text:
    523 A.2d 809
    COMMONWEALTH of Pennsylvania, Appellant, v. Anthony James RIZZO, Appellee.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1986.
    Filed March 30, 1987.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellant.
    James R. Fitzgerald, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

On February 6, 1986, Anthony James Rizzo was found guilty of one count of aggravated assault and one count of terroristic threats. The conviction resulted from an incident on July 23, 1985 in which Rizzo had punched a 70 year old man, causing the elderly gentleman to fall to the ground and break his hip, after which Rizzo had kicked the fallen man in the ribs, slapped his face and threatened to kill him. At the sentencing hearing on March 21, 1986, the Commonwealth contended that Section 9717 of the Sentencing Code was applicable and mandated that Rizzo be sentenced to a minimum term of imprisonment for two years on the conviction for aggravated assault. The sentencing court refused to apply Section 9717 and imposed a sentence of imprisonment for not less than eleven and one-half months nor more than twenty-three months for the aggravated assault conviction and probation for five years for the crime of making a terroristic threat. In this appeal by the Commonwealth, it is argued that the sentencing court erred when it refused to apply Section 9717 and then imposed an unreasonably lenient sentence in disregard of the sentencing guidelines. There is merit only in the latter contention.

Section 9717 of the Sentencing Code, 42 Pa.C.S. § 9717, provides:

A person under 60 years of age convicted of the following offenses when the victim is over 60 years of age and not a police officer shall be sentenced to a mandatory term of imprisonment as follows: 18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) — not less than two years.

The sentencing court refused to sentence Rizzo according to the mandates of this statute because (1) the information had failed to aver the ages of Rizzo and his victim and (2) the Commonwealth had failed to provide Rizzo with reasonable notice of its intention to invoke the provisions of the statute prior to sentencing.

In holding that the Commonwealth’s failure to allege the respective ages of Rizzo and his victim in the information was a bar to the application of the statute at sentencing, the sentencing court relied upon this Court’s decision in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985). There the defendant had been charged with and convicted of aggravated assault with attempt to cause serious bodily injury, in violation of 18 Pa.C.S. § 2702(a)(1). Neither the information nor the evidence produced at trial had suggested the use of a deadly weapon. Nonetheless, the Commonwealth attempted to prove at sentencing that the defendant had possessed a deadly weapon during the assault and asserted that, as a result, the sentence enhancement provisions of Section 303.4 of the sentencing guidelines were applicable. The sentencing court refused to consider evidence that a deadly weapon had been present at the commission of the assault and refused to consider the enhancement provisions of the guidelines. The Commonwealth appealed and this Court, sitting en banc, affirmed. The crime of assault with a deadly weapon, as defined at 18 Pa.C.S. § 2702(a)(4), was substantially different from the crime of which the defendant had been convicted, i.e., assault with attempt to cause serious bodily injury without a weapon in violation of 18 Pa.C.S. § 2702(a)(1). Because defendant had been charged and convicted of assault without a deadly weapon, the Court held, it would have been improper to sentence him for an assault with a deadly weapon. The Court concluded, therefore, that the trial court had properly excluded evidence at the sentencing hearing of the use by defendant of a deadly weapon.

In the instant case, Rizzo had been charged with and convicted of aggravated assault without a deadly weapon. However, the sentencing provision which the Commonwealth sought to have applied at sentencing did not require proof of a different offense. The only additional evidence required was that Rizzo was under 60 years of age and that his victim was over the age of 60. These facts were unnecessary to proving a violation of the aggravated assault section of the Crimes Code. Therefore, it was not necessary that the ages of the defendant and his victim be alleged in the information or that they be proved at trial. Moreover, because the proof of these facts at sentencing and the application of the statute would not have had the effect of permitting Rizzo to be sentenced for an offense different from that of which he had been convicted, the decision in Commonwealth v. Taylor, supra, must be considered inapposite.

The controlling authority, rather, is the decision of the Supreme Court in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). See also: Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985). In Commonwealth v. Wright, supra, the Court was called upon to determine the constitutionality of Section 9712 of the Mandatory Minimum Sentencing Act, which requires the imposition of a minimum sentence of five years confinement upon persons found to have been in visible possession of a firearm during the commission of certain felonies. In upholding the statute’s constitutionality, the Court held that because the visible possession of a firearm was not an element of the underlying offense, it did not have to be alleged or proved beyond a reasonable doubt at trial. Instead, the Court held, the visible possession of a firearm was merely a sentencing factor to be considered only after one had been convicted of specified offenses. Because of this holding and because of the similarities between the provisions of Section 9712 and Section 9717, we conclude that the respective ages of the defendant and his victim are not elements of the crime of aggravated assault as defined at 18 Pa.C.S. § 2702(a)(1) and, therefore, do not have to be alleged in an information charging aggravated assault. The only requirement is that the defendant receive reasonable notice of the Commonwealth’s intention to invoke Section 9717 after conviction and before sentencing. Cf. 42 Pa.C.S. §§ 9712(b) and 9714(c); Commonwealth v. Reagan, supra.

The sentencing court in the instant case held that the Commonwealth had failed to give Rizzo “reasonable” notice of its intention to invoke the provisions of the statute prior to sentencing. The record reveals that the sentencing hearing was conducted on March 21, 1986, forty-three days after the verdict, and that the Commonwealth notified Rizzo of its intention to invoke the mandatory sentencing provisions of the statute on March 20, 1986. The issue requiring our attention, therefore, is whether one day’s notice is reasonable. The trial court held that it was not. It said that one day was inadequate to enable the defense to prepare to meet the Commonwealth’s averment that the victim was over the age of sixty when he was assaulted.

What is reasonable must necessarily depend upon the nature, purpose, and circumstances of each case. To be adequate, notice must be sufficient to permit an objection or a defense. See: Black’s Law Dictionary at 37 (5th ed. 1979). The operable fact in the instant case was the age of the victim, which the Commonwealth alleged to be seventy. Was one day an adequate time within which to allow the defendant to ascertain the age of the victim and gather evidence if his age were in dispute? A person’s age, to be sure, is a fact which is relatively straightforward and uncomplicated. Still, where no excuse is offered for failing to give earlier notice, as here, we are reluctant to hold that the trial court erred or abused its discretion by holding that notice of one day was inadequate. There was no apparent reason for the Commonwealth to withhold this notice until the day before the sentencing hearing. In view of this unexplained delay, we hold that the sentencing court did not err when it refused to apply the mandatory sentencing provisions of 42 Pa.C.S. § 9717.

The Commonwealth also contends that the sentence imposed upon Rizzo was an unreasonable deviation from the sentencing guidelines.

“Although the Commonwealth, in seeking to appeal from the discretionary aspects of the sentence imposed in this case, properly initiated the appeal by the filing of a notice as required by Pa.R.A.P. 902, before proceeding to the merits of the issue raised therein, we must first determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines.” Commonwealth v. Days, 349 Pa. Super. 188, 192, 502 A.2d 1339, 1341 (1986); see also, Commonwealth v. Fluellen, 345 Pa.Super. 167, 170, 497 A.2d 1357, 1358 (1985); Commonwealth v. Dixon, 344 Pa.Super. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985).

Commonwealth v. Mattis, 352 Pa.Super. 144, 146, 507 A.2d 423, 424 (1986). Because “it appears that there is a substantial question that the sentence imposed is not appropriate,” we will accept the Commonwealth’s appeal and review the discretionary aspects of the sentence imposed by the trial court. See: Id.; 42 Pa.C.S. § 9781(b).

