author: OLSZEWSKI, Judge:

text:
    589 A.2d 696
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert SAVAGE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1990.
    Filed Feb. 14, 1991.
    Reargument Denied April 29, 1991.

      Stuart B. Suss, Asst. Bist. Atty., West Chester, for Comm., appellant.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal by the Commonwealth from an order of the court of common pleas denying the Commonwealth’s motion for reconsideration of suppression ruling. The underlying suppression order suppressed evidence obtained following the stop of appellee’s vehicle and subsequent arrest for driving while under the influence of alcohol. Appellant presents the following issues for our determination: (1) whether the stop of appellee’s vehicle and Ms subsequent arrest were in compliance with the statute governing the police powers of campus police; and (2) assuming non-compliance with the above statutory mandate, whether suppression of evidence is an appropriate remedy under the circumstances. We affirm.

The trial court made the following findings of fact:

On March 4, 1989 at about 1:15 A.M., Officer Martin of the West Chester University Police Department was on duty with his vehicle parked on the Campus of the University. At that time the officer observed a pick up truck go through a red traffic signal at the intersection of High Street and Linden Street and turn into Linden Street and traveled east. Linden Street was an established one-way street with traffic limited to westward traffic only. High Street and Linden Street are both off of the University Campus in the Borough of West Chester. Officer Martin left his position on the University Campus and drove off of the University Campus into the Borough of West Chester in pursuit of the truck. At the intersection of Linden Street and Walnut Street the truck stopped and the driver got out of the truck and ran in front of the truck and then down Walnut Street. Officer Martin chased the driver who disappeared. Officer Martin heard noise in some bushes near a house on Walnut Street. Officer Martin then ordered the person in the bushes to come out of the bushes. The Defendant emerged from the bushes which were up on a hill. Officer Martin then ordered the Defendant to come down off of the hill to the sidewalk. Defendant came down from the hill to the side walk. The Defendant did not say anything to the officer. Officer Martin then told the Defendant that they were going back to the truck. At that time Officer Martin considered that the Defendant was in his control and that the Defendant was not free to leave. When Officer Martin chased the Defendant he did so with intent to take the Defendant into his custody when he caught him. The Defendant did not tell Officer Martin that he was the driver of the truck and the officer never saw the keys to the truck in question in the Defendant’s possession. Officer Martin did not see the face of the driver of the truck. Officer Martin is not positive that the Defendant was the Driver of the truck. Officer Martin is positive that the Defendant was the person who was in the bushes on Walnut Street. Officer Martin never saw the Defendant or the truck in question on the University Campus. Officer Martin was not acting at the request of the Mayor of West Chester borough or other executive authority. Officer Martin was not acting under the direction of the local law enforcement authorities. Subsequently police officers of the borough of West Chester arrived at the place where the truck had stopped. The two summary offenses involved did not present an immediate clear and present danger to persons or property, as the evidence presented did not set forth specifically that any person or persons or property was in danger at the time that Officer Martin acted. We find that Officer Martin deliberately positioned himself in his stationary vehicle on campus a short distance from the border of the University and the Borough with his vehicle pointed in the direction of the borough. We find that Officer Martin’s primary concerns at the time were the happenings across High Street with regard to the ingress and egress of people to and from the “Rat” (Ratherskeller Bar) in the borough of West Chester.

(R.R. 36-39.)

The issue on appeal is whether the actions of Officer Martin were in compliance with the statutory law defining the powers and duties of campus police, set forth at 71 P.S. § 646 (Supp.1990). The relevant portion of that statute provides:

§ 646. (AdnuCode § 2416). Capitol Police, Commonwealth Property Police and Campus Police
The Capitol Police, Commonwealth Property Police and the Security or Campus Police of all State Colleges and universities, State aided or related colleges and universities and community colleges shall have the power, and their duty shall be:
* * * * * #
(e) To exercise the same powers as are now or may hereafter be exercised under authority of law or ordinance by the police of the cities of Harrisburg, Pittsburgh and Philadelphia, municipalities in Dauphin County wherein State Buildings are located and in municipalities wherein said colleges, universities and community colleges are located:
# * * * * *
* * *
Security and Campus Police shall exercise their powers and perform their duties only on the premises of the State colleges and universities, State aided or related colleges and universities and community colleges by or for which they are employed and only and after they have completed a course of training including crisis intervention training and riot control as approved by the Department of Education except, that Campus Police employed by State owned colleges and universities located in any municipalities, other than cities of the first class or second class, are authorized, in emergency situations occurring within the municipality, upon the request of the mayor or other executive authority and under the direction of the local law enforcement authorities, to exercise those powers and perform those duties conferred pursuant to this section within the municipality for the limited purpose of aiding local authorities in emergency situations. When so acting, the Campus Police shall be acting within the scope of the authority of this act and are, at all times, State employes of this Commonwealth and entitled to all the rights and benefits accruing therefrom.
As amended 1965, Sept. 28, P.L. 553, § 4; 1968, July 7, P.L. 297, No. 149, § 1; 1975, July 30, P.L. 149, No. 75, § 1, imd. effective; 1978, Sept. 27, P.L. 777, No. 149, § 4, imd. effective.

We agree with the trial court that the conduct of Officer Martin was in violation of § 646. Subsection (h) specifically sets forth the circumstances under which campus police may exercise their powers off campus and in the adjoining municipality. No evidence exists on the record which would prove that Officer Martin had been requested by the Mayor of West Chester Borough (or other executive authority) and under the direction of law enforcement authorities, to aid West Cnester Borough Police in patrolling the streets of the borough in an attempt to apprehend drunk drivers. Without such evidence, we find Officer Martin’s conduct to have violated § 646 and, accordingly, was without authority to apprehend and arrest the appellee.

The Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8951 et seq., provides in relevant part:

§ 8953(a) Gesaeral rale. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
$ $ $ :¡c $ $
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.

Unlike the trial court, we find this provision to be inapplicable to the present situation because no evidence has been presented that Officer Martin was employed by a municipality. To the contrary, Officer Martin was acting as a campus police officer employed by West Chester University. See Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626, 629 (1986) (finding § 8953 inapplicable to park police officers, stated, “____it is clear that one of the goals of the legislature in enacting the statute was to promote a cohesive working relationship among municipal police departments”). In the present case, the conduct of the campus police officer must be examined exclusively under 71 P.S. § 646, which, as discussed above, was violated in this instance.

Having found the above statutory violation and that Officer Martin was without authority to stop and arrest appellee, we must determine whether the trial court erred in remedying this violation with a suppression of the evidence obtained as a result of the unlawful seizure. With respect to the standard of review of a suppression court’s ruling:

On review, our responsibility is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626, 628 (1986), citing, Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

The trial court concluded that Officer Martin did not have probable cause to believe that appellee, whom he found in the bushes a short distance away from the intersection, was the same person who had fled from the truck. We believe that this legal conclusion drawn by the trial court from these undisputed facts was erroneous.

The crucial test in determining the presence of probable cause is whether ‘the facts and circumstances known to the police or about which they have reasonably trustworthy information at the time of the arrest ... would warrant a person of reasonable caution in believing the suspect has committed or is committing a crime.’

Commonwealth v. Fischer, 348 Pa.Super. 418, 502 A.2d 613 (1985) [citations omitted].

The facts indicate that Officer Martin lost sight of the person, who fled from the truck, only momentarily. Additionally, Officer Martin testified that he found appellee hiding in the bushes only one residence away from the intersection. We find that this scenario would warrant a reasonable person in believing that appellee had been the driver of the truck. Therefore, we cannot affirm the trial court’s suppression order on the basis of a lack of probable cause. Even though probable cause may have existed to pursue and arrest appellee, Officer Martin, nonetheless, did not have the power to engage in such conduct.

