text:
    457 A.2d 544
    COMMONWEALTH of Pennsylvania v. William T. BRADLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1982.
    Filed March 11, 1983.

      Gilbert E. Toll, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

Counsel for appellant has filed a brief containing a request that he be permitted to withdraw from the case. Because we find that counsel has not met the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), we deny said request.

Appellant pleaded guilty to multiple burglary and robbery counts in 1977. He was sentenced to terms of imprisonment of 15 to 30 years and 20 years of current probation. Prior to the filing of this appeal pro se, appellant had been represented by the Defender Association of Philadelphia. After his appeal was filed, present counsel was appointed.

In his brief, appellant’s counsel first presents the argument that appellant’s guilty plea was invalid. He then argues that he should be permitted to withdraw as counsel because the claim advanced by appellant as to his guilty plea is without merit.

We note initially that recently our Supreme Court said: This court has also noted “that lack of merit in an appeal is not the legal equivalent of frivolity.” Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).
Anders ‘appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.’ (Citation omitted.)

Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981).

Appellant’s counsel does not allege that the appeal is totally frivolous.

The facts of this case are very similar to those before this court in Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982). We found that counsel had erred in not furnishing a copy of his brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel. See Anders, supra, which establishes that counsel must give his client a copy of such a brief.

In Worthy, we discussed this issue as follows:

Instantly, we find that counsel requesting withdrawal failed to satisfy the third Anders-Baker requirement— “indeed the most important,” Commonwealth v. Baker, supra, 439 Pa. at 214, 239 A.2d at 203—notification of his client. Counsel’s brief merely contains a certification that copies of his “Petition to Withdraw as Counsel together with accompanying Briefs” were served on the appellant. However, here the certification does not say either that counsel informed his client of his right to proceed in propria persona or to request appointment of new counsel, or that he informed him of these rights in time for him to exercise them. Thus, counsel did not comply with the notice requirement. Commonwealth v. Walker, 259 Pa.Super. 260, 393 A.2d 817 (1978).

Counsel in the present appeal certified only that he had served a copy of the brief upon the district attorney. No mention is made of appellant having been given one. Our examination of the record discloses no evidence that appellant has been informed of his attorney’s request to withdraw or of the rights which he has. Therefore, because counsel has not complied with the constitutional requirements for withdrawal, the petition to withdraw is denied.

Counsel is directed to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant. See Worthy, supra, and cases cited therein.

Request to withdraw is denied.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. The present appeal is wholly frivolous. It was filed pro se from a judgment of sentence entered following counseled pleas of guilty to multiple charges of burglary and robbery. The present appeal was filed without prior petition to withdraw the pleas of guilty or for reconsideration of sentence. When the trial court entered an order under Pa.R.A.P. 1925(b) directing the filing of a statement of matters complained of on appeal, neither appellant nor his counsel responded. Thus, the adequacy of the guilty plea colloquy has not been considered by the trial court. From this it can readily be seen that there are no issues which have been properly preserved for appellate review.

Moreover, if I assume arguendo that a challenge to the validity of the guilty plea is properly before us on this direct appeal, I would be compelled to find it wholly lacking in merit. The guilty plea colloquy was impeccable. Both counsel and the trial court assiduously complied with the mandates of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and Pa.R.Crim.P. 319.

Therefore, I would affirm the judgment of sentence. The alleged inadequacy of the guilty plea colloquy has been argued in an advocate’s brief filed by appellate counsel, and his stewardship in failing to file a statement of matters complained of on appeal can be examined if and when the issue is properly raised. Meanwhile, I can perceive no practical reason for keeping alive this frivolous appeal merely because counsel added a paragraph to his brief in which he stated that he wished to withdraw as appellant’s counsel.

      . Pennsylvania Rule of Criminal Procedure 321 sets forth the requisite procedure for challenging a guilty plea. Appellate decisions have made compliance with this rule mandatory. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978). Thus, prior to filing an appeal in this Court, an appellant must file with the trial court a petition for withdrawal of his guilty plea. A waiver will be found where no such petition has been filed, provided the record affirmatively demonstrates that appellant has been advised of the right to petition, the right to assistance of appointed counsel, and the consequences of failure to file such a petition. The record in this case demonstrates that appellant was fully and properly advised.

      . In Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982), the Supreme Court discussed the waiver provision of Rule 1925(b). Noting that “[t]he statement provided for therein is intended to aid the trial court in the preparation of an opinion where the basis of an appeal is unclear [,]” the Court went on to state that: "The waiver provision of the Rule is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review."


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    457 A.2d 546
    In the Matter of Laura FIRSTER, a minor. Appeal of Laura FIRSTER.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1982.
    Filed March 11, 1983.
    Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Dana S. Jones, Assistant District Attorney, Erie, for participating party.

      Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from the denial of a juvenile’s petition for release from detention. Appellant raises two issues. First, she argues that the statutory parameters for the sentencing of juveniles, as stated in 42 Pa.C.S.A. 6353(a), were not complied with. Second, she maintains that even if those statutory requirements were met, that they work a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We hold that the statute in question was not followed and that the appellant should be released. It is, therefore, unnecessary for us to reach the constitutional issue. We reverse.

The procedural history of this case is as follows. On February 26, 1981, appellant committed two thefts of retail goods. The following July 13, she was found guilty by a District Magistrate on both counts of retail theft, a summary violation. Her fines and costs amounted to $58 on the first violation and $78 on the second. Subsequent to a master’s hearing, a dispositional hearing was held in the Court of Common Pleas. On September 29, 1981, that Court found her to be delinquent through failure to pay the fines. She was then placed “for an indefinite period of time” in Andromeda II, a juvenile treatment facility.

In early May of 1982, appellant ran away from that facility but was detained on May 10 of that year. On May 12, a master’s hearing recommendation was made to the trial court that her confinement be continued. This recommendation was adopted by the trial court. On May 28, 1982, the petition for release and to close jurisdiction was denied. That same day, the Court ordered her placed in a Detention Center. By order of the court on June 10, 1982, she was removed to Vision Quest, another juvenile treatment program. Her confinement continues through the time of this appeal.

For our purposes here, three procedural facts are of particular importance. First, she was found to be delinquent by reason of her failure to pay a fine for a summary offense and was sentenced on September 29, 1981. Second, her petition for release was denied on May 28, 1982. Third, she remains in confinement.

A delinquent act is statutorily defined:

(2) The term shall not include: ... (ii) summary offenses, unless the child fails to pay a fine levied thereunder...

42 Pa.C.S.A. 6302.

Thus, within the terms of this act, appellant committed a delinquent act and could properly be sentenced by the Court. Compare, In the Interest of Ryan, 277 Pa.Super. 433, 419 A.2d 1224 (1980), and In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981) (Per Brosky, J., with two Judges concurring in the result). The question before us then is whether that sentence also conformed with statutory requirements.

The relevant portion of those requirements are:

No child shall initially be committed to an institution for a period longer than three years or a period longer than he could have been sentenced by the court if he had been convicted of the same offense as an adult, whichever is less. The initial commitment may be extended for a similar period of time, or modified, if the court finds after hearing that the extension or modification will effectuate the original purpose for which the order was entered.

42 Pa.C.S.A. 6353(a). In order to determine the maximum initial commitment period that appellant could have been legally subjected to, it is necessary to establish the period of time an adult could have been sentenced for the same offense. “A person who has been convicted of a summary offense may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 90 days.” 18 Pa.C.S.A. 1105. An adult could be sentenced for that period of time for failure to pay the fine. 42 Pa.C.S.A. 9772.

In order for the instant case to have conformed with the statutory requirements for juvenile commitment for delinquency, it was necessary for a modification hearing to have been held prior to the end of the initial 90 day commitment period which was December 27. (Or, in the alternative, that she have been released at or before the end of the 90 days.) A hearing was not held here for more than four months after the expiration of the period.

The hearing requirements of § 6353(a), further the purposes of the juvenile act.

This chapter shall be interpreted and construed as to effectuate the following purposes: ...
(2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation.

42 Pa.C.S.A. § 6301(b). By mandating a review of the juvenile’s status, the provision seeks to determine whether the child’s welfare would be advanced through continued commitment. Conversely, a failure to hold such a hearing runs counter to the purposes of the juvenile act, as well as working a violation of § 6353(a).

In its opinion, the trial court states that the requirements of § 6353 are not applicable here because, “the failure to pay a fine levied for a summary offense is a specific delinquent act.” The failure to pay a fine for a summary offense is indeed specifically pointed out as a delinquent act. This is done because a summary offense alone is not a delinquent act. Even so, we do not see this as a basis for exemption from the provisions of § 6353.