The sentences imposed upon Rizzo were substantially less than the sentences recommended by the sentencing guidelines. The sentencing court determined that Rizzo had a prior record score of 6, based upon three prior convictions for burglary. The offense of aggravated assault had an offense gravity score of 7. Therefore, the guidelines recommended a minimum term of imprisonment of forty-three to sixty-four months, with the recommended range being sixty-four to eighty months if aggravated circumstances were present and thirty-two to forty-three months if mitigating circumstances were present. Despite these recommended sentences, the sentencing court sentenced Rizzo to a term of imprisonment of eleven and one-half to twenty-three months for aggravated assault. With regard to the offense of terroristic threats, which carries an offense gravity score of 3, the guidelines suggested a minimum term of imprisonment of eight to twelve months, with an aggravated range of twelve to eighteen months and a mitigated range of four to eight months. Nonetheless, the sentence imposed was five years of probation, to be consecutive to the sentence imposed for aggravated assault.

When this court is called upon to review a sentence which is outside the guidelines, we must determine whether the sentence is “unreasonable.” 42 Pa.C.S. § 9781(c)(3). See Commonwealth v. Vanderhorst, 347 Pa.Super. 648, 650, 501 A.2d 262, 263 (1985). In making this determination, we must examine the record with regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the Commission. 42 Pa.C.S. § 9781(d).

Commonwealth v. Mattis, supra 352 Pa.Super. at 148, 507 A.2d at 425.

The only reason given by the sentencing court for refusing to follow the guidelines was that after three felony convictions, appellee’s subsequent and fourth felony, committed while he was on probation, was the first one evidencing a propensity for violence. On the basis of this finding, the sentencing court fashioned a sentence which, upon comparison with the guidelines, appears appropriate for a first offender. We agree with the Commonwealth that this was unreasonable.

After the Commonwealth had filed the instant appeal, the sentencing judge prepared and filed an opinion in which he sought to justify his departure from the sentencing guidelines on grounds that the victim had not been “brutally” beaten, because the aggravated assault had not been “typical,” and because the defendant was remorseful for his unlawful acts. Finally, the court said, the defendant had had a drug problem. These reasons for departing from the guidelines, as we have observed, were not given at the time of sentencing. Therefore, we should not focus on these reasons, but only on the reason given by the court at the sentencing hearing. Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983).

Moreover, even if we consider the reasons added by the trial court in its post-appeal, memorandum opinion, we would nevertheless be constrained to find them inadequate to support the unreasonable departure from the sentencing guidelines in this case. “Brutal” has been defined as “befitting or resembling a brute as a: stemming from or based on crude animal instincts: grossly ruthless b: devoid of mercy or compassion: cruel and cold-blooded ... c: harsh and severe____” Webster’s Third New International Dictionary at 286 (1965). When the beating inflicted by appellee on his elderly victim is examined carefully in the light of this definition and we consider that appellee’s victim was hospitalized for nineteen days as a result of injuries received, we conclude, contrary to the suggestion by the sentencing court, that appellee’s conduct was “brutal.”

We reject the suggestion by the sentencing court that prior drug abuse is a mitigating factor which justifies a more lenient sentence than that recommended by the guidelines for aggravated assault or, indeed, for any other felony. Moreover, according to the sentencing record in this case, it does not appear that drug abuse was a factor in influencing appellee’s conduct. According to appellee, he had been fully rehabilitated prior to the commission of the crime for which he was being sentenced by the court.

Finally, although Rizzo’s remorse was a mitigating factor worthy of consideration by the court, it did not alone warrant the unreasonable departure from the guidelines which is evident in this case. It did not justify the court’s imposing upon this four time felony offender a sentence which was appropriate only for a first time offender.

The judgment of sentence is vacated, and the case is remanded for resentencing. Jurisdiction is not retained.

      . 18 Pa,C.S. § 2702(a)(1).

      . 18 Pa.C.S. § 2706.

      . It should be noted, however, that the victim in the instant case did testify at trial that he was seventy-one years of age at the time of trial, thus establishing that he was more than sixty years of age at the time of the assault.

      . Appellant most certainly was aware of his own age.


source: Caselaw Access Project

author: POPOVICH, Judge: MONTEMURO, Judge,

license: Public Domain

text:
    523 A.2d 813
    COMMONWEALTH of Pennsylvania v. Marshall W. JENKINS, III, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1986.
    Filed April 1, 1987.

      Dennis I. Turner, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

      Before MONTEMURO, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the court below summarily denying Post-Conviction Hearing Act relief to the appellant, Marshall W. Jenkins, III. We affirm.

While on parole, the appellant was arrested for simple assault and harassment causing his re-commitment. A subsequent jury trial ended in a not-guilty verdict being returned on the charge of simple assault. However, the trial court, sitting as a magistrate, found the appellant guilty of harassment and imposed a ninety-day prison sentence.

The period of incarceration had already been served by the time it was levied. Presumably, the appellant’s status as a parole violator kept him in jail, and this period of imprisonment was credited against the ultimate sentence imposed. We affirmed the appellant’s appeal on June 21, 1985 (at No. 1045, Pittsburgh 1984).

Thereafter, the appellant’s PCHA petition, claiming that his conviction was the result of the ineffectiveness of counsel, was dismissed on August 23, 1985, because of the trial court’s determination that “the Post Conviction Hearing Act d[id] not apply to defendants convicted of summary offenses.”

The appellant’s efforts to proceed in forma pauperis and to secure the appointment of counsel were likewise denied on the same basis. Nevertheless, the appellant was ultimately granted the right to prosecute an appeal from the August 23 order. This Court, by per curiam order, remanded for reconsideration of the appellant’s request for counsel and the determination of whether he had alleged sufficient collateral consequences to support his PCHA petition in light of Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985).

The trial court’s reconsideration on remand did not alter its original belief that the PCHA was not intended to apply to defendants convicted of summary offenses (e.g., harassment). This appeal followed and questions the propriety of the trial court’s conclusion that the potential, remedial benefits of the PCHA are not available to one convicted of a summary offense.

The issue raised is a novel one in that it has not been addressed on its merits by an appellate court. To the extent that the trial court and the Commonwealth insinuate that we are bound — as if to say we are precluded from ever examining the subject again — because of our previous affirmance of a Common Pleas Court decision finding the PCHA inapplicable to summary offenses, we disagree, especially when subsequent decisions of this Court would indicate the contrary. We speak of Commonwealth v. Markley, supra.

Markley dealt with a defendant’s argument that his request for relief under the PCHA was not rendered moot by his having served his sentence by the time his petition had been filed.

The case tracked the development of the “collateral criminal consequences” rule, first announced by our Supreme Court in Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), which affords a defendant the right to assail a satisfied sentence where the possibility of either civil or criminal ramifications exist. This was interpreted to mean that “... a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Markley, supra, 348 Pa.Super. at 203, 501 A.2d at 1141, quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968) (Emphasis in original).

In that light, we found that the defendant’s possible exposure to impeachment of his credibility at a trial or the likelihood of the appearance of his conviction in a presentence report was sufficient to reverse the denial of his PCHA petition for mootness and remanded for an evidentiary hearing on the petition.

At bar, the effects of the appellant’s harassment conviction, albeit a summary offense, are not de minimis. For instance, as a direct result of the appellant’s arrest his parole was revoked, a loss of liberty which surely cannot be categorized as insignificant. Even the Commonwealth in its brief to us at page 4 concedes that "... it is impossible to characterize this summary conviction as moot. The legal consequences of this conviction in the form of providing grounds for the revocation of appellant’s parole on an earlier conviction and recommittment [sic] to prison are both extremely devastating and actual____”

Next, although the appellant cannot be impeached on a conviction for harassment (since it is not a crime involving an element of dishonesty — crimen falsi), the inclusion of such a conviction in a presentence report is mandated by statute. See 42 Pa.C.S. § 9732 (“The presentence report shall include a summary of the ... history of ... criminality____”); Commonwealth v. Berthesi, 350 Pa.Super. 383, 390, 504 A.2d 891, 895 (1986); Markley, supra, 348 Pa.Super. at 206, 501 A.2d at 1143.

