author: OLSZEWSKI, Judge:

text:
    563 A.2d 913
    Helen Roberta ADAMS, Appellee, v. Gerald F. ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 25, 1989.
    Filed Aug. 15, 1989.

      John H. Wollman, West Chester, for appellant.
    Thomas R. Wilson, West Chester, for appellee.
    Before McEWEN, OLSZEWSKI and MELINSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the trial court resolving exceptions to a master’s report. Appellant, Gerald F. Adams, contends that the trial court abused its discretion in: (1) failing to make the elimination of appellant’s obligation to contribute a fixed amount per month to the mortgage payment on the marital residence retroactive to the sale of the residence in 1985; (2) reversing the hearing officer’s special finding that appellee, Helen R. Adams, is employable despite her hearing handicap; and (3) refusing to consider appellant’s increased federal tax liability in calculating his net income. For reasons delineated below, we affirm in part and reverse and remand in part.

Appellant and appellee were married on June 24, 1967, and separated on September 4, 1982. The parties parented two children, born in 1974 and 1977, during the marriage. At the time of separation, appellant was employed as an engineer at Hewlett Packard. Appellee had not been employed since the birth of the parties’ first child.

Appellee filed a complaint for support on September 21, 1983. On October 27, 1983, the trial court entered a temporary support order pursuant to stipulation. A hearing officer, Katherine Platt, convened two hearings and subsequently recommended $1500.00 per month for support of appellee and the two children. Exceptions were filed and the trial court, by opinion dated June 25, 1984, noted that wife was not capable of contributing to her own support and remanded for further proceedings to determine the amount of the principal portion of the mortgage payment in accordance with Kinden v. Kinden, 32 Ches. 106 (1984), which requires both parties, regardless of where each is residing, to contribute equally to the principal amount of the monthly mortgage payment on the theory that the equity in the marital residence is a joint asset. On September 19, 1984, after a hearing on the mortgage obligation, Ms. Platt increased appellant’s support obligation to $1700.00 per month and imposed an additional obligation of $53.64 to be used by appellee for her Kinden payments. Exceptions were filed by both parties and the trial court, upon finding that the hearing officer erred in imposing a general support obligation of $1700.00 per month, again remanded the matter to the hearing officer. Ms. Platt on June 5, 1985, entered a supplemental finding and recommendation based upon the remand order and on her review of the existing record. No exceptions to that recommendation were filed and the trial court entered an order on June 24, 1985, directing appellant to make monthly payments of $753.00 for support of spouse and share of mortgage and $1,000.00 for support of two children.

On August 13, 1985, appellant filed an amended petition to reduce the support order, citing three material changes of circumstances: (1) appellee had become capable of contributing to her support as a result of education; (2) the marital residence had been sold; and (3) appellant’s income had decreased. On April 29, 1986, a hearing officer convened a hearing regarding appellant’s petition and appellee’s petition for medical coverage. On May 19, 1986, the hearing officer filed a recommendation to dismiss appellee’s petition and a recommendation to modify the trial court’s order of June 24,1985. The parties filed exceptions and, on August 18, 1986, the trial court entered an order directing that a hearing be held to supplement the record with regard to: (1) appellant’s current living expenses; (2) the sale of appellant’s condominium and its proceeds; and (3) repayment of condominium debts. The court further ordered the hearing officer to redetermine her previous recommendation.

Following hearings on April 29, 1986 and October 14, 1986, the hearing officer filed a recommendation to amend the trial court’s order of June 24, 1985, to provide for $1570.00 per month total support effective May 19, 1986. In this order dated January 20, 1987, the hearing officer further recommended that appellant receive a credit for mortgage payments, the Kinden payments made by appellant on appellee’s behalf in April and May 1985, and $636.00 in mortgage credits, representing the Kinden payments for the year since the sale of the house. Both parties filed exceptions to the recommendations. The trial court, upon finding that the hearing officer’s recommendation lacked factual support, issued a directive to the hearing officer to “enlighten us with a memorandum as to how he reached his findings, special findings, conclusions and recommendations.” Opinion at 8.

On November 24, 1987, the Hearing Officer filed a memorandum in accordance with our directive which provided an explanation for his findings and recommendations. The Hearing Officer explained in his memorandum that he attributed to Wife an earning capacity of $100.00 per week based on a minimum wage calculation. The Hearing Officer stated that this was based on Wife’s testimony that she had the physical ability to attend college on a part-time basis as well as take care of the children. Husband’s income figures were based on his 1985 after-tax income of 3,400.00 per month plus 175.00 per month for profit sharing. The Hearing Officer explained that he used 1985 income figures because the available figures for 1986 were confused by Husband’s high deductions for federal income tax. However, the Hearing Officer’s November 24, 1987 memorandum did not comply completely with our November 16, 1987 directive. Therefore on February 11,1988, we directed the Hearing Officer to file a “Supplemental Memorandum”. On February 29, the Hearing Officer filed a supplemental memorandum which finally permits us to decide all of the exceptions.

Opinion at 8-9.

The trial court concluded that: (1) appellant had failed to meet his burden of proof with regard to earning capacity attributable to appellee; and (2) because appellant created the confusion regarding his 1986 income figures, the hearing officer correctly based his findings on appellant’s 1985 income figures. Therefore, the trial court dismissed appellant’s exceptions in this regard and found it unnecessary to rule on exceptions concerning retroactivity. In sum, the trial court: (1) ordered husband to pay a monthly support obligation of $1700.00 pursuant to the order of June 24, 1985; and (2) credited appellant with $286.39 for a mortgage payment made on April 18, 1985, two Kinden payments made by husband in April and May, 1985, and $636.00 for payment of twenty-eight months of life insurance premiums.

On April 13, 1988, appellant filed a petition for reconsideration and a notice of appeal. The petition was denied on April 21, 1988. On December 7, 1988, the trial court filed a statement explaining that it intended the March 18, 1988 order, to provide for the elimination of Kinden payments from March 31, 1985. This appeal followed.

Appellant first contends that the trial court abused its discretion in failing to make the elimination of the Kinden payment retroactive to the sale of the marital residence. When reviewing an appeal from an order of support, our scope of review is narrow. An order of the trial court will not be reversed unless the evidence was insufficient to sustain the order or there has been an abuse of discretion. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 510, 457 A.2d 1297, 1299 (1983), citing Shank v. Shank, 298 Pa.Super. 459, 462, 444 A.2d 1274, 1276 (1982); Commonwealth ex rel. Kunkin v. Bruck, 297 Pa.Super. 410, 415, 443 A.2d 1187, 1190 (1982); Turner v. Matthews, 297 Pa.Super. 10, 11-12, 442 A.2d 1187, 1188 (1982); Commonwealth ex rel. Stone v. Stone, 293 Pa.Super. 427, 429, 439 A.2d 185, 186-187 (1981); Dunbar v. Dunbar, 291 Pa.Super. 224, 228, 435 A.2d 879, 881 (1981); Berry v. Berry, 278 Pa.Super. 30, 33, 419 A.2d 1340, 1341 (1980). Absent a clear abuse of discretion, we will defer to the order of the trial court. Koller v. Koller, 333 Pa.Super. 54, 58, 481 A.2d 1218, 1220 (1984). “A finding of abuse will be made only upon a showing of clear and convincing evidence.” Koller, supra, citing Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980).

The record reflects that the June 24, 1985 support order included a payment of $53.64 per month pursuant to Kinden v. Kinden, 32 Ches. 106 (1984), which, as discussed supra, requires the party who is not living in the marital residence to contribute half of the principal amount of the monthly mortgage payment on the theory that the equity is a marital asset. The record further reflects, however, that at the time of the order, the marital residence had been sold and there was no mortgage in effect. Nonetheless, appellant continued to make the $53.64 monthly payment designated for appellee’s Kinden obligation until the March 18, 1988 order acknowledging that payment was no longer necessary. In this order, while the court properly provided for the elimination of the Kinden payment, the court did not credit appellant with Kinden payments since the sale of the house. We find this to be an abuse of discretion. Therefore, we reverse that aspect of the order and remand for the trial court to amend the order to provide for Kinden payment credits retroactive to May 31, 1985.

Next, appellant asserts that the trial court abused its discretion in reversing the hearing officer’s finding that appellee was employable. Preliminarily, we note that a support order is not final and may be increased or decreased where the circumstances of the parties change. Vogelsong, supra, citing Costello v. LeNoir, 462 Pa. 36, 42 n. 8, 337 A.2d 866, 869 n. 8 (1975); Dunbar, supra; Commonwealth ex rel. Jeske v. Jeske, 283 Pa.Super. 209, 211, 423 A.2d 1063-1064 (1981); Commonwealth ex rel. Kaplan v. Kaplan, 219 Pa.Super. 163, 165, 280 A.2d 456, 457 (1971).

In proceedings to modify a support order, it is the petitioner who has the burden of proving that there has been a material change in circumstances sufficient to warrant modification of the existing order. Shank [, supra]; Stone [, supra, [293 Pa.Super at 429, 439 A.2d at 186]; Commonwealth ex rel. Kistler v. Kistler, 291 Pa.Super. 51, 55, 435 A.2d 214, 216 (1981); Berry [, supra ]; Dugery v. Dugery, 276 Pa.Super. 51, 54, 419 A.2d 90, 91 (1980).

