author: TAMILIA, Judge:

text:
    572 A.2d 773
    COMMONWEALTH of Pennsylvania v. Shawn Odell MELVIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 26, 1990.
    Filed April 2, 1990.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant was found guilty by the court on September 20, 1988 of robbery, theft, two counts of unlawful restraint, two counts of simple assault and escape. On August 23, 1989, he was sentenced to five to ten years imprisonment for robbery, pursuant to the Mandatory Sentencing Act, 42 Pa.C.S. § 9712 et seq. As to the remaining convictions, the court sentenced appellant to no further penalties. He raises four issues: 1) whether the evidence was sufficient to prove unlawful restraint; 2) whether the court erred in not informing appellant of his right to speak prior to sentencing; 3) whether the evidence was sufficient to prove robbery; and 4) whether the evidence was sufficient to establish the applicability of 42 Pa.C.S. § 9712.

The evidence from trial showed that on the night of April 9, 1988, at approximately 12:00 a.m., appellant approached a car with two males inside, Richard Hallick and Gary Ianuale, stuck a sawed-off shotgun in the driver’s side window and told them to get out of the car. They did so and started to walk away but appellant ran after them and ordered them to get back in the car. Apparently, appellant could not drive the car because it was a stick-shift and he needed Mr. Ianuale to drive. They drove around town while appellant ranted and raved about a “Rick” who supposedly shot at him and whom appellant now wanted to kill. The three men drove by a bar where two girls were standing and appellant asked them where “Rick” was. The girls replied, “Shawn, the cops are right over there,” and appellant ordered Mr. Ianuale to drive away. He refused to continue driving so appellant grabbed the keys and fled on foot down an alleyway. Soon thereafter, the state troopers brought appellant to Mr. Hallick for identification and he was positively identified. The shotgun used by appellant was never found by police.

Appellant first argues the Commonwealth failed to prove the gun was loaded, therefore he cannot be guilty of unlawful restraint as it was not proven the victims were exposed to a risk of serious bodily injury. Although this specific issue was not raised in post-trial motions or briefed for the court, the larger issue of whether the Commonwealth proved appellant actually possessed a shotgun was raised, therefore we find this issue is not waived and we will address it on the merits.

The relevant statute provides as follows:

§ 2902. Unlawful restraint
A person commits a misdemeanor of the. first degree if he knowingly:
(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or
(2) holds another in condition of involuntary servitude.

18 Pa.C.S. § 2902.

Appellant was charged under section (1) of the statute and he cites Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981), to support his position. In Schilling, the defendant used a pellet gun or air pistol to force his victim to perform oral sex and he was subsequently charged with unlawful restraint, among other things. The defendant argued he could not be convicted under section (1) of the statute as the Commonwealth failed to prove he exposed his victim to serious bodily injury. We said:

In [Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978) ], this Court noted that with respect to the crime of recklessly endangering another person that mere apparent ability to inflict harm is not enough to support a conviction for this crime. It was held that an actual danger of harm must be shown. Although Trow-bridge did not deal with the same crime we have here, it is important with respect to the fact that the Commonwealth had to prove an actual danger of serious bodily injury with regard to the pointing of an air rifle. In Trowbridge we held that the Commonwealth must prove either that the gun was loaded or that the surrounding circumstances were inherently dangerous in order to sufficiently show an actual danger in serious bodily injury.

Id., 288 Pa.Superior Ct. at 367, 431 A.2d at 1092 (emphasis in original).

Appellant only refers to one part of the analysis, i.e. whether the gun was loaded, which admittedly was not proven by the Commonwealth. It is no small distinction, however, that appellant in the instant case did not use an air gun but a sawed-off shotgun which is inherently more dangerous. Moreover, we find the second part of the analysis has been met in that appellant subjected his two victims to circumstances which were inherently dangerous. Forcing Mr. Ianuale to drive a car at gunpoint to hunt down a man named Rick, who earlier had shot at appellant, was sufficient proof of inherently dangerous circumstances showing appellant had placed the victims in danger of serious bodily harm.

Appellant argues, in his second issue, he was never told by the trial court of his right to speak to the court prior to sentencing and was denied this opportunity, not only by the court but by his counsel who failed to call the court’s attention to this omission. As a result, he claims the case must be remanded for resentencing under the mandates of Pa.R.Crim.P. 1405 and the Supreme Court’s interpretive decision, Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989). We are constrained to agree.

Pa.R.Crim.P. 1405(a) provides as follows:

Rule 1405. Sentencing Proceeding
At the time of sentencing, the judge shall:
(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing[.]

The Supreme Court has interpreted this rule to mean that the court must inform the defendant he has a right to speak prior to being sentenced.

Since a trial judge will not know in most cases whether a defendant is aware of his right to address the court prior to sentencing, but Rule 1405 requires the court to afford the defendant an opportunity to speak, we understand Rule 1405 to require the trial court to inform the defendant of his right to speak prior to sentencing. The trial court in this case did not so inform the defendant, and the case, therefore, must be remanded for resentencing at which time the court will inform the defendant of his right to speak and will hear the defendant, should he choose to speak, prior to reimposition of sentence.

Thomas, supra at 209, 553 A.2d at 919.

In the instant case, the court called appellant and his counsel forward, appellant was sworn and the court asked, “Is there anything to be said before the court pronounces sentence?” Counsel replied, “Yes, Your Honor,” and proceeded to argue on behalf of appellant. No one, however, informed the appellant he could address the court or asked him if he had anything he wanted to say (S.T., 8/23/89, pp. 2-6). Accordingly, we remand for resentencing at which time appellant will be informed of his right to speak and the court will resentence appellant upon hearing his statement, if any.

In the face of a mandatory sentence as here, it might be argued that nothing the appellant could say would effect the outcome, as the court has no alternative to imposing the mandatory sentence, when the evidence mandates a finding that requirements of such a sentence have been met. We cannot, however, apply the rule randomly just because in this instance only the mandatory minimum sentence was entered. There is no restriction on the right of allocution and from such an exchange, information other than already has been obtained in the sentencing reports and statements of counsel might be conveyed to the court so as to elicit directions and requests for means of effecting the sentence. It is an opportunity for the defendant to face the court “man to man,” without intermediaries or filtered exchanges. Such an opportunity is inherent and desirable in our form of individualized justice, and unless restricted by the Supreme Court at a future date, we feel compelled to retain it under these circumstances.