Much opposing authority exists with respect to the propriety of suppression in the context of a violation of the Municipal Police Jurisdiction Act. In Commonwealth v. Merchant, 385 Pa.Super. 264, 560 A.2d 795 (1989), this Court attempted to distinguish these two lines of cases on the basis of technicality verses the substantiveness of the violation. With respect to violations which are merely procedural or technical, discussion of Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), is necessary. In Mason, a Montgomery County police officer, having concluded that appellee committed a burglary in Montgomery County, made application and affidavit to a magistrate in Reading, Berks County, for a warrant to search appellee’s Reading apartment. A search warrant was issued and the Montgomery police, accompanied by two Reading police officers, searched the appellee’s apartment. A panel of this Court, finding a violation of Rule 2004 of the Pennsylvania Rules of Criminal Procedure because the Reading police did not “participate” in the search, granted suppression of the evidence obtained. On appeal, our Supreme Court held that suppression was an inappropriate remedy for a violation of the Rules of Criminal Procedure relating to the issuance and execution of search warrants when, as in the case before it, the violation was more technical than substantive. In Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985), following the Mason decision, a panel of this Court determined that a violation of the Act, by virtue of police failure to proceed properly in an extra-territorial investigation, did not require suppression of evidence seized. In both of these cases, the activity engaged in by police was not violative of statutory authority; only the manner and process in which the activity was conducted was faulty. But in Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981), and Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626 (1986), both cases involving extra-territorial arrests in the absence of police authority, this Court held that the suppression of evidence was an appropriate remedy. In Commonwealth v. Merchant, supra, where a police officer on routine patrol outside of his primary jurisdiction arrested a drunk driver, a panel of this Court held the violation of the Act to be entirely substantive and ruled suppression to be the appropriate remedy. In coming to the conclusion that this was the appropriate remedy, the Court reasoned that had there been compliance with the Act, appellant would have never been stopped, searched, and arrested.

Additionally, this Court stated, “If there was never a threat of suppression, the law could be made a mockery by willful non-compliance without any adverse consequences.” Id., 385 Pa.Superior Ct. at 274, 560 A.2d at 800.

In the present case, although not presented with a case under the Municipal Police Jurisdiction Act, we find that the conduct of Officer Martin, a campus police officer, was a true substantive violation of 71 P.S. § 646, and, hence, suppression of the evidence is an appropriate remedy. Had the officer complied with the above statutory mandate, appellee would never have been stopped and arrested and was, therefore, truly prejudiced by the noncompliance. An opposite result in the present case would, in effect, grant a license to campus police officers to patrol the surrounding municipalities without invitation and in usurpation of the powers of municipal police. This we will not do and cannot do, as such ruling would be in clear violation of 71 P.S. § 646(h).

Accordingly, the trial court’s order denying appellant’s motion for reconsideration of suppression order is affirmed.

CAVANAUGH, J., concurs in the result.

      . We note that appellee failed to file an appellate brief with this Court, even though appellee was given notice by the prothonotary on September 13, 1990 that appellee had until October 4, 1990 in which to file a brief. It was not until December 5, 1990, the very day oral argument was scheduled to be heard, that appellee’s counsel filed application to withdraw from this case under Pa.R.A.P. 907(b).

      . 75 Pa.C.S.A. § 3731(a)(1) and (4).

      . 71 P.S. § 646.

      . We disagree with appellant’s reliance on Commonwealth v. Holderman, 284 Pa.Super. 161, 425 A.2d 752 (1988), where we found no violation of 71 P.S. § 646 where a campus police officer pursued and stopped the defendant, after observing the defendant make an improper left-hand turn from a campus road onto a street within the adjoining borough. We limited our holding in that decision to instances where the offense occurs on campus and the perpetrator attempts to escape into the adjoining municipality. Id., 284 Pa.Superior Ct. at 169, 425 A.2d at 755-56. Therefore, that case is inapposite to the case sub judice, as both the offense and the "hot pursuit” took place off campus.

      . Because we find this section to be inapplicable to the present case, we express no opinion on the trial court’s substantive analysis of § 8953(a)(5).

      . Appellant’s citations to cases involving Capitol Police, decided under both 71 P.S. § 646 and 42 Pa.C.S.A. § 8953, are inapposite, as the powers of Capitol Police and Campus Police are not identical under 71 P.S. § 646. See, § 646(h).

      . Because both the Municipal Police Jurisdiction Act and 71 P.S. § 646 involve extra-territorial police powers, we find the existing authority to be of precedential weight in evaluating the propriety of the suppression of evidence in the present case for violation of § 646.

      . Section 646(h) provides very narrow circumstances under which a campus police officer may exercise his or her powers in a surrounding municipality. As the conduct (arrest) of Officer Martin did not comply with § 646(h), we may not otherwise hold that it was legal. The legalization of the arrest under the circumstances of the case sub judice must come from our legislature through appropriate amendment to 71 P.S. § 646(h).


source: Caselaw Access Project

license: Public Domain

text:
    589 A.2d 700
    COMMONWEALTH of Pennsylvania v. Terry L. LENIG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 14, 1991.
    Filed March 11, 1991.
    Reargument Denied April 24, 1991.

      James R. Protasio, Williamsport, for appellant.
    Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County, following appellant’s conviction for possession of a controlled substance and delivery of a controlled substance.

The facts of this case, as summarized by the trial court, are as follows:

On February 20,1986 the defendant [appellant] sold 7.1 grams of marijuana to a confidential informant, John Konoski. Prior to the buy, the informant was searched and given a marked $20.00 bill by police agent Floyd Reed. Later, that same day, Agent Reed received information that the defendant was “holding” drugs. At the request of Agent Reed by radio transmission, two uniformed policemen, Officers Lawrence Kuhn and William Kemp, stopped the defendant on a street in Williamsport, Pennsylvania, near the defendant’s home. The defendant was searched and the officer's found on defendant’s person $318.00 in money including the $20.00 marked bill from the earlier controlled purchase, six plastic bags of marijuana, a set of pocket scales and a pack of cigarette papers. Subsequently, the defendant was taken to the police station where the items seized were inventoried. On March 10, 1986 the defendant was charged with possession of a controlled substance, possession with intent to deliver and possession of drug paraphernalia. The case was indexed to Lycoming County Case No. 86-10-332. He was not charged with the earlier delivery on February 20 to the confidential informant.
In case No. 86-10,332 the defendant was found guilty and an appeal was taken to the Superior Court. There was a remand hearing to determine whether defendant’s trial counsel was ineffective in failing to file a motion to suppress evidence based on the assertion that the defendant was stopped and searched without his consent. In its opinion and order dated June 13, 1988 the Lower court ruled there was probable cause for the search and, therefore, trial counsel was not found ineffective.
Prior to the time scheduled for the remand hearing, the assistant district attorney and defense counsel attempted to resolve the matter. The district attorney advised counsel before the hearing that new charges would be filed if the hearing was held and the identity of the informant had to be revealed. No agreement was reached and the hearing was held. On April 6, 1988 Agent Reed served the new charges, the subject of this current case: the possession and delivery of marijuana to the disclosed informant.

(Trial court opinion of 3/8/90, at 2-3.) Appellant filed pretrial motions to dismiss charges based on violations of 18 Pa.C.S.A. § 110 and Rule 1100 of the Pennsylvania Rules of Criminal Procedure, double jeopardy and collateral estoppel, for prosecutorial vindictiveness and to suppress evidence. These motions were denied. Appellant was found guilty by a jury on October 11, 1988. Appellant filed post-verdict motions which were denied and this timely appeal followed.

Appellant raises the following issues for our consideration:

1. Was the evidence produced at trial the fruit of an illegal search and seizure?
2. Was counsel ineffective for failing to litigate a valid search and seizure claim in Appellant’s Motion to Suppress?
3. Was counsel ineffective for failing to object to the admissibility and authenticity of the marked money at trial?
4. Did the court err in denying the Motion to Dismiss based upon Rules [18 Pa.C.S.A. §] 110 and [Rule] 1100 and on the theory of Double Jeopardy?
5. Did the Court err in denying the Motion to Dismiss based upon prosecutorial vindictiveness?
6. Did the court err in denying the Motion for a New Trial based upon after discovered evidence?
7. Did the court err in denying the Motion for Post trial relief based upon the violation of compulsory process for obtaining witnesses in his favor?

(Appellant’s brief at 3.) We will dispose of appellant’s first three issues relating to the prior charge for possession; however, as we find merit to appellant’s fourth issue relating to the later charge for delivery to the informant, we respectfully reverse the judgment of sentence.

Appellant’s first and second issues concern whether the trial court erred in allowing into evidence a $20.00 bill seized from appellant’s person, and whether trial counsel was ineffective for failing to litigate the search and seizure claim. Appellant contends that the seizure of the $20.00 bill from his person was illegal and that the money should have been suppressed as a fruit of the illegal search. This issue, concerning the search and seizure, was the subject of a special remand hearing held in case No. 86-10,332 where the Superior Court remanded the case for an evidentiary hearing. See unpublished memorandum, Commonwealth v. Lenig, 375 Pa.Super. 619, 541 A.2d 29 (1988). The trial court in its opinion dated June 13, 1988, denied appellant’s claim of ineffectiveness of counsel. The lower court found that the police officer had probable cause to stop appellant and, therefore, the search was lawful. (Trial court opinion at 3.) Appellant appealed from the lower court order. This Court affirmed the order entered by the lower court in an unpublished memorandum, Commonwealth v. Lenig, 390 Pa.Super. 654, 561 A.2d 820 (1989).