Vogelsong, supra.

Regarding determinations of earning capacity, we do not define a wife’s earning capacity as an amount which she could theoretically earn. Commonwealth ex rel. Simpson v. Simpson, 287 Pa.Super. 356, 360, 430 A.2d 323, 326 (1981), quoting Commonwealth ex rel. Malizia v. Malizia, 229 Pa.Super. 108, 111, 324 A.2d 386, 388 (1974). “Rather, we consider it to be that ‘amount which [the person] could realistically earn under the circumstances, considering his [or her] health, age, mental and physical condition and training.’ ” Id. (emphasis added). In addition, a court should consider the amount of time that a wife during her marriage has been out of work. Simpson, supra, quoting White v. White, 226 Pa.Super. 499, 505 n. 5, 313 A.2d 776, 780 n. 5 (1973).

In reaching his conclusion that appellant failed to prove earning capacity attributable to appellee, the trial court opined:

At the hearing, the parties presented conflicting expert depositions as to the severity of [appellee’s hearing] loss. The Wife introduced into evidence the deposition of her physician, Joseph Sataloff, M.D., who testified that the hearing loss is severe and will become progressively worse, limiting the Wife in the types of jobs which she could perform.
The Husband introduced the deposition of an audiologist, Daniel M. Schwartz, Ph.D., who testified that his opinion was not based on an actual examination of the Wife, but on the deposition of Dr. Sataloff and on several test results conducted by Dr. Sataloff. Dr. Schwartz states that the Wife’s hearing has never been fully tested; he recommended a complete audiologic assessment to determine the extent of the loss. Although he stated several times that the Wife’s condition is “undefined”, Dr. Schwartz proceeded to testify that her hearing could improve with amplification. Dr. Schwartz disputed Dr. Sataloff’s assessment concerning Wife’s ability to function and he testified as to several specific jobs which he believed the Wife could perform. The testimony of Dr. Schwartz has cast serious doubt on the completeness of Dr. Sataloff’s testing and diagnosis. However, because further testing is necessary in order to fully determine Wife’s condition, Dr. Schwartz is precluded by his own testimony from giving an opinion (on Wife’s condition and capabilities) which is more than mere conjecture. At the hearing, Husband also presented the testimony of Ms. Janice Luber, who testified as a “rehabilitative specialist and job developer.” In her testimony ..., she stated that she considered Dr. Schwartz to be the definitive medical expert in this case____ Ms. Luber admitted that she was not fully aware of all of the Wife’s hearing deficiencies. Therefore, she could not have taken all of them into consideration and could not have mentioned them to the potential employers she contacted. Lastly, we note that Ms. Luber never interviewed Wife at any time concerning her ability or inability to perform certain jobs for potential employers. Thus, based on the foregoing discussion, we conclude that little weight should be given to her testimony concerning the jobs for which she believed the Wife was qualified.
It is clear that Wife’s earning capacity is closely associated with her hearing loss. However, the Husband has the burden of proof. In the absence of complete testing, the Husband has failed to meet his burden of proof. Before any earning capacity may be attributed to the Wife, further testing must be done so that the full extent of Wife’s hearing loss may be determined. We note that no exceptions were taken to Hearing Officer Platt’s findings of June 5, 1985, and since Husband did not meet his burden of proof with regard to Wife’s present income, it is necessary for us to revert to Hearing Officer Platt’s finding in 1985 of no income for Wife.

Opinion at 10-12 (citations omitted).

Based upon the foregoing and upon our scrutiny of the record, we find that appellant has failed to show a material change in circumstances regarding appellee’s employability that warranted modification of the original support order. Koller, supra 333 Pa.Super. at 58, 481 A.2d at 1220 (“The petitioner has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support order.”). Accordingly, we find no abuse on the part of the trial court in this regard.

Finally, appellant maintains that the trial court abused its discretion in refusing to consider appellant’s federal tax liability in calculating his net income. Specifically, appellant claims that “there was a material change in Mr. Adams’ tax obligation as a result of losing a substantial deduction, and it was an abuse of discretion to refuse to consider it in calculating his net income.” Appellant’s brief at 43. The record of the pertinent master’s hearing reflects that on April 30, 1986, appellant sold a condominium in order to repay a sum of money to his mother. Transcript at 20. At the hearing, appellant testified that because he no longer had the tax benefit of the interest payment on the condominium, more income was being withheld for federal income tax purposes. Transcript at 20. The master, however, based his finding of husband’s net income on 1985 income figures rather than 1986 figures “because the available figures for 1986 were confused by Mr. Adams’ high deductions for federal income taxes and an alleged tax obligation created by the sale of his condo[minium].” Memorandum of hearing officer at 1-2. In dismissing appellant’s exception to the master’s finding that appellant’s net income had increased instead of decreased, the trial court relied upon Parkinson v. Parkinson, 354 Pa.Super. 419, 512 A.2d 20 (1986). In so doing, the trial judge opined:

Our Superior Court in Parkinson ... ruled that it was an abuse of discretion for a trial court to credit a husband with $1379.40 per week in federal withholding tax for purposes of determining husband’s income, where the actual federal tax paid in previous years was far less. Further, we note that the confusion caused by the high deductions was due to the Husband, since he controlled the amount to be deducted from his 1986 income for tax purposes. We cannot permit the Husband to benefit from the confusion which he himself created.

Opinion at 13.

Our reading of Parkinson indicates that an individual may not deduct, when calculating income for support purposes, an amount in federal withholding tax that is in excess of the actual federal tax paid. In Parkinson, the husband withheld more federal tax than he was required to pay but the trial court deducted for support purposes the full amount withheld. Specifically, while the husband paid a total for the year of $1598.00 in federal income tax, the trial court credited him with $1379.40 weekly in federal withholding tax. A panel of this Court justifiably found that calculation to be in error. The situation in the instant case, however, is not analogous. If appellant’s actual income tax obligation was increased as a result of the sale of the condominium, that fact should be considered in determining his net income for support purposes. See Parkin son, supra. Finding that the trial court has misapplied Parkinson, we must reverse this aspect of the order and remand for determination as to whether appellant’s actual income tax obligation necessitates a reduction in his net income for support purposes.

In conclusion, we: (1) affirm the trial court’s finding that appellee was not employable; (2) reverse the trial court’s determination that appellant is not entitled to Kinden payments made after the sale of the marital residence and remand for the order to be so modified; and (3) reverse that • aspect of the order calculating appellant’s net income for support purposes without regard to his actual income tax obligation and remand for such calculation.

Order affirmed in part and reversed in part, and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

McEWEN, J., concurs in the result.

      . The record reflects that although settlement on the marital residence was not scheduled until May 31, 1985, appellee failed to make Kinden payments after March, 1985. To prevent foreclosure, appellant made two Kinden payments on appellee’s behalf in April and May, 1985, in addition to one mortgage payment on April 18, 1985.

      . In so doing, we leave undisturbed the aspect of the trial court’s order crediting appellant with the two Kinden payments made on appellee’s behalf, and the mortgage payment made on April 18, 1985.

      . We note that, based upon the foregoing, appellant incorrectly asserts that ”[s]ince Mrs. Adams asserted her hearing handicap as an affirmative defense to Mr. Adams’ petition to reduce, the burden of proving that her handicap precluded employment should have been placed on her.” Appellant’s brief at 26-27.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    563 A.2d 918
    COMMONWEALTH of Pennsylvania v. Michael CANNON, Appellant. COMMONWEALTH of Pennsylvania v. Gregory REAP, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1989.
    Filed Aug. 18, 1989.

      Cynthia A. Smith, Wilkes-Barre, for Cannon, appellant (at 2682) and for Reap, appellant (at 2683).
    Joseph Giebus, Wilkes-Barre, Asst. Dist. Atty., for Com., appellee. (Submitted)
    Before CAVANAUGH, BECK and CERCONE, JJ.
   CERCONE, Judge:

These are appeals from the judgments of sentence of the Court of Common Pleas of Luzerne County. We affirm in part, reverse in part and remand for resentencing in accordance with this opinion.

Appellant, Michael Cannon was charged at No. 1006-C-1984 with one count of simple assault on Edward Miller. Appellant, Gregory Reap, was charged at No. 675 of 1984 with two counts also concerning Edward Miller. The first count was aggravated assault and the second count was simple assault. Appellant Reap was further charged at 676 of 1984 with one count of simple assault as to Charles Infantino. After a jury trial, on March 22, 1985 both appellants were convicted of all counts. The Honorable Arthur D. Dalessandro presided over the trial and on March 19, 1986, heard oral argument on both appellants’ motions for new trial and/or in arrest of judgment. On October 3, 1986, before ruling on appellants’ motions, the trial judge was relieved of performing any judicial, legal or fact-finding decisions in the Luzerne Court of Common Pleas, both Criminal and Civil Divisions.

Thereafter, on March 24, 1987, the Honorable Gifford S. Cappellini (hereinafter referred to as the “reviewing judge”) denied appellants’ motions for new trial and/or in arrest of judgment. Appellants filed petitions to vacate the order of court. On August 13, 1987, Judge Cappellini dismissed appellants’ petitions. A restitution hearing was commenced on June 10, 1988 and reconvened on July 22, 1988.