Appellant’s third contention is the testimony offered by the Commonwealth was replete with inconsistencies and unexplainable gaps, therefore, the conviction for robbery cannot stand. The trial court stated that three different witnesses at trial testified to seeing appellant with a sawed-off shotgun during the commission of the offense and the court found this testimony was credible. “In a bench trial it is the duty of the trial judge to judge credibility of the witnesses and to weigh their testimony.” Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 503, 556 A.2d 819, 824 (1989). Unless the judge has clearly abused his discretion or committed an error of law, we will not reverse his decision. Id. Finding no abuse of discretion or error of law, we reject appellant’s contention.

Finally, appellant argues the evidence was insufficient to establish the applicability of 42 Pa.C.S. § 9712 as the Commonwealth failed to prove he visibly possessed a firearm as such is defined in the statute.

The pertinent sections of the statute are as follows:

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa. C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(e) Definition of firearm. — As used in this section “firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

42 Pa.C.S. § 9712(a), (b) and (e).

Appellant appears to argue that expert testimony is required to prove the weapon he carried was actually a “firearm.” See Brief for Appellant, p. 14. The courts have never held that such testimony is necessary, however, and testimony by lay witnesses has always been sufficient. Where witnesses testify the weapon “looked like”, “felt like”, “sounded like” or “was like” a firearm, it is sufficient proof by a preponderance of the evidence that the defendant possessed a firearm as defined in the statute. Commonwealth v. Bond, 362 Pa.Super. 48, 523 A.2d 768 (1987).

The witnesses in the instant case testified appellant had a sawed-off shotgun with only one barrel. See N.T., 9/20/88, pp. 7, 14, 22. This was sufficient proof that appellant possessed a “firearm” and was appropriately sentenced under 42 Pa.C.S. § 9712.

Judgment of sentence vacated; case remanded for resentencing consistent with this Opinion.

      . 18 Pa.C.S. § 3701(a)(l)(ii).

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 2902(1).

      . 18 Pa.C.S. § 2701(a).

      . 18 Pa.C.S. § 5121(a). Appellant challenges his conviction of escape in a separate appeal, Commonwealth v. Melvin (J-S10029/90, No. 01435 Pittsburgh, 1989).

      . The Supreme Court specifically stated their ruling would not be applied retroactively. Thomas was decided on February 1, 1989 and appellant was sentenced on August 23, 1989, therefore, Thomas applies to the instant case.


source: Caselaw Access Project

author: HOFFMAN, Judge.

license: Public Domain

text:
    572 A.2d 777
    Rose M. AMBROSIA v. Rose YERAGE and Charles Yerage, Her Husband, (now deceased), Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1989.
    Filed April 6, 1990.

      Angelo A. Papa, Asst. Dist. Atty., New Castle, for appellant.
    William R. Balph, Jr., New Castle, for appellee.
    Lawrence M. Kelly, New Castle, for Sheriff of Lawrence County, participating party.
    Before CIRILLO, President Judge and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from an order dated October 28, 1988 denying appellant Rose Yerage’s exceptions to a proposed distribution of the proceeds of the sale of her residence pursuant to a Writ of Execution. Appellant’s primary contention is that the trial court “erred in ruling that Pennsylvania residents cannot claim their federal bankruptcy exemption on property subsequently involved in an execution proceeding [at the state level].” For the reasons that follow, we find no error in the trial court’s ruling and, accordingly, we affirm the order below.

The facts, as aptly summarized by the trial court, are as follows:

On May 9, 1986, a Complaint and Confession of Judgment was entered in the amount of $14,950 against the defendants [Rose Yerage and now deceased husband Charles Yerage] and in favor of the plaintiff [Rose M. Ambrosia] at No. 394 of 1986, D.S.B. (Complaint) relating to No. 88 of 1981, D.S.B., revived at No. 544 of 1986, D.S.B. A Writ of Execution was also issued on that date at No. 56 of 1986, E.D.
On November 6, 1986, the defendants filed a voluntary petition under Chapter 7 of the Bankruptcy Code, 11 U.S.C.S. § 101 et seq., with the United States Bankruptcy Court for the Western District of Pennsylvania. (Respondent’s Exhibit A). That same date, the Bankruptcy Court issued an Order at No. 86-02867 staying all proceedings against the defendants.

On March 11, 1987, the Trustee of the defendants’ Bankruptcy Estate submitted to the Bankruptcy Court a Trustee’s Report and Petition to Abandon Property. (Respondent’s Exhibit B). The Report stated that a portion of the Bankruptcy Estate consisted of an interest in real property subject to the lien of a judgment of Rose M. Ambrosia, such judgment being the judgment previously discussed in this Opinion. The Report then described that interest as the premises known as 734 Castle Street, being the defendant’s place of residence. The Report also stated that the premises were subject to other additional liens. The Report then declared that in the opinion of the Trustee, the property had no equity for the general creditors of the estate and that the property was onerous and burdensome to the estate.

On March 18, 1987, the defendants were discharged of debts pursuant to a Discharge of Debtors Order by the Bankruptcy Court. On November 3, 1987, the Bankruptcy Court granted the Petition to abandon the defendants’ residence from the estate. On November 30, 1987, the Bankruptcy Estate was closed.

The Writ of Execution at No. 56 of 1986, E.D. was reissued on November 30, 1987 and again on December 16, 1987.

On December 28, 1987, the defendants’ filed a Claim for Exemption with the Lawrence County Sheriff’s Office. (Petitioner’s Exhibit 1). Paragraph 8 of that Claim sought a “$15,000.00 exemption for proceeds of real estate sale as provided by United States Bankruptcy Laws and as filed by affiant at No. 86-02867 United States Bankruptcy Court for the Western District of Pennsylvania.”

Pursuant to the Writ of Execution at No. 56 of 1986, E.D., a Sheriff’s Sale was conducted on January 12, 1988, at which time the defendant’s property and residence at 734 Castle Street was sold for the sum of $21,200.

On January 19, 1988, a schedule of Proposed Distribution of Proceeds from the sale was submitted by the Sheriff’s Office to this Court. (Sheriff’s Exhibit 1). That schedule listed the defendant’s exemption as $300, that amount representing the statutory exemption found in 42 Pa.C.S.A. § 8123(a). The schedule did not include the $15,000 exemption claimed by the defendants.

On January 22, 1988, the defendants filed the instant Exceptions to Proposed Distribution. Paragraph 2 of that document asserts the following:

The Sheriff’s proposed distribution fails to list Defendant’s federal statutory exemptions of $15,000.00 provided by the U.S. Bankruptcy Code.

Trial Court Opinion at 1-4. The trial court denied appellant’s exceptions and this appeal followed.