The arguments raised by appellant in his first two issues are not convincing. The issues were decided in Commonwealth v. Lenig, 390 Pa.Super. 654, 561 A.2d 820, and are therefore covered by res judicata or the “law of the case” doctrine. Under the doctrine of “law of the case,” where an appellate court has considered and decided a question on appeal, that Court will not, in a subsequent appeal of another phase of the same case, reverse its previous ruling, even though convinced it was erroneous. Delaware River Port Authority v. Pennsylvania Public Utility Commission, 408 Pa. 169, 182 A.2d 682 (1962). See, Roskwitalski v. Reiss, 338 Pa.Super. 85, 487 A.2d 864 (1985), alloc. denied, 514 Pa. 619, 521 A.2d 933 (1987); Commonwealth v. Tick, 431 Pa. 420, 246 A.2d 424 (1968); Albright v. Wella Corp., 240 Pa.Super. 563, 359 A.2d 460 (1976). We therefore will not reverse our previous holding concerning these issues and find no merit to appellant’s first and second issues.

Appellant’s third issue concerns whether trial counsel was ineffective for failing to object to the admissibility and authenticity of the marked $20.00 bill. Appellant contends that the Commonwealth failed to establish the links in the chain of custody and therefore the marked $20.00 bill was not admissible.

To determine whether trial counsel rendered ineffective assistance, the inquiry is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An ineffective assistance of counsel claim will be successful if:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, supra at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), the Pennsylvania Supreme Court set forth the standard by which an ineffective assistance of counsel claim is determined:

Our cases clearly indicate that ineffectiveness claims are measured by two components. First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). We also presume that counsel is acting effectively. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).
Second, we “have required that the defendant demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Clemmons, 505 Pa. 356, [479] A.2d 955, (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) cert denied 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); ...

Id., 515 Pa. at 158-159, 527 A.2d at 975.

It is well established that the Commonwealth need not call every individual who may have had contact with the evidence, nor need it eliminate all possibilities of tampering. Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). The Commonwealth only needs to establish a “reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court.” Id., 244 Pa.Superior Ct. at 38, 366 A.2d at 304 (citations omitted).

In the instant case, Agent Reed testified that he recorded the serial number of the bill. (N.T. at 51.) Agent Reed met the arresting officers at the scene and examined the money, at which time he found it to be identical. He then photocopied the money. (N.T. 55-56.) Officer Kuhns, the arresting officer, testified that he searched appellant and confiscated the money. Then, following police procedures, he labelled the evidence and placed the money in the records. (N.T. 31-32.) In this case, the Commonwealth has met that burden. There is no need to discuss the ineffectiveness claim, since it has been determined that the evidence was properly authenticated and trial counsel was not ineffective for failing to object.

Appellant’s fourth issue concerns whether the trial court erred in denying a motion to dismiss based upon 18 Pa.C.S.A. § 110 and Rule 1100, and on the theory of double jeopardy. Appellant contends that the failure of the Commonwealth to file the instant charges at the time they were known violates his rights under Section 110 and Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Section 110 provides in pertinent part:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been, convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense.

18 Pa.C.S.A. § 110. Simply stated, where two offenses are part of the same criminal episode, prosecution for one offense will bar a subsequent prosecution for a second, different offense.

Three factors must be considered to determine whether incidents are part of the same criminal episode: “(1) the temporal sequence of events; (2) the logical relationship between the acts; and (3) whether they share common issues of law and fact.” Commonwealth v. Butler, 380 Pa.Super. 595, 599, 552 A.2d 702, 704 (1988), citing, Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984). The purpose of the rule is to prevent duplication, waste of scarce judicial resources and governmental harassment. Stewart, supra, 325 Pa.Superior Ct. at 469, 473 A.2d at 163. Applying the above factors to the present case, we find that the two incidents were part of the same criminal episode.

In the instant case, appellant was charged with possession of a controlled substance, possession with intent to deliver and possession of drug paraphernalia on March 10, 1986. (Trial court memorandum opinion of 3/8/90, at 2.) On April 6, 1988, Agent Reed served new charges on appellant for possession and delivery of marijuana to the confidential informant. (Id. at 3.) Here, the prosecuting officer knew at the time of the first trial that appellant could be charged with possession and delivery of marijuana to the confidential informant, but instead waited over two years to file these charges. The motives of the district attorney must be questioned. The Commonwealth argues that filing of charges on March 10, 1986 would have led to the disclosure of the identity of the confidential informant. Prior to the time of the remand hearing, the district attorney advised defense counsel that if the identity of the informant had to be revealed, new charges would be filed. (Trial court memorandum opinion at 3.)

The trial court was persuaded by the Commonwealth’s argument concerning the disclosure of the informant’s identity. Although disclosure of informants is a concern, it is not an exception to the rule. Section 110 does not provide an exception nor does it allow delay for good cause to protect the identity of an informant. Upon review of the record, it is concluded that the charges arose out of the same criminal episode. The informant was an integral part of appellant’s later arrest for possession, since without the information provided by the informant, the police would not have knowledge that appellant had marijuana on his person.

In reaching its determination, the trial court relies on Commonwealth v. Meyers, 345 Pa.Super. 520, 498 A.2d 945 (1985), reversed in part, 516 Pa. 392, 532 A.2d 789 (1987). In Meyers, appellant and others were the target of a drug investigation conducted by the Attorney General for the Commonwealth, the Lackawanna County District Attorney, and the police department of the City of Scranton. The investigation resulted in the interception and recording of approximately 3,000 conversations from the telephone lines of suspects believed of being involved in a drug ring in the Scranton area. Search warrants were executed for the residence of these suspects. While conducting the search of a residence, police observed a vehicle driven by Rose Myers and occupied by Lawrence Myers leave the scene. The police, under the belief that the vehicle contained narcotics, pursued appellants at a high speed through Scranton.

On December 21, 1982, appellants were arrested and charged with aggravated assault, resisting arrest, recklessly endangering other persons and violation of the vehicle code. At this time, despite the facts, charges were not filed against appellants for violations of the Controlled Substance, Drug, Device and Cosmetic Act. On December 17, 1983, appellants were charged with various drug offenses arising out of the information obtained by authorities through the wiretapping and the evidence seized on their person at the time of their arrest on December 21, 1982.

In reaching its determination, the Supreme Court held that:

The fortuitous circumstances that the drugs were discovered in Appellant’s possession during a search incident to his arrest following the car chase, instead of the search of his residence as contemplated by the warrant, is of no significance in determining whether the subsequent prosecution for the possession charges was violative of § 110. The possession charges brought on December 17, 1983 and arose from the same criminal episode leading to Appellant’s arrest on December 21, 1982. The possession offenses were obviously known to the prosecuting officers when Appellant’s guilty plea was entered. Section 110(l)(ii) bars prosecution of the possession charges.

Meyers, supra, 516 Pa. at 397, 532 A.2d at 791 (footnote omitted). The court reasoned that: “To hold otherwise would defeat the purposes of § 110 to protect the accused from harassment through repeated efforts by authorities to obtain a conviction and to assure finality without unduly burdening judicial resources with piecemeal litigation.” Id., 516 Pa. at 397, 532 A.2d at 791, citing, Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Campana [Campana I], 452 Pa. 233, 304 A.2d 432 (1973), vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, Commonwealth v. Campana [Campana II], 455 Pa. 622, 314 A.2d 854 (1974), cert den., 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

In the instant case, one arrest took place on February 20, 1986, in which appellant was later charged with possession of a controlled substance, possession with intent to deliver, and possession of drug paraphernalia. Not until two years later was appellant charged with the earlier delivery to the confidential informant which took place on the same day. As in Meyers, supra, the delivery charge to the informant arose from the same criminal episode leading to appellant’s arrest for possession and intent to deliver.

The Commonwealth contends that the later charge relating to the delivery to the informant was a situation involving a continuing investigation and Meyers should apply. This Court is not persuaded by the Commonwealth’s argument. In Meyers, the Supreme Court upheld the conspiracy charge against defendant stating:

The conspiracy charges were the culmination of the entire investigation undertaken by state and local authorities. As the Superior Court noted, a lengthy review of the information obtained during the interception of the 3,000 calls was necessary before the nature and scope of the conspiracy could be determined.

Meyers, supra, 516 Pa. at 398, 532 A.2d at 792.

In the instant case, the confidential informant was used to purchase drugs from appellant; this was a one-time purchase. The record does not show that an on-going investigation was conducted nor was an on-going investigation necessary to file the charges against appellant. The informant’s duties were completed after the purchase from appellant. The informant provided information to the police that appellant was carrying drugs; without the informant the police would not have knowledge that appellant was possessing drugs. Thus, we respectfully reverse the order of the trial court.