Thus, the potential repercussions flowing from the appellant’s harassment conviction are not illusory. Therefore, it follows inexorably that the appellant, if it were not for the facts instantly, would be granted the opportunity to have his ineffectiveness of counsel claim heard by the PCHA court. See Berthesi, supra.

To explain, the present appeal is the first occasion in which the appellant is represented by counsel other than whose stewardship is being assailed. Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. Hill, 354 Pa.Super. 32, 511 A.2d 171 (1986). Accordingly, this would be the proper stage at which prior counsel’s effectiveness could be challenged. Commonwealth v. Hubbard, 472 Pa. 259, 277 n. 6, 372 A.2d 687, 695 n. 6 (1977).

In making our evaluation of the claimed ineffectiveness of trial counsel, we look to the brief filed by the appellant’s counsel in this appeal. See Commonwealth v. Henry, 341 Pa.Super. 146, 150 n. 2, 491 A.2d 193, 195 n. 2 (1985).

Appellate counsel’s allegation concerning the ineptness of trial counsel, however, does not satisfy the requirement to “set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Nowhere in the brief filed by appellate counsel does he advance anything more than boilerplate averments; e.g., petitioner should be afforded PCHA relief to ascertain whether the “conviction for harassment resulted from the ineffective assistance of counsel” or petitioner should be entitled to PCHA relief “to challenge the legality of the summary conviction.” (See Appellant’s Brief at 6 & 9) These assertions, on their face, would appear to challenge the sufficiency of the evidence, a matter which has already been ruled upon by this Court and is not permitted a second review by cloaking it in ineffectiveness garb. See Commonwealth v. Morales, 485 Pa. 228, 401 A.2d 741 (1979); Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973).

Our scrutiny of the submitted brief indicates it is lacking under the pronouncement of Pettus, which advises against granting PCHA relief (or embarking on an inquiry of same) where the claims are “abstract” or lack specificity and seek assessment in the context of an evidentiary hearing where all sides can be heard. See Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Molina, 358 Pa.Super. 752, 516 A.2d 752 (1986).

In other words, without more, we are estopped from finding that the court on remand could conclude that trial counsel may have been ineffective. See Commonwealth v. Floyd, 506 Pa. 85, 92, 484 A.2d 365, 368 (1984). To do so would be to sanction a remand premised on “abstract” assertions, a practice which, as mentioned previously, is contrary to Pettus. See Commonwealth v. Hammer, 508 Pa. 88, 96 n. 2, 494 A.2d 1054, 1058 n. 2 (1985) and compare with Commonwealth v. La Sane, 479 Pa. 629, 634, 389 A.2d 48, 50 (1978); Henry, supra, 341 Pa.Super. at 151, 491 A.2d at 195-96.

Accordingly, appellate counsel’s failure to link trial counsel’s alleged ineffectiveness with the entry of the harassment conviction forecloses this Court from ordering a remand to review the appellant’s PCHA claims. See Molina, supra; Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983). Pettus allows nothing less.

As can be gleaned from the preceding, we affirm for reasons other than those advanced by the court below. See Berthesi, supra.

Order affirmed.

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

MONTEMURO, Judge,

concurring and dissenting:

While I agree with the majority’s ultimate disposition of this case, I do not believe the PCHA (Post Conviction Hearing Act) to be applicable to summary convictions. The same principle which specifically excludes such convictions from the prior record score computations used in sentencing seems to me to dictate this result. I do not suggest that the legal consequences of these convictions are illusory or negligible, but every human action, at least theoretically, produces some repercussions, and I feel that the direct appeal process is sufficient to address these.

      . 19 P.S. § 1180-1 et seq., repealed; reenacted at 42 Pa.C.S. §§ 9541-9551. Hereinafter referred to as PCHA.

      . Commonwealth v. Margittai-Thorpe, 8 Pa.D. & C.3d 693 (1977), aff’d 261 Pa.Super. 548, 396 A.2d 39 (1978).

      . See the Dissenting Opinion of this writer in Commonwealth v. Daniels, 288 Pa.Super. 69, 77 n. *, 431 A.2d 291, 295 n. * (1981) (Citation omitted), wherein it was noted that:
      Although a rule of law may have emerged from a case, that does not foreclose its subsequent scrutiny by the Courts in ascertaining whether it is still jurisprudentially sound. Since the law is a “living and developing legal system ... rather than ... a static set of rules," ... the policy of stare decisis is not to be adhered to with ... blind obedience____
      See also footnote * of Justice Flaherty’s majority opinion in Ellis v. Sherman, 512 Pa. 14, 20, 21 n. *, 515 A.2d 1327, 1330 n. * (1986).

      . In the appellant’s first PCHA petition, filed with the aid of trial counsel, he secured an appeal nunc pro tunc. This Court affirmed. Thereafter, the appellant filed a second PCHA petition, this time pro se, seeking a new trial, correction of the sentence or a dismissal. His basis for the relief was trial counsel’s purported ineffectiveness. See note 5, infra. The trial court ruled that the appellant was not eligible for PCHA relief and dismissed the petition. This order was appealed pro se.
      On appeal, this Court decided to remand for the appointment of counsel and “for the preparation of a statement of reasons concerning the denial of the petition[ ] in the trial court.” The trial court responded by re-affirming its earlier position that "the Post Conviction Hearing Act has no application to summary proceedings.” Because this Court had retained jurisdiction, the matter was re-assigned to another panel and is before us for review.

      . We note that the appellant’s pro se PCHA petition argues prior counsel’s ineffectiveness for not filing allocatur with the Pennsylvania Supreme Court from this Court’s earlier affirmance and not objecting to the trial court’s alleged ex parte communication with the victim and a prosecution witness before rendering its verdict. However, we are precluded from reaching the merits of the issues claimed or remanding for their review since appellate counsel has neglected to “pursue” them on appeal. Compare Commonwealth v. La Sane, 479 Pa. 629, 633, 389 A.2d 48, 50 (1978).
      There is no indication that appellate counsel was hampered in his efforts to raise any and all issues associated with prior counsel’s stewardship. This being the proper stage at which such claims could be raised. See Commonwealth v. Reider, 343 Pa.Super. 270, 277-78 n. 1, 494 A.2d 461, 465 n. 1 (1985); Commonwealth v. Brown, 342 Pa.Super. 249, 255, 492 A.2d 745, 748 (1985) (en banc) (Opinion in Support of Reversal by Popovich, J.). Therefore, we may not merely ignore the absence of the underlying basis for trial counsel’s proffered ineffectiveness from appellate counsel's brief and simply remand for an evidentiary hearing. A charge of ineffectiveness without the accompanying allegations sufficient to hurdle the caveat of Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981) dictates the present course. See Commonwealth v. Molina, 358 Pa.Super. 28, 37, 516 A.2d 752, 757 (1986).


author: POPOVICH, Judge:

text:
    523 A.2d 817
    COMMONWEALTH of Pennsylvania, Appellant, v. Gloria LEWIS.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1986.
    Filed April 7, 1987.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellant.
    Jeremiah F. Kane, Assistant Public Defender, Yardley, for appellee.
    Before BROSKY, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Chester County dismissing a complaint issued against the appellee, Gloria Lewis, as violative of Pa.R.Crim.P. 130(d). We reverse.