On August 4, 1988, the reviewing judge found from the record that the damages to the victim, Edward Miller, for medical and hospital treatment including pain and suffering which were attributable to appellant Cannon amounted to $6000. Appellant Cannon was placed on probation for two years and ordered to pay the cost of prosecution and to make restitution in the amount of $250 a month.

The reviewing judge further found from the record that the damages attributable to appellant Reap for Mr. Miller’s medical and hospital treatment, including pain and suffering, amounted to $33,000 and that the damages, medical and hospital treatment including pain and suffering sustained by Charles Infantino attributable to appellant amounted to $11,000. On the first count of No. 675 of 1984, the aggravated assault count regarding Mr. Miller, appellant Reap was placed on probation for ten years and ordered to pay the cost of prosecution and to make restitution in the amount of $275 a month to Mr. Miller. On the second count of No. 675 of 1984, the simple assault count relating to Mr. Miller, appellant Reap was given the same sentence as the first count, except he was placed on probation for two years to be served concurrently with the sentence for the first count. On the simple assault count pertaining to Mr. Infantino at No. 676 of 1984, appellant Reap was sentenced to two years probation to be served concurrently with the sentence at No. 675 of 1984 and he was further ordered to pay the cost of prosecution and make restitution in the amount of $91.67 a month to Mr. Infantino. Appellants filed timely appeals from the judgments of sentence.

The facts, as determined by the lower court, are as follows: On August 25, 1983, Charles Infantino’s wife rejected the advances made by Paul Lumia in the lobby of the Woodlands, a drinking and dancing establishment located in Wilkes-Barre. A verbal exchange ensued between Mr. Infantino and Mr. Lumia. Mr. Lumia was then instructed by a manager to leave the Woodlands. Thereafter, Mr. and Mrs. Infantino left the Woodlands accompanied by Mr. and Mrs. Miller and proceeded in a northerly direction on Route 315 in Wilkes-Barre. The appellants, along with Mr. Lumia, were passengers in a vehicle that followed the victims’ vehicle. At a traffic light, the appellants pulled alongside their victims and yelled obscenities at them. The appellants then followed the victims’ vehicle, bumped it, threw beer bottles at it, and ran it off the road into a construction ditch. Thereafter, the appellants and their companions assaulted Mr. Infantino and Mr. Miller, causing serious bodily injuries to them.

On appeal, appellants raise seven issues for our review: (1) that the trial court erred in refusing their requested points for charge on (a) the justification defense; and (b) mutual combat; (2) that the trial court erred in granting the Commonwealth’s motion in limine with regard to one of the victim’s wire fraud conviction; (3) that the trial court erred in refusing to permit appellants to engage in more extensive cross-examination of the victim after the Commonwealth, on redirect examination, elicited the victim’s wire fraud guilty plea; (4) that the reviewing judge erred in not vacating the March 24, 1987 order of court denying appellants’ motions for new trial and/or in arrest of judgment; (5) that appellants’ sentences were improperly imposed by a judge who did not preside over the trial; (6) that the reviewing judge improperly allowed exhibits into evidence at both the restitution and sentencing hearings over appellants’ objections; and (7) that the reviewing judge abused his discretion in sentencing appellants. We will address each of these issues seriatim.

Appellants’ first contention is that the lower court erred in refusing to charge the jury as to the defense of justification or on the defense of mutual combat. We disagree. Mutual combat infers that both parties “agreed” to fight and that there was no aggressor. See Commonwealth v. Coleman, 344 Pa.Super. 481, 496 A.2d 1207 (1985) (wherein evidence that the victim got out of his car, charged the defendant and a fight ensued, but there was no clear evidence of who threw the first punch supported inference that fight was entered into by mutual consent.)

In order to be entitled to an instruction on justification as a defense to a crime charged, our supreme court in Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985) held that the actor must first offer evidence that will show: (1) that he was faced with a clear and imminent harm, not one which is debatable or speculative; (2) that he could reasonably expect that his actions would be effective in avoiding this greater harm; (3) that there is no legal alternative which will be effective in abating the harm; and (4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Capitolo, 508 Pa. at 378, 498 A.2d at 809. The trial court may disallow the justification defense if a defendant fails to proffer sufficient evidence to establish even one of the above factors. Capitolo, 508 Pa. at 379, 498 A.2d at 809.

Utilizing the above analysis, we agree with the trial court that, as a matter of law, appellants were not entitled to a jury charge of justification or mutual combat. First, it is entirely clear from the record that the appellants and their companions were not free from fault in provoking or continuing the difficulty resulting in the injuries to the victims. By appellants’ own testimony, five confrontations took place on the night in question. The initial conflict occurred when Mr. Lumia was in the bar and was asked to leave. The second incident occurred on the road when appellants and their friends pulled up alongside the victims’ car, threw beer cans at them, shouted obscenities and goaded them to follow appellants and their companions as they turned right off of the main highway. When the victims did not follow, appellants and their friends turned their vehicle around and began to chase the victims, flash their high beams at the victims and bump the victims’ car. Finally, the vehicle in which the appellants were driving forced the victims’ car off of the road into a ditch at a construction site and the appellants and their colleagues immediately jumped out of their car 'to confront the victims for the final time.

It is clear from our review of the record that the appellants and their friends initially were and remained the aggressors throughout the altercation. Second, no evidence was introduced which would indicate that they made any attempt to retreat. After each of the four confrontations before the final one, they were free to leave and not return. The fact that they continued to pursue their victims after each confrontation clearly shows that they were the aggressors. Accordingly, the trial court did not err by refusing appellants’ requests for a jury instruction on justification or mutual combat. These claims therefore must be rejected.

Appellants’ second contention is that the trial court erred in granting the Commonwealth’s motion in limine with regard to the victim, Mr. Miller’s wire fraud conviction. As the lower court correctly noted, despite granting the Commonwealth’s motion in limine, the Commonwealth elicited information from Mr. Miller with regard to his wire fraud conviction. Appellants’ arguments, therefore, are moot since if there was error, it did not effect the proceedings at trial.

Appellants go on to contend that it was error for the trial court to refuse to allow them to engage in more extensive cross-examination of Mr. Miller once he testified that he pleaded guilty to wire fraud. Initially, the lower court correctly noted that at the time of trial, appellants did not object to the Commonwealth recalling Mr. Miller regarding this prior conviction and instead chose to cross-examine Mr. Miller on this issue. Thus, appellants have waived this issue for appeal. Commonwealth v. Bullock, 359 Pa.Super. 150, 518 A.2d 824 (1986) (wherein we held that failure to object to an offer of evidence at the time the offer is made, assigning grounds for objection, is waiver upon appeal of any ground of complaint against admission). When the trial court limited cross-examination to name, time and place of the crime, appellants did not question Mr. Miller as to any punishment he may have received. Further, appellants did not raise any objection in their post-verdict motions. Thus, appellants have not specifically preserved the issue of cross-examination after Mr. Miller testified to his wire fraud guilty plea on redirect examination and we need not address appellants’ contention with regard to the scope of cross-examination. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (wherein we held that an issue not included in written post-verdict motions would not be considered properly preserved for appellate review).

The fourth issue appellants raise is that the March 24, 1987 order of court denying their motions for new trial and/or in arrest of judgment should have been vacated. Specifically, appellants contend that since the trial judge presided over the trial and heard oral arguments on the post-trial motions, it was improper for the reviewing judge to decide the motion purely on the "basis of the transcript without the benefit of being at the trial or hearing oral arguments.

In support of this argument, appellants rely on our decision in Commonwealth v. Becker, 337 Pa.Super. 467, 487 A.2d 40 (1985). In Becker, there was an appeal from an order denying a motion for new trial on the ground of after-discovered evidence. The order was entered by a judge other than the trial judge. We held that this was contrary to Pa.R.Crim.P., Rule 1123(e), 42 Pa.C.S.A. and remanded the case for the trial judge to resolve. The instant case is distinguishable from the situation in Becker in that the trial judge in the case sub judice was unable to decide appellants’ motions because he had been relieved of his duties. The facts in Becker did not include such complete unavailability of the trial judge, but rather the trial judge in Becker simply did not decide the motion for new trial.

The court is a tribunal or judicial agency of government that is separate from the individuals who compose it; it is a continuing body that survives the death of its members. Chuplis v. Steve Shalamanda Coal Co., 192 Pa.Super. 76, 159 A.2d 520 (1960). An order entered by a judge other than the one who heard the case is not thereby rendered void. Id. The death, disqualification or absence of a judge will not deprive the surviving or remaining judges of authority to hold court and transact the business of the court and in fact to exercise all functions pertaining to the particular court. Lockhart v. Longmore, 189 Pa.Super. 455, 151 A.2d 829 (1959).

The case at bar was decided by a judge sitting with a jury. Once the trial judge was relieved of performing any judicial, legal or fact-finding decisions, there was no option other than to have a different judge resolve the post-verdict motions. Since the trial proceeded before a jury, deciding issues of credibility and reasonable doubt were the function of the jury rather than the trial judge. Commonwealth v. Pacell, 345 Pa.Super. 203, 497 A.2d 1375 (1985). The jury is merely bound to take the law from the the trial court to apply to the facts that they find. Commonwealth v. Zeger, 200 Pa.Super. 92, 186 A.2d 922 (1962).