Appellant contends that the trial court erred in holding that she could not claim the $15,000.00 exemption provided in the United States Bankruptcy Code (the “Code”). Appellant maintains that the trial court’s decision was (1) erroneous as a matter of statutory interpretation and (2) against public policy. Under the Code, when a debtor files for bankruptcy all legal and equitable property interests of the debtor at that time are included as part of the debtor’s bankruptcy estate. See 11 U.S.C.A. § 541. Section 522(b) provides, however, that unless a state has statutorily “opted out” and thereby foreclosed the use of federal exemptions, a debtor is permitted to exempt certain property from the property of the estate. To do so, the Code requires the debtor to choose between either (1) the‘federal alternative exemptions specified in § 522(d) or (2) applicable federal nonbankruptcy law and state or local law. Id. Under the federal construct, a debtor must choose between these two alternatives; he or she is not permitted to take certain exemptions which are allowed by the state and other exemptions which are prescribed by § 522(d). See Savitz v. Ciccotelli, 342 Pa.Super. 399, 401, 493 A.2d 81, 82 (1985).

Appellant properly notes that Pennsylvania has not enacted “opt out” legislation, and thereby affords its indebted residents the opportunity to select between the exemptions provided in § 522(d) and state or local law. Furthermore, appellant suggests that not only has Pennsylvania not foreclosed a resident’s option of choosing the federal bankruptcy exceptions, it has gone so far as to expressly authorize all of the Pennsylvania exemptions in addition to any other exemptions from execution. In support of this argument, appellant cites to Chapter 81 of 42 Pa.C.S.A., which governs judgments and other liens. Section 8121 reads in relevant part as follows:

(a) General Rule. — Except as provided by subsection (b) the exemptions from execution specified in this sub-chapter are in addition to any other exemptions from execution granted by any other statute.
(b) Specific sum of money. — Except as otherwise expressly provided by statute, where the provisions of this subchapter and of any other statute granting exemption from execution in terms of a specific sum of money are simultaneously applicable to execution against a judgment debtor, such exemptions shall not be aggregated, but the judgment debtor shall be entitled to the benefit of the applicable statute granting exemption in terms of the largest specific sum of money.

Id. Specifically, appellant claims that the only reasonable interpretation of this statute is that Pennsylvania has expressly authorized exemptions allowed by any other statute, state or federal, in addition to those contained in the remainder of Chapter 81. Thus, appellant maintains that she is not foreclosed from using federal exemptions, but instead is authorized to claim the larger exemption of $15,000 found in the federal statute in addition to the state exemption of $300.00. We cannot agree.

The decision in this case turns on the construction to be given the phrase “any other statute,” contained in 42 Pa.C.S.A. § 8121. Under the Statutory Construction Act, the object of all interpretation of statutes is to ascertain and effectuate the legislative intent. See 1 Pa.C.S.A. § 1921. In interpreting a statute, the words of the statute must be construed according to their plain meaning and usage, with technical words being given their technical meaning, “and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.” Id. § 1903(a) (emphasis added). Section 1991, the definitional section of the Act, provides that when words defined in § 1991 are used in any statute enacted on or after September 1, 1937, they shall have the meaning ascribed to them in the section unless the context clearly indicates otherwise. Id.; see also Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982). When the legislature has so defined a word or phrase, we are bound by its definition. Cf. Appeal of Neshaminy Auto Villa Ltd., 25 Pa.Commw. 129, 358 A.2d 433 (1976). The term “statute” specifically is defined in § 1991 as “An act of the General Assembly whether under the authority of the Commonwealth or of the late Proprietaries of the province of Pennsylvania.” Id. at § 1991. Thus, as a matter of statutory construction, whenever a statute, such as 42 Pa.C.S.A. § 8121, employs the term “statute”, it cannot be construed to refer to anything other than statutes enacted by the Pennsylvania legislature. From this, we must conclude that the legislative intent in § 8121 was to allow Pennsylvania residents additional exemptions from execution granted by any other Pennsylvania statute exclusive of Chapter 81, subchapter B. There is no support, as a matter of statutory construction, for appellant’s suggestion that the Pennsylvania legislature intended that the federal exemptions contained in 11 U.S.C.A. § 522(d) are to be made available to a debtor in a state execution proceeding.

Moreover, we should note that there is no reason to conclude that the Pennsylvania legislature’s failure to include supplemental federal exemptions in § 8121 was inadvertent. As even a cursory review of Pennsylvania statutes indicates, when the General Assembly intends to refer to or incorporate a federal statute in conjunction with a state statute, the state statute specifically cites to the United States Code. See e.g., 7 Pa.S.A. § 112; 7 Pa.S.A. § 306; 10 Pa.S.A. § 313; 15 Pa.S.A. § 1910; 15 Pa.C.S.A. § 8302; 15 Pa.C.S.A. § 8503; 23 Pa.C.S.A. § 4307.

In summary, appellant makes no persuasive argument, and we see none, that would explain why the legislature, which obviously is aware of the proper manner to incorporate references to federal legislation under the construct contemplated in the Statutory Construction Act, nonetheless would fail specifically to cite to a title of the 11 U.S.C.A., if it intended to include federal bankruptcy exemptions within 42 Pa.C.S.A. § 8121. Because we see no reason in law or logic to construe § 8121 as appellant would have us construe it, we conclude that the trial court did not err in holding that § 8121 does not authorize the use of federal bankruptcy exemptions in an execution proceeding at the state level. Accordingly, for the forgoing reasons, we affirm the order below.

Order affirmed.

      . Appellant also raises a claim regarding the effect abandonment of her premises had upon her property interests as a debtor under federal bankruptcy law. See 11 U.S.C.S. § 554. Appellant contends that abandonment terminates only the automatic stay which protects the estate’s interest in the property (which interest is declared upon filing for bankruptcy and all process against the property is stayed), and not the automatic stay which protects the debtor’s interest in the property. She therefore argues that her property remained under the jurisdiction of the United States Bankruptcy Court, and the sale of her property violated the federal homestead exemption interest protected by the automatic stay she received after filing for bankruptcy. We agree with appellant that abandonment does not terminate the stay protecting a debtor’s interest in the property; that protection terminates only if one of the events specified in 11 U.S.C.A. § 362(c)(2) occurs. Under § 362(c)(2), termination occurs if the case is closed, the case is dismissed, or an order of discharge is entered, whichever comes first. Id. In this case, an order of discharge was entered on March 18, 1987 and the estate was closed on November 30, 1987. Thus, we agree with the trial court that the automatic stay protecting appellant’s interest in the property previously was terminated by an order of discharge at the time the execution took place.


author: HOFFMAN, Judge:

text:
    572 A.2d 780
    Patricia LESKO v. Nicholas LESKO, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed April 6, 1990.