The facts are not in dispute and reveal that the appellee was charged with driving while under the influence of alcohol (in violation of 75 Pa.C.S. § 3731(a)(1), (4)) on August 1, 1984. However, she was not held in custody, but was, instead, released as permitted by Rule 130(b). A complaint was filed on August 10, 1984, followed by a preliminary hearing on September 12, 1984, resulting in the appellee being held for court.

Thereafter, on January 29, 1985, the appellee was admitted to the Accelerated Rehabilitative Disposition program. However, on April 1, 1986, the appellee was removed therefrom for violating its requirements, i.e., she was convicted in June of 1985 in Delaware County of driving while intoxicated — a thirty-day prison sentence, to be served on weekends, was imposed.

On May 9, 1986, counsel for the appellee submitted an Application to Dismiss Criminal Complaint. Therein, counsel alleged that the arresting officer’s failure to file the 1984 complaint within five (5) days of the appellee’s release required a dismissal of the charges as violative of Rule 130(d), which reads, in pertinent part, that “[w]hen a defendant is released pursuant to paragraph^ ] (b) ..., a complaint shall be filed against the defendant within five (5) days of the defendant’s release.”

After a hearing was held on the Application, the lower court dismissed the complaint for the Commonwealth’s failure to establish due diligence in the prosecution of the appellee, i.e., the filing of the complaint five (5) days after the mandatory period had expired was held to be in contravention of Rule 130(d). As for the sole officer on the police force, who happened to be employed just part-time, recounting that his full-time job and the back log of other police paperwork hampered his efforts to issue the complaint sooner than he did, this was not considered by the lower court to be evidence of due diligence under Commonwealth v. Hatcher, 345 Pa.Super. 481, 498 A.2d 925 (1985). This timely appeal followed.

In light of our disposition in the case at bar, we find it necessary to address only one of the five (5) issues raised for our consideration, i.e., whether the allegation of a Rule 130 violation was properly preserved for appellate review.

We start by observing that under Rule 150, a defendant is not entitled to discharge or to have the case against him dismissed unless a defect as to any of the procedures set forth in Chapter 100 covering “Court Cases”, which is applicable to the case instantly, is raised before the conclusion of the preliminary hearing. This Court reached a similar conclusion in Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987) (en banc). Nonetheless, because the discussion on the waiver issue was limited in form, we take this occasion to elaborate on the basis for such a time-honored requirement to preserve one’s claim for post-trial or appellate review.

The requirements that a timely objection to improprieties, whether they be procedural or substantive, be lodged at the earliest possible point in the judicial process would seem to have been entrenched in the law since Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), wherein our Supreme Court held that basic and fundamental errors were not automatically subject to review on appeal if they were not first preserved by specific and timely objections at trial. The Dilliplaine rationale has been applied to the failure to properly preserve trial errors in criminal matters as well. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). In fact, Justice Pomeroy wrote in a concurring opinion, joined by then Chief Justice Jones and Justice Eagen, that “to preserve issues for appellate review [one must do so] by the appropriate means at trial and intermediate stages.” Commonwealth v. Mitchell, 464 Pa. 117, 127-28 n. 1, 346 A.2d 48, 54 n. 1 (1975) (Emphasis added). On the policy reasons behind such a requirement see Tagnani v. Lew, 493 Pa. 371, 376, 426 A.2d 595, 597 (1981).

We do not see why the principle enunciated in Dilliplaine should be skewed to benefit the appellee here. To do so would undermine the whole precept of affording the jurist initially deciding the matter the first opportunity to remedy any defect, whether they be substantive or procedural in nature. Cf. Commonwealth v. Brown, 234 Pa.Super. 119, 124, 338 A.2d 659, 661 (1975) (Dissenting Opinion by Hoffman, J.) (“The thrust of Clair is the idea that the trial judge must be given an opportunity to rectify errors at the time they are made: ‘ “[A] party may not remain silent and take chances on a verdict and afterwards complain[ ] of matters which, if erroneous, the Court would have corrected.” ’ ” (Citations omitted)). By postponing the resolution of the perceived defect until later on in the judicial process benefits neither the defendant nor the system looked to by the citizenry to be expeditious and just.

Moreover, the concept of preserving issues for appellate review has gone through an evolutionary process (see Dilliplaine and its progeny), which presently appears to be in an era of stability with regard to the specificity and timeliness of objections necessary to preserve matters for review. See, e.g., Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc).

Furthermore, there is evidence that the penchant for timely objections for preservation purposes, and the dire consequences in their absence, is not of recent vintage. For example, in Commonwealth v. Mills, 235 Pa.Super. 173, 340 A.2d 900 (1975) a defendant was tried by a jury and found guilty of operating a motor vehicle while under the influence of intoxicating liquor.

A further examination of the facts in Mills reveals that the defendant was held for court following a preliminary hearing. His pretrial motion to suppress was granted, but his application to dismiss the action was denied. On appeal, the accused asserted that his illegal arrest, which was assumed for argument purposes, could not be cured by the filing of the indictment. The disposition of this contention is instructive; viz.:

Appellant also argues that the indictment could not cure the illegal arrest because he had presented his application to dismiss before the indictment, thus preserving this point. However, the application was not filed until after the preliminary hearing to determine if there was sufficient probable cause to bind the action over to court. From the holding in [Commonwealth v.] Krall, [452 Pa. 215, 304 A.2d 488 (1973) ], it is clear that the proper place to challenge the validity of an arrest is before the authority who first determines probable cause, or in this case, before the magistrate. Once the local magistrate determined there was sufficient probable cause to hold appellant for court, “... it was not possible for appellant to show ... that his custody was not based on a finding of probable cause made by a judicial officer.” 452 Pa. at 221, 304 A.2d at 491.

235 Pa.Super. .at 177-78, 340 A.2d at 903. What could be more substantive in the continuum of law than an unlawful arrest. Yet, the Mills Court held this defect (illegal arrest) could be cured by the subsequent filing of an indictment. It is as if the defendant acquiesced to the impropriety — delay. Compare Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984) (en banc), allocatur denied.

In like fashion, we find that the appellee’s failure to object to the timeliness of the filing of the complaint by the officer renders the contention waived. Mills, supra; see also Commonwealth v. Howard, 233 Pa.Super. 496, 335 A.2d 489 (1975) (Alleged violation of Sixth Amendment right waived for failing to argue it in post-trial motions); Commonwealth v. Abruzzese, 231 Pa.Super. 157, 331 A.2d 821 (1974) (Appellant’s failure to raise the issue of double jeopardy prior to the trial precluded the appellate court from considering this allegation of error).

Ms. Lewis was present during the preliminary hearing in which a prima facie case of intoxication was proven. Thereafter, she was placed on and received the benefits of the A.R.D. program (e.g., not having to endure the degradation of imprisonment). It was over a year and a half (20 months) before any hint of an objection as to what transpired at the district magistrate’s hearing was lodged, and, as noted previously, the matter surfaced only following the appellee’s removal from the A.R.D. program.

In toto, to sanction the appellee’s inaction would be to give no more than lip-service to our rules relating to the preservation of issues for scrutiny on appeal. Thus, the appellee, having delayed in acting to bring to light for the district magistrate’s remedial efforts the non-adherence with Rule 130(d), will not be heard to complaint now. Mills, supra; Brown, supra; Abruzzese, supra; Rule 150.

Order reversed. Jurisdiction is not retained.