The reviewing judge in the instant case read through the trial transcript and entered an order denying appellants’ post-verdict motions. This procedure was proper under the circumstances since (1) there was a jury trial such that all issues of credibility and reasonable doubt were resolved by the jury; (2) the trial judge was relieved of his duties so as to prevent him from making a determination on the legal issues raised by the appellants; and (3) the reviewing judge analyzed the legal questions raised in appellants' post-verdict motions after making an independent review of the trial transcript. We therefore find that the reviewing judge did not err in upholding his March 24, 1987 order of court denying appellants’ motions for new trial and/or in arrest of judgment. Also see, Commonwealth v. Zietz, 364 Pa. 294, 72 A.2d 282 (1950) (wherein we held that where a judge before whom an action is tried becomes disabled, resigns or dies, a motion for new trial may be made before and ruled upon by another judge of the same court or by a specially appointed judge).

Appellants’ fifth point of error is that they were improperly sentenced by the reviewing judge who did not preside over the trial. This issue arises because of the reasons set forth above. Specifically, the trial judge was relieved of his duties after presiding over the jury trial and hearing oral argument on post-verdict motions, but before resolving the post-verdict motions or sentencing appellants. When a defendant is tried before one judge who also disposed of the post-trial motions, the imposition of sentence by another judge is improper where there is no showing of extraordinary circumstances. Commonwealth v. Vagnoni, 272 Pa.Super. 396, 416 A.2d 99 (1979). Sentencing or suspension thereof of a person convicted of a crime can only be performed by the judge who tried the case, except in cases of imperative necessity. Commonwealth v. Rhoads, 227 Pa.Super. 197, 323 A.2d 249 (1974).

It would have been impossible, in the instant case, for the trial judge to sentence appellants. As discussed above, the trial judge was ordered by our supreme court to cease all judicial functions. Under such extraordinary circumstances, the available alternative was to allow another judge to sentence appellants. The reviewing judge ascertained all of the available facts arising from this case and imposed a sentence in accordance with the controlling law. We find that given the imperative necessity that existed in this case, there was no error in the reviewing judge sentencing appellants even though he did not preside over the trial. Id.

The next issue for our review is whether the lower court erred in allowing exhibits into evidence over appellants’ objections at the restitution and sentencing hearings. Appellants objected to thirty-one of the forty-five exhibits presented to the court during the two hearings. In their briefs, appellants separate the exhibits into four groups of objections.

The first group of exhibits is a compilation of doctor’s notes, hospital records, statements and doctor’s reports that the appellants objected to as being hearsay. The appellants recognize that a medical report is admissible under the business records exception to the hearsay rule if: (1) it was made contemporaneously with the events it purports to relate; (2) at the time the report was prepared, it was impossible to anticipate reasons which might arise in the future for making a false entry in the original; and (3) the person responsible for the statements contained in the report is known. Isaacson v. Mobil Propane Corporation, 315 Pa.Super. 42, 49, 461 A.2d 625, 629 (1983). Medical records may be introduced for limited purposes such as to show the fact of hospitalization, treatment prescribed and the symptoms reported. Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975).

The appellants object to the admissibility of these items on the allegations that (1) the Commonwealth failed to establish a causal connection between the record history and the injuries sustained by the victim; (2) there was no effort to establish that the records were contemporaneously made; and (3) the person responsible for the statements was not known with respect to one report. Our perusal of the record, however, initially reveals that there was testimony at trial supporting a causal connection between the assault and the injuries sustained by Mr. Miller. Our further examination of the record reveals that the reviewing judge accepted these exhibits over appellants’ objections on the basis that they were connected to the injuries sustained by the victim, Mr. Miller. The reviewing judge repeatedly stated that he would admit the records because they were connected to the matter before the court and if he later found that they were not connected, he would disregard them.

As to the second and third objections to this group of exhibits, our review of the record reveals that the appellants did not specifically raise these objections either at the time these exhibits were admitted into evidence or in their post-trial motion. Thus, appellants have failed to preserve these issues for our review. Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985) (matter not raised in trial court cannot be considered on appeal); Commonwealth v. Johnson, 368 Pa.Super. 427, 534 A.2d 511 (1987) (failure to raise issue, objection or argument in timely manner during trial forecloses further review of alleged error in post-trial motions or at appellate level). We therefore do not consider the second and third objections raised by appellants. We find that the lower court did not err in admitting the first group of exhibits about which appellants complain.

Appellants object to a second group of exhibits on the basis that it consists of records and statements that relate to an elbow injury which was claimed as a work-related injury. Specifically, appellants contend that if the elbow injury is work-related such that the victim is able to obtain compensation, it cannot also be causally related to the injuries obtained from the assault which is the subject of restitution. Appellants therefore conclude that since $11,-758.27 relating to this elbow injury was paid by workmen’s compensation, Mr. Miller’s claim for these damages should be disallowed.

Initially, we note that the appellants appear to be confused as to the purpose of restitution. Restitution does not enable a victim to make a claim for damages in a criminal trial. Although it aids the victim, an order of restitution is not an award of damages, but its true purpose is the rehabilitation of the defendant. Commonwealth v. Galloway, 302 Pa.Super. 145, 161, 448 A.2d 568, 576 (1982) (quoting, Commonwealth v. Fuqua, 267 Pa.Super. 504, 508, 407 A.2d 24, 26 (1979)). Second, the contractual obligation of a crime victim to reimburse an insurance company with proceeds recovered as a result of a restitution order does not require a court to subtract from its restitution order any sums received by the victim from insurance proceeds. Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982). Third, the victim admitted that he incurred a previous injury to his elbow, which was work-related. However, the claim before the trial court was that the victim incurred additional injury to the same elbow. Injuries that are unrelated to a workmen’s compensation claimant’s job are compensable if they are the proximate, natural and probable result of prior work-related injuries. Bush v. Workmen’s Compensation Appeal Board, 92 Pa.Commw. 506, 499 A.2d 730 (1985). The rationale is that but for its weakened condition as a result of a work-related injury, the victim would not have sustained the same extent of injury to his elbow in the non-work incident. Therefore, appellants’ position that the victim’s receipt of workmen’s compensation was inconsistent with his contention that his elbow was injured during the assault is without merit. The second group of exhibits was properly admitted by the reviewing court.

The third group of exhibits is related to the victim’s back injury. The appellants object to the admissibility of these exhibits on the basis that the back injury has no causal connection to the crime for which appellant was convicted. The appellants specifically rely on an excerpt taken from the deposition transcript of John H. Doherty, Jr., M.D. in support of his position. This excerpt states:

My feeling is that most likely, based on Mr. Miller’s history that he provided me in the office that one time, that he had a growth plate abnormality which caused deformity of the bones T-12, L-X and L-2. (emphasis added)

This excerpt is presented without an explanation of the surrounding circumstances. Our examination of the record reveals that the victim only visited Dr. Doherty on one occasion and the victim did not give the doctor an accurate history. He refused to inform the doctor that he was assaulted and specifically instructed his wife not to mention the assault. Dr. Doherty’s testimony therefore, is not conclusive since it is based on incomplete information. Further, there was testimony at trial that supports a causal connection between the assault and the back injuries sustained by Mr. Miller. The reviewing court did not err in admitting the group of exhibits relating to Mr. Miller’s back injuries.

Appellants allege that the final group of exhibits was withdrawn by the witness as pertaining to services not performed. Once again, the appellants appear to have presented a selective view of the exhibits. Contrary to the appellants’ position, the victim did not withdraw these exhibits nor did he admit that the services were not performed. The particular testimony to which appellants refer begins with defense counsel asking the victim a series of questions about whether the victim had a copy of a variety of medical records. The victim repeatedly responded that he did not know whether or not he had the particular documents in question. Defense counsel continued questioning the victim as follows:

Q Did you receive these bills?
A I don’t remember.
Q Do you intend to include those as part of your damages?
A I believe they’re on it. If there’s a dispute, no, I don’t.
Q Are you withdrawing them because the work wasn’t done?

At this point, counsel for the victim raised an objection, and the victim never responded to defense counsel’s last question. It is clear from our review of the victim’s testimony that he neither withdrew the exhibits in question nor did he state that the work was not done. Finding no merit to appellants’ contention, we conclude that the reviewing court correctly admitted the exhibits in question.

Appellants' last issue concerns sentencing. Although appellants caption this portion of their brief: “Statement of Reasons for Allowance of Appeal Regarding Discretionary Aspects of Sentence Pa.R.A.P., Rule 2119(f),” appellants not only question the discretionary aspects of sentencing, but also the legality of sentence. Specifically, appellants allege that it was illegal for the lower court to impose restitution which included the victim’s pain and suffering. The illegality of a sentence of restitution is not a waivable issue and therefore, we must address appellants’ contention. Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984). A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down. A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s crimes. Commonwealth v. Smicklo, 375 Pa.Super. 448, 453, 544 A.2d 1005, 1008 (1988) (en banc) (quoting, Commonwealth v. Smith, 375 Pa.Super. 419, 426, 544 A.2d 991, 994 (1988) (en banc)).