It could also be argued that even if a modification hearing were not held when required by law; that one has been held before this case was argued before this appellate court and the fault thus cured. We do not adopt this line of reasoning. We cannot sanction the court holding a modification hearing for a confined juvenile after the time she should have been released. To do so would allow the Commonwealth to reap a legal advantage from its engaging in her illegal detention. Had appellant been released after 90 days—as she should have been in the absence of a modification hearing—there is no doubt that the court would, have been unable to hold a modification hearing while she was at liberty and reconfine her. A new, distinct delinquency hearing with new circumstances as a basis for a finding of delinquency would have to be held in order to commit a released juvenile. We cannot permit any less to be done when the juvenile is illegally detained past the proper period.

Appellant has been, and continues to be, illegally detained. We reverse and order her release.

CAVANAUGH, J. concurs in result.

      . Judicial economy is not the only basis for our declining to deal with the Equal Protection challenge to the statute. Sound jurisprudential policy requires, in general, that decisions be based on the narrowest grounds available; and, in particular, that issues of a constitutional dimension not be resolved unless that resolution is essential for the disposition of an appeal.

      . From one store she shoplifted three types of peanuts, a cigarette lighter and a smoked meat snack with a total value of $10.23. From another store, a bathing suit and a pair of jeans were taken with a total value of $46. From July 1 through September 29, 1981, she was in detention as a dependent.

      . 18 Pa.C.S.A. 3929. No appeal was taken from these convictions.

      . While the propriety of this provision is not before us, we are moved to comment on the curious value judgment the legislature made here. The substantive summary offense cannot constitute a delinquent act; only the failure to pay the fine can. Thus, the legislature seems to have concluded that a child from a well to do family, which can afford to pay the fines, is less in need of treatment and rehabilitation than a child from a family without economic resources.
      This somewhat dubious basis on which a child is adjudicated delinquent makes it all the more important that a judicial review of the case be performed as mandated by 42 Pa.C.S.A. 6353(a), infra.

      . The second sentence of § 6353(a), quoted above, could have been drafted more explicitly, to make clear that the hearing to extend or modify the initial commitment period be held prior to the expiration of the initial commitment period. Even though this was not done, that is the only interpretation of the statute which is proper. This is because, once the initial commitment period has run, the child should be released. (Absent a hearing.) Once released, we do not think it proper for her to be recommitted by a modification or extension hearing. At that point, a new adjudication of delinquency would have to be made. The other alternative would be to not release the child at the end of the initial commitment period and then hold a modification hearing. However, holding the child after the end of the initial commitment period, without an extension being in effect, would also be contrary to the requirements of the statute. For the period between the expiration of the initial commitment period and the extension hearing order, the child would be held without legal authority to do so.


author: WIEAND, Judge:

text:
    457 A.2d 549
    COMMONWEALTH of Pennsylvania v. Bernard DARDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1982.
    Filed March 11, 1983.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Bernard Darden was tried non-jury and was convicted of robbery, theft by unlawful taking, theft by receiving stolen property, simple assault, recklessly endangering another person, terroristic threats, possessing an instrument of crime and criminal conspiracy. Post verdict motions were denied, and Darden was sentenced to prison for not less than 2V2 nor more than 10 years. The case is before us on direct appeal. Having reviewed the evidence, we find it sufficient to sustain the findings of guilt. However, an erroneous evidentiary ruling requires that a new trial be granted.

In determining the sufficiency of the evidence, we view the evidence, together with all permissible inferences therefrom, in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, when thus viewed, is sufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Waller, 498 Pa. 33, 43, 444 A.2d 653, 658 (1982); Commonwealth v. Fortune, 305 Pa.Super. 441, 443, 451 A.2d 729, 730 (1982); Commonwealth v. Stasiak, 305 Pa. Super. 257, 263, 451 A.2d 520, 523 (1982).

The evidence shows that on February 23, 1981 the Community Federal Savings and Loan Association, situated in a Whitpain Township shopping mall, was held up at gunpoint by James Perry and Anthony Smith. Police Sgt. Robert Dean, responding to a call, arrived while the robbery was in progress. He observed the robbers as they emerged from the bank and as they entered a blue Ford and drove to a secluded spot on a service road at the rear of the mall. Sgt. Dean followed on foot and observed Perry and Smith exit from their vehicle and run toward a black Ford in which appellant was seated with the engine running. As additional police arrived, appellant attempted to flee, but he was quickly apprehended and taken into custody. By removing the keys from the ignition, the police were able to open the trunk of the black Ford, where Perry and Smith were hiding with a gun and a duffle bag containing $34,-210.00.

Appellant was warned of his Miranda rights when he was taken into custody. He was advised of his rights a second time at police headquarters. Nevertheless, appellant elected to give an oral statement. He refused to allow his statement to be recorded, however, and refused to sign a written summary thereof which the police prepared. In his oral statement, appellant implicated, himself as the knowing and intentional driver of the get-away car.

The totality of this evidence was sufficient to show that appellant had been part of a criminal conspiracy and an accomplice in the robbery of the bank. See: 18 Pa.C.S.A. § 306(c). As an accomplice, appellant was vicariously liable for the criminal acts of Perry and Smith committed in furtherance of the common design. See: Commonwealth v. Tate, 485 Pa. 180, 185, 401 A.2d 353, 355 (1979); Commonwealth v. Roux, 465 Pa. 482, 490, 350 A.2d 867, 871 (1976); Commonwealth v. Bryant, 461 Pa. 309, 312-313, 336 A.2d 300, 301 (1975); Commonwealth v. Davenport, 307 Pa.Super. 102, 110, 452 A.2d 1058, 1062 (1982); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 7, 449 A.2d 47, 50 (1982); Commonwealth v. Jefferson, 271 Pa.Super. 199, 203-204, 412 A.2d 882, 884 (1979); Commonwealth v. Cofer, 257 Pa.Super. 528, 531-532, 390 A.2d 1363, 1365 (1978).

Evidence of appellant’s statement was received during testimony by Chief of Police Joseph Stemple, who had participated in preparing the written summary of appellant’s statement as it was given. Appellant contends that his statement that he knew of the intended robbery and agreed to drive the get-away car should not have been received. He does not challenge the admissibility of this evidence on grounds that it was obtained in violation of his constitutional or other rights but on grounds that it was hearsay evidence. As a voluntary, extra-judicial statement, however, it was properly received as an admission. See: Commonwealth v. Glass, 486 Pa. 334, 347, 405 A.2d 1236, 1243 (1979) (plurality opinion); Commonwealth v. Cristina, 481 Pa. 44, 53, 391 A.2d 1307, 1311 (1978) (plurality opinion), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975); Commonwealth v. Rhodes, 272 Pa.Super. 546, 554, 416 A.2d 1031, 1035 (1979). The fact that there was neither a recording of his statement nor a signed, written confession did not render his oral admission inadmissible. The fact that the admission was oral affected only the weight to be accorded the statement. Commonwealth v. Duncan, 473 Pa. 62, 70, 373 A.2d 1051, 1054 (1977). See also: Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981).

Appellant testified in his own behalf and denied that he had been aware that Perry and Smith intended to rob the Community Federal Savings and Loan Association. He offered to show that Perry had called him by telephone on the morning of the robbery and had requested him to clean the trunk of his car and pick up Perry at the shopping mall. Perry, according to the offer of proof, had explained to appellant that he intended to do some shopping and would have a quantity of items requiring trunk space. Appellant also offered to testify that Perry said nothing about an intention to rob a bank during the conversation and that there had been no discussion regarding appellant’s giving aid by driving the get-away car. The trial court refused to allow this testimony. Instead, it sustained a Commonwealth objection that it was inadmissible hearsay. This was error.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Perry, 279 Pa.Super. 32, 37-38, 420 A.2d 729, 732 (1980); Commonwealth v. Rhodes, supra 272 Pa.Super. at 554, 416 A.2d at 1035; Commonwealth v. Strunk, 256 Pa.Super. 213, 215, 389 A.2d 1089, 1090 (1978). See: Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981). When an extra-judicial statement is offered for a purpose apart from proving the truth of its contents, it is not hearsay and is not excluded under the hearsay rule. Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980); Commonwealth v. Perry, supra 279 Pa.Super. at 38-39, 420 A.2d at 732; Commonwealth v. Ryan, 253 Pa.Super. 92, 103, 384 A.2d 1243, 1249 (1978) (plurality opinion). See: Commonwealth v. Stewart, 304 Pa.Super. 382, 387, 450 A.2d 732, 733-734 (1982).