Judgment of sentence reversed. Jurisdiction relinquished.

      . Agent Reed received information from the confidential informant that appellant was in his residence. As a result of that conversation, Agent Reed contacted two police officers to assist him in making a stop of appellant. (T.T. 10/10/88 at 54.)


author: WIEAND, Judge: OLSZEWSKI, Judge, DEL SOLE, Judge,

text:
    589 A.2d 706
    COMMONWEALTH of Pennsylvania v. Jonathan James McCLENDON, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1990.
    Filed April 8, 1991.
    Petition for Allowance of Appeal Denied Sept. 5, 1991.

      Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellant.
    William A. Dopierala, Asst. Dist. Atty., Erie, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

Jonathan James McClendon entered negotiated pleas of guilty to two separate robberies which had occurred at the Central Mall Branch of the Marine Bank in Erie, Pennsylvania. In exchange for his pleas of guilty, the prosecuting attorney agreed that, at the time of sentencing, he would tell the court that the Commonwealth would have no objection to the imposition of concurrent sentences. When McClendon was sentenced, the prosecuting attorney explained to the court that the Commonwealth had no objection to concurrent sentences. The sentencing court, nevertheless, imposed consecutive terms of imprisonment. Subsequent motions to withdraw the pleas of guilty and to reduce the sentences were denied, and McClendon appealed. He contends that he should have been entitled to withdraw his pleas of guilty because the trial court imposed consecutive sentences. He also contends that the sentences imposed were manifestly excessive.

“In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant.” Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). See also: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Muller, 334 Pa.Super. 228, 233-234, 482 A.2d 1307, 1310 (1984). “To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge.” Commonwealth v. Fenton, 388 Pa.Super. 538, 542, 566 A.2d 260, 262 (1989). See also: Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 895 (1989); Commonwealth v. Campbell, 309 Pa.Super. 214, 219, 455 A.2d 126, 128 (1983). However, “[o]nce a defendant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him.” Commonwealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Phillips, 374 Pa.Super. 219, 222, 542 A.2d 575, 576 (1988); Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).

“Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden [of demonstrating manifest injustice] because of the recognition that a plea withdrawal can be used as a sentence-testing device.” Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982). See also: Commonwealth v. Starr, 450 Pa. 485, 489, 301 A.2d 592, 594 (1973); Commonwealth v. Vance, supra. “It is axiomatic that a disappointed expectation regarding a sentence does not constitute grounds for withdrawing a guilty plea.” Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983). See also: Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. West, supra at 185, 485 A.2d at 493. “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.” Commonwealth v. Shaffer, supra.

Pursuant to Pa.R.Crim.P. 319(a), a trial judge “shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.” Regarding the entry of a guilty plea, it has been said:

Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered. See: Pa.R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore. 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 855 Pa.Super. 123, 512 A.2d 1242 (1986).

Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206-207 (1989). See also: Commonwealth v. Alston, 387 Pa.Super. 393, 397, 564 A.2d 235, 237 (1989); Commonwealth v. Cortino, 387 Pa.Super. 210, 215-216, 563 A.2d 1259, 1261-1262 (1989).

In the instant case, a full and complete colloquy was conducted and included these six mandatory inquiries. During the colloquy, appellant affirmatively acknowledged that he understood the rights which he was surrendering by pleading guilty and that his decision to plead guilty was a voluntary one. On appeal, he contends nevertheless that he had an absolute right to withdraw his guilty plea pursuant to Pa.R.Crim.P. 319(b)(3) because the trial court refused to accept the plea agreement. We reject this contention.

Pa.R.Crim.P. 319(b)(3) provides as follows:

(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

In interpreting this rule, several Superior Court decisions held that “a sentence recommendation is among the ‘terms’ of a plea bargain, and the Rule provides that if the judge cannot concur in the bargain, he must afford the defendant an opportunity to withdraw.” Commonwealth v. Sutherland, 234 Pa.Super. 520, 525, 340 A.2d 582, 584-585 (1975). See: Commonwealth v. Fazenbaker, 248 Pa.Super. 433, 375 A.2d 175 (1977); Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975); Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30 (1972). See also: Commonwealth v. Coles, 365 Pa.Super. 562, 565-566, 530 A.2d 453, 455 (1987). In Commonwealth v. Bennett, 512 Pa. 525, 532, 517 A.2d 1248, 1251-1252 (1986), the Supreme Court, by dictum, interpreted Rule 319(b)(3) in a similar manner. This interpretation of the rule was “premised on the idea that it would be unfair to accept a guilty plea which was induced in part by a recommendation of a lenient sentence and then impose a greater sentence.” Commonwealth v. Sutherland, supra, 234 Pa.Superior Ct. at 524, 340 A.2d at 584.

More recent decisions, however, have made it quite clear that plea agreements by which the Commonwealth has agreed to make nonbinding sentencing recommendations will not give rise to a per se right to withdraw the plea if the sentencing court does not accept the recommendation. Thus, in Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989), the sentencing court’s rejection of the prosecution’s expressly nonbinding recommendation of probation and the imposition of a sentence of imprisonment was held not to violate the terms of the plea agreement. The Court reasoned as follows:

The ... plea bargain created no expectation whatsoever as to what sentence would be imposed. By its clear and fully explained terms, the plea bargain was expressly limited to what sentence the prosecutor would recommend, not what sentence the court would impose. Thus, the prosecutor completely fulfilled his part of the plea bargain at sentencing by offering the recommendation as agreed____ To have permitted appellant to withdraw his no contest plea based upon the trial court’s rejection of the prosecution’s recommendation, would have ignored the clear limits of the plea agreement and would have permitted precisely the kind of “sentence-testing” which our Supreme Court expressly condemned in Shaffer, 446 A.2d at 592-93; see also Commonwealth v. Herberg, supra, [306 Pa.Super. 245] 452 A.2d [536] at 537. [(1982) ]. Consequently, we reject entirely appellant’s suggestion that his plea bargain was broken.

Id. 381 Pa.Super. at 127-128, 552 A.2d at 1128. From this decision it seems clear that where the terms of a plea agreement state specifically that the court is not to be bound by the Commonwealth’s sentencing recommendation, the defendant acquires no right to have his plea withdrawn if a more severe sentence is imposed.

The same result was achieved in Commonwealth v. Porreca, 389 Pa.Super. 553, 567 A.2d 1044 (1989). There, the sentencing court had rejected the Commonwealth’s nonbinding recommendation for a maximum sentence of county prison time and, instead, imposed a sentence of imprisonment of two to six years in a state prison. The defendant argued that the sentencing court’s rejection of the Commonwealth’s recommended sentence created an absolute right to withdraw his plea pursuant to Pa.R.Crim.P. 319(b)(3). In rejecting this argument, the Superior Court said:

In Osteen, this Court emphasized that the limited nature of the plea agreement was clearly and unequivocally expressed to the defendant, who nonetheless opted to accept even the limited plea agreement as a true bargain.
The limits of the plea agreement finally approved in this case were even more clearly expressed to appellant herein, than the limits of the agreement in Osteen had been explained to Osteen. Here, the trial court expressly rejected the original proposed plea agreement which had included the promise of an unconditioned and presumably binding recommendation of no more than county time, and then subsequently accepted a plea agreement which included an expressly conditioned non-binding recommendation of no more than county time. Under those circumstances, the express and unequivocal terms of appellant’s plea agreement, “created no expectation whatsoever as to what sentence would be imposed.” Commonwealth v. Osteen, supra, 381 Pa.Superior Ct. at 127, 552 A.2d at 1128.
Thus, it can be fairly said that our Supreme Court’s dictum in Bennett, that Rule 319 “is simply a directive to the court that if the court does not concur with the terms of the plea agreement and a defendant petitions to withdraw the plea in a timely manner, the court must permit the withdrawal of the plea”, was in no sense contravened. The trial court in fact did not reject “the terms of the plea agreement.” 517 A.2d at 1251-52 (emphasis added). Cf. Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985) (although the terms of plea agreements must be enforced, the terms were not in fact violated; hence, no relief was appropriate). Succinctly, the trial court’s concurrence in the Commonwealth’s sentencing recommendation was expressly and unequivocally excluded from the “terms of the plea agreement” in this case.
In an open plea agreement, there is an agreement as to the charges to be brought, but no agreement at all to restrict the prosecution’s right to seek the maximum sentences applicable to those charges. At the other end of the negotiated plea agreement continuum, a plea agreement may specify not only the charges to be brought, but also the specific penalties to be imposed. In between those extremes there are various options, including an agreement to make no recommendation or, as here, an agreement to make a favorable but non-binding recommendation. So long as the limits of the agreement are plainly set forth on the record, understood and agreed to by the parties, and approved by the trial court, we find no impediment in Bennett or Pa.R.Crim.P. 319(b) to the offer, acceptance, performance or enforcement of such plea agreements. Cf. Commonwealth v. Osteen, supra, 552 A.2d at 1128, citing Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 592-93 (1982). Therefpre, we find that appellant’s motion to withdraw his plea based upon the sentencing court’s nonconcurrence in the prosecution’s expressly and unequivocally non-binding sentencing recommendation was properly denied.