Restitution was granted in accordance with 18 Pa.C.S.A. § 1106 which specifically states:

(a) General Rule. — Upon conviction for any crime ... wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(h) Definitions.—
“Personal Injury.” Actual bodily harm, including pregnancy, directly resulting from the crime.

In Balisteri, supra, we held that “actual bodily harm” within the meaning of the restitution statute included actual emotional or mental disturbances. However, we declined to determine whether restitution could be properly awarded for general damages such as pain and suffering. Balisteri, 329 Pa.Super. at 156, n. 8, 478 A.2d at 9, n. 8. Because the statute is penal in nature, it must be strictly construed. Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876 (1988); Statutory Construction Act, 1 Pa.C.S.A. § 1928(b)(1). Our reading of this statute at this time does not indicate that the legislature intended to include pain and suffering as part of restitution. The Commonwealth has not indicated its intent, nor have we found any decisional law extending the interpretations of the statute to include pain and suffering. Since the inclusion of pain and suffering in restitution is not legislatively mandated, the lower court has imposed an illegal sentence. Commonwealth v. Smith, supra. We therefore remand this case for resentencing in accordance with this opinion.

Affirmed in part, reversed in part and remanded for resentencing. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 2701(a)(1).

      . Id. § 2702(a)(1).

      . Id. § 2701(a)(1).

      . Id.

      . In a recent plurality opinion, our supreme court held that an appellant’s untimely filed post-trial motions were incorrectly deemed waived by this court when they were addressed by the lower court in its opinion. Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989). We do not view the holding in Kurtas to be a complete condonation of an egregious failure to properly preserve issues at trial or in post-verdict motions as in the instant case.

      . The other cases relied upon by appellants, Hyman v. Borock, 211 Pa.Super. 126, 235 A.2d 621 (1967), Commonwealth v. Claney, 113 Pa.Super. 439, 173 A. 840 (1934) and Ciaffoni v. Ford, 211 Pa.Super. 472, 237 A.2d 250 (1968) are distinguishable. The facts in the Hyman and Ciaffoni cases involved a judge sitting without a jury. While the facts in Claney involved a jury trial, it is nonetheless distinguishable since the trial judge in that case became ill and a second judge charged the jury. Thus, the proceedings in the Claney case, were not complete when the substitution was made. None of these cases, therefore, is applicable to the case sub judice.

      . The record is replete with testimony that the victim, Mr. Miller, was experiencing a period of denial. He had a difficult time admitting that he had been so brutally assaulted.

      . Our resolution of this issue makes it unnecessary for us to address appellants’ concerns with regard to the discretionary aspects of sentencing.


author: POPOVICH, Judge:

text:
    563 A.2d 927
    Robert N. SPEISER, Appellee, v. J. Bernard SCHMIDT, Ann Schmidt, Merrill Lynch & Co., Inc., Dean Witter Reynolds & Co. and Capitol Life Insurance Company. Appeal of J. Bernard SCHMIDT and Ann Schmidt.
    Superior Court of Pennsylvania.
    Argued April 18, 1989.
    Filed Aug. 24, 1989.
    Reargument Denied Sept. 25, 1989.

      David F. O’Leary, Harrisburg, for appellants.
    Richard B. Wickersham, Harrisburg, for Speiser, appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case involves an appeal from the final decree of the Court of Common Pleas of Dauphin County dated May 18, 1987, annulling various purchases, transfers of assets and the proceeds received therefrom by the appellants/J. Bernard Schmidt and Ann Schmidt as violative of the Uniform Fraudulent Conveyance Act (39 Pa.C.S. § 351 et seq.). We affirm.

The record reveals a plethora of loans, guaranties, promissory notes and transfers attendant to the operation and ultimate sale (through Bankruptcy Court) of Capital Bakers, Inc. In 1979, Capital Bakers was experiencing financial difficulty (losing money and in debt to several banks in the amount of roughly 4 million dollars).

For example, First Pennsylvania Bank had loaned some 3 million dollars to Capital Bakers, a transaction collateralized with Capital Baker’s assets and 150,000 shares of Rite Aid stock belonging to a Ms. Lois Grass, valued at several million dollars. At this same time, First Pennsylvania Bank had loaned $800,000.00 to the STN partnership (composed of J. Bernard Schmidt, Herman Timme (a general manager at Capital Bakers) and Norman Shea (an accountant at Capital Bakers and an agent for Ms. Grass)). The partnership was advanced money to purchase Capital Bakers’ equipment, and, for tax purposes, had it leased back to the corporation. In return, First Pennsylvania Bank received 30,000 shares of Rite Aid common stock, again belonging to Ms. Grass, an investor in Capital Bakers who had loaned it over 9.3 million dollars since 1979.

When First Pennsylvania Bank made demand on the STN account, the appellant/Schmidt approached Ms. Grass. She declined to make payment on behalf of STN to forestall a default.

Also, in mid-1979, First Pennsylvania Bank was asking that its loan (4.2 million dollars) to Capital Bakers be immediately repaid. Efforts to locate another institution to finance repayment proved futile. It was only on the recommendation of one of the prospective banking lenders that the appellee/Robert N. Speiser was approached by the appellant/Schmidt and Ms. Grass, about November of 1979, to resuscitate an ailing business which he found to be “technically insolvent and under demand for repayment of all of its loans from major lenders.” Thus, because Speiser was cognizant of Capital Bakers’ precarious financial status, he agreed to take on the job of revitalizing the business and making it a going concern on the “guaranty” of the appellant/Schmidt that his salary of $175 per hour would be paid. As president of Capital Bakers, Schmidt had no inhibitions in doing so.

In 1980, through Speiser’s efforts, Capital Bakers was refinanced by City Bank for some 4.5 million dollars. The appellant/Schmidt executed a guaranty in favor of City Bank on May 30, 1980 for 3 million dollars. A second guaranty was also signed by him in favor of Citicorp Industrial Credit, Incorporated. There was a prior loan from Pennsylvania National Bank to Ms. Grass, who, in turn, loaned it to the corporation for operating capital. Additionally, by October of 1980, Bank Leumi had loaned monies to the corporation totalling approximately $695,000 with the transfer of Ms. Grass’ Rite Aid stock used as security for the indebtedness as well as a promissory note executed by the appellant/Schmidt in favor of Bank Leumi for $65,000. Lastly, another outstanding debenture on the corporation’s books was in the name of Citibank and another of its entities, Citicorp.

In the course of the first few months of 1981, all loans were in default. Speiser, as general manager of Capital Bakers, asked that Ms. Grass’ family assist in providing some interim funds to keep the business afloat.

Counsel for Ms. Grass considered the 4.3 million dollars in cash to Capital Bakers advanced by Ms. Grass not to be collateralized. She only received a pledge of assets from the appellant/Schmidt, but later, in a reconstruction of the loan, she received a “formal” guaranty from the appellant/Schmidt for the amount stated. See Exhibit # 10. And, although the appellant/Schmidt testified otherwise, counsel for Ms. Grass had no knowledge of the guaranty being rescinded or revoked.

On May 30, 1980, Capital Bakers owed the appellee approximately $251,000 in consulting fees. This amount was reduced by $51,000 when a portion of the proceeds from the refinancing by Citibank of New York and its affiliate Citicorp Industrial Credit, Inc. was used for repayment with $200,000 still outstanding. And, the amount stated was jointly and severally guaranteed by Schmidt and Ms. Grass. The repayment of Citibank and its affiliate was secured, in part, by Schmidt’s personal guaranty.

With the refinancing of Capital Bakers, Citibank wanted Ms. Grass to convert into equity 3.6 million dollars of the debt owed to her by Capital Bakers. She did, and, as a result, Ms. Grass acquired stock in Capital Bakers which gave her controlling interest, and the indebtedness of Capital Bakers to Ms. Grass, guaranteed by Schmidt and his wife, was reduced from $4,134,679.38 to $532,679.48 as of May 22, 1980.

In September of 1980, Schmidt represented to Merrill Lynch, at the time of opening an account to invest his one-sixth CA) interest from the proceeds of the sale of a family owned corporation (Alto), that he was worth $800,-000. Of the $577,195.00 to be received by Schmidt from the Alto sale, $158,333 was paid to him on September 10, 1980, and the balance was paid on January 5, 1981.

In October of 1980, Herman Timme, with his discharge from employment with Capital Bakers, brought a breach of contract suit against the corporation, Schmidt and Norman Shea, alleging Schmidt’s joint and several liability.

In late November or early December of 1980, Ms. Grass and her son made demand upon Schmidt to honor his personal guaranty of Capital Bakers’ debt to Ms. Grass. Schmidt contacted the appellee about the incident, and the appellee said he would be meeting with the Grass family and would discuss the subject. However, he reminded Schmidt about the $200,000 promissory note of May 30, 1980, on which he guaranteed Capital Bakers’ obligation to him.

On December 8, 1980, Schmidt was asked to resign from the corporation. As he stated, he was fearful for his future employment and the ability to provide for himself and his wife. This caused Schmidt to have various securities, valued at approximately $43,085.00, to be transferred to a new account (opened in his wife’s name) with the Merrill Lynch firm. This was done, even though he owed “liabilities aggregatpng] almost 6 million dollars as of December 8, 1980.” See Trial Court’s “Findings of Fact", Points 53 & 57. Additional securities were transferred from his account to his wife’s on the same date, i.e., December 8, 1980, of approximately $67,475.00.