In the instant case, appellant’s knowledge and state of mind when he went to the shopping mall were important issues. Perry’s out-of-court statements made to appellant during the preceding telephone conversation constituted relevant circumstantial evidence. The statements were not offered to show that Perry in fact did not commit a robbery or even that he did not then intend to commit a robbery. They were offered, rather, to show that appellant did not know that Perry intended to rob a bank. They were offered to show that appellant had been told that Perry was going to the mall to shop and that appellant’s intent in taking his car to the mall was to assist Perry in transporting his purchases. Evidence of this character and for this purpose was not objectionable as hearsay. Binder, The Hearsay Handbook § 5.3 (1975); 2 Jones, Evidence § 8.6 (6th ed. 1972); 6 Wigmore, Evidence §§ 1788, 1789 (Chadbourn Rev.1976); 29 Am.Jur.2d, Evidence § 497. See: Whitfield v. Reading Company, 380 Pa. 566, 570, 112 A.2d 113, 115 (1955). See also: Webb v. Fuller Brush Co., 378 F.2d 500 (3rd Cir.1967) (statements of third persons to defendant’s agents admissible to show defendant’s knowledge of dangers inherent in products); Bridger v. Union Ry. Co., 355 F.2d 382 (6th Cir.1966) (statements of third persons to defendant’s agents admissible to show that defendant had knowledge of dangerous condition of grade crossing); Sears v. Southern Pacific Co., 313 F.2d 498 (9th Cir.1963) (statements of third persons admissible to show defendant’s knowledge); Frank v. United States, 220 F.2d 559 (10th Cir.1955) (statements tending to show reliability of magnetic logger admissible to negative fraud on the part of defendant who had solicited investments for production); State v. Ford, 322 N.W.2d 611 (Minn.1982) (informant’s tip properly admitted when offered to show why police established surveillance of scene); State v. McIntosh, 635 S.W.2d 370 (Mo.App.1982) (contents of phone call properly admitted to show reasons for subsequent actions of persons privy to it); Sheriff, Clark County v. Blasko, Nev., 647 P.2d 371 (1982) (evidence of information received by police is not hearsay when offered to explain why they were watching the van in which defendant was found); State v. Tate, 57 N.C.App. 350, 291 S.E.2d 326 (1982) (evidence of defendant’s conversation with third party improperly excluded when offered to explain her subsequent conduct).

It may be that the trial judge would have found appellant’s testimony regarding Perry’s statements lacking in credibility in view of the contradictory statement which he gave to the police. We cannot be certain of this, however, for the evidence was not received. In any event, the fact finder’s potential disbelief is not an adequate basis for refusing to receive evidence. Admissibility and credibility are separate issues. Neither can we say that the exclusion of Perry’s telephone conversation was harmless error. Appellant’s criminal liability for robbery was grounded solely upon his vicarious responsibility as an accomplice. His state of mind under such circumstances was highly relevant. The erroneous exclusion of evidence which, if received, would have tended to show that appellant lacked an intent to aid in the commission of a robbery was sufficiently prejudicial to require that a new trial be granted.

The judgment of sentence is reversed, and a new trial is ordered.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 2706.

      . 18 Pa.C.S. § 907.

      . 18 Pa.C.S. § 903.

      . For sentencing purposes, all related offenses were held to have merged in the robbery conviction.

      . Perry and Smith entered pleas of guilty and were sentenced.

      . Our decision makes it unnecessary that we consider appellant’s remaining arguments that the sentence was excessive and that the court erred in refusing to sever his trial from that of his alleged accomplices. Perry and Smith have entered pleas of guilty and upon a retrial will not be tried with appellant.


author: McEWEN, Judge:

text:
    457 A.2d 552
    John R. BUMBARGER, v. Fred G. KAMINSKY and Calvin T. Oaks, Jr., Appellants.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1981.
    Filed March 11, 1983.

      Clyde 0. Black, II, Hollidaysburg, for appellants.
    R. Martin Reiley, Bedford, for appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   McEWEN, Judge:

We here consider an appeal from an order of the Court of Common Pleas of Bedford County which granted the motion of plaintiff for a new trial after the jury returned a verdict for the defendants. We reverse that order and remand so that the Common Pleas Court may reinstate the jury verdict in favor of the defendants.

Plaintiff-appellee Bumbarger filed a complaint in trespass to recover for personal injuries allegedly sustained as the result of a collision between a pick-up truck driven by the plaintiff and a truck driven by defendant-appellant Kaminsky at the intersection of State Highway 31 and Center Street in Manns Choice Borough. On the morning of the accident, the appellant-driver was making deliveries of poultry products for his employer, defendant-appellant Oaks. One of the delivery stops was a bar located at the top of Center Street, a steep ice-covered hill. After the delivery, as appellant proceeded down Center Street, his truck began to slide on the ice. Appellee was traveling on Route 31 at an approximate speed of 30 to 40 m.p.h. in the lane closest to the Center Street hill. As appellee approached the intersection, he saw that the wheels on the truck driven by appellant were locked and that the appellant would not be able to stop at the stop sign. As a result, appellee attempted to slow down by pumping his brakes and also directed his truck to the left lane of the two lane highway so as to avoid the truck driven by appellant which was approaching appellee on the right side.

When appellant attempted to halt his vehicle in compliance with the approaching stop sign, he realized that he was unable to do so because of the ice, and as a result, he abandoned that effort and accelerated his vehicle in an attempt to get across Route 31 and completely pass through the path of appellant. Despite the attempts by the two drivers to avoid contact, the vehicles collided.

Following the conclusion of the trial, the jury returned the following verdict:

AND NOW, May 16, 1979, we, the Jurors empaneled in the above entitled case, find for the defense. We have ruled the accident unavoidable, by a vote of 10-2 due to condition of the roadways.

Appellee filed a motion for new trial in which a number of issues were raised. The trial judge granted the motion on the grounds that the verdict was contrary to the law, the evidence and the charge of the court. Our review of the record reveals that the distinguished trial judge, Judge Ellis W. VanHorn, Jr., exercised painstaking care to provide for a full and fair trial. We are compelled, however, to the following conclusions: that the jury verdict was not contrary to the law or the evidence and it was error for the court to determine that the verdict was against the charge and proceed to grant a new trial.

The following principles of law guide this court in our review of the grant of the motion for new trial:

An order granting or refusing to grant a new trial is within the discretion of the lower court. However, the discretion is not absolute, Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413 (1952); Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977), and if the order is based on an error of law or represents an abuse of discretion, we will reverse. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Weaver v. Firestone Tire & Rubber Co., 267 Pa.Super. 548, 407 A.2d 45 (1979); Sindler v. Goldman, 256 Pa.Super. 417, 389 A.2d 1192 (1978). In reviewing the order, we examine all of the evidence presented at trial. Hayter v. Sileo, 230 Pa.Super. 329, 326 A.2d 462 (1974).

Carnicelli v. Bartram, 289 Pa.Super. 424, 427-28, 433 A.2d 878, 879-80 (1981).

Appellant acknowledged in his trial testimony that he had failed to halt his vehicle at the stop sign at the intersection of Route 31 and Center Street—although, as we have earlier indicated, his failure to stop was due to the icy highway condition. The trial court granted a new trial by reason of its conclusion that the failure of appellant to halt at the stop sign should not be excused under any circumstances and that, therefore, the jury erred when it decided the accident was unavoidable. The trial court, in effect, concluded that appellant was strictly liable for failing to stop at the sign at the bottom of the hill.

There is, of course, some considerable distinction between those statutes which impose strict liability and those statutes of which a violation is negligence per se. The law of this Commonwealth is clear that the failure to obey a stop sign is negligence per se, Schultheis v. Levine, 372 Pa. 513, 94 A.2d 740 (1953); Kropko v. Galida, 155 Pa.Super. 446, 38 A.2d 491 (1944); therefore, the failure by a driver to obey a stop sign does not impose strict liability upon that driver. The distinction is well illustrated in the following expression from W.E. Prosser, Torts, § 36 at 197 (4th Ed.1971):

It is entirely possible that a statute may impose an absolute duty, for whose violation there is no recognized excuse.... In such a case the defendant may become liable on the mere basis of his violation of the statute. No excuse is recognized, and neither reasonable ignorance nor all proper care will avoid liability. Such a statute falls properly under the head of strict liability, rather than any basis of negligence—although the courts not infrequently continue, out of habit, to speak of the violation as “negligence per se.”