Commonwealth v. Porreca, supra, 389 Pa.Superior Ct. at 558-560, 567 A.2d at 1046-1047 (footnotes omitted).

Appellant’s argument that Porreca and Osteen were wrongly decided is unpersuasive. Rule 319(b)(3) does not give the defendant a right which is greater than the terms of the plea bargain itself. Thus, the comment to Rule 319(b)(3) states that the rule “requires the judge to permit the defendant to withdraw a plea the judge has accepted when the judge is unable to comply with a plea agreement on which the plea was based.” Where, however, the terms of the plea agreement specifically make a recommended sentence nonbinding on the court, there can be no violation of the plea agreement when the court chooses not to follow the recommendation. In such cases the defendant has received nothing less than he bargained for. We conclude, therefore, that Porreca and Osteen present a realistic and rational approach to the enforcement of plea agreements. Prior case law does not require a contrary result.

In the instant case, the terms of appellant’s plea agreement were set forth in writing and acknowledged by appellant as follows:

DEFENDANT’S STATEMENT OF UNDERSTANDING OF RIGHTS PRIOR TO GUILTY/NO CONTEST PLEA
I am the defendant in the within matter and I hereby state that I desire to plead guilty/no contest in this matter; that my plea is made voluntarily by me without any pressure or promise not reflected on this paper; and that I fully understand all of my rights in choosing to plead guilty/no contest.
5. I understand that any plea bargain in my case is set forth here and that there has been no other bargain and no other promise or threat of any kind to induce me to plead guilty/no contest. The only plea bargain in my case is: none. The defendant will plead guilty as charged. The Commonwealth has no objection to Count 2 being concurrent to Count 1 for sentencing purposes if the pre-sentence report is favorable. WAD:jac
6. I understand that the Judge is not bound by the terms of any plea bargain unless he chooses to accept it. The Judge will announce his decision at the conclusion of the plea colloquy which follows my signing this paper. If the Commonwealth agrees to make a sentencing recommendation on my behalf, the Judge will not be bound by this recommendation and I understand that I will not be permitted to withdraw my guilty/no contest plea if this should occur.

During the guilty plea colloquy, the following exchange occurred:

MR. VOGEL [ASSISTANT DISTRICT ATTORNEY]: Okay. A few additional things we have to go over with you, Mr. McClendon, the maximum sentence under the law and to the crimes you are pleading guilty to. Both counts are robbery, felony of the first degree, which means that each of them carries a fine of up to twenty-five thousand dollars and each of them carries twenty years in jail, do you understand that?
THE DEFENDANT: Yes; yes, sir, I do.
MR. VOGEL: You understand under the law, and we will get to the plea bargain in a moment; you understand under the law the Judge has the power to impose consecutive sentences and that you are facing up to fifty thousand dollars in fines and up to forty years in jail?
THE DEFENDANT: Yes, sir.
MR. VOGEL: And you understand that regardless of any recommendation or comment that we make in the plea bargain, that doesn’t legally guarantee you of anything less than the maximum; that the Judge—
THE DEFENDANT: Yes, sir.
MR. VOGEL: —still can reject our recommendations and impose any sentence up the maximum allowed by law?
THE DEFENDANT: Yes, sir.
MR. VOGEL: With regard to the plea bargain, Mr. McClendon, the right sheet indicates that you would be pleading guilty to two counts of robbery. We would have no objection — the District Attorney’s office would have no objection to the second count of robbery running concurrent, the sentence running at the same time as the first count of robbery, assuming the presentence report was favorable in your case.
THE DEFENDANT: Yes, sir.
MR. VOGEL: What that would mean, at the time of sentencing we would come before this Court and indicate to the Judge that our position is, we have no objection to the sentences, that the two counts running at the same time. But as I said, that does not guarantee you that the Judge, in fact, is going to accept our position. He still can impose consecutive sentences, you understand that?
THE DEFENDANT: Yes, sir.
MR. VOGEL: Do you have any questions whatsoever about the plea bargain or what it means?
THE DEFENDANT: No, I do not.

Pursuant to the express terms of appellant’s plea agreement, therefore, the Commonwealth was obligated to do nothing more than to inform the sentencing court that it had no objection to concurrent sentences. It was not required affirmatively to request or recommend that concurrent sentences be imposed. The agreement provided further in clear, explicit and unambiguous terms that the sentencing court was not required to accept any sentencing recommendation by the Commonwealth. During the guilty plea colloquy appellant was specifically informed that the sentencing judge was free to impose consecutive sentences, with each being up to the statutory maximum. Appellant acknowledged that he fully understood the terms of the plea agreement and that he was willing to be bound thereby. The Commonwealth complied with the terms of the plea agreement which it made with appellant, and he is not entitled to withdraw his guilty plea merely because he was disappointed by the sentence imposed by the court.

There also is no merit in appellant’s contention that the guilty plea colloquy was defective because he was not informed that a less rigid standard for withdrawing a guilty plea exists prior to sentencing than after sentence has been imposed. A similar argument was rejected by the Superior Court in Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983), where it was held that counsel had not been ineffective for failing to insist that the guilty plea colloquy include a statement about the right to withdraw a guilty plea prior to sentencing. The Court reasoned:

It would be absurd to hold that a guilty plea is involuntary or unknowing if the defendant is not told beforehand that after entering the plea he will be allowed to petition to withdraw it. Equally absurd would be to find counsel ineffective for failing to insist on such a statement in a guilty plea colloquy. The Supreme Court has ruled that knowledge of the procedural aspects of the right to withdraw a plea has no relation to whether the plea was voluntary in the first instance. Commonwealth v. Chumley, [482 Pa. 626, 394 A.2d 497 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979).]

Commonwealth v. Klinger, supra 323 Pa.Super. at 198, 470 A.2d at 549. Similarly, in Commonwealth v. Bennett, supra, the Supreme Court held that, where a court rejects the terms of a plea agreement, it is not required, either at or prior to the time of sentencing, to inform the defendant specifically that its failure to concur in the terms of the plea agreement provides a basis for withdrawing the plea. It is sufficient if the defendant is told at the time of sentencing that he has a right to file a motion to withdraw the plea and to file a direct appeal. The defendant can thereafter decide whether he is satisfied with the sentence imposed. Commonwealth v. Bennett, supra, 234 Pa.Superior Ct. at 532-533, 517 A.2d at 1251-1252.

Here, appellant was informed at the time of sentencing that he had a right to file a motion to withdraw his guilty plea and to file a direct appeal. Although appellant has, indeed, exercised Ms right of appeal, he has failed to advance a sound reason for allowing him to withdraw Ms guilty pleas. The record before this Court fully evidences that appellant knowingly, intelligently and voluntarily entered pleas of guilty and that the terms of his plea agreement were fully complied with by the prosecution. Under these circumstances, the trial court properly denied the defendant’s motion to withdraw Ms guilty pleas.

Appellant's remaining argument implicates the discretionary aspects of sentencing. In a separate statement complying with Pa.R.A.P. 2119(f), he has alleged that the trial court abused its discretion by deviating from the sentencing guidelines on the first count of robbery and by imposing a sentence in the aggravated range of the guidelines on the second count of robbery without adequately explaining its reasons for the departure from the guidelines and without finding sufficient aggravating factors. Because we deem this a substantial challenge to the appropriateness of appellant’s sentence, we will allow this appeal from the discretionary aspects of sentencing. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion.” Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). See also: Commonwealth v. Hunter, 381 Pa.Super. 606, 618-619, 554 A.2d 550, 556 (1989); Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987). However, the sentencing court must state its reasons for the sentence on the record, which in turn aids in determining “whether the sentence imposed was based upon accurate, sufficient and proper information.” Commonwealth v. Riggins, 474 Pa. 115, 131, 377 A.2d 140, 148 (1977). See also: Commonwealth v. Thomas, 370 Pa.Super. 544, 551-553, 537 A.2d 9, 12-13 (1988); Commonwealth v. White, 341 Pa.Super. 261, 270, 491 A.2d 252, 257 (1985). When the sentence imposed is outside the sentencing guidelines, moreover, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b). See also: Commonwealth v. Sanchez, 372 Pa.Super. 369, 373, 539 A.2d 840, 842 (1988), affirmed, 522 Pa. 153, 560 A.2d 148 (1989); Commonwealth v. Vinson, 361 Pa.Super. 526, 534, 522 A.2d 1155, 1159 (1987). This requirement is satisfied “when the judge states his reasons for the sentence on the record and in the defendant’s presence.” Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d 836, 838 (1987). See also: Commonwealth v. Chesson, 353 Pa.Super. 255, 256-257, 509 A.2d 875, 876 (1986); Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984).