In January of 1981, First Pennsylvania Bank and Bank Leumi notified Capital Bakers that the loans to STN and the two loans (aggregating $650,000.00) to it were due and technically in default with a request for a moratorium on payment being denied. Id. at Points 60 & 61.

Despite the crumbling financial structure of Capital Bak- * ers, Schmidt, on February 2,1981, caused other securities to be transferred to his wife's Merrill Lynch account in the amount of $15,868.00. Likewise, during this very unstable financial period for Capital Bakers, no payments were made by Schmidt on the default declared by Bank Leumi on March 9, 1981, as well as First Pennsylvania Bank’s similar declaration as to the STN loan, of which Schmidt was obligated to pay as a partner.

As stated by the trial court:

79. By March 1981, as Capital Bakers’ precarious credit structure was collapsing, Schmidt knew or reasonably had to know, that he was likely to be called to honor his guarantees to M[s.] Grass, Plaintiff and Citibank, as well as his obligation to First Pennsylvania Bank, as an STN partner. Additionally, the Timme suit was still outstanding.

Nonetheless, Schmidt opened a new account at Merrill Lynch to transfer the $200,000.00 received from the balance of his share of the sale of the Alto Corporation. The money was given to Security First Group, an agent for Capitol Life Insurance Company for the purchase of an annuity contract.

In the Spring of 1981, counsel for Ms. Grass demanded payment from Schmidt and his wife on their 1978 guaranty to pay 4.3 million dollars of the debts owed to Grass by Capital Bakers. Schmidt declined since he had just made large transfers of assets to his wife and he had purchased an annuity, all of which he believed was immune from reach. Further, Schmidt believed that the bankruptcy proceeding involving Capital Bakers extinguished his guarantees. The trial court thought otherwise and found as a fact that:

92. Between December 8, 1980 and March 9, 1981, Schmidt was insolvent within the meaning of the Uniform Fraudulent Conveyance Act, 39 Pa.C.S.A. § 351(1) as the present, fair salable value of his assets were less than the amount that would be required to pay his probable liability on his existing debts as they became absolute and matured.
93. Schmidt’s transfers of property between December 8, 1980 and March 9, 1981, were made while he was insolvent or for the purpose of rendering him insolvent, in recognition of present and anticipated debts.
94. ...
95. On May 18, 1981, Plaintiff demanded payment by Capital Bakers and Schmidt as guarantor of the promissory note ... and all amounts due thereunder, amounting to $200,000 plus interest at 12%— Capital did not pay and Schmidt refused to honor his guarantees.

To recoup the monies owed to him, Speiser filed suit in New York to have the matter arbitrated. He was successful and sought enforcement of the out-of-state judgment in this Commonwealth in Dauphin County under Docket No. 1465-N-1984. Schmidt’s efforts to contest payment produced a request for a preliminary injunction by the appellee. After a hearing thereon, the injunction was denied, but the trial court did find that Schmidt engaged in conduct violative of the Uniform Fraudulent Conveyance Act and directed that all transfers of assets made by Schmidt be annulled and the assets represented thereby be levied upon by the Sheriff of Dauphin County and the proceeds be disbursed to satisfy the appellee’s claim. This appeal followed.

The appellants claim that the trial court erred as a matter of law in labelling certain transfers of stock and the purchase of an annuity policy as “fraudulent conveyances” proscribed by the Uniform Fraudulent Conveyance Act, and, thus, not exempt from the claims of their creditor/Speiser under state law.

In making our determination, we our guided by the language of the statute which forms the predicate for our inquiry and provides at §. 354 that:

Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.

39 P.S. § 354. Further, under the criteria set forth in the Uniform Fraudulent Conveyance Act, a person is insolvent if:

... the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on existing debts as they become absolute and matured.

Id. at § 352(2). Under Section 4 of the Act, 39 P.S. § 354, when the creditor establishes that the grantor was in debt at the time of the conveyance, the burden shifts to the grantee to establish, by clear and convincing evidence, either that the grantor was then solvent and not rendered insolvent by the conveyance, or that he received fair consideration for the conveyance. See Stinner v. Stinner, 300 Pa.Super. 351, 352, 446 A.2d 651, 652 (1982). Moreover, “where a husband conveys [property] to his wife or to his wife and himself as tenants by the entireties for a nominal or inadequate consideration, at a time when the husband is insolvent or thereby rendered insolvent, the conveyance is presumptively fraudulent as to the husband’s creditors.” First National Bank of Marietta v. Hoffines, 429 Pa. 109, 115, 239 A.2d 458, 463 (1968).

Against the backdrop of that legal standard, we begin by observing that in December of 1980, Schmidt was no longer employed by Capital Bakers. At this same time, evidence showed that Schmidt signed a promissory note in May of 1980 to be obligated to pay Speiser’s salary if Capital Bakers failed to do so, which at the time it was sought totalled about $200,000.00. In addition, Schmidt and his wife signed a guaranty in favor of Ms. Grass’ agent (Norman Shea, who was acting on her behalf) to pay an amount determined to be at least $534,679.48, advanced to Capital Bakers to pay its expenses and for operating revenue, which had added to it another indebtedness of Capital Bakers to Ms. Grass aggregating 1.5 million dollars.

Schmidt’s remarks as to the genuineness of his obligations, the former of which he stated he never expected to be “personally called upon to pay” and the latter of which he believed was “rescinded”, were disbelieved by the trial court. The record being supportive of this determination by the trial court, we see no reason justifying a contrary holding.

As stated by the trial court, the combined liabilities of Schmidt came to “almost $6 million”. Yet, during this period of time, Schmidt transferred over $125,000.00 from his personal account to an account in his wife’s name at Merrill Lynch. This occurred despite the fact that he was aware that First Pennsylvania Bank and Bank Leumi were refusing extensions on loan payments for which Schmidt was a guarantor and that the nonpayment would result in default. When default was finally declared by First Pennsylvania Bank (on the STN loan), Bank Leumi (on Capital Bakers’ failure to pay on two of its loans) and Citibank in the first three months of 1981, Schmidt opened a new account with Merrill Lynch for $200,000.00 for the purchase of a Capitol Life annuity payable to himself and his wife.

In light of the outstanding liabilities of Schmidt, the “realities of the situation” lead us to conclude that the transfers made (in his name and that of his wife at Merrill Lynch) were done for the purpose of defrauding his creditors. And, the appellant’s attempt to insulate such transactions under the cloak of 42 Pa.C.S. § 8124 is to no avail since they were made at a point in time when we find he was insolvent. See Id. at § 8124(b)(1)(viii); Provident Trust Co. v. Rothman, 321 Pa. 177, 183 A. 793, 797 (1936).

We have examined the record in a judicious fashion and found that in no sense can it be stated that Schmidt’s assets exceeded his admitted liabilities at the time he made the transfers under scrutiny. In particular, it is interesting to note that prior to Capital Bakers filing for bankruptcy, the appellant stated he never thought of the possibility of being held accountable on his notes/guarantees. Notwithstanding such an allegation, for the reasons hereinstated, we join in the trial court’s order revoking the various transfers and permitting attachment of the same for the satisfaction of the appellant’s (J. Bernard Schmidt’s) liability to the appellee.

Order affirmed.

      . Just prior to refinancing, Capital Bakers’ obligations were:
      1) 3.7 million dollars due First Pennsylvania Bank;
      2) Several hundred thousand dollars due Pennsylvania National Bank;
      3) A million dollars due trade creditors;
      4) Money due Speiser on his salary was about $250,000 by the end of May, 1980; and 5) Obligations to Ms. Grass came to 4.3 million dollars reflected in the corporation’s statement and evidenced by a note with the City Bank refinancing.
      Ms. Grass elected to convert 3.6 million dollars of the debt owed to her by Capital Bakers into equity so as to give the corporation financial substance.

      . These monies were part of the capital obtained by the corporation in an effort to satisfy its indebtedness to Pennsylvania National Bank, which was replaced as a creditor, at the time, by Bank Leumi.
      It must also be stated at this point that personal guaranties were issued by the appellant/Schmidt and Ms. Grass for monies owed to Speiser on the balance of his salary of $200,000.

      . Initially, Speiser filed suit against Schmidt and Ms. Grass as co-guarantors of Capital Bakers’ obligation. Speiser settled with Ms. Grass for 165,000.00.


author: HOFFMAN, Judge:

text:
    563 A.2d 932
    COMMONWEALTH of Pennsylvania v. Henry DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 15, 1989.
    Filed Sept. 6, 1989.

      Henry Davis, appellant, in pro. per.
    Charles F. Lieberman, Dist. Atty., Milford, for Com., appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order below denying appellant’s petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends that the lower court erred in denying his petition without a hearing and without the appointment of counsel. The Commonwealth concedes that the case should be remanded for a hearing on whether appellant is entitled to counsel. For the reasons that follow, we reverse the order below and remand for proceedings consistent with this opinion.