Having noted the distinction between strict liability and negligence per se, a further refinement is to be noted, namely, a failure to halt at a stop sign only becomes negligence per se when the failure to halt is unexcused. Dean Prosser addresses this distinction between a valid excuse and negligence per se in very apt fashion:

Once the statute is determined to be applicable—which is to say, once it is interpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation—the great majority of the courts hold that an unexcused violation is conclusive on the issue of negligence, and that the court must so direct the jury. The standard of conduct is taken over by the court from that fixed by the legislature, and “jurors have no dispensing power by which to relax it,” except in so far as the court may recognize the possibility of a valid excuse for disobedience of the law.

Prosser, supra, § 36 at 200 (footnotes omitted and emphasis supplied).

The following theorems emerge from this analysis:

A distinction must be drawn between responsibility by reason of strict liability and responsibility by reason of negligence per se.
An unexcused violation of the statute is conclusive on the issue of negligence, provided, of course, that the violation is the proximate and efficient cause of the injury.
The jury is to provide the factual determination of whether the exercised claim is a valid excuse.

We have earlier discussed our conclusion that principles of strict liability are not applicable to the situation we here review, but rather, that the inquiry at this trial was the determination of whether the conduct of appellant was excused behavior or an unexcused violation of the motor vehicle code that composes negligence per se.

A review of the record reveals that the highways upon which the parties were traveling were both icy and hazardous as a result of the freezing rain prior to and at the time of. the accident. Appellant testified that as a result of the icy condition of the roadway he was unable to bring his vehicle to a halt and appellee himself testified that while the vehicle of appellant was moving, the wheels were not turning. The issue we must decide is whether the jury could properly find that the failure of appellant to stop was excused.

The Restatement (Second) of Torts, § 288A (1965) sets forth a list of specific instances where violation of a statute will be excused. That section provides as follows:

Section 288A. Excused Violations

(1) An excused violation of a legislative enactment or an administrative regulation is not negligence.

(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when

(a) the violation is reasonable because of the actor’s incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.

We hold that the jury could properly find that there was a valid excuse for the failure of appellant to halt for the stop sign since he was unable, despite reasonable diligence and care, to comply with that sign. There was evidence to support the finding of the jury that the accident was unavoidable since there was testimony at trial that, by reason of treacherous road conditions, appellant was unable to comply with the stop sign.

Constitutional scholars have proclaimed that the right of a citizen to a trial by jury is the single, most indispensable device of the system of justice in a free society. The observation has been made that the jury system permits the Goddess of Justice a glimpse from beneath her blindfold. Certainly it is beyond dispute that a trial by jury is the purest method of resolving a factual dispute. It is most reassuring to witness how generally well juries carry out their appointed task. The duty of the jury in the instant case was to determine if the occurrence was the fault of appellant and/or the fault of appellee, or if it was an accident for which fault and responsibility should not be placed on either driver. And for whatever part such notions as negligence, contributory negligence, negligence per se, unavoidable accident and strict liability, as well as the distinctions among them, might have played in the deliberations and decision of the jury, our review of the record indicates that the issue was a classic question for a jury decision and that the jury performed its duty well.

We, therefore, conclude that it was error for the Common Pleas Court to grant a new trial. Accordingly, we reverse the order granting appellee a new trial and remand so that the Common Pleas Court may reinstate the verdict of the jury. Jurisdiction is relinquished.

      . The jury had not been instructed on the theory of unavoidable accident. The trial judge thereby concluded that the verdict was against the charge of the court.

      . Comment a to § 288A states that this list is not an exclusive list of situations where a violation may be excused.


author: BECK, Judge:

text:
    457 A.2d 556
    In re Michael H. RANCK, District Attorney and John A. Kenneff, Assistant District Attorney. Appeal of Constable Paul O. HENRY, Jr. Paul O. HENRY, Jr., Constable, Sixth Ward v. Michael H. RANCK, District Attorney and John A. Kenneff, Assistant District Attorney.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed March 11, 1983.

      Thomas A. Dittoe, Lancaster, for appellant.
    William A. Atlee, Jr., Lancaster, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   BECK, Judge:

In this appeal, Constable Paul 0. Henry, Jr. claims that the lower court improperly dismissed his action charging Misconduct of District Attorney, 16 Pa.S. § 1405, against appellees Michael H. Ranck, District Attorney, and John A. Kenneff, Assistant District Attorney, of Lancaster County. For the reasons that follow, we affirm the order of dismissal.

The sequence of events pertinent to this appeal grew out of an underlying suit initiated by D. Patrick Zimmerman, Esquire, president of Binkley and Kurtz, Inc., a corporation which owns a multi-use building in Lancaster County which includes an apartment leased to Grant Ross and Susan Ross. The Rosses fell behind in rental payments. Zimmerman, as president of Binkley and Kurtz, obtained a default judgment in the amount of $544.12 against them and they were ordered to quit the property no later than September 29.

On September 26, appellant Henry attempted to levy on the personal property of the tenants and discovered that they were in the process of moving out. He returned on September 29 to evict them, and found that they were already gone. In October 1979 Henry filed a criminal complaint against the Rosses as Defrauding Secured Creditors, pursuant to 18 Pa.S. § 4110.

Henry’s § 1405 action, charging Ranck and Kenneff with wilful and gross negligence in the execution of their prosecutorial duties, is grounded on their alleged violations of Pa.R.Crim.P. 1100 in as much as they failed timely to prosecute the Rosses pursuant to the criminal complaint he had filed against them. Henry’s complaint against the Rosses was signed on October 12, 1979, and on July 9, 1981, more than 180 days later, the Rosses and the Commonwealth reached an agreement to resolve the case by nolle prosequi, upon the Rosses’ paying restitution and costs. The formalities of this nolle prosequi were executed on February 27, 1981. Henry also charges that the nolle prosequi disappointed his hope and expectation that the case would be resolved either by trial and conviction or by guilty plea.

Before reaching the merits of Henry’s § 1405 suit against Ranck and Kenneff, it is necessary to determine whether Henry has standing to bring such a suit based upon Ranck’s and Kenneff’s handling of the case against the Rosses.

We hold that a constable, who has filed a criminal complaint against persons for defrauding secured creditors pursuant to 18 Pa.C.S. § 4110, has no standing to bring suit against the District Attorney under 16 Pa.S. § 1405 for resolving the fraudulent creditors ■ suit by nolle prosequi. The Act states:

§ 1405. Misconduct of District Attorney

(a) If any district attorney shall wilfully and corruptly demand, take or receive any other fee or reward than such as is prescribed by law for any official duties required by law to be executed by him in any criminal proceeding, or if such district attorney shall be guilty of wilful and gross negligence in the execution of the duties of his office, he shall be guilty of a misdemeanor in office, and, on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars and to undergo imprisonment not exceeding one year, and his office shall be declared vacant.
(b) Upon complaint in writing, verified by oath or affirmation of the party aggrieved, made to the court in which any district attorney shall prosecute the pleas of the Commonwealth, charging such district attorney with wilful and gross negligence in the execution of the duties of his office, the court shall cause notice of such complaint to be given to the district attorney and of the time fixed by the court for the hearing of the same ____

(Emphasis added).

The statutory language makes it clear that a complaint under this Act must be brought by an “aggrieved party,” i.e. one who has suffered injury from the District Attorney’s misconduct, in this case wilful and gross negligence in the execution of his official duties.

The issue is whether Constable Henry has standing as an aggrieved party under the Statute, and we hold that does not. He charges that District Attorney Ranck and Assistant District Attorney Kenneff were wilfully and grossly negligent in the prosecution of the Rosses, in as much as the Rosses were not brought to trial within the time limit specified by Rule 1100. If the charge is true, a question we explicitly decline to meet, the aggrieved parties are the Rosses, whose constitutional rights to a speedy trial under Rule 1100 were violated, and not Henry’s.

Henry also claims that he is an aggrieved party because the nolle prosequi, following the financial settlement of the debt, obviated the necessity of a levy on the goods of the Rosses. For any financial loss incurred by the settling of the debt by payment of principal and costs, the creditor, Binkley and Kurtz, is the aggrieved party. Henry had no vested right in the proceeds of an anticipated levy on the personalty of the debtors, followed by a sale to satisfy the obligations owed to the judgment creditor. Many persons whose income is derived in whole or in part from commissions and fees expend time and effort on anticipated results, only to, be disappointed in the outcome. Appellant’s time and effort spent in attempting to levy on the goods, and in swearing out the criminal complaint, are some of the duties of his constabulary office.

Henry may have had an economic interest in the judgment debt but such an interest does not rise to the level of a right. The interest, at best, is de minimis compared to the overriding public policy interest which supports the tradition of wide discretion in the District Attorney’s office in prosecutorial decisions.