When imposing sentence, a court is required to consider “the particular circumstances of the offense and the character of the defendant.” Commonwealth v. Frazier, 347 Pa.Super. 64, 67, 500 A.2d 158, 159 (1985). See also: Commonwealth v. Didyoung, 369 Pa.Super. 346, 353, 535 A.2d 192, 195 (1988); Commonwealth v. Martin, 328 Pa.Super. 498, 501, 477 A.2d 555, 557 (1984). In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation. Commonwealth v. Phillips, 342 Pa.Super. 45, 51, 492 A.2d 55, 58 (1985). See: Commonwealth v. O’Brien, 282 Pa.Super. 193, 197, 422 A.2d 894, 896 (1980). “It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines.” Commonwealth v. Hainsey, 379 Pa.Super. 376, 382, 550 A.2d 207, 209 (1988). See also: Commonwealth v. Meo, 362 Pa.Super. 328, 332-333, 524 A.2d 902, 904 (1987); Commonwealth v. Ruffo, 360 Pa.Super. 180, 185-186, 520 A.2d 43, 46 (1987). Additionally, the court must impose a sentence which is “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” Commonwealth v. Frazier, supra. See also: Commonwealth v. Lowe, 361 Pa.Super. 343, 347, 522 A.2d 614, 616 (1987); Commonwealth v. Dixon, 344 Pa.Super. 293, 310, 496 A.2d 802, 810 (1985); 42 Pa.C.S. § 9721(b). Where the sentencing judge had the benefit of a pre-sentence report, however, it will be presumed that he “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). See also: Commonwealth v. Catanch, 398 Pa.Super. 466, 474, 581 A.2d 226, 230 (1990); Commonwealth v. Bruner, 388 Pa.Super. 82, 107, 564 A.2d 1277, 1289 (1989). “Having been fully informed by the pre sentence report, the sentencing court’s discretion should not be disturbed.” Commonwealth v. Devers, supra, 519 Pa. at 102, 546 A.2d at 18.

A review of the record in the instant case discloses that the sentencing court had the benefit of and fully considered a pre-sentence report before imposing sentence upon appellant. Therefore, we presume that the court was aware of and considered the relevant mitigating circumstances set forth therein. Immediately prior to announcing appellant’s sentence, the court placed the following comments on the record at the sentencing hearing:

The Court has considered the Pennsylvania Guidelines on Sentencing which set forth sentence ranges for each of the robbery crimes of 4 to 8 months in the mitigated ranges; 12 to 18 months in the aggravated range; and 8 to 12 months in the minimum range. Those are the minimum suggested sentences in those ranges, according to the guidelines, as to each of the charges.
The Court has also considered the Presentence Report in its entirety.
The Court has considered the Pennsylvania Code on Sentencing.
The Court has considered the statements of defense counsel, the witness for the defendant, and the defendant.
The Court has also considered the statement of the Commonwealth and the position of the Commonwealth as to sentencing.
The Court has considered the defendant’s age, background, character and rehabilitative needs.
. The Court has considered the nature, circumstances, and seriousness of the offenses.
The Court has considered the protection of the community.
The Court has considered the impact on the victim.
The Court would note that what stands out obviously in Mr. McClendon’s favor is the fact that he is 30 years of age and has no prior criminal record.
The defendant has a wife and six children.
The defendant has an associate’s degree from college.
The defendant has been and is — in fact, was employed at the time of this offense.
The defendant has an honorable discharge from the United States Air Force.
The defendant has some past history of depression approximately two years ago. No drag or alcohol problem is noted, although upon admission into the prison the defendant had admitted he had used cocaine approximately four days before his arrest.
The defendant appears, according to the financial portion, to be stable, financially stable. There are no outstanding assets or debts listed as a result or as part of the Presentence Report.
It is noted that he was working and making approximately $7 an hour at the time of the commission of these crimes.
The defendant has indicated, through his attorney, that what occurred here was poor judgment. It is obvious that this was much, much more than poor judgment. Poor judgment is when you go into a store and buy something that you shouldn’t be buying, or you make a mistake, an honest mistake. It’s not when you plan a criminal activity, carry out that plan, go back with the proceeds of that money and then wait approximately 10 days, replan another criminal activity at the same place, go back there, perform the crime itself, and once again flee, and have to be hunted down and tracked and found by the police department. That’s not poor judgment, that’s planned criminal activity of a significant and serious nature; two bank robberies within 10 days at the same banks.
The Court notes also that both were open to the public at the time. Both were crowded. That the robbery occurred during business hours and caused an immense disruption of business and service. During the course of the investigation, customers could not transact business, and obviously the safety of everyone was in jeopardy because no one knew what you would or would not do under the circumstances.
Court also notes that the crime netted on the first occasion approximately $800. The defendant then went back on the second occasion and netted approximately $2,200, making a total amount of over $8,000 that was taken in these two bank robberies.
The defendant did confess, but confessed only when apprehended. He did not turn himself in. He had to be tracked down by the police and found.
The Court has already considered the fact that there was no good reason other than a criminal mind to commit these crimes to get money to, as the defendant has said, pay off or buy things for his family, but for whatever reason the defendant was much better situated than many people in this community in that he had full-time employment at the time that he committed these crimes. He was not in any v/ay destitute, did not need work, had work and had had work for months prior to the commission of these crimes.
It is necessary, obviously, that this Court reassure the public that banks are a safe place to do business, that you can go there, that you will be safe, and that your money will be safe, and that these repositories are secure for the public and for the disposition of public funds.
The Court, having considered all of those things, finds that it cannot accept the position of the Commonwealth that concurrent sentences are in order. These are two separately planned crimes. Giving concurrent sentences under these circumstances would be like giving you a free crime to commit with no punishment involved whatever. The Court cannot do that, it cannot in terms of its duty to the public and to the criminal justice system and also to you, so that you know that when you commit a crime, you will be punished for it and you will not receive a free opportunity to commit a crime where there is no punishment imposed.

It is readily apparent, therefore, that the trial court considered the statute, the sentencing guidelines, appellant’s history, and also the seriousness of his crimes. It was for the sentencing court to weigh these factors and impose an appropriate sentence. It is not for a reviewing court to substitute its discretion for that of the trial court, but merely to ascertain that proper consideration was given to relevant factors. The Supreme Court has made it abundantly clear that a sentencing court’s discretion is broad, and that a reviewing court should not disturb the exercise of that discretion except for substantial reasons. See, e.g.: Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242 (1990); Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989); Commonwealth v. Devers, supra. No such reasons appear in the instant case. Where, as here, the sentencing court has considered necessary sentencing factors and has exercised conscientiously and correctly its sentencing prerogatives, the sentence will be affirmed.

Affirmed.

JOHNSON, J., joins this opinion and also the concurring opinion by OLSZEWSKI, J.

OLSZEWSKI, J., files a concurring opinion.

DEL SOLE, J., files a dissenting opinion in which FORD ELLIOTT, J., joins.

OLSZEWSKI, Judge,

concurring:

I fully join in the majority opinion as to this case. I write only to address the dissent’s contention that Pa.R.Crim.P. 319(b)(3) requires a trial court to allow a defendant to withdraw a guilty plea if the court cannot accept the nonbinding sentence recommendation made pursuant to the plea bargain.

Plea bargains result in a variety of promises being made to the accused in exchange for a plea of guilty.

In an open plea agreement, there is an agreement as to the charges to be brought, but no agreement at all to restrict the prosecution’s right to seek the maximum sentences applicable to those charges. At the other end of the negotiated plea agreement continuum, a plea agreement may specify not only the charges to be brought, but also the specific penalties to be imposed. In between those extremes are various options, including an agreement to make no recommendation or, as here, an agreement to make a favorable but non-binding recommendation.

Commonwealth v. Porreca, 389 Pa.Super. 553, 560, 567 A.2d 1044, 1047 (1989) (emphasis added). Such a nonbinding favorable sentencing recommendation does give the accused a certain advantage.

Though the sentencing court’s discretion would remain unfettered in such a context, nonetheless, it would be exercised without the influence of argument for a stiff sentence which might counterbalance or even outweigh defense counsel’s plea for leniency.