      Barbara J. Shah, Bethel Park, for appellant.
    Alison G. Baumann, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order dated February 16, 1989, denying appellant’s petition to modify child support payments. Appellant contends that the trial court abused its discretion in (1) incorrectly determining appellee’s available income for child support under the Melzer formula, (2) disregarding the Washington County support guidelines when determining the amount of child support, and (3) holding that appellant was responsible for one-half of the children’s dental and medical expenses, and orthodontic expenses, and ordering arrearages as related to these expenses. For the reasons that follow, we vacate the order below and remand for proceedings consistent with this opinion.

Appellant Nicholas Lesko and appellee Patricia Lesko were married on November 22, 1974, separated in April of 1984, and divorced in July of 1988. The two children born of this marriage reside with appellee who remarried in the fall of 1988.

On September 4, 1985, pursuant to a complaint for support filed by appellee, the court entered an order directing appellant to pay $300.00 a month in child support, $50.00 a month in spousal support, and one-half the tuition cost of parochial school for the two children. On October 1, 1987, appellant filed a petition to decrease child support, and, in response, on February 17, 1988, appellee filed a petition for increase in child support. Subsequently, a conference was held in the Domestic Relations Office, which resulted in a provisional assessment and Rule to Show Cause entered on September 6, 1988. The Rule directed appellee to show cause why the provisional assessment for appellant to pay $180.00 a month in child support and to pay one-half of the children’s parochial school expenses and medical and dental costs, should not become an order of the court. Upon receipt of the provisional assessment, appellant, who was current in his payments, began paying $230.00 a month. On December 19, 1988, a hearing de novo was held on the petitions at appellee’s request, and on February 16, 1989, the court issued a Memorandum and Order finding that appellee’s net income was $1700.00 a month, appellant’s net income was $1550.00 a month and the reasonable needs of the children including parochial school tuition was $625.00 a month. The court then ordered appellant to pay $300.00 a month in child support and $50.00 a month towards arrearages which included $690.00 in arrearages on parochial school tuition, and $750.00 in arrearages for dental costs. The court also allowed each party to claim one child as a deduction for income tax purposes. Appellant filed a petition for modification, and on May 12, 1989, the petition was denied. This appeal followed.

Initially, we note that our standard of review regarding support orders is a narrow one. A trial court has broad discretion concerning support payments and we will not reverse its decision unless there is insufficient evidence to sustain it or the trial court abused its discretion in fashioning the award. Funk v. Funk, 376 Pa.Super. 76, 82, 545 A.2d 326, 329 (1988); Lampa v. Lampa, 371 Pa.Super. 1, 6, 537 A.2d 350, 353 (1988). More than mere error of judgment is required; discretion is abused only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable. Lampa v. Lampa, supra; see also Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988).

Appellant first alleges that the trial court abused its discretion when determining child support payments because it failed to take into consideration the Melzer guidelines when calculating appellee’s available income. Appellant makes three specific arguments in this regard. First, appellant argues that the trial court erred by excluding from consideration the income of appellee’s present spouse which, he maintains, helps defray appellee’s expenses and thereby increases the percentage of her income available for child support. Second, appellant argues that the court’s decision to exclude appellee’s voluntary contributions to her 401K plan from her income was unreasonable. Third, appellant claims that the court erred in finding appellee’s $554.00 a month automobile expense reasonable.

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), our Supreme Court created a uniform set of guidelines for the calculation of child support. In calculating the support obligations of the parents under Melzer, the court must first determine and set forth on the record the reasonable needs of the child. Lampa v. Lampa, supra. A child’s reasonable needs however, are not limited to the bare necessities, but may reflect a reasonable standard of living. DeWalt v. DeWalt, 365 Pa.Super. 280, 284, 529 A.2d 508, 510 (1987). The court then must determine the respective financial capabilities of the parents to support their child. Id. To arrive at this amount, the court must make allowances for the parents’ reasonable living expenses and then calculate each parent’s net income or earning capacity. Steinmetz v. Steinmetz, 381 Pa.Super. 440, 444, 554 A.2d 83, 85 (1989). In addition, the court must look beyond the parents’ actual earnings and consider the full value and extent of the parties’ financial resources and ability to pay support. Id. When the court arrives at a figure for both the children’s needs and their parents’ disposable income, the court then computes a support obligation.

In order adequately to address appellant’s contentions, this court would have to review the trial court’s analysis with respect to the support obligations. Unfortunately, a review of the record reveals little indication of what factors the trial court took into consideration in formulating its support petition. In fact, although the record contains the court’s conclusion regarding the reasonable living expenses of the children and the parties’ available incomes, there is no explanation regarding how the court arrived at its figures. Appellee proffers a de facto justification for the court’s calculations and thereby suggests that the court’s failure to articulate its calculations may be overlooked. We will not engage in such speculation. As we noted in Funk v. Funk, supra:

The central issue in a support adjudication is the “children’s reasonable living expenses,” and the lower court’s determination of the children’s living expenses does not appear on the record. Clearly, the lower court cannot fully protect the best interest of the children without first determining the reasonable needs. Further, the lower court failed to calculate on-the-record the appellant’s reasonable living expenses which is also of primary importance in a child support proceeding. We find that the lower court abused its discretion when it failed to follow the mandate of Melzer, supra, and inadequately explained on-the-record the reasons for its decision. Moreover, in Ryan [v. DeLong, 371 Pa.Super. 248, 254, 538 A.2d 1, 4 (1987) ], and Marshall [v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988) ], we expressly stated that: “To insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children, the calculated Melzer formula must be in the record”.

Id. at 83-84, 545 A.2d at 330. Because these determinations are of the utmost importance in support cases, we find that the trial court abused its discretion in failing to state, on the record, its calculations concerning appellee’s income, and also its calculations for the children’s reasonable living expenses and the parties’ available income. Accordingly, on remand, the court should explain on the record its calculations regarding these factors as required by Melzer.

Appellant also contends that the trial court abused its discretion because it failed to take into consideration the Washington County guidelines when determining child support payments. In this case, the record is devoid of any indication that the Washington County support guidelines were considered, and there was no explanation given for the deviation therefrom. Ordinarily we would remand in order for the trial court to recalculate appellant’s support obligations in light of the county guidelines. See, e.g., Lampa v. Lampa, 371 Pa.Super. 1, 537 A.2d 350 (1988). Recently, however, our Supreme Court amended the Pennsylvania Rules of Civil Procedure, see Pa.R.C.P. § 1910.16.1, et seq., and adopted a uniform set of support guidelines for the state of Pennsylvania. Moreover, in Moore v. Moore, 390 Pa.Super. 174, 568 A.2d 250 (1990), this Court held that the uniform guidelines should be given retroactive application to all cases pending on appeal. Id., 390 Pa.Superior Ct. at 178, 568 A.2d at 252. Thus, on remand, in fashioning a support award, the trial court should look not only to the Melzer formula, but also to the newly promulgated uniform support guidelines, along with a consideration of the particular circumstances of this case. Moore v. Moore, supra; Marshall v. Ross, 373 Pa.Super. 235, 239, 540 A.2d 954, 956 (1988).