Pa.R.Crim.P. 313 states:

Nolle Prosequi

(a) Upon motion of the attorney for the Commonwealth, the court may, in open court, order a nolle prosequi notwithstanding the objection of any person.

The right to dispose of a case by nolle prosequi, pursuant to Rule 313, “notwithstanding the objection of any person,” is clearly established by the letter of the rule and by case law based upon the rule. In Com. v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977) we upheld the principle that the historic power to “nol pros” belongs exclusively to the office of the prosecutor (except for dismissals which vindicate personal rights, such as protection against double jeopardy), and cannot even be ordered by the court without the permission of the prosecutor. The roots of this power in the common law of England and the United States are traced to the traditional extensive powers of the Attorney General, a public prosecuting official with wide powers of supervision over all criminal investigations and prosecutions.

Pa.R.Crim.P. 314, relating to alleged offenses other than those committed by force or violence, gives the court power, when it appears that the public interest will not be materially affected, to discharge a defendant upon showing that satisfaction has been made to the “aggrieved party” (in the instant case, clearly the creditor, Binkley and Kurtz). Rule 314 has been interpreted to mean the decision to prosecute or not to prosecute belongs to the Commonwealth. Com. v. Reinhart, 466 Pa. 591, 353 A.2d 848 (1976), cert. denied 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (upholding Rule 314 against a constitutional challenge). The settled right of the District Attorney to proceed under rules 313 and 314 is not open to challenge by a constable.

These rules, and the case law interpreting them, support the vesting of discretionary power to prosecute or not in the office of the District Attorney, an elected official whose execution of duty will ultimately be judged by the electorate. The District Attorney should not be subject to the harassment of having to defend in court his decisions to nol pros charges against potential defendants. Our decision fosters another important public policy, the favoring of settlements in order to spare the Commonwealth and the parties the inconvenience and costs of a trial, which is the most expensive way to determine the rights of the litigants.

In so far as we have held that Constable Henry lacks standing to maintain his § 1405 suit, we do not reach the merits of his allegations of negligence on the part of Ranck and Kenneff, nor the issue of whether an Assistant District Attorney is within the reach of 16 Pa.S. § 1405.

The order of the lower court is affirmed.

CAVANAUGH and McEWEN concur in the result.

      . The text of Rule 1100 applicable at the time charges were brought against the Rosses reads:
      Rule 1100. Prompt Trial
      (a) (1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.
      (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
      (b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial.
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
      (d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.
      Susan Ross, but not Grant Ross, signed a waiver for a continuance of 120 days which was granted on August 14, 1980.

      . See Note Prosecutor’s Discretion, 103 U.Pa.L.Rev. 1057 (1955), especially pp. 1066-68 on nol pros.


text:
    457 A.2d 559
    COMMONWEALTH of Pennsylvania v. Jose ORTIZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed March 11, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

Appellant, Jose Ortiz, was convicted by a jury of rape, simple assault, indecent assault and corrupting the morals of a minor. The trial court granted appellant’s post-verdict motion in arrest of judgment as to the charge of corrupting the morals of a minor because that charge was not in the original complaint and that complaint was improperly corrected to include it. Appellant was sentenced to a period of seven and one-half to fifteen years imprisonment for rape and a consecutive term of three years probation for indecent assault. That sentence was subsequently vacated because the rape and indecent assault offenses were found to merge. Sentence for the simple assault conviction was suspended.

Appellant alleges in this appeal that the lower court erred in its charge on “sexual intercourse” pursuant to 18 Pa.C. S.A. § 3101. “Sexual intercourse” is an element of the rape offense, 18 Pa.C.S.A. § 3121, which states in relevant part:

§ 3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution[.j

And “sexual intercourse” is defined in Section 3101 in the following manner:

In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.

(Emphasis added.)

The trial court charged the jury on rape in the following manner:

Under the statute as passed by the Legislature, a person commits the crime of rape when he engages in sexual intercourse with another person, not his spouse, by forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. That is the theory. So in order to find the defendant guilty of rape, you must find that the defendant engaged in sexual intercourse with Lisa Moody; and we say sexual intercourse includes intercourse with some penetration, however slight. The penetration must be to the vaginal area of a female or her genital area. The penetration may be slight, however slight. Emission is not required to complete the crime of rape. So we say the vaginal area means any area of that part of the female’s body, there must be penetration, however slight. You must also find that Jose Ortiz is not the spouse of Lisa Moody, or Lisa Moody is not the spouse of Jose Ortiz; and that the intercourse was complete or accomplished through forcible compulsion or by threat or forcible compulsion that would prevent resistance by a person of reasonable resolution, in this case, prevent resistance by Lisa Moody. If, after considering all of the evidence, you find that the Commonwealth has established beyond a reasonable doubt all of the elements which I have stated, you should find the defendant guilty of rape. On the other hand, if after hearing all of the evidence, you find the Commonwealth has not established beyond a reasonable doubt all of the elements of which I have stated, you should find the defendant not guilty of rape.

N.T. 1/23/81 at 105-106.

Appellant contends that “[t]he definition of rape given to the jury includes foreplay and other conduct that falls short of actual penetration of the vagina.” Appellant’s brief at 8. It is quite clear, however, that the definition of “sexual intercourse” found at Section 3101 does not specify “penetration of the vagina,” but instead specifies “some penetration however slight.” The lower court correctly cited Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950) which is the only Pennsylvania appellate case specifically delineating what penetration means in this context. That case stated that entrance in the labia is sufficient: “To constitute the crime of rape there must be penetration, however slight. (Res in re, but entrance in the labia is sufficient: 44 Am.Jur., Rape, § 3).” Id., 166 Pa.Superior at 628, 74 A.2d at 796 (emphasis in original). We therefore will not hold that a finding of penetration of the vagina is necessary for the jury to find “penetration however slight” under Section 3101, and since penetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetration under Section 3101, the trial judge certainly did not err in declining to so charge.

Appellant also contends that the court’s reinstruction on the crime of rape was incorrect.

The court stated:

As we told you earlier, in order to commit the crime of rape, there must be some penetration by the defendant of his penis into the female sex organ. I also told you that however slight that penetration may be is sufficient to constitute the act. What the law means by that is it need not be full entrance into the female’s sex organ by the male with his sex organ. So we say however slight, which means the smallest penetration within the female sex organ. Once the person, the defendant, the male breaks that area, the outside, once he makes the slightest penetration within, it is sufficient to constitute the crime of rape. So it is not necessary to have a full penetration to the entire vagina; just some penetration with the male sex organ into the female sex organ.

N.T. 1/23/81 at 136-137. Once again, the instruction accurately tracked the language of Section 3101.

Appellant claims finally that the court erred in denying his request to reinstruct the jury on the presumption of innocence and the burden of proof after the judge reinstructed them on the elements of rape. This claim was waived as counsel failed to preserve it in his post-verdict' motions. E.g., Commonwealth v. Seeley, 297 Pa.Super. 498, 444 A.2d 142 (1982). Assuming arguendo, however, that it was preserved, we find no error by the trial court. Appellant does not claim that the original jury instructions did not adequately cover those two points. The Pennsylvania Supreme Court in Commonwealth v. Watson, 487 Pa. 169, 173-174, 409 A.2d 19, 21 (1979) resolved this issue adversely to appellant’s claim in the instant matter:

The record is clear that the general charge to the jury adequately covered the presumption of innocence, and the Commonwealth’s burden of proof. In Commonwealth v. McNeal, 456 Pa. 394 at 401, 319 A.2d 669 at 674 (1974) we said: “[I]n evaluating the correctness of instructions to a jury, the charge must be read and considered in its entirety.” Certainly, there is no need, nor is it desirable, to fully reinstruct a jury each time a specific inquiry is made. In review, we look at all of the instructions given to the jury, taken as a whole, in determining the propriety of the charge. Here, reading and considering the charge in its entirety, we are satisfied that there was no error. Judgment of sentence affirmed.

       The sophistic quality of appellant’s argument is underscored in the Commonwealth’s brief which notes that appellant does not challenge on appeal the sufficiency of the evidence supporting penetration. Indeed, such a claim in the instant appeal would be an onerous one to advance as the prosecutrix clearly testified that she saw appellant place his penis inside her genitalia and that it hurt her when he did so. N.T. 1/20/81 at 33-34, 72, 97. Additionally, a microbiologist from the City of Philadelphia Crime Lab testified that pursuant to a microscopic examination he could conclude that sperm had been present in the prosecutrix’s vagina when she was examined and treated after the attack. N.T. 1/21/81 at 19-20.


author: MONTEMURO, Judge:

text:
    457 A.2d 562
    COMMONWEALTH of Pennsylvania v. Lydia E. SOLTIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1982.
    Filed March 11, 1983.
    Petition for Allowance of Appeal Denied Aug. 24, 1983.