      . In fact, a determination in the instant case was held in abeyance until Schimelfenig was filed.
      It requires mention that this Court in Schimelfenig overruled its prior decisions in Commonwealth v. Press, 342 Pa.Super. 507, 493 A.2d 705 (1985) (allocatur granted) and Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985) (allocatur granted), both of which approved a dismissal of charges for non-compliance with the time-requirement of Rule 130(d).
      Presently, premised upon Schimelfenig’s re-examination of the case law and the applicable Rules of Criminal Procedure, one seeking a dismissal of charges under Rule 130(d) must show how he/she has been “prejudiced” by a delay in not having a complaint filed within five (5) days of his/her release pursuant to paragraphs (b) or (c) of Rule 130.

      . See also the Dissenting Opinion of Justice Hutchinson in Kindle v. State Board of Examiners, 512 Pa. 44, 515 A.2d 1342 (1986), joined by Chief Justice Nix and Justice Flaherty, and written in response to the lead, plurality opinion excusing the appellee's failure to preserve an issue by not raising it at an administrative disciplinary proceeding. Justice Hutchinson wrote unabashedly, in favor of finding waiver, that: "... we should not allow the parties to avoid the general principle that all issues must be raised at the earliest possible time to avoid waiver.” 512 Pa. at 57, 515 A.2d at 1349.
      It is to be noted that the lead, plurality opinion would have found waiver but for its conclusion that the preservation requirement had been made applicable to administrative proceedings only after the Kindle case was appealed. Instantly, in contrast, the preservation requirement at the preliminary hearing stage was extant at least by the decision in Commonwealth v. Mills, 235 Pa.Super. 173, 340 A.2d 900 (1975), well before Ms. Lewis was charged and a hearing conducted.


author: OLSZEWSKI, Judge:

text:
    523 A.2d 821
    Mary Ellen MANZE, Appellee, v. Charles J. MANZE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed April 8, 1987.

      David S. Kaplan, Pottstown, for appellant.
    Michael P. Gottlieb, Norristown, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered on an order denying exceptions to a decree nisi which dismissed appellant’s petition to terminate support. Appellant, Charles J. Manze, Jr., argues that the trial court erred in finding that he may not now challenge paternity. After a careful review of the record, we conclude that the trial court correctly rejected appellant’s arguments. We therefore affirm.

The events giving rise to this appeal are as follows. Appellant and appellee, Mary Ellen Manze, were married on January 30, 1970. Appellee was pregnant at the time and three and a half months later, on May 12, 1970, gave birth to a daughter, Deborah. Ten years later the parties separated and appellee filed a petition against appellant for spousal and child support. In an agreed order dated December 18,1980, appellant was ordered to pay $10 per week for the support of appellee and $65 per week for the support of Deborah. The parties included appellant’s support obligation in their separation and property settlement agreement, which in turn was incorporated into a decree of divorce dated March 2, 1982.

Appellant remarried on October 23, 1982 and, after trying unsuccessfully to have children, learned that he never could have fathered a child. In November of 1983, appellant filed a petition to modify or vacate the support order based on the fact that he had béen laid off from work. Thereafter, in January of 1984, appellant requested and was granted an order directing the parties and Deborah to submit to blood grouping tests. The results of the HLA testing excluded appellant as the father of Deborah. As a result, on March 26, 1984, the lower court dismissed the support action against appellant. On April 6, 1984, however, the trial court vacated its dismissal order of March 26, 1984, and directed that the matter be listed before a judge without prior submission to the support master. Appellant then filed, on June 7, 1984, the’ instant petition to terminate support based on the HLA blood test results. On October 12, 1984, after a hearing on appellant’s June 7, 1984 petition, the trial court issued an adjudication and decree nisi ruling that res judicata and equitable estoppel precluded appellant from denying paternity. The decree nisi dismissed appellant’s petition and directed that the decree become the final order of the court unless exceptions were filed within ten days. Appellant filed exceptions on October 22, 1984, which the court denied by order entered August 8, 1985. Appellant appealed the August 8, 1985 order on September 5, 1985.

We observe first that this appeal presents a question of timeliness. Although appellee does not raise this issue, it concerns our jurisdiction and we may therefore raise it sua sponte. Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., Inc., 296 Pa.Super. 62, 64, 442 A.2d 296, 297 (1982). Specifically, we question whether this appeal should have been taken directly from the trial court’s October 12, 1984 determination denying appellant’s petition to terminate support rather than from the court’s August 8, 1985 order dismissing appellant’s exceptions to the October 12, 1984 adjudication. Problematic is the trial court’s entry of a decree nisi indicating that exceptions could be filed to its determination dismissing appellant’s petition and appellant’s subsequent filing of exceptions to that determination.

The Pennsylvania Rules of Civil Procedure direct that the procedure upon a petition to terminate support shall be in accordance with Pa.R.C.P. 1910.10, et seq. Pa.R.C.P. 1910.-19. Pursuant to Rule 1910.10, the action is to proceed as prescribed by Rule 1910.11 unless the court by local rule adopts the alternative hearing procedure of Rule 1910.12. Rules 1910.11 and 1910.12 both prohibit the filing of post-trial motions to the court’s final order of support. Under these rules, the court’s final order is entered after proceedings which begin with an office conference before a hearing officer. Assuming then, that these rules are followed and a final order entered by the court, exceptions may not be filed to a determination dismissing a petition to terminate support and that determination should be appealed directly.

The instant action, however, did not proceed in accordance with the foregoing rules. Specifically, the petition to terminate support was heard by a family court judge in the first instance, without prior referral to a hearing officer. Thereafter, instead of entering a final order of support, the trial judge entered a decree nisi stating that it would become the final order if no exceptions were filed within ten days. Appellant then filed exceptions within ten days of that decree and did not take his appeal until the court dismissed his exceptions.

We confronted a similar situation in Baraff v. Baraff, 338 Pa.Super. 203, 487 A.2d 925 (1985). In that case, a petition for reduction of support did not proceed in accordanee with Rules 1910.11 and 1910.12 in that it was heard by a judge in the first instance. The judge subsequently entered an order which directed entry of judgment on support arrearages and continued monthly payments for child support. Referring to Rule 1910.12(g), we concluded that exceptions taken from that order were improper and held that an appeal taken from the denial of those exceptions and filed more than thirty days after the entry of the support order was untimely. If Baraff s holding applies to the case at bar, we must quash appellant’s appeal as untimely. Upon closer examination of Baraff, however, we find that it is distinguishable. We specifically noted in Baraff that the trial court’s order was a final order. Instantly, although the trial judge’s determination of October 12, 1984 may have been final in substance, it was on its face a decree nisi subject to the filing of exceptions. Appellant thus proceeded in accordance with the trial court’s direction. Importantly, appellant did appeal within thirty days of the entry of the trial court’s dismissal of his exceptions. Under these circumstances, we decline to apply Baraff and therefore, will not quash this appeal as untimely filed. See Commonwealth v. Anwyll, 333 Pa.Super. 453, 482 A.2d 656 (1984) (Court would not quash appeal as untimely where trial court purported to extend the time for appeal to thirty days after disposition of a motion for reconsideration under Pa.R.Crim.P. 1410; given the trial court’s misstatement of the appeal period, appellant’s failure to appeal on time appeared to be the result of a breakdown in the court’s operation.).

We now reach the merits. The trial court concluded that appellant cannot now assert his lack of paternity as a basis for terminating his support payments. For the reasons which follow, we agree.