Appellant finally contends that the trial court abused its discretion in setting arrearages at $750.00 for orthodontic expenses and $690.00 for parochial school expenses, which represents one-half of the supposed cost of each. Initially, we should note that, after carefully reviewing the record and the briefs of the parties, we cannot conclude that the trial court abused its discretion in enforcing its prior orders, requiring appellant to pay one-half of these expenses. See Order, September 4, 1985; Order, September 6, 1988; see also 23 Pa.C.S.A § 4324. Moreover, we note that appellant failed to challenge the September 4, 1985 order requiring him to pay one-half of the parochial school expenses and, in fact, at the hearing held on December 21, 1988, appellant volunteered to pay one-half of the expenses for parochial school if he had actual proof of the amounts paid.

Although the court did not err in finding that appellant is obligated to pay one-half of these expenses, there remains some difficulty with the court’s calculation of the amount of the arrearages. Once again, the record before us reveals little indication of the factual basis for the court’s determination of the amount of arrearages. Appellee included as part of the children’s reasonable living expenses a $162.00 per month parochial school expense and an $1800.00 orthodontic expense. However, she failed to offer any additional proof in the way of receipts, or can-celled checks, to substantiate how much money was expended for the children’s tuition, clothes and books, and medical care. Further, appellant testified that he had requested, but not received, proof from appellee as to these expenses and that he did not know where his children were attending school in order to verify these costs. The court, nonetheless held, without explanation, that appellant was $690.00 in arrearages due to the children’s parochial school costs. In addition, the basis for the court’s fixing the son’s orthodontic expense is not apparent on the face of the record. The only evidence presented as to the cost of the son’s dental work was the expense sheet submitted by appellee which stated that the amount expended was $1800.00. Despite this fact, the court held that the son’s orthodontic expenses totalled $1500.00, and ordered appellant to pay one-half or $750.00. See 23 Pa.C.S.A. § 4324. In light of the difficulty in determining the basis for the court’s calculation of arrearages, we direct the trial court to compute, on remand, the amount that appellee actually spent on parochial school and orthodontic care for her children and the corresponding amount of arrearages appellant owes.

In conclusion, we find that that the trial court abused its discretion in determining the parties’ child support obligations. The court failed to utilize the Melzer formula as a framework in determining child support, and failed to adequately explain on the record its reasons for its findings regarding appellee’s available income, the actual monies expended for parochial school, and orthodontic expenses. Consequently, we must vacate the order and remand to the trial court for recomputation of the support award in accordance with Melzer, the newly promulgated uniform support guidelines and this opinion.

Vacated and remanded. Jurisdiction relinquished.

      . In a related argument, appellant maintains that the trial court erred in overruling his objection to appellee’s testimony about her medical condition which prevented her from taking the bus, and thereby increased her monthly automobile expenses.

      . Although this Court has recognized circumstances where the Melzer formula need not be made part of the record, see, e.g., Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989) (wife had no income to calculate Melzer formula); Olson v. Olson, 384 Pa.Super. 224, 558 A.2d 93 (1989) (intentional failure to provide accurate income information for Melzer formula), such circumstances are not present here.

      . Section 4324, relating to inclusion of medical support, states in relevant part:
      In addition to periodic support payments, the court may require that an obligor pay a designated percentage of a child’s ... reasonable and necessary health care expenses. If health care coverage is available through an obligor or obligee at no cost as a benefit of employment or at a reasonable cost, the court shall order an obligor or obligee to provide or extend health care coverage to a child____ Upon failure of the obligor to make this payment or reimburse the custodial parent ... and after compliance with procedural due process requirement, the court shall treat the amount as arrearages.

        Id.


author: BROSKY, Judge.

text:
    572 A.2d 785
    Hugh J. SMITH, Jr. and Gertrude E. Smith, Individually and Hugh J. Smith, III, a Minor, by Hugh J. Smith, Jr. and Gertrude E. Smith, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1989.
    Filed April 10, 1990.

      Robert G. Leino, Eagleville, for appellants.
    David A. Williams, Media, for appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge.

This is an appeal from an order of the trial court which dismissed appellant’s petition to compel arbitration.

Appellants, Hugh Smith, III, a minor, and his parents Hugh Smith, Jr. and Gertrude Smith, raise the following issues on appeal: (1) whether the injury to Hugh Smith, III, arose out of the ownership, maintenance or use of the tractor and haywagon; and (2) whether the tractor and haywagon was an uninsured motor vehicle within the meaning of the policy.

On October 25, 1985, Hugh Smith, III, was riding his bicycle, along with his brother and some friends. While riding, the boys were passed by a tractor pulling a haywagon; the tractor and wagon were owned and operated by Daniel Mertz, who provided hayrides. Both adults and children were seated on the haywagon, and according to Smith, the children were throwing hay at each other and out of the wagon. Smith and the other boys rode behind the wagon, maintaining a distance of approximately ten feet. Smith, however, decided to get closer to the wagon, and moved his bicycle within five feet of it. At this point, a boy on the wagon threw hay in Smith’s face. Smith was unable to see and attempted to stop his bicycle. Before coming to a stop, Smith collided with a tree and sustained a fractured skull.

Smith and his parents filed suit against Mertz and the other passengers on the haywagon. In addition, appellants filed this separate action against appellee, United Services Automobile Association (USAA), their insurer, to compel the appointment of arbitrators. In dismissing appellants’ petition, the trial court held that the injury did not arise out of the ownership, maintenance or use of an uninsured motor vehicle. For the reasons set forth below, we affirm the decision of the trial court.

Before turning to the merits of the issues, we must review the relevant policy provisions.

The principles governing interpretation of a policy are well-settled---- In construing the policy, we are mindful that ... [o]ur object is ... to ascertain the intent of the parties as manifested by the language of the written instrument____ Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement____ Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.

Geisler v. Motorists Mutual Insurance Co., 382 Pa.Super. 622, 626, 556 A.2d 391, 393 (1989). Using these principles as a guide, the uninsured motorist provisions of the policy are set forth as below:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of ... an uninsured motor vehicle because of bodily injury:
(1) Sustained by a covered person; and
(2) Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle____ [Emphasis added.]