      Arthur K. Dils, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of Sentence entered by the Honorable William W. Lipsitt, Judge, Court of Common Pleas, Dauphin County.

The appellant, Lydia E. Soltis, was tried before a jury and convicted of theft by deception and violation of the Commonwealth’s Public Assistance laws. For the first offense, she was sentenced to a term of imprisonment of one (1) to twelve (12) months and to pay a fine of $100. For the second offense she was sentenced to a term of imprisonment of five (5) to twelve (12) months, consecutively, to pay a fine of $100 dollars and to make restitution in the amount of $6,851.00 to the Commonwealth, Department of Public Assistance.

Pursuant to Section 481(a) of the Public Welfare Code, the Commonwealth charged the appellant with securing Public- Assistance funds by means of misrepresentation of her income from 1975 to 1979. The evidence produced by the Commonwealth shows that from 1970 to 1979, the appellant, a recipient of Public Assistance, was also receiving $55.00 per month for each of two children from a private trust fund. She allegedly did not report this to the Department of Public Assistance. The Commonwealth presented five of the appellant’s caseworkers who produced records indicating that the appellant was not receiving income from any source other than Public Assistance. The records also reflected no change in her income status from 1970 to 1979. The information contained in these records was the result of routine and periodic personal contacts with the appellant during which questions were asked the appellant by the case workers. Any information obtained at these “redetermination” interviews was logged in the records. The witnesses also testified that had the income from the trust fund been disclosed at these interviews, it would have been indicated in the records and the appellant’s Public Assistance funds would have been adjusted accordingly. The appellant maintains that she informed the first three caseworkers who worked on her case of the existence of the trust fund and that such money was being held for her children’s educations. However, she admits that from 1975 to 1979 she was using the money from the fund to repay a $15,000.00 mortgage that was obtained to pay accruing debts and taxes.

On appeal it is argued that the crime of theft by deception merges with the violation of Section 481(a) of the Public Welfare Code and therefore it was improper for the Commonwealth to try, convict and sentence the appellant for both crimes. Appellant also argues that the evidence produced by the Commonwealth was insufficient to overcome her presumption of innocence.

We consider first the question of merger of the two offenses. The crime of theft by deception is defined at 18 Pa.C.S.A. § 3922 as follows:

(a) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

Section 481(a) of the Public Welfare Code provides:

§ 481. False statements; penalty
(a) Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement of misrepresentation, or by impersonation or other fraudulent means, secures, or attempts to secure, or aids or abets any person in securing assistance, or Federal food stamps, under this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding one year, or both, and also shall be sentenced to make restitution of any moneys he has received by reason of any such false statement, misrepresentation, impersonation, or fraudulent means.

This specific issue was considered recently by this court in Commonwealth v. Warner, 309 Pa.Super. 386, 455 A.2d 663 (1982), wherein it was recognized that the policy of Pennsylvania law precludes prosecutions under general provisions of a penal code when special penal provisions are available. Commonwealth v. Vukovich, 301 Pa.Super. 111, 447 A.2d 267 (1982). It was further recognized that the Uniform Statutory Construction Act directs that special statutory provisions shall prevail over general statutory provisions “unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.” 1 Pa.C.S. § 1933.

In accordance with our analysis and decision in Commonwealth v. Warner, supra, we hold that the appellant’s prosecution pursuant the specific statutory provisions of Section 481(a) of the Public Welfare Code precludes prosecution under the more general statutory provision of theft by deception. We therefore vacate the appellant’s sentence for the crime of theft by deception.

We find no merit in the appellant’s second argument regarding sufficiency of evidence. In determining the sufficiency of evidence in a criminal case the test is,

Whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which, if believed, a finder of fact could properly have based its verdict, such evidence was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt.

Commonwealth v. Segers, 460 Pa. 149, 157, 331 A.2d 462, 466 (1975). Furthermore, this standard is equally applicable where the evidence is circumstantial rather than direct so long as the combination of evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).

Following a detailed review of the entire record and briefs, we find that there was overwhelming evidence indicating that the appellant misrepresented her financial status to secure monetary assistance and food stamps.

The judgment of sentence for theft by deception is vacated. The judgment of sentence for violation of the Public Welfare Code is affirmed.

      . 18 Pa.C.S.A. § 3922.

      . Public Welfare Code of June 13, 1967, 62 P.S. § 481(a), as amended, 1976, July 9, P.L. 993, No. 202 § 8, effective in 60 days.

      . The amount of restitution reflects that period in which the statute of limitations had not yet run. 62 P.S. 481(c).

      . See n. 2, supra.

      . Although this issue was not properly raised in the proceedings below, it is not waived. Where two convictions are based on the same act, and an illegal sentence results therefrom, the failure to raise this issue does not preclude appellate review. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977).


author: WATKINS, Judge:

text:
    457 A.2d 565
    Walter E. SPIDLE v. LIVINGSTON CONSTRUCTION CO., INC. v. Dorothy DORBIAN and Joseph Dorbian t/d/b/a Carlisle Steel and Supply and Central Storage and Transfer Company of Harrisburg.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed March 11, 1983.
    Petition for Allowance of Appeal Denied Oct. 11, 1983.

      David C. Eaton, Harrisburg, for appellant.
    William J. Peters, Harrisburg, for appellees.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas of Dauphin County sustaining the preliminary objections in the form of a demurrer by a party which was joined as an additional defendant to the original action.

The action in trespass arose out of an incident which occurred on January 6, 1978, on premises owned by Central Storage and Transfer Company of Harrisburg. At that time and place, plaintiff was employed by that company as a forklift operator. Livingston Construction Company was then in the process of constructing an addition to a building which was leased by Bayard Sales Corporation under contract with Central Storage.

At the time of the incident, Dorbian, doing business as Carlisle Steel and Supply, had just delivered steel beams to the building. Plaintiff, using his forklift, was attempting to remove the steel beams from a Carlisle Steel truck. While he was doing so, a chain which was being used in the process became entangled in the forklift mechanism. In an attempt to free the chain, it was struck with a hammer. The chain was freed, but the steel crashed down and crushed plaintiffs hand.

The initial action was commenced against Livingston Construction alone. Subsequently, Livingston Construction joined as additional defendants Carlisle Steel and Central Storage. Central Storage filed preliminary objections raising an employer’s immunity from suit by an employee. The court sustained the objections.

The first question raised on appeal is whether an employer can be joined as an additional defendant in order to determine the proportion of causal negligence attributable to it under the Comparative Negligence Act, 4.2 Pa.C.S.A. 7102. Or, must an employer be excluded from joinder by virtue of the Act of December 5, 1974, P.L. 782, 77 P.S. 481, which amended Section 303 of the Pennsylvania Workmen’s Compensation Act?

. The employer and fellow employees “shall not be liable to third party for damages, contribution or indemnity in any action at law” unless such a remedy is provided for in a written contract entered into before the injury occurred. 77 P.S. 481.

The question of whether the amendment to Section 303 of the Workmen’s Compensation Act bars the joinder of a plaintiff’s employer as an additional defendant was addressed by the Superior Court in Hefferin v. Stempkowski, 247 Pa.Superior Ct. 366, 372 A.2d 869 (1977). We hold that the amendment to Section 303 clearly grants the employer immunity from suit and bars its joinder as an additional defendant. See also, Berger v. U.G.I. Corp., 285 Pa.Superior Ct. 374, 427 A.2d 1161 (1981); Heckendorn v. Consolidated Rail Corp., 293 Pa.Superior Ct. 474, 439 A.2d 674 (1981); Reiland v. West Penn Power Co., 278 Pa.Superior Ct. 428, 420 A.2d 615 (1980).

The appellees cite a decision of the United States District Court of Eastern Pennsylvania alleging that that court held that an employer cannot be joined as an additional defendant despite the existence of comparative negligence in Pennsylvania. However, the real reason for the court’s decision in Tookmanian v. Safe Harbor Water Power Corp., 505 F.Supp. 920 (E.D.Pa.1981) was that the original defendant was seeking contribution or indemnification from the employer. Since the statute clearly states that joinder is not allowed for such purposes, the court had to rule as it did. Additionally, since the district court was sitting in diversity, it had to rule as it believed the Supreme Court of Pennsylvania would rule under the circumstances. Since two cases dealing with joinder of an employer had been decided by the Supreme Court subsequent to the adoption of comparative negligence by this state, the court concluded that previous rulings barring joinder for any purpose were controlling. Those two cases were Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978) and Tsarnas v. Jones and Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). However, both of those cases involved situations in which joinder was sought for purposes of contribution or indemnity. The Comparative Negligence Act was not even called into question. Therefore, any incompatability between the Workmen’s Compensation Act and the Comparative Negligence Act would not properly have been addressed in either case.