Id., 389 Pa.Superior Ct. at 560 n. 3, 567 A.2d at 1047 n. 3. The dissent’s position would, in effect, write this option out of existence.

A plea bargain progresses, to a large extent, similar to other negotiations. The relative strengths of the parties are often determinative of the terms of the agreement. The dissent’s position interferes with this negotiation. A court would be required to allow a defendant to withdraw his guilty plea if the court will not agree to the non-binding sentence recommendation. In effect, this gives the accused that which he could not obtain at the bargaining table: a promise of the specific penalty to be imposed in exchange for his guilty plea; a promise over and above the benefit he already obtained by the recommendation. If the best bargain the accused can obtain is a promise of a non-binding recommendation, the trial court should not be obligated to improve his position. “Rule 319(b)(3) does not give the defendant a right which is greater than the terms of the plea bargain itself.” Majority at 475. It cannot, in effect, convert a non-binding recommendation into a binding one.

The trial court engaged in an extensive colloquy emphasizing the fact that it would not be bound to accept the sentencing recommendation. This was the best deal McClendon could obtain through negotiation. Assuredly, he hoped the trial court would adopt the recommendation; however, he stated at least four times that he understood the risk he was taking. Majority at 478. The Commonwealth having performed its end of the bargain, McClendon is bound by his.

JOHNSON, J., joins.

DEL SOLE, Judge,

dissenting:

I dissent from the Majority Opinion because I believe that the rules of Criminal Procedure and the relevant case-law, from both the Pennsylvania Supreme Court and this court, require a contrary result. Where the Commonwealth makes a non-binding recommendation as part of the plea bargain and the trial court elects to reject that recommendation, the court should advise the defendant of its decision refusing to adopt the recommendation and allow the defendant’s plea to be withdrawn. Any contrary result creates a situation where a defendant has, in fact, received no plea “bargain” and may give up substantial rights on a promise which has no effect.

In the instant case the charges lodged against Appellant stemmed from two separate bank robberies in which it was alleged that Appellant demanded a certain sum of money from a bank teller. Appellant entered a guilty plea to both charges pursuant to an agreement that the Commonwealth would come before the court at sentencing and recommend that the sentences on the two counts run concurrently. During the colloquy Appellant was advised that the sentencing judge could “reject our recommendations and impose any sentence up to the maximum allowed by law.” N.T. 5/6/89 at 9. Likewise the Appellant signed a form which contained the following language:

I understand that the Judge is not bound by the terms of any plea bargain unless he chooses to accept it. The Judge will announce his decision at the conclusion of the plea colloquy which follows my signing this paper. If the Commonwealth agrees to make a sentencing recommendation on my behalf, the Judge will not be bound by this recommendation and I understand that I will not be permitted to withdraw my guilty/no contest plea if this should occur.

A nearly identical form was presented to a defendant in the case of Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989). In that case, as in the one before us, the defendant was told that the judge was not bound by the Commonwealth’s recommended sentence. On appeal the defendant made a claim that his sentences were excessive since the court had rejected the prosecution’s sentencing recommendations. This court found that the appellant’s claim was not a challenge to the excessiveness of the sentence; rather, it was addressing the validity of the plea. The court ruled that “[i]f, in fact, the plea agreement had been violated, the proper course for appellant to have taken would have been to move to withdraw his ‘no contest’ plea within ten days of sentencing. No such motion was filed.” Id., 381 Pa.Superior Ct. at 552 A.2d 1127 (citations omitted.) Although not instrumental to its decision, the Osteen court further stated, that a motion to withdraw would not have been appropriate in the case because “appellant received precisely what he was promised under the plea agreement.” Id. Since the prosecutor did as promised and made the recommendation, the court found that the plea bargain created no expectation as to the actual sentence and that the appellant could not have been permitted to withdraw his plea “based upon the the trial court’s rejection of the prosecution’s recommendation____” Id., 381 Pa.Superior Ct. at 522 A.2d 1128.

I conclude that this language contained in Osteen was contrary to established case-law and, to the extent that it provides otherwise, Osteen should be overruled. A refusal to permit a withdrawal of a plea after a court refuses to accept the terms of a plea agreement, including a sentencing recommendation, violates Pa.R.Crim.P. 319(b). That rule provides:

(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

(emphasis added.)

In the case before us, unlike Osteen, Appellant did file a motion to withdraw his plea within 10 days of his sentencing. Appellant alleged that his plea agreement was well reasoned since in return for the recommended concurrent sentences the Commonwealth obtained his guilty plea to robbery in a case where the facts indicated little evidence of force or threat of force. In his motion Appellant states that the court was apprised of the fact that the plea agreement recommended concurrent sentences and that the court did not give any indication that it would reject this recommendation when accepting his plea; but later, at sentencing, made such a rejection.

Appellant’s allegations are supported by the record. At sentencing the court went on to discuss that Appellant a 30 year old married father of six children, who was employed and had obtained an associates degree from college, had no prior criminal history whatsoever. Nevertheless, despite these facts and the Commonwealth’s recommendation, the court stated: “having considered all of those things, [the cou:V] finds that it cannot accept the position of the Commonwealth that concurrent sentences are in order.” N.T. 5/12/89 at 17. Although the court was free to refuse to accept the Commonwealth recommendation which was the basis of the plea bargain, Appellant was entitled to withdraw his plea in this event.

Rule 319(b)(3) states that a judge may accept the plea, but that if he or she later decides not to concur in the plea agreement, the defendant shall be permitted to withdraw the plea. The “agreement” of which Rule 310 speaks encompasses situations such as the instant one where the basis of the agreement is a promised recommendation. In Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986) our supreme court stated:

The Commonwealth initially argues that Rule 319(b)(3) does not apply to the type of plea agreement involved herein, which it characterizes as a mere non-binding, open-ended recommendation. The Commonwealth’s argument is without merit. The comment to Rule 319 states that the terms of a plea agreement as contemplated by the rule include promises of a charge reduction, the dropping of charges, and the promise of ‘a recommendation of a lenient sentence. ’

Id., 512 Pa. at 532, 517 A.2d at 1251. (emphasis added.)

The Bennett court in its decision cited with approval a superior court case, Commonwealth v. Fazenbaker, 248 Pa.Super. 433, 375 A.2d 175 (1977). Therein the trial court accepted a guilty plea and then later sentenced the defendant in excess of the Commonwealth’s promised recommendation. The judge at sentencing stated that he acknowledged the recommendation made by the district attorney, but declined to follow the plea bargain. Upon review the superior court found that Rule 319(b)(3) requires that when a court rejects the terms of a plea agreement, it must grant a timely petition for withdrawal of the guilty plea. The Fazenbaker court stated:

It is necessary corollary to Rule 319(b)(3) that if the court decides not to accept the recommended disposition of the plea agreement it must make its decision known to the defendant and his counsel before sentencing so that the defendant has an opportunity to petition to withdraw the plea.

Id., 248 Pa.Superior Ct. at 436, 375 A.2d at 176.

The same rationale was applied by this court in an earlier decision in Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975). There the court acknowledged that “a sentence recommendation is among the ‘terms’ of a plea bargain and the Rule provides that if the judge cannot concur in the bargain, he must afford the defendant an opportunity to withdraw.” Id., 234 Pa.Superior Ct. at 525, 340 A.2d at 584-585.

As these cases demonstrate, Rule 319(b)(3) requires the judge to permit a defendant to withdraw a plea where the judge is unable to comply with the agreement on which the plea was based. The agreement in this case recommended that concurrent sentences be imposed. The sentencing court acknowledged this recommendation but refused to accept it. Under these circumstances rule 319(b)(3), and the case-law interpreting it, require that Appellant be afforded the opportunity to withdraw his plea. The Rule grants Appellant this right which he sought to exercise, and he must be permitted to withdraw his plea despite being informed otherwise. Appellant gave up his right to a jury trial in return for a recommended sentence. Although Appellant was promised only a recommendation, when the court determined that it would not carry through with this recommendation, it should have advised appellant of its decision and should then have called upon him to affirm or withdraw his plea. By doing this before imposing sentence, the defendant would not be using the plea to test the sentence. Also, I would point out that the Majority’s distinction between an agreed to sentence and a recommended sentence is a distinction without a difference, since the Commonwealth cannot guarantee that the trial court would be bound in either case. Even a sentence agreed to by the Commonwealth is only a recommendation to the trial judge. In my view, the defendant is not bargaining for a recommendation but is, in reality, bargaining for a sentence. Because the court did not agree with the recommendation and did not inform Appellant of its position before sentencing, I would vacate Appellant’s judgment of sentence and remand this case to the trial court with instructions to permit Appellant to withdraw his guilty plea.