In addition, the policy defines an “uninsured motor vehicle” as “a land motor vehicle or trailer of any type”, but excludes from this definition “any vehicle or equipment [which is] ... [d]esigned mainly for use off public roads while not on public roads.” Because tractors and haywagons are vehicles which are primarily intended for use off of the public highways, if they were not in operation on a public road, they would be excluded from the definition of an uninsured motor vehicle and there would clearly be no coverage under the uninsured motorist provisions. However, such is not the case here, since these vehicles were in use on a public highway at the time the injury occurred.

Because farm tractors and haywagons are motor vehicles within the context of the policy, we must next ascertain whether the injury arose out of the ownership, maintenance or use of the uninsured motor vehicle. In reaching our conclusion, we must take into consideration the purpose behind uninsured motorist coverage. “Automobile insurance, including uninsured motorist provisions, are designed to compensate victims for vehicle-caused injuries.” Schweitzer v. Aetna Life & Casualty Co., 306 Pa.Super. 300, 304, 452 A.2d 735, 737 (1982) (emphasis added). Accordingly, in determining whether the injury arose out of the ownership, maintenance or use of the motor vehicle, we must look to the “instrumentality used to cause the the injury.” Spisak v. Nationwide Mutual Insurance Co., 329 Pa.Super. 483, 487, 478 A.2d 891, 893 (1984) (emphasis in original).

This court has interpreted the phrase “maintenance and use of a motor vehicle” to mean the “maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it”, Camacho v. Nationwide Insurance Co., 314 Pa.Super. 21, 23, 460 A.2d 353, 354 (1983), affirmed per curiam, 504 Pa. 351, 473 A.2d 1017 (1984) (emphasis added). Moreover, we have required that “there must be some causal connection between the injuries and the use of the motor vehicle.” Alvarino v. Allstate Insurance Co., 370 Pa.Super. 563, 568, 537 A.2d 18, 21 (1988) (and the cases cited therein). “The causal connection need not rise to the level of proximate causation; however, ... the connection must be more than mere happenstance.” Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 35, 550 A.2d 1346, 1350 (1988).

We must now relate these principles to the facts of this case. Appellants argue that the vehicle caused Smith’s injury since hay was thrown from the haywagon, and hay is an essential part of a hayride. Contrary to appellants’ contention, however, Smith’s injuries were not caused by the use of the vehicle, but by the intentional act of a third-party, e.g. the passenger, throwing hay. Thus, the injury was caused by a source which is external to the vehicle, and not the vehicle itself. See Schweitzer, Camacho, Alvarino and Roach, supra, where the injury was caused by an external source in each case. The fact that the hay was used is simply irrelevant to the question of whether the vehicle was the instrumentality which caused the injury. Certainly, the boy who threw the hay could have thrown any other object at Smith which might also have caused him to collide with the tree or to sustain other injury. As a result, it is clear that the injury was not caused by the vehicle, but by the boy intentionally throwing hay in Smith’s face.

Because we are unable to discern any causal connection between the vehicle and the injury, the injury cannot be said to arise from the ownership, maintenance or use of the vehicle. Therefore, appellants are not entitled to recover any benefits under this provision of the policy, and the trial court was correct in dismissing the petition to compel arbitration.

The second issue raised by appellants concerns whether the tractor and haywagon were uninsured. We need not address this issue in view of our determination that the injury did not arise out of the ownership, maintenance or use of the vehicle. However, even if we were to discuss this issue, we would be unable to do so because the record contains nothing, aside from the unsupported allegations in appellants’ petition, which is indicative of whether the tractor and haywagon were in fact uninsured.

Order affirmed.

      . This action is pending in the court below. As it is completely separate from the action before us, issues relating to the alleged negligence of Mertz and the other passengers, as well as whether the passengers were insured, need not be addressed.

      . A "covered person” under the policy includes the insured or any family member. Therefore, Hugh Smith, III is a covered person within the meaning of the policy.


text:
    572 A.2d 787
    COMMONWEALTH of Pennsylvania, Appellant, v. Donald W.H. SHEARER.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1990.
    Filed April 12, 1990.

      Amy L. Hallenbeck, Asst. Dist. Atty., Williamsport, for Com., appellant.
    Deborah A. Weinman, Williamsport, for appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal by the Commonwealth from the judgment of sentence of thirty-days-to-nine-months imprisonment for a second conviction of driving under the influence, 75 Pa. C.S.A. § 3731(e)(1)(h). The Commonwealth does not appeal the actual sentence imposed, which is the statutorily mandated minimum sentence, but asserts that the trial court abused its discretion when it credited appellee, Donald Shearer, with time served in an in-patient alcohol treatment program and granted him immediate parole. The Commonwealth contends that the court’s action is contrary to the language of 75 Pa.C.S.A. § 3731(e). For the reasons that follow, we reverse the trial court’s ruling according appellee credit for in-patient alcohol treatment, and remand for proceedings consistent with this opinion.

On October 26, 1988, appellee was arrested and charged with driving under the influence of alcohol arising from an incident on October 3, 1988. On January 31, 1989, appellee pled guilty to the offense. On April 27, 1989, the court sentenced appellee to thirty-days-to-nine months incarceration. Appellee requested that the court give him credit against the mandatory minimum sentence for time he spent in an in-patient alcohol treatment program. Appellee argued that the program was similar to incarceration and thus should come within the definition of imprisonment as mandated by 75 Pa.C.S.A. § 3731(e). The court agreed and credited appellee for the time he spent in the program. Appellee was granted immediate parole because the mandatory minimum sentence had been served. The Commonwealth filed a motion to modify and/or correct an illegal sentence. On May 23, 1989, the trial court granted in part and denied in part the Commonwealth’s motion. This timely appeal followed.