After a trial by jury, on September 8, 1986, appellant, who proceeded pro se, was convicted of aggravated assault and recklessly endangering another person. Post-trial motions were filed and denied. On October 23, 1986, appellant was sentenced to serve a term of imprisonment of not less than three years nor more than ten years. On November 20, 1986, appellant filed an appeal to this Court. The appeal was quashed on July 6, 1987, for failure to comply with the Pennsylvania Rules of Appellate Procedure. Appellant, continuing to proceed pro se, filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551 (repealed), on February 19, 1988. The petition was summarily denied. Appellant appealed the denial of his petition to this Court, which dismissed his appeal as untimely by order dated June 15, 1988. On September 7, 1988, appellant filed a second post-conviction petition, which petition was also summarily denied. Appellant then filed a third post-conviction petition on December 1, 1988. The lower court summarily denied the petition without appointing counsel or holding a hearing. This appeal is from the denial of that petition. Appellant at all times up to and including the instant appeal has proceeded pro se.

In Commonwealth v. Morgan, 357 Pa.Super. 157, 161, 515 A.2d 609, 610 (1986), this court, faced with a similar situation, held:

A pro se PCHA petition may not be summarily dismissed unless a previous petition involving the same issue or issues has been finally determined adversely to the petitioner in a counselled proceeding or one in which he or she voluntarily waived the right to assistance of counsel. See Pa.R.Crim.P. 1503, 1504.
The proper procedure is for the trial judge to make a determination as to the indigency of the petitioner, and, if the petitioner is found to be indigent, the trial judge should appoint counsel to assist in the preparation of an amended PCHA petition. If counsel is appointed, but does nothing, that proceeding must be deemed to have been uncounselled. Reversal for failure to appoint counsel is necessary whether the current petition is appellant’s first or is one of a number of petitions.

Id., 357 Pa.Superior Ct. at 161, 515 A.2d at 610. Here, appellant proceeded pro se in both of his two previous petitions for post-conviction relief. A petitioner’s right to counsel in post-conviction proceedings derives from the Pennsylvania Rules of Criminal Procedure. See Pa.R.Crim.P. 1503, 1504. See Commonwealth v. Finley, 497 Pa. 332, 334 n. 1, 440 A.2d 1183, 1184 n. 1 (1981). We note that the PCRA does not alter this right to counsel. Here, because the prior post-conviction proceedings were uncounselled, the PCRA court should not have summarily dismissed the petition, but instead should have determined whether petitioner is indigent, and if so, whether his decision to proceed pro se in his initial petition was knowing and voluntary. See Morgan, supra. Accordingly, we must remand the case to the PCRA court. If the court below determines that petitioner is indigent and that he did not knowingly and voluntarily waive his right to counsel in the prior proceeding, then new counsel should be appointed to assist him. If, on the other hand, the court determines that petitioner did knowingly and voluntarily waive his right to counsel, then the issues raised in the instant petition would be deemed waived.

For the foregoing reasons, we reverse the order summarily dismissing petitioner’s PCRA petition and remand to the court below for proceedings consistent with this opinion.

Order reversed, case remanded. Jurisdiction is relinquished.

      . Appellant proceeded pro se because the court refused to grant his request for the appointment of a new attorney after appellant had discharged his appointed counsel.

      . We note that the Post Conviction Hearing Act has been modified in part, repealed in part, and renamed the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. The new provision applies to all actions for collateral relief instituted after the effective date of April 13, 1988. Because the instant petition was filed after April 13, 1988, it must be evaluated under the new act.

      . We note that Pa.R.Crim.P. 1504 has been amended, effective July 1, 1989, to limit the right to counsel to the first post-conviction petition. The new rule no longer mandates the appointment of counsel on second or subsequent post-conviction petitions where the issues raised have not been raised before, but now only requires the appointment of counsel on second or subsequent post conviction petitions where the judge determines that an evidentiary hearing is required. Here, because appellant was not represented by counsel on either of his prior PCHA petitions, and the question whether he knowingly and voluntarily waived his right to counsel at the first proceeding remains, the new Rule 1504 does not effect the disposition of this case.


author: DEL SOLE, Judge:

text:
    563 A.2d 934
    Edward T. McGARRY and Carol B. McGarry v. BROADMOOR CUSTOM HOMES, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Sept. 11, 1989.

      Michael C. Deschler, Bethlehem, for appellant.
    James A. Swetz, Stroudsburg, for appellees.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   DEL SOLE, Judge:

Appellant takes this appeal seeking to contest an award of counsel fees granted to Mr. and Mrs. McGarry, plaintiffs in the underlying action. Although we do not condone Appellant’s conduct which prompted the McGarry’s to bring the instant action, the posture of this case requires that the trial court’s order be reversed.

The parties in this case had entered into an agreement concerning the construction of a single family house. This agreement contained a clause requiring that any and all disputes be settled by arbitration. The trial court found that a dispute later arose which the McGarrys sought to resolve in an amicable non-adversarial manner, but they were not successful. Despite a binding obligation to proceed to arbitration, the McGarrys’ demands to take such action went unanswered. The underlying action was then filed with the trial court on June 13, 1988. On July 11, 1988, Appellant filed preliminary objections asserting the existence of an arbitration clause in the construction agreement. The court sustained the preliminary objection, dismissed the McGarrys’ complaint, directed the parties to proceed to arbitration, and awarded the McGarrys counsel fees, later accessed at $1,475.77. The court dismissed the McGarrys’ claim that Appellant had waived the provisions directing arbitration by concluding that any prejudice in the form of a. delay, “could have been remedied by Plaintiffs filing an action to compel arbitration.” Trial court opinion, 10/17/88 at 6.

After conclusion of the subsequent hearing to assess the amount of counsel fees the court issued an opinion in which it wrote: “we find that Defendant’s actions, which delayed arbitration in this case and caused plaintiff unnecessary expenditures, were sufficiently dilatory, arbitrary and vexatious in nature to support the imposition of counsel fees under 42 Pa.C.S.A. § 2503.” Trial court opinion, 2/10/89 at 3. The court found that Appellant’s unjustified refusal to arbitrate resulted in delay and unnecessary expense. Accordingly the court issued an order assessing counsel fees against Appellant.

Appellant does hot contest the reasonableness of the amount of counsel fees awarded. Rather, Appellant contends that the court erred in granting the McGarrys’ request for counsel fees since Appellant did not engage in dilatory obdurate or vexatious conduct during the pendency of this matter. It is Appellant’s position that the underlying action did not become “pending” until the McGarrys filed their complaint. Appellant further asserts that after the complaint was filed, it filed its preliminary objections promptly, and in all other ways acted appropriately so as not to delay the conclusion of the case. Appellant also points to the fact that the McGarrys could have limited the delay in bringing the matter to arbitration by filing an action to compel arbitration. See 42 Pa.C.S.A. § 7304(a).

The applicable statutory provision for an award of counsel fees states:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.

42 Pa.C.S.A. § 2503(7).

The particular phrase “during the pendency of a matter” was examined in White v. Redevelopment Authority, City of McKeesport, 69 Pa.Commonwealth Ct. 307, 451 A.2d 17 (1982). Therein the parties entered into an agreement wherein the Paneks were to receive a sum of money to reimburse them for a new business site and a separate sum for the payment of attorney fees. Two years passed without the agreed payments being made, the Paneks sought to obtain judicial enforcement of the agreement. They also sought to obtain additional attorney fees. The claim for these additional attorney fees was denied and this decision was affirmed on appeal. The White court commented:

As for the claim for an additional attorney fee, to reimburse the Paneks for the legal expense of trying to obtain payment pursuant to the Authority’s agreement, we are constrained to hold that the law does not provide such relief under the circumstances of this case.
In their claim below for the additional attorney fee, the Paneks alleged that the Authority had been malicious, arbitrary and vexatious in delaying so long to pay the monies agreed upon. Based on that allegation the Paneks further asserted that Sections 2503(7) and (9) of the Judicial Code entitle them to the additional fee as a sanction against the Authority____
Section 2503(7), by its very terms, relates only to conduct that takes place during the pendency of a matter. The term ‘matter’ is defined by Section 102 of the Judicial Code to mean ‘[ajction, proceeding or appeal.’ Since, in the instant case, there was no ‘action’ with respect to the settlement agreement until the Paneks filed their petition, it cannot be said that the Authority’s conduct prior to that filing could come within the terms of Section 2503(7). In other words, the Authority’s conduct, in not paying the amounts agreed upon, was not conduct that took place during the pendency of the ‘matter’ concerning the agreement____ It certainly cannot be said that when the Authority delayed in paying the Paneks it was either commencing or defending a ‘matter.’ (footnotes omitted).

Id. 451 A.2d at 20.

As in White, Appellant’s objectionable conduct occurred prior to the pendency of this matter. Although the McGarrys and the trial court were justifiably upset about Appellant’s refusal to respond to a request to arbitrate, these dilatory acts occurred before the underlying action was commenced. “The term ‘pendancy of a matter’ as used in 42 Pa.C.S.A. § 2503(7) refers to the pendancy of the matter in a court and not the pendancy of a matter in [a party’s] office.” Kelley v. Thompson, 326 Pa.Super. 364, 367, 474 A.2d 44, 45 (1984). Once suit was instituted, there is no indication that Appellants acted in a manner which could be characterized as dilatory, obdurate or vexatious.