First, as found by the trial court, appellant is precluded from denying paternity under the doctrine of res judicata. As this Court has repeatedly held, a support order necessarily determines the issue of paternity. Shindel v. Leedom, 350 Pa.Super. 274, 278, 504 A.2d 353, 355 (1986); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 174, 384 A.2d 1285, 1287 (1978); Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 182, 199 A.2d 490, 491 (1964). To challenge paternity, an appeal must be taken directly from the support order itself. Absent any appeal, the issue of paternity is established as a matter of law. Shindel v. Leedom, supra., 350 Pa.Super. at 278, 504 A.2d at 355; Commonwealth ex rel. Palchinski v. Palchinski, supra, 253 Pa.Super. at 174-175, 384 A.2d at 1287; Commonwealth ex rel. Nedzwecky v. Nedzwecky, supra., 203 Pa.Super. at 182, 199 A.2d at 491. As we reasoned in Nedzwecky, supra., “(a) relevant fact necessarily determined as a prerequisite to the entry of an original support order may not, under the doctrine of res judicata, be challenged or put at issue in any subsequent proceeding.” Commonwealth ex rel. Nedzwecky v. Nedzwecky, supra., 203 Pa.Super. at 182, 199 A.2d 491.

In the instant case, the issue of paternity was determined in December of 1980 when appellant chose to enter into a court order to support Deborah. Appellant could have demanded blood tests at that time but neglected to do so. As pointed out by the trial court, while appellant may not have known of his inability to procreate at the time he signed the support order, he was aware of other circumstances surrounding appellee’s pregnancy which gave him reason to question Deborah’s paternity. Having entered into the support order under these circumstances and having failed to appeal, appellant may not now challenge paternity.

Appellant argues that appellee waived the issue of res judicata because she did not raise it at the time appellant requested a blood test, nor in response to the petition to terminate support. The Pennsylvania Rules of Civil Procedure governing support actions, however, include nothing which would suggest that a responsive pleading is required under the circumstances of this case. See Pa.R.C.P. 1910.1 et seq. In Cynthia H. v. Milton M., 328 Pa.Super. 332, 476 A.2d 1357 (1984), we addressed whether the lower court correctly concluded that the appellee had not waived his right to raise the bar of the statute of limitations where he did not file an answer with new matter including the statute of limitations defense until some twenty-two months after the appellant filed her complaint for support. Finding that the trial court did not abuse its discretion in allowing the appellee to raise the statute of limitations defense at this time, we observed that:

It is especially appropriate for the decision whether to allow the late pleading to rest within the sound exercise of the trial court’s discretion in paternity and support actions, where there are no mechanical rules or stated time limits to place a party on notice that his pleading was out of order or that he has waived the right to assert certain defenses.

Id., 328 Pa.Super. at 337, 476 A.2d at 1359. Accordingly, we decline to find that appellee waived the issue of res judicata in the matter at bar.

Even if the doctrine of res judicata is not applicable, as the trial court also observed, appellant may not now deny his obligation to support Deborah by virtue of the doctrine of equitable estoppel. Dispositive under this theory is “whether the putative father has indicated by his conduct that the child is his own.” Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 311, 369 A.2d 416, 418 (1976). “Where the husband has accepted his wife’s child and held it out as his own over a period of time, he is estopped from denying paternity.” Id., 245 Pa.Superior Ct. at 310-311, 369 A.2d at 418 quoting Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 283, 184 A.2d 351, 355 (1962). As we observed in Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984), this Court has found that parental relationships can be established constructively and that such relationships and their concomitant duties merit judicial recognition and enforcement.

Instantly, as the trial court found, appellant acknowledged Deborah as his daughter and assumed the responsibilities of parenthood throughout a ten-year marriage. Appellant subsequently affirmed his responsibility to support Deborah by entering into the support order of December, 1980 and then an agreement to modify that order in March of 1982. Given his acceptance and support of Deborah during this time period, appellant may not now renounce his parental duties. Chrzanowski v. Chrzanowski, supra., 325 Pa.Super. at 306, 472 A.2d at 1131-1132.

We note that our decision does not conflict with the provisions of the Uniform Act on Blood Tests to Determine Paternity (“Uniform Act”), Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. Sec. 6131 et seq. Appellant argues that the blood test results conclusively show that he is not Deborah’s natural father and that we must therefore terminate his support obligations pursuant to the Uniform Act. We disagree.

Section 6133 delineates the authority for ordering that blood tests be taken, providing that:

In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests.

42 Pa.C.S.A. Sec. 6133 (emphasis added). We have previously found that the issue of paternity was necessarily determined upon entry of the agreed order of support in December of 1980. Paternity is therefore not a relevant fact in this proceeding. Consequently, we do not deem ourselves bound to resolve the question of paternity according to the blood test results, as provided in Section 6136 of the Uniform Act.

In fact, at the time our Court decided Palchinski and Gonzalez, the Uniform Act in effect prior to the current Uniform Act included provisions similar, if not identical, to Sections 6133 and 6136. In both Palchinski and Gonzalez, the lower court had ordered blood tests which subsequently indicated that the party contesting paternity was not the natural father. In spite of the former version of Section 6136, our Court expounded and applied the doctrine of res judicata in Palchinski and the doctrine of equitable estoppel in Gonzalez to preclude the putative father from challenging paternity and thereby terminating his support obligations. For these reasons, we reject appellant’s argument that we must terminate his obligations under the provisions of the Uniform Act.

In view of the foregoing, the lower court properly dismissed appellant’s petition to terminate support. We therefore affirm.

Affirmed.

      . By order dated February 2, 1987, the trial court adopted as its final decree the decree nisi of October 12, 1984. We therefore treat this appeal as if properly taken from the final decree. See Pa.R.A.P. 905(a).

      . The record indicates that a conference was scheduled before a Domestic Relations Officer. The order states that the parties appeared and agreed to the court’s entry of the order in their absence and that they waived their privilege to appear before the court and be heard.

      . This petition does not mention appellant’s inability to have children.

      . Prior to amendments adopted October 19, 1983, effective January 1, 1984, these rules prohibited the filing of exceptions to the court’s final order of support.

      . Thus, the instant situation is distinguishable from that which occurred in United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985). There, the appellant improperly took exceptions to preliminary objections and then failed to appeal within thirty days of the entry of the Court en banc’s dismissal of its exceptions, instead waiting until the appellee reduced the en banc order to judgment. As a result, our Supreme Court refused to consider an argument that the Court en banc’s acceptance and disposition of the exceptions may have misled the appellant into believing it was proceeding properly and that fairness would require the Court to forgive the appellant for not appealing directly from the order sustaining the appellee’s preliminary objections. Had the appellant appealed within thirty days of the Court en banc’s dismissal of its exceptions, the Supreme Court apparently would have considered this argument.

      . Specifically, the trial court found that prior to marriage, appellee had at least one other boyfriend and that appellant questioned paternity and had reason to question paternity.

      . As our Court explained in Gonzalez:

      Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized. Relying upon the representation of the parental relationship, a child naturally and normally extends his love and affection to the putative parent. The representation of parentage inevitably obscures the identity and whereabouts of the natural father, so that the child will be denied the love, affection and support of the natural father. As time wears on, the fiction of parentage reduces the likelihood that the child will ever have the opportunity of knowing or receiving the love of his natural father. While the law cannot prohibit the putative father from informing the child of their true relationship, it can prohibit him from employing the sanctions of the law to avoid the obligations which their assumed relationship would otherwise impose.

        Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. at 312, 369 A.2d at 419.

      . Section 6136 provides:
      If the court finds that the conclusion of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.