The Commonwealth contends that the court erred in crediting appellee for time he spent in an in-patient alcohol treatment program that he attended voluntarily between conviction and sentencing. This question is controlled by our recent decision in Commonwealth v. Cona han, 388 Pa.Super. 369, 565 A.2d 798 (1989). In Conahan, we held that voluntary confinement in an in-patient alcohol treatment program is not imprisonment for purposes of 75 Pa. C.S.A. § 3731(e). Id., 388 Pa.Superior Ct. at 379, 565 A.2d at 803. In arriving at this conclusion, the Conahan Court thoroughly reviewed the legislative history and found that allowing voluntary in-patient treatment programs to satisfy the imprisonment requirement of 75 Pa.C.S.A. § 3731(e) was contrary to the legislative purpose behind the statute. Id., 388 Pa.Superior Ct. at 375-378, 565 A.2d at 801-02. Accord Commonwealth v. Kriston, 390 Pa.Super. 543, 568 A.2d 1306 (1990), (Court, sitting en banc, held electronic home monitoring is not imprisonment for purposes of 75 Pa. C.S.A. § 3731(e)). We are constrained to follow Conahan, and thus we must conclude that appellee’s voluntary in-patient confinement was not imprisonment for the purposes of 75 Pa.C.S.A. § 3731(e). Accordingly, we reverse the sentence below and remand for resentencing consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . The Commonwealth’s motion asserted that the court erred when it gave appellee credit for time he voluntarily spent in an in-patient treatment program. In the alternative, the Commonwealth asserted that if appellee is entitled to credit, the court erred by granting appellee immediate parole because he only had spent 28 days in the program. The court granted the Commonwealth’s alternative argument and ordered appellee to serve two days incarceration.

      . The lead opinion in Conahan (by HESTER, J.) was joined by CIRILLO, PJ. CIRILLO, P.J., also filed a concurring opinion. CAVA-NAUGH, J., concurred in the result and filed a separate concurring statement.

      . Appellee argues that if this court finds that the trial court erred in granting him credit, he should be entitled to serve the balance of his sentence on parole because "a prisoner cannot be compelled to serve a sentence in installments and has a right to serve his sentence continuously." Appellee's Brief at 12. In support of this argument, appellee relies on Jacobs v. Robinson, 49 Pa.Commw. 194, 410 A.2d 959 (1980).
      In Jacobs, the defendant was sentenced to a term of two-to-five years imprisonment. After serving approximately six months, Jacobs was inadvertently released from jail due to a clerical error. Subsequently, Jacobs was apprehended and charged with escape. The Commissioner of Corrections dismissed the charges, but denied Jacobs credit for the time he was away from prison. The Commonwealth Court reversed, and directed that Jacobs be given credit for the time he was away from jail because he was released through no fault of his own.
      The facts of this case are clearly distinguishable from Jacobs. Here, appellee voluntarily entered an in-patient treatment program prior to sentencing. Once sentenced, appellee then requested that the court give him credit for the time he spent in the program. Because appellee’s program was entered voluntarily and did not result from a court order or sentence, the trial court had no authority to grant appellee credit for the time he spent in the program. See Commonwealth v. Conahan, supra. In addition, we note that Jacobs did not involve a statute that mandated a minimum term of imprisonment as 75 Pa.C.S.A. § 3731(e) requires. Accordingly, appellee’s reliance on Jacobs is misplaced; appellee is not entitled to serve the remainder of his sentence on parole because his own actions led to his release. Accord Commonwealth v. Kriston, supra, 390 Pa.Super. at 546-548, 568 A.2d at 1308-09 (defendant argued that Jacobs required him to be given credit for time spent in electronic home confinement because warden, acting under apparent authority, placed Kriston in program and assured him that time was applicable towards his mandatory sentence; held appellant not entitled to credit because appellant applied for release in program).


text:
    572 A.2d 789
    Linda A. SPRAGUE and C. Bartlett Sprague v. Dale I. KAPLAN. Appeal of C. Bartlett SPRAGUE.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed April 10, 1990.

      William H. Andring, Harrisburg, for appellant.
    Jefferson J. Shipman, Harrisburg, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

On December 31, 1987, Linda Sprague fell on ice and snow while on the property of appellee’s business establishment, Capen Careful Cleaners, where she was picking up a bridesmaid’s dress for her wedding that evening. Despite the fall, the wedding was held as planned, however Linda and her husband eventually brought suit for her injuries and his loss of consortium. The trial court dismissed appellant husband’s claim for loss of consortium because the parties were not husband and wife at the time of the accident. Appellant argues he is entitled to his claim since the injury occurred subsequent to the issuance of a marriage license but prior to completion of the ceremony and his loss is just as real as if the accident occurred an hour after the ceremony instead of several hours before.

The court’s decision reflects the current state of the law in Pennsylvania. • Several Pennsylvania trial courts have addressed this issue and resolved it unfavorably to appellant’s position but the appellate courts, thus far, have been silent on this issue, making this case one of first impression for this Court. We agree with the line of cases issued by the trial courts and hold that a cause of action for loss of consortium is not available to a party who was not married to the injured party at the time of the injury.

Loss of consortium has been recognized in this Commonwealth as a right evolving out of the marriage relationship and is grounded on the loss of a spouse’s service after injury. Burns v. Pepsi-Cola Metropolitan Bottling, 353 Pa.Super. 571, 510 A.2d 810 (1986). In Comstock v. Kleckner, 49 D. & C.3d 465 (1988), husband pursued a claim for loss of consortium due to an injury to his wife 17 months prior to their marriage. In response to a motion for summary judgment by defendants, husband alleged he was married to his wife at the time of the accident under common law and the marriage ceremony was a reaffirmation of their common law marriage. The trial court granted the motion for summary judgment after finding the claim for loss of consortium must be based on an actual marriage.

We are mindful that the cause of loss of consortium appears to be recognized by the federal courts. In Sutherland v. Auch Inter-Borough Transit Company, 366 F.Supp. 127 ([E.D.Pa.] 1973) a husband was allowed to recover for the loss of consortium based on premarital injuries to his wife. In Sutherland the husband’s recovery appears to be based on the closeness in time of the incident to the wedding. 366 F.Supp. at 134.
However, in Curry v. Caterpillar Tractor Co., 577 F.Supp. 991 ([E.D.Pa.] 1984), the U.S. District Court for the Eastern District of Pennsylvania concluded that the law of Pennsylvania does not allow a claim for loss of consortium for injuries before marriage. In Curry, the birth of three children from the union and cohabitation for 15 years were insufficient to permit a claim for loss of consortium.
In Bulloch v. United States, 487 F.Supp. 1078 (D.C., N.J.1980), a cohabitant was allowed to maintain a claim for loss of consortium. In that case the federal court made its decision based upon an attempt to predict a change in the New Jersey law. 487 F.Supp. at 1082.
In this regard, the New Jersey court has considered the federal court’s prediction of how it would hold concerning the issue, and found the federal court to be a poor prognosticator. The holding in Leonardis v. Morton Chemical Co., 184 N.J.Super. 10, 445 A.2d 45 (1982), and Childers v. Shannon, 183 N.J. Super. 591, 444 A.2d 1141 (1982) has specifically rejected Bulloch, supra.
The reasoning of the New Jersey Superior Court in Childers, supra, offers good reason to base the loss of consortium claim on an actual marriage ceremony:
“Marriage, however, is the only legal touchstone by which the strength of a male-female relationship may be tested. It is not the function of this court to sift through the myriad relationships of a party in a negligence action to determine which of those near and dear have suffered an injury proximately caused by tortious conduct. Should this court allow this plaintiffs claim for loss of consortium, other courts will be forced to determine which plaintiffs have relationships sufficiently meaningful to entitle them to claim consortium. Plaintiffs here were engaged to be married at the time of the accident; how long an engagement will support a claim? One month? One week? ‘Going steady’? Or is cohabitation to be the test, as it apparently was in Bulloch? Again: For how long? Was there joint payment of rent? Grocery bills?
“Presumably, when partners wish social and legal recognition of their relationship, they marry. To accord consortium to an unmarried plaintiff is to force upon him or her a status which he or she had not, at the time of the injury, asserted; it is an ill-conceived intrusion into the private lives of individuals.” Bulloch, supra.