As the court in White remarked: “Although we by no means applaud the [Appellant’s] conduct relative to its agreement, the posture of [this] case does not permit the relief they seek ...” White, supra, 451 A.2d at 21. For these reasons we find ourselves constrained to reverse the trial court’s order and vacate the award of counsel fees. Jurisdiction relinquished.


author:
BROSKY, Judge.
      DEL SOLE, Judge,

text:
    563 A.2d 936
    COMMONWEALTH of Pennsylvania v. David W. VOSHALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 13, 1988.
    Filed Sept. 1, 1989.

      Mark H. Rubenstein, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   BROSKY, Judge.

This appeal lies from the judgment of sentence following Voshall’s plea of nolo contendere to two counts each of involuntary manslaughter (18 Pa.C.S.A. § 2504), homicide by vehicle (75 Pa.C.S.A. § 3732), homicide by vehicle while driving under the influence (75 Pa.C.S.A. § 3735) and driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)).

Voshall was sentenced as follows: On the charges of involuntary manslaughter and homicide by vehicle, the court assessed no further penalty; on the two counts of homicide by vehicle while driving under the influence, the court imposed two consecutive terms of incarceration of three and one-half to seven years each; finally, on the driving under the influence charge, Voshall received a sentence of one to two years’ imprisonment.

On appeal, Voshall complains that his sentence was illegal and that the sentencing court abused its discretion in sentencing him. We agree with Voshall that his sentence for driving under the influence was illegal for the reasons set forth below. Therefore, we vacate that portion of the judgment of sentence relating to the charge of driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)) and affirm the judgment of sentence in all other respects.

The factual predicate for the plea is as follows: Voshall was operating a motor vehicle at a high rate of speed on Route 65 in Allegheny County. At an intersection, he collided with a station wagon which was making a left turn. The two child passengers in the struck station wagon were killed as a result. Voshall’s blood alcohol was determined to be .30. Voshall had been placed in the ARD program for a previous driving under the influence violation. The second time he committed the offense, he received a sentence of probation. Thus, the present driving under the influence violation is Voshall’s third.

Voshall claims that the charge of driving under the influence should have merged with the offense of homicide by vehicle while driving under the influence for the purpose of sentencing because the former is a lesser included offense of the latter. Pursuant to two recent pronouncements on the law of merger by our Supreme Court, we are constrained to agree.

In Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), our Supreme Court held that “except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished.” 521 Pa. at 564, 559 A.2d at 29; emphasis in text. Pursuant to this rule, we hold that the driving under the influence charged merged for the purpose of sentencing with the offense of homicide by vehicle while driving under the influence because the former charge is a lesser included offense of the latter. In so concluding, we are compelled to abandon the “substantially different interest” analysis which was rejected in Leon Williams as “merely a mask for the reality that there is no cohesive, complete set of rules for determining when merger should occur.” 521 Pa. at 563, 559 A.2d at 29.

In Leon Williams, the Supreme Court abandoned the two-pronged analysis set forth two years earlier in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987). There, the Supreme Court summarized the law relating to merger as follows:

[MJerger is required only when two prerequisites are met. First, the crimes must ‘necessarily involve’ one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest. To determine whether multiple offenses involve substantially different interests, or how many evils are present in a given criminal act, the sentencing court must examine both the language of the particular statutes and the context in which each statute appears in the Crimes Code.

514 Pa. at 185, 522 A.2d at 1101.

The Supreme Court in Leon Williams rejected as flawed the above analysis on two fronts. The first concern was the lack of precise definitional standards for the relevant Commonwealth interests at stake. Merely paraphrasing the words of the relevant statutes as indicative of the Commonwealth’s interests in order to determine whether one crime merges with another was unworkable, the Court held, because no merger would ever occur as was originally intended. The second difficulty which the Supreme Court perceived was the lack of guidance in determining which Commonwealth interests were implicated. Stated another way, a sentencer must be able to ascertain “how many offenses against the Commonwealth have actually been committed” or “how many evils are present in a given criminal act.” 521 Pa. at 563, 559 A.2d at 29. The Court summarized the elusiveness of the Michael Williams analysis as follows:

[I]n other words, in order to apply our two part-merger [sic] analysis, one must, when the facts of one crime are the same facts that support the other crime charged, determine exactly how the Commonwealth has been injured. But apart from applying all applicable criminal statutes to the facts of the crime, there is no guidance on how to determine how the Commonwealth has been injured.' The two-part merger analysis, therefore, is not an analysis at all, but merely a mask for the reality that there is no cohesive, complete set of rules for determining when merger should occur.

521 Pa. at 563, 559 A.2d at 29.

The statutory prohibition against driving under the influence, 75 Pa.C.S.A. § 3731, reads in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
jjc if: s}s >}c #
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

The offense of homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, is defined by the Motor Vehicle Code as follows:

§ 3735. Homicide by vehicle while driving under the influence
(a) Offense defined. — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

Since Leon Williams, a trial court need not tax itself with the burden of determining what Commonwealth interests are at stake by attempting to sort out the number of offenses actually committed against the Commonwealth or by endeavoring to compartmentalize each harm actually present in a given criminal act. Instead, a sentencer need only determine if any of the crimes necessarily involve each other, i.e., whether any are lesser included offenses of the other charge(s).

Therefore, it should be obvious to anyone reading the above provisions of the Motor Vehicle Code that the elements of the offense of driving under the influence are intrinsic to the statute regulating the conduct of one who commits the crime of homicide by vehicle while driving under the influence. The language of this latter provision makes it abundantly clear that it applies to those who have violated and have been convicted of Section 3731. The violation and conviction of Section 3731 is an element of homicide by vehicle while driving under the influence. Necessarily and logically, then, the elements of Section 3731 are implicitly included in Section 3735, making the former a lesser included offense of the latter.

Moreover, in the second of the two cases decided the same day, the high court, in Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), announced the following rule:

[I]f a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.

521 Pa. at 364, 555 A.2d 1233.

The act of driving under the influence is the only basis upon which Voshall could have pleaded to the crime of homicide by vehicle while driving under the influence. He did not commit any other criminal act beyond that which was necessary to establish the bare elements of homicide by vehicle while driving under the influence. Therefore, pursuant to the Weakland analysis, the offense of driving under the influence merges into the crime of homicide by vehicle while driving under the influence. Accordingly, we vacate the judgment of sentence entered pursuant to Voshall’s plea to driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)), only.

Voshall’s next and final issue relates to a discretionary aspect of his sentence. He claims that the sentencing court abused its discretion in imposing a harsh and excessive sentence. This issue does not even rise to the level of a substantial question to merit consideration.

Voshall maintains, first, that the sentencing court failed to consider the nature of the crime, his character and background and his prior criminal record. He contends, secondly, that he did not act intentionally and wantonly and, therefore, that he must be held to a lower standard of culpability than one who acts premeditatively and maliciously. Thirdly, Voshall avers that his plea of nolo contendere shows remorse and that he expressed the same at sentencing. The trial court, he claims, did not adequately consider this when sentencing him to the maximum term. Finally, Voshall alleges that the sentence fails to meet his rehabilitative needs and is disproportionate to the necessity of protecting the community.

However, Voshall has chosen to ignore the plain mandate of Section 3735(a) that “the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.” It is well-settled that a mandatory sentencing provision restricts the sentencer’s discretion to be lenient in imposing punishment. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) (Larsen, J., concurring and joining the majority), cert. granted sub nom, McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). As noted above, we are vacating the one-to-two-year sentence which Voshall received as a result of his plea to driving under the influence. This leaves Voshall with two consecutive terms of three and one-half to seven years’ imprisonment on each of the two counts of homicide by vehicle while driving under the influence. We believe that this punishment comports with the mandatory sentencing provision of Section 3735(a). Moreover, the outer limits of Voshall’s remaining sentences fall within the statutory bounds of third-degree felonies. See 18 Pa.C.S.A. § 1103(3).

Judgment vacated with regard to sentence imposed for violation of driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)), only. Judgment of sentence affirmed in all other respects. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I dissent from the determination of the Majority that concludes that driving under the influence is a lesser included offense for sentencing purposes with the crime of homicide by vehicle while driving under the influence. The Majority relies upon Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) to support its position. However, having read those cases I do not find that they have either directly or sub silentio overruled a previous Supreme Court case of Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). In the McCane case the Supreme Court held categorically that the crimes of driving under the influence and homicide by vehicle while driving under the influence do not merge for sentencing purposes. The Court stated:

[Djriving under the influence of alcohol or a controlled substance is part of the statutory definition of the offense of homicide by vehicle while driving under the influence. The statute requires that an accused by convicted of driving under the influence before he can be found guilty under § 3735 (Homicide by Vehicle While DUI). To this extent driving under the influence is included in the vehicular homicide offense. It is not, however, an included offense in the same sense as larceny is necessarily included in robbery. It is not required that an accused be found guilty of a larceny and that the commission of the larceny caused the loss before he can be found guilty of robbery. Likewise, it is not required that a defendant be found guilty of violating 2701 of the Crimes Code (Assault) and that such violation was the cause of the victim’s death in order to be found guilty of murder.

539 A.2d at 345.

I believe that Commonwealth v. McCane is still the law of the Commonwealth of Pennsylvania and for that reason I dissent from that portion of the Majority’s disposition of this matter which would seek to include the DUI offense with the homicide by vehicle while DUI.