      . The Uniform Act on Blood Tests to Determine Paternity, Act of July 13, 1961, P.L. 587, No. 286, 28 P.S. Sec. 307.1 et seq.


author: TAMILIA, Judge:

text:
    523 A.2d 1134
    COMMONWEALTH of Pennsylvania v. James Donald FRIES, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1986.
    Filed Feb. 9, 1987.
    Reargument Denied April 23, 1987.
    Petition for Allowance of Appeal Denied Sept. 2, 1987.

      Susan E. Hartley, Athens, for appellant.
    Daniel J. Barrett, Athens, for appellee.
    Before WICKERSHAM, ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury convicted appellant of various offenses including kidnapping, rape, involuntary deviate sexual intercourse, simple assault, theft and burglary. These charges arose from an incident wherein appellant kidnapped a minor female and held her captive in the woods for three days, forcing her to undergo repeated sexual assaults.

Appellant raises seventeen (17) issues for our review. After a thorough review of the record, the parties’ briefs, the lower court opinion, and the relevant case law, we must conclude that the lower court was correct in its analysis and resolution of these issues and find that they are without merit. We will, however, address appellant’s arguments dealing with sentencing as the lower court provided no basis upon which we are able to rely in resolving those issues.

Appellant was sentenced to a minimum of sixty-four (64) years and a maximum of one hundred and sixty-four (164) years imprisonment. Individually the sentences were as follows: three (3) counts of rape — eight (8) to twenty (20) years, each to run consecutively; one (1) count of kidnapping — six (6) to twenty (20) years, to run consecutively; four (4) counts of involuntary deviate sexual intercourse— eight (8) to twenty (20) years, each to run consecutively; one (1) count of terroristic threats — one (1) to two (2) years to run consecutively; and one (1) count of simple assault— one (1) to two (2) years to run consecutively. Three burglary sentences of four (4) to twenty (20) years were to run consecutively to each other but concurrent to the offenses against the person. Sentences on offenses involving a second victim were also set to run concurrent with the sentences imposed for offenses against the primary victim. In addition to the aforementioned sentences, appellant also received numerous concurrent sentences which are not at issue in the instant appeal.

Appellant now contends the lower court erred by: 1) relying upon impermissible considerations in formulating his sentence; 2) incorrectly applying the sentencing guidelines; 3) failing to state sufficient reasons for the sentence on the record; and 4) imposing a sentence that is manifestly excessive.

Generally, we note that sentencing is a matter within the sound discretion of the sentencing judge and a sentence will not be disturbed by an appellate court absent manifest abuse. A sentence must either exceed the statutory limits or be manifestly excessive to constitute an abuse of discretion. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). A sentencing judge’s discretion must be accorded great weight as he is in the best position to weigh various factors such as the nature of the crime, the defendant’s character, and the defendant’s displays of remorse, defiance, or indifference. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985).

Keeping these principles in mind, we now turn to appellant’s assertion that the sentencing court relied upon impermissible considerations in formulating his sentence. Specifically, appellant takes issue with the sentencing court’s statement that its reasons for imposing the sentence included appellant’s “horrendous prior criminal record, including prior sexual offenses and offenses involving minors.” (S.T., 4/22/85, p. 36). Appellant claims he has previously pled guilty to only one offense of corruption of minors and only one offense of rape; thus the use of the word “offense” in the plural form implied reliance by the court upon arrests which did not result in convictions, which is error. The court acknowledged and corrected this misstatement, however, when it noted during appellant’s argument on his motion to modify sentence that while appellant had been arrested on other counts of rape and involuntary deviate sexual intercourse, those charges had been dismissed by the Commonwealth. (S.T. 5/17/85, p. 13).

While it is true that imposition of a criminal sentence based upon misinformation contravenes due process of law, Commonwealth v, Puchalski, 310 Pa.Super. 199, 456 A.2d 569 (1983), in the case sub judice, the sentencing judge noted his own misstatement and subsequently corrected himself. Furthermore, it is not improper for a court to consider a defendant’s prior arrests which did not result in conviction, as long as the court recognizes the defendant has not been convicted of the charges. Commonwealth v. Johnson, 333 Pa.Super. 42, 481 A.2d 1212 (1984).

Appellant further contends the court incorrectly calculated his prior record score pursuant to the sentencing guidelines. The lower court calculated appellant’s prior record score as a six (6) based upon appellant’s prior convictions of fifteen counts of burglary, one count of rape, one count of theft and one count of corruption of minors. Appellant argues that his prior record score is a three (3) because at the sentencing proceedings for his prior crimes, the court treated the crimes as a “spree” and sentenced accordingly.

42 Pa.C.S.A. § 9721, 204 Pa. Code § 303.7(e) provides:

Prior multiple convictions and adjudications of delinquency for offenses arising out of the same criminal transaction for which concurrent or consecutive sentences were imposed are scored as a single conviction equal to the statutory classification of the most serious conviction offense. Prior multiple convictions and adjudications of delinquency arising out of separate criminal transactions are scored as separate convictions, and each is computed in the prior record score.

Appellant claims that his prior convictions arose out of one transaction and thus, only the most serious conviction, the rape, is counted, which would constitute a prior record score of three (3).

The Pennsylvania Commission on Sentencing has stated, in reference to § 303.7(c), that:

[a] “transaction” is a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event, or incident, or which are conspiracy and the object offense. “Spree” crimes are not part of the same transaction unless they occurred as continuous actions not separated in time by law abiding behavior.

Pa.C.Sent.2d (September 1, 1986) p. 58.

The lower court recognized this distinction as evidenced by its comments during sentencing, wherein the court stated;

First with respect to the prior convictions and the argument that those convictions should be treated as one criminal transaction, giving the Defendant a prior record score of three instead of six. The court would disagree. The record reflects that those offenses were committed over a two week period and to call them a crime spree is not to say they were a single criminal transaction. To the extent that the then Assistant District Attorney and Presiding Judge suggested that they were a single criminal transaction, this court would specifically reject that rationale. Each of those offenses was a separate criminal offense and the commission of one did not necessarily involve the commission of the other. The Defendant could have, at any time, discontinued the crime spree. Therefore, the court concludes that the defendant does, indeed, have a prior record score of six, the maximum allowable under law. (Emphasis added)

(S.T., 4/22/85, pp. 25, 26)

We find the lower court’s conclusion to be correct and accordingly, find appellant’s prior record score to be a six.

Appellant next contends that his offenses in the instant action arose out of the same transaction and thus the trial court should have used his prior record score only once, for the rape, and calculated the remaining sentences with a prior record score of zero. Appellant cites to 42 Pa.C.S.A. § 9721, 204 Pa. Code § 303.6 for the proposition that all of his crimes in the case sub judice should be considered as “one transaction” for sentencing purposes due to the geographical proximity of the crimes, the identities of the victims, and the three-day time frame of his actions. Section 303.6 provides:

§ 303.6. Consecutive sentences.
(a) When imposing sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transaction. For the remaining offenses in such transaction, the prior record score shall be zero.
(b) When imposing sentences for convictions arising out of separate transactions, the prior record score shall be computed independently for each conviction.

The lower court, in addressing appellant’s contention, stated:

The Court would next address the suggestion that all of these offenses for which the defendant is about to be sentenced are one criminal transaction. The Court is aware of cases using the terminology which Defense counsel has used, however, the ultimate test in determining whether or not an offense merges such that it is one offense for purposes of sentencing is whether or not the offenses necessarily involve ... the offense ... excuse me, the commission of one offense necessarily involves the commission of the other offense. There are some cases, some crimes here which merge and the Court would find that except for those which it is about to indicate do merge, none of the offenses necessarily involve the commission of any of the other offenses for which the Defendant will be sentenced today.

(S.T. 4/22/85, p. 27).