A potential problem which could arise if joinder of an employer was allowed for the purpose of determining the comparative negligence of all those alleged to be responsible was enunciated in Lawless v. Central Engineering Co., 502 F.Supp. 308 (E.D.Pa.1980). It was recognized by the district court that “the joinder of the employer with no exposure to liability could very well result in an acquiescence by the joined employer in the allocation of liability proposed by other defendants. This could only result in a reduction of plaintiff’s award of damages, possibly unrelated to the true proportion of liability.”

The purpose of the Workmen’s Compensation Act was to provide employees with compensation for injuries sustained in the scope of their employment without requiring them to put forth the time and expense involved in a civil suit. In return, employers were immunized from civil suits which, if won by the employee, might result in substantial losses to employers. Therefore, workmen’s compensation is the only remedy available to employees against their employers. Furthermore, to permit the joinder of the employer for any purpose would place the economic burden on him to participate in the trial and could also lead to an inflated verdict because another responsible defendant would appear on the record, all of which would defeat the purpose of the Workmen’s Compensation Act. Thus, we hold that in an action brought by an employee against a third party tortfeasor the employer may not be joined as an additional defendant or an involuntary plaintiff for the purpose of apportioning negligence under the Comparative Negligence Act. See Kelly v. The Carborundum Company v. Willson Products, et al, 307 Pa.Superior Ct. 361, 453 A.2d 624 (1982).

A second issue raised on appeal is whether the Act of December 5, 1974, P.L. 782, 77 P.S. 481, amending Section 303 of the Workmen’s Compensation Act is unconstitutional for failure of the title of the Act to inform those to be affected of its contents contrary to the requirements of Article III, Section 3 of the Pennsylvania Constitution. However, Pa.R.Civil Pro. 235(a) provides that in an action that involves a constitutional challenge to a statute, where the Commonwealth is not a party, the Attorney General of the Commonwealth must be notified of the challenge. The record is silent as to whether this notice was given in this case. Failure to provide such notice results in the “abandonment” or “waiver” of the constitutional issue. Irrera v. SEPT, 231 Pa.Superior Ct. 508, 331 A.2d 705, 708 (1974).

The decision concerning constitutionality already decided by the Supreme Court dealt with other sections of the constitution and not the title section (Tsarnas v. Jones and Laughlin Steel Corp., supra). For the sake of judicial time we will discuss the title challenge.

One who challenges the constitutionality of a statute is faced with a difficult task since there is a presumption of constitutionality, and the burden is on the challenger to prove that the statute clearly and plainly violates the constitution. Bensalem Township School District v. Bucks County Commissioners, 8 Pa.Comm.Ct. 411, 303 A.2d 258, 262 (1973). The court must now decide whether appellant has met this burden.

The Pennsylvania Constitution provides in Article III, Section 3:

No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof. (Emphasis—ours.)

The requirement regarding the degree of specificity of the title to a bill has been explained in various ways in cases dealing with that issue. The purpose of Article III, Section 3 was enunciated in Bensalem Township School District v. Bucks County Commissioners, supra, as being “to provide full notice and publicity to all proposed legislative enactments, and thus to prevent the passage of ‘sneak’ legislation.” Therefore, while the title to an act need not be a complete index to its contents, it must contain language sufficient to inform those to be affected by the contents of the bill. Harvey v. Ridley Township, 350 Pa. 210, 38 A.2d 13, 14 (1944). The requirements of Article III, Section 3, were also explained in In re: Gumpert’s Estate, 343 Pa. 405, 23 A.2d 479 (1942). In that opinion, the Court stated: “All the constitution requires is that the title should put persons of a reasonably inquiring state of mind on notice of the general subject matter of the Act.” We interpret the above-mentioned case to mean that a reasonably inquisitive person who reads the title of an act should be able to ascertain from the title whether he will be affected by the legislation.

The title to the Act amending Section 303 of the Workmen’s Compensation Act provides;

Amending the Act of June 2, 1915 (P.L. 736 No. 338), entitled as amended. “An Act defining the liability of an employer to pay damages for injuries received by an employee in the course of employment; establishing an elective schedule of compensation; providing procedure for the determination of liability and compensation thereunder; and prescribing penalties; further defining ‘maximum weekly compensation payable’ and the ‘maximum compensation payable per week’; making the act compulsory and providing for actions at law for damages for certain noncompliance; providing for extra-territorial coverage; changing the waiting period and payments in connection therewith, computation and distribution of certain compensation and agricultural labor coverage; and incorporating certain existing coverages with changes as to compensation thereunder.”

The first clause of the title which reads, “An Act defining the liability of an employer to pay damages for injuries received by an employee in the course of employment”, provides sufficient notice to third parties that the liability of an employer for damages, contribution or indemnity has changed. The reasonably inquisitive person upon reading the title to an act, would become curious as to what exactly is the scope of the employer’s liability. One must remember that the title need not be an index of all that is covered by the Act. We have consistently held that a title to an act is sufficient when it reasonably covers the subject matter of the Act. Harr v. Boucher, 142 Pa.Superior Ct. 114, 15 A.2d 699, 704 (1940).

Since the title provides sufficient information, in that reasonably inquisitive people would be alerted that their rights are affected by the legislation the act is held to be constitutional. A statute is presumed to be constitutional and will not be declared otherwise unless it clearly, palpably and plainly violates the Constitution of the Commonwealth or the United States. Singer v. Sheppard, 33 Pa.Comm.Ct. 276, 381 A.2d 1007 (1978). The challenger has not met the burden of proving that the Act clearly violates Article III, Section 3, of the Pennsylvania Constitution.

Order affirmed.


author: PER CURIAM:

text:
    457 A.2d 569
    COMMONWEALTH of Pennsylvania v. Albert Wayne RUDY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1982.
    Filed March 11, 1983.
    Allen E. Hench, Newport, for appellant.
    R. Scott Cramer, Assistant District Attorney, Duncannon, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ORDER

PER CURIAM:

Following compliance by the court below with our Order entered September 3, 1982, 304 Pa.Super. 64, 450 A.2d 102, the order of the court below dated November 1, 1982 and its Memorandum Opinion of December 3, 1982 are hereby affirmed.


text:
    457 A.2d 569
    George J. LASCO, Appellant, v. Linda L. LASCO.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed March 11, 1983.

      Stuart Marc Golant, Towanda, for appellant.
    Michael J. DeSisti and David B. Keeffe, Sayre, for appellee.
    Before CERCONE, P.J., and McEWEN and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from a lower court order dismissing appellant’s divorce action, holding him in contempt of court for failing to pay accrued alimony pendente lite and counsel fees, and awarding further counsel fees to appellee. We are unable to address appellant’s several allegations of error, however, because the lower court has failed to set forth its findings below. Accordingly, we must remand.

Although divorce matters heard by a judge sitting without a jury are subject to a complete and independent review by this Court, Ryave v. Ryave, 249 Pa.Superior Ct. 78, 85, 375 A.2d 766, 770 (1977), “great weight must be accorded findings of the master or lower court judge who personally observed the parties.” Howard v. Howard, 260 Pa.Superior Ct. 257, 259, 393 A.2d 1251, 1252 (1978). Despite hearing the testimony and observing the demeanor of all the witnesses, the lower court did not place on the record the findings of fact and credibility supporting its decision. Moreover, the lower court refused argument upon appellant’s 52 exceptions and, instead, dismissed them without discussion. Absent those findings or an opinion on the merits of appellant’s exceptions, we cannot make a meaningful review of the lower court’s decision. Accordingly, we must remand this matter for the lower court to issue findings of fact and conclusions of law addressing appellant’s exceptions. Jurisdiction is retained.

So ordered.


text:
    457 A.2d 570
    In re Grand Jury Subpoena to Kevin KOLL. Appeal of Kevin KOLL.
    Superior Court of Pennsylvania.
    Argued January 20, 1983.
    Filed March 11, 1983.
    John G. McDougall, Philadelphia, submitted brief on behalf of appellant.