FORD ELLIOTT, J., joins.

      . The robberies were committed by McClendon on December 12, 1988 and December 22, 1988.

      . The court imposed a sentence of imprisonment for not less than three (3) years nor more than ten (10) years for the one robbery and a consecutive term of imprisonment of not less than one and one-half (IV2) years nor more than five (5) years for the other.

      . McClendon filed separate notices of appeal from the denial of his motion to withdraw the guilty plea and from the denial of his motion to modify sentence. A subsequent motion to consolidate the two appeals was granted by the Superior Court.

      . In contrast to post-sentencing motions, pre-sentence motions for withdrawal of a guilty plea are to be liberally permitted for fair and just reasons, unless the Commonwealth will be substantially prejudiced thereby. See: Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Ortiz, 334 Pa.Super. 117, 482 A.2d 1110 (1984).

      . Appellant also asserts that his sentence was improper because the sentencing court rejected the plea agreement he entered. We have already determined that appellant’s plea agreement was fully complied with; and, therefore, we find this contention lacking in merit.


author: HOFFMAN, Judge.

text:
    589 A.2d 718
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard CORNISH.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Filed April 8, 1991.

      Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jeffrey P. Shender, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge.

This Commonwealth appeal is from the judgment of sentence imposed after appellee pled guilty to robbery, possessing an instrument of crime, unlawful use of a computer, and attempted theft by deception. The Commonwealth contends that the sentencing court erred in failing to apply the deadly weapon enhancement provision of the sentencing guidelines when it determined the guideline ranges applicable to appellee’s robbery conviction. For the reasons set forth below, we vacate the judgment of sentence and remand for resentencing.

On November 18, 1989, appellee went to the victim’s apartment and stole her money access card (“MAC” card), a watch and jewelry. In the course of the robbery, appellee struck the victim numerous times with a fireplace poker, inflicting serious injury. Subsequently, on January 2,1990, appellee pled guilty to robbery and possession of an instrument of crime. On March 27, 1990, appellee pled guilty to additional charges of unlawful use of a computer and attempted theft by deception in connection with his attempted use of the victim’s MAC card. On that same day, appellee was sentenced to forty-two to one-hundred-and-twenty months imprisonment for robbery, a concurrent term of twelve to twenty-four months for possessing an instrument of crime, and thirty-six months concurrent probation for unlawful use of a computer. Appellee’s Motion to Modify, Vacate and Reconsider Sentence was filed and denied on April 3, 1990. The Commonwealth’s Petition for Reconsideration of Sentence was filed and denied on April 5, 1990. This timely Commonwealth appeal followed.

The Commonwealth contends that the sentencing court erred by refusing to apply the deadly weapon enhancement of the sentencing guidelines when it formulated appellee’s sentence for robbery. After considering relevant statutory and ease law, we must agree.

It is well-established that sentencing is vested within the sound discretion of the trial court. See, e.g., Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). However, the court must exercise its discretion in accordance with applicable provisions in the Sentencing Code, 42 Pa. C.S.A. § 9701 et seq. Thus, the Code provides in relevant part:

the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing.... In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.

Id. § 9721(b).

Our Supreme Court has recognized that a sentencing court is not required to adopt the recommendations in the guidelines, but it must, at the least, consider them. See Commonwealth v. Sessoms, 516 Pa. 365, 376-77, 532 A.2d 775, 781 (1987). The deadly weapon enhancement provision of the sentencing guidelines provides that when the court determines that the defendant possessed a deadly weapon during the commission of a criminal offense, the court must add at least 12 months and up to 24 months to the guideline sentence that would otherwise have been applicable. See 204 Pa.Code § 303.4. The sentencing court may not disregard this section in determining the appropriate guideline sentencing ranges. See Commonwealth v. Septak, 359 Pa.Super. 375, 380, 518 A.2d 1284, 1286 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474, 491 A.2d 1352, 1355 (1985). It is imperative that the sentencing court determine the correct starting point in the guidelines before imposing sentence. See Commonwealth v. Septak, supra, 359 Pa.Super. at 382, 518 A.2d at 1287; Commonwealth v. Johnakin, 348 Pa.Super. 432, 438, 502 A.2d 620, 623 (1985); Commonwealth v. Drumgoole, supra, 341 Pa.Super. at 474, 491 A.2d at 1355.

As noted above, appellee’s conviction in this case arose from a robbery during which he beat the victim with a fireplace poker. Under the sentencing guidelines, the offense gravity score for appellant’s robbery conviction is “9,” see 204 Pa.Code § 303.8, and his prior record score is “0.” See id. § 303.7. These scores result in the following suggested minimum sentencing ranges:

Standard Range 36-60 months
Aggravated Range 60-75 months
Mitigated Range 27-36 months

See id. § 303.9. After adding on the deadly weapon enhancement, the correct ranges for appellee’s robbery sentence are:

Standard Range 48-84 months
Aggravated Range 72-99 months
Mitigated Range 39-60 months

See id. § 303.4. Thus, the sentence imposed for the robbery conviction, forty-two to one-hundred-and-twenty months, is in the standard range suggested by the guidelines without the deadly weapon enhancement, and within the mitigated range when the deadly weapon enhancement is applied.

At the sentencing hearing, the Commonwealth argued that the deadly weapon enhancement should have been applied to the guideline ranges when the court formulated appellee’s robbery sentence. See N.T. March 27,1990, at 45-48. The court refused the Commonwealth’s request, however, see id. at 48-49, and determined that a sentence within the standard range without application of the deadly weapon enhancement would be appropriate. See id. at 53. It is undisputed that appellee repeatedly struck the victim with a fireplace poker during the course of the robbery. See N.T. January 2, 1990, at 10-12. Therefore, the trial court was required to apply the deadly weapon enhancement when it calculated the guideline ranges applicable to appellee’s robbery conviction. See 204 Pa.Code § 303.4; see also Commonwealth v. Septak, supra; Commonwealth v. Drumgoole, supra. “[I]t is imperative that before making th[e] determination [to sentence outside the guidelines] the correct starting point in the guidelines be determined.” Commonwealth v. Drumgoole, supra, 341 Pa.Super. at 474, 491 A.2d at 1355. Accordingly, appellee’s sentence must be vacated and the case remanded for resentencing after consideration of the appropriate guidelines, including the deadly weapon enhancement. If the court then finds it appropriate to sentence outside the guidelines, of course, it may do so as long as it places its reasons for the deviation on the record. See 42 Pa.C.S.A. § 9721(b); Commonwealth v. Rich, 392 Pa.Super. 380, 383-86, 572 A.2d 1283, 1284-86 (1990).

Judgment of sentence vacated and case remanded for resentencing. Jurisdiction is relinquished.

      . 204 Pa.Code § 303.4, reprinted following 42 Pa.C.S.A. § 9721.

      . Sentence was suspended on the attempted theft by deception charge based on principles of merger.

      . As a preliminary matter, we note that the Commonwealth's brief complies with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and that the Commonwealth has raised a substantial question that the sentence imposed was not appropriate under the sentencing guidelines. See Commonwealth v. Pokorny, 360 Pa.Super. 384, 386, 520 A.2d 511, 512 (1987) (allegation that sentencing court erroneously refused to apply deadly weapon enhancement provision in sentencing defendant is substantial question). Therefore, we permit this appeal pursuant to 42 Pa.C.S.A. § 9781(b).

      . Both Septak and Drumgoole construed the prior sentencing guidelines, which were declared unconstitutional in Commonwealth v. Sessoms, supra. The present guidelines were promulgated on February 22. 1988 (effective April 25, 1988). Section 303.4 of the present guidelines is substantially similar to § 303.4 of the prior guidelines.

      . The Commonwealth also takes issue with the trial court’s suggestion that principles of double jeopardy precluded application of the deadly weapon enhancement provision. It is well-settled that courts should not address constitutional issues unless absolutely necessary, and should, instead, attempt to resolve the case on another basis. Ballou v. State Ethics Comm’n, 496 Pa. 127, 129, 436 A.2d 186, 187 (1981); Coatesville Dev. Co. v. United Food and Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 337, 542 A.2d 1380, 1383 (1988) (citation omitted). Here, the court specifically stated that it did not accept, for sentencing purposes, the argument that double jeopardy prevented application of the deadly weapon enhancement provision. See N.T. March 27, 1990, at 49. Thus, the factual predicate for the Commonwealth’s argument does not exist. Moreover, because we have held that the trial court erred in failing to apply the deadly weapon enhancement when it determined the applicable sentencing guideline ranges, it is not necessary for us to address the Commonwealth’s constitutional argument.