We cannot agree with the court’s analysis as he equates the doctrine of merger of offenses with that of “transaction” for sentencing purposes. The question of merger of offenses has not been raised on appeal and, as we have indicated, the court properly imposed the sentence to include merger of the included offense where required. Appellant’s argument focuses on the assignment of prior record scores when imposing consecutive sentences, not on which crimes merge for purposes of sentencing. Appellant does not argue that he should not have been sentenced separately on the various offenses, but rather, that the calculations used to determine the permissible sentencing range were improperly formulated. As stated by this Court in Commonwealth v. Williams, 344 Pa.Super. 108, 124, 496 A.2d 31, 40 (1985):

The doctrine [of merger of offenses] acts to limit the multiplicity of sentences which may be meted out for what is, in practical effect, a single criminal act, even when a comparison of the elements of the various crimes charged does not reveal that any of those crimes is necessarily included in any other.

In comparison to the purpose of the merger doctrine, the purpose of section 303.6 is to prevent “the defendant’s prior record from counting against him more than once when computing guidelines for a criminal transaction.” Pa.C. Sent.2d (September 1, 1986) p. 51.

Thus, our inquiry must focus upon whether the crimes committed in the instant action constitute a “transaction” as set forth in section 303.6. We note that there is a paucity of case law to aid us in this endeavor.

The Pennsylvania Commission on Sentencing has stated, in reference to section 303.6(a), that:

A “transaction” is a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event, or incident, or which are conspiracy and the object offense. “Spree” crimes are not part of the same transaction unless they occurred as continuous actions not separated in time by law-abiding behavior.

Pa.C.Sent.2d (September 1, 1986) p. 51.

It is clearly apparent, therefore, that merger applies to different crimes which are encompassed in a single act, Williams, supra, whereas “transaction” applies to several district nonmerging crimes that occur on a continuum within an episode or event. Section 303.6(a). It is equally clear that a transaction is not to be equated with “serial crimes” or “signature crimes” or “patterned crimes,” all of which have items of similarity, identity and repetitiveness separated by periods of noncriminal behavior. Likewise, crime “sprees” in which numerous crimes are committed in a short period of time, but separated by law abiding behavior, are not included in the concept of transaction. (See discussion, supra, on setting prior record score at 6).

The record reveals that appellant abducted his young victim and held her captive for a period of three days in the mountains of Bradford County. During this ordeal, appellant burglarized various cabins and repeatedly raped his victim. A fair reading of the Sentencing Commission’s definition of “transaction” leads us to conclude that appellant’s crimes were “temporally continuous actions” which were part of the “same episode, event, or incident.” Clearly, appellant engaged in the kind of crime “spree” wherein the various crimes were not “separated in time by law-abiding behavior.” The crime of kidnapping was an ongoing criminal act which continued throughout the three-day period. The sexual crimes were ancillary to and derivative of the kidnapping, whereas the burglaries were supportive of the kidnapping and sexual crimes.

As stated by the Sentencing Commission, not all “spree” crimes are considered the “same transaction” for purposes of section 303.6. If a person commits numerous burglaries in a continuous fashion over a short period of time, such as in an apartment building or a single neighborhood, it could reasonably be called a crime “spree.” However, despite the commission of numerous burglaries over a short period of time, if every night the burglar goes home and resumes his normal activities, his crimes cannot be considered one “transaction” as they were separated in time by law-abiding behavior. In the instant action, although there were times when appellant was not burglarizing cabins or raping his victim, the crime of kidnapping continued to be operative and was interrelated with other crimes throughout the three-day period. That is not to say that in a situation similar to the Patty Hearst kidnapping in California, and the extensive period of kidnapping and imprisonment that followed, this rationale would apply to the bank robberies and other crimes committed thereafter. In that type of case, after the initial episode, the criminal activities engaged in take on an independent and separate character from the initial kidnapping. Here, it would be difficult to separate the sexual crimes and the burglaries from the kidnapping which was the basis for sustaining them.

Our research has disclosed only one case concerning application of section 303.6. In Commonwealth v. Noland, 351 Pa.Super. 368, 505 A.2d 1355 (1986), the evidence showed that appellant entered the victim’s home and shortly thereafter raped her. This Court concluded, in an unpublished memorandum, that due to the close temporal and physical relation of the burglary to the rape, the crimes arose out of the same transaction for purposes of section 303.6. In a published Concurring and Dissenting Opinion, Judge Olszewski disagreed with the majority’s decision that the crimes arose out of the same transaction. While we are not bound by either the majority’s memorandum or the published Dissenting Opinion, we feel it necessary to address the dissenter’s contentions. Judge Olszewski states that:

The majority draws the conclusion that the crimes of rape and burglary arose out of the same transaction because of their “close temporal and physical relationship.” While this relationship is one factor that should be considered by the court in analyzing this problem, I hesitate to conclude my inquiry here. Our Supreme Court in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), was confronted with a similar problem in interpreting the phrase “single criminal episode” under Pa.C.S.A. Sec. 110 (Purdon 1973). This statute was designed to prevent a second prosecution where charges have been joined with those raised in the first prosecution. Thus, in defining this term, this court considered the temporal sequence of events, the logical relationship between the acts and whether the criminal offenses involved common issues of law and fact. Analogizing this situation to the instant case, I find that the crimes of rape and burglary did not arise from the same transaction but separate transactions.

Noland, 351 Pa.Superior Ct. at 369, 505 A.2d at 1355.

We find analogy to Hude, supra, misplaced. The court, in Hude, addressed the issue of compulsory joinder of criminal offenses arising from the same criminal episode and found that “where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.” Hude 500 Pa. at 494, 458 A.2d at 183.

The court, in Hude, interpreted the phrase “single criminal episode” in relation to the purposes to be achieved by 18 Pa.C.S.A. § 110 and the compulsory joinder rule. These purposes are set forth as two distinct policy considerations:

(1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.

Hude, 500 Pa. at 489, 458 A.2d at 180.

In fact, the Hude court found that appellant’s separate sales of marijuana on different dates were so logically interrelated that they essentially involved the same issues of law and fact and, therefore, should have been tried together.

As we have indicated above, mere similarities, “patterns” or “signatures” in repetitive crimes, do not establish a “transaction” for sentencing purposes, even if for trial purposes there are sound policy reasons to consolidate those matters for trial. It becomes then a matter for judicial determination as to whether those related crimes are so temporally continuous actions, unseparated by law abiding behavior, as to constitute a “transaction,” within the meaning of sections 303.6 and 303.7(c).

Having decided that the lower court was in error for failing to consider this a single transaction episode, the application of a prior record score of six (6), to each of the offenses for which he was found guilty, was error. Calculating the prior record score as six (6) for each offense, at the lowest end of the standard range, would have resulted in a standard range of 6072 to 7972 years, but with some offenses to run concurrently, the actual minimum sentence imposed was 64 years. Applying a prior record score of six (6) to only the most serious offense, which was rape, the standard range would be 25 to 4772 years for all offenses computed, and the aggravated range would be 4672 to 5872 years. Thus it is apparent that the range of sentences that are suggested by the guidelines vary substantially when the rule of “single transaction” is applied to computation of the sentence.

We, therefore, affirm the trial court in all respects as to the conduct of the trial and sentencing considerations, except that we reverse as to application of the prior record score of six to all convictions. We limit that application to only the most serious crime, rape, in the transaction. Judgment of sentence is hereby vacated and the case is remanded for resentencing consistent with this Opinion. Jurisdiction relinquished.

      . The terminology used in the second edition of the sentencing guidelines changes the term "minimum range” to the more accurate term "standard range.”