise sua sponte because, it involves the legality of appel-lee’s sentence. See Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982).