Id. at 468-69. Other trial courts have held to this same “bright line” test. (See Leibensperger v. Key, 39 D. & C.3d 532 (1986), and Saternow v. Byknish, 31 D. & C.3d 9 (1983).) In fact, most jurisdictions do not allow recovery for loss of consortium for injuries arising prior to marriage due to the difficulty of determining an actual relationship and the need to draw the line at some point without engaging in a case-by-case analysis. (See Gillespie-Linton v. Miles, 58 Md.App. 484, 473 A.2d 947 (1984); Angelet v. Shivar, Ky.App., 602 S.W.2d 185 (1980); Sostock v. Reiss, 92 Ill.App.3d 200, 47 Ill.Dec. 781, 415 N.E.2d 1094 (1980).)

For the foregoing reasons, we affirm the Order of the trial court.

Order affirmed.

      . We note that a common law marriage in Pennsylvania is an “actual” marriage and a formal marriage ceremony is not necessary. The trial court in Comstock, however, did not give a factual analysis as to the validity of the husband’s assertion a common law marriage did exist and this question may have been pursued had an appeal been taken. We cite to Comstock for the principles contained therein as they pertain to couples not married according to Pennsylvania law.


author: PER CURIAM:

text:
    572 A.2d 791
    COMMONWEALTH of Pennsylvania v. Kimberly Anne McCROSSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1989.
    Filed April 17, 1990.

      Aaron M. Matte, Allentown, for appellant, (submitted)
    Gregory D. Anthony, Asst. Dist. Atty., Warren, for Com., appellee.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   PER CURIAM:

After appealing from a finding of a district justice and receiving a trial de novo before a court of common pleas, Kimberly Anne McCrosson was found guilty of operating a motor vehicle after her operating privileges had been revoked and before they were restored, a violation of 75 Pa.C.S. § 1543(a). On direct appeal from the judgment of sentence imposed by the trial court, McCrosson contends that the evidence failed to establish a violation of the statute. We disagree and affirm'the judgment of sentence.

Appellant failed to file post-trial motions. Generally, post-trial motions are essential to preserve issues for appellate review. See: Commonwealth v. Hollingsworth, — Pa.-, 569 A.2d 947 (1990) (when appealing a summary conviction, post-trial motions must be filed to preserve issues for appeal). Here, however, the trial court failed to advise appellant of the need to file post-trial motions in order to preserve issues for appeal. Under these circumstances, the failure to file post-trial motions did not constitute a knowing waiver of the right to appellate review. See: Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).

On August 5, 1988, appellant was the driver of a motor vehicle which was involved in an intersection accident in Tunkhannock Township, Monroe County. When the accident was investigated by a member of the Pennsylvania State Police, appellant was unable to produce a driver’s license. Her operating privileges had been revoked for a period of six (6) months, effective May 19, 1987, and had not thereafter been restored. She was cited for violating 75 Pa.C.S. § 1543(a), which provides, in pertinent part, as follows:

[A]ny person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

Appellant argues that she did not commit a violation of this provision of the Vehicle Code because the six (6) months’ revocation of her operating privileges had expired before the date of the accident. This was a valid argument under a prior provision of the Vehicle Code which made it a summary offense to “drive[ ] a motor vehicle on any highway of this Commonwealth at a time when the operating privilege is suspended, revoked or recalled.” See: Commonwealth v. Fay, 320 Pa.Super. 399, 467 A.2d 384 (1983); Commonwealth v. Parfitt, 286 Pa.Super. 279, 428 A.2d 991 (1981). The statute was amended prior to the issuance of appellant’s citation, however, to make it an offense to operate a vehicle at any time prior to the restoration of the driver’s operating privilege. Whether the period of revocation had expired is relevant only to determine the period of the additional suspension to be imposed by the department of transportation upon conviction. See: Caruso v. Commonwealth, Department of Transportation, 125 Pa. Commw. 54, 557 A.2d 54 (1989); Commonwealth, Department of Transportation v. Manuel, 119 Pa.Commw. 264, 546 A.2d 1336 (1988).

Following expiration of the period of appellant’s revocation, she made no effort to obtain a restoration of her operating privilege. She failed to supply, inter alia, proof of financial responsibility. Therefore, her privilege was not restored, and she could not legally operate a motor vehicle.

Appellant has attached to the brief filed in this Court certain documents suggesting that she may have begun proceedings to obtain a reinstatement of her operating privilege. These documents were not placed in evidence in the trial court and may not be considered by this Court in conducting appellate review. Woolard v. Burton, 345 Pa. Super. 366, 373, 498 A.2d 445, 448 (1985); McFarlane v. Hickman, 342 Pa.Super. 240, 248 n. 4, 492 A.2d 740, 744 n. 4 (1985); Spain v. Vincente, 315 Pa.Super. 135, 144 n. 3, 461 A.2d 833, 838 n. 3 (1983). Moreover and in any event, these documents do not alter the fact that appellant’s operating privilege had not been restored on August 5, 1988.

The judgment of sentence is affirmed.


author: WIEAND, Judge:

text:
    572 A.2d 793
    COMMONWEALTH of Pennsylvania v. Ronald J. FETSICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Decided March 23, 1990.
    Petition for Allowance of Appeal Denied Aug. 1, 1990.

      Michael S. Geisler, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the Municipal Police Jurisdiction Act, 42 Pa.C.S. § 8951 et seq., authorizes a borough police officer who is seated in a patrol car outside his primary jurisdiction to pursue and stop a vehicle which is operated in a suspicious manner as it leaves the borough and enters the jurisdiction in which the policeman is seated.

Following a hearing de novo in the Court of Common Pleas of Allegheny County, Ronald J. Fetsick was found guilty of driving a motor vehicle while his operating privileges were under suspension because of