      A. Sheldon Kovach, Assistant District Attorney, Media, for participating party.
    Before CAVANAUGH,' ROWLEY and HOFFMAN, JJ.
   PER CURIAM:

We quash this appeal challenging a lower court order denying appellant’s petition to quash a subpoena, finding him in contempt of court, and reissuing a bench warrant ordering him to appear before a grand jury. Unless properly certified, which was not done here, see Pa.R. A.P. 312, an order denying a request to quash a subpoena is interlocutory, and hence, unripe for appeal. Carabello Appeal, 238 Pa. Superior Ct. 479, 357 A.2d 628 (1976). A finding of contempt is not appealable until sentence has been imposed. Commonwealth v. Ravert, 286 Pa. Superior Ct. 46, 428 A.2d 231 (1981) (noting exceptions for double jeopardy and exceptional circumstances that are not applicable here). See Hester v. Bagnato, 292 Pa. Superior Ct. 322, 437 A.2d 66 (1981). The refusal to revoke the bench warrant and the order reissuing it are likewise interlocutory. Pa.R.A.P. 311; Carabello Appeal, supra. Accordingly, we quash this appeal.

Appeal quashed.


text:
    457 A.2d 571
    COMMONWEALTH of Pennsylvania v. John WALKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1983.
    Filed March 11, 1983.

      Neil E. Jokelson, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   PER CURIAM:

We have before us a request by court-appointed counsel, Neil E. Jokelson, Esq., to withdraw from the above-captioned case on the ground that the appeal which has been perfected is wholly frivolous. Along with his Petition to Withdraw, Attorney Jokelson has filed an “Anders -McClendon brief” in which he lists the issues which might be raised on appeal, and discusses how his review of the record has led him to the conclusion that this appeal is wholly frivolous. A copy of counsel’s petition and counsel’s brief were served on the appellant, John Walker, along with a letter from Attorney Jokelson advising appellant of his right to proceed pro se in order to raise any issues which he might deem worthy of consideration. Appellant has subsequently filed a pro se brief in support of the merits of his appeal with this Court.

Under Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), there are three requirements which must be satisfied before counsel’s request to withdraw may be considered. Those three requirements are: 1) counsel must notify the appellant of his request to withdraw, 2) counsel must furnish the appellant with a copy of the brief prepared by counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976), and 3) counsel must advise appellant of his right to retain new counsel or raise any points he may deem worthy of consideration in a pro se brief. Commonwealth v. McClendon, supra 495 Pa. at 471, 434 A.2d 1187. In this case appellate counsel has neglected to inform the appellant of his right to retain new counsel. Consequently, not all of the requirements of McClendon, supra, have been satisfied.

For this reason the petition of Neil E. Jokelson, Esq., to withdraw as counsel in the above-captioned appeal is denied without prejudice. Counsel is directed either a) to file an advocate’s brief, or b) to supply this Court with evidence that he has notified the appellant, John Walker, of his right to retain new counsel in accordance with Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Argument in the above-captioned appeal is continued generally. The Prothonotary of the Superior Court is directed to re-list the case for argument at such time as an advocate’s brief is filed by Attorney Jokelson or new counsel is appointed for appellant.

Jurisdiction of this Court is retained. Jurisdiction of this panel is relinquished.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976).

      . Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).


text:
    457 A.2d 572
    COMMONWEALTH of Pennsylvania v. Gregory HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1982.
    Filed March 11, 1983.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   PER CURIAM:

On June 16, 1981, appellant entered an open plea of guilty to two counts each of criminal conspiracy, recklessly endangering another person and possession of an instrument of crime and to one count each of terroristic threats, unlawful restraint, simple assault, aggravated assault, robbery, criminal attempt—robbery, violation of the Uniform Firearms Act, theft by unlawful taking and receiving stolen property.

He was sentenced on November 20, 1981 to a term of imprisonment of not less than seven and one-half years nor more than fifteen for robbery, a consecutive term of imprisonment of five to ten years imprisonment for criminal attempt, another consecutive term of ten years probation for criminal conspiracy and possession of an instrument of crime and a concurrent term of five years probation. Sentence was suspended on the remaining counts.

Motions to modify sentence and to withdraw the guilty plea were denied and this appeal followed. Appellant contends that the lower court should have permitted him to withdraw his guilty plea because the colloquy was inadequate. We find no merit to this argument. He also contends that sentence should be reversed because the sentencing judge failed to state his reasons for the sentence at the time of sentencing. On this point, we agree and vacate sentence and remand for resentencing.

Appellant’s motion to withdraw the guilty plea was filed on November 27, 1981—after sentence was imposed. Our Supreme Court recently discussed the standard to be applied to withdrawal of guilty plea motions which are filed after sentencing.

After stating the standard applicable to presentencing motions, the court wrote in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982):

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, however, it is well-established that 'a showing of prejudice on the order of manifest injustice,’ Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973), is required before withdrawal is properly justified. See also, Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979); Commonwealth v. Rosmon, All Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977); American Bar Association Standards for Criminal Justice, Pleas of Guilty, Standard 14-2.1 (2d ed. 1980). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentencing-testing device. Commonwealth v. Starr, 450 Pa. at 489, 301 A.2d at 594 (1973). If a plea of guilty could be retracted with ease after sentencing, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.
Certain of the American Bar Association Standards for Criminal Justice, Pleas of Guilty, have been adopted by this Court in the past. See Commonwealth v. Starr, supra (petitioner must show ‘fair and just’ reason in attempting to withdraw plea before sentencing). The Standards Relating to Pleas of Guilty (2d ed. 1980), Standard 14—2. l(b)(ii)(C) relating to Withdrawal of Pleas, provides that manifest injustice exists where ‘the plea was involuntary, or was entered without knowledge of the charge.’ In accord with this suggested standard, some demonstration must be made that the plea was not voluntary or that the plea was entered without knowledge of the charge such that refusing to allow the petitioner to withdraw his plea would amount to a manifest injustice.

498 Pa. 346, 446 A.2d at 593.

Appellant argues first that the guilty plea colloquy was defective because it did not inform him that if he were tried by a jury, it would be chosen from members of the community. While it is true that a guilty plea colloquy must inform a defendant of the constitutional rights he is waiving, including the right to trial by jury. (See Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978)), we have held that the failure to inform a defendant that the jurors would be chosen from his community would not invalidate an otherwise proper jury waiver. Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (1981). The pertinent part of the colloquy in Fortune contains language substantially the same as that in the colloquy before us in which appellant was told:

Number one, you give up your right to a trial by jury. In a trial by jury the Commonwealth would have to prove your guilt on each and every element of every offense beyond a reasonable doubt to the satisfaction of that jury unanimously and you would have the right to have counsel and assist that counsel in the selection of that jury, do you understand that?

Based on our conclusion in Fortune, we find no merit to this argument.

Appellant also contends that the colloquy was inadequate in that he was not told that the sentences imposed on him might be imposed consecutively.

Of course, a defendant must be told the range of sentences that could be imposed for the offenses charged. See Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978).

The comment to Pa.Rule of Crim.Proc. 319 states as one of the requirements of a guilty plea colloquy that the defendant be asked questions to elicit that he is “aware of the permissible range of sentences and/or fines for the offenses charged.”

Appellant was clearly told the possible sentence range for each sentence. He knew that he could receive the maximum sentence for each offense. In fact, however, he received suspended sentences on several charges, probationary sentences on others and was sentenced to only two terms of imprisonment.

Appellant has failed to meet the burden of demonstrating manifest injustice in the denial of his motion to withdraw his guilty plea. To grant the motion based only on his assertion that he did not know that his sentences might be imposed consecutively, it seems to us, would permit him to use the withdrawal as a sentence-testing device. See Shaffer, supra.

Appellant also argues that he should be resentenced because the trial judge failed to articulate the reasons for the sentence at the time of trial.

Although the judge did later write an opinion in which he discussed the sentence and his reasons for imposing it, our review of the sentencing transcript indicates that he did not disclose those reasons at the time of sentencing.

Based on the recent decision of this court in Commonwealth v. Giles, 303 Pa.Super. 187, 449 A.2d 641 (1982), we are compelled to vacate sentence and remand for resentencing. In Giles, we rejected the argument that the failure to state reasons at the time of sentencing can be remedied by stating them in a later opinion. We held that when a trial court does not state reasons on the record at the time of sentencing, the sentence should be vacated and the case remanded for resentencing.

Order affirmed as to the denial of the motion to withdraw guilty plea. Sentence vacated and case remanded for resentencing. This court does not retain jurisdiction.

      . Appellant makes other arguments as to sentencing which we need not address given our disposition of the above stated contention.

      . Although counsel both argued as to sentence, the judge never delineated his reasons for the sentence imposed. He imposed sentence after making inquiry as to alleged previous criminal activity of the appellant, but limited his remarks to such inquiry, the actual imposition of sentence, and the conclusion that his reasons were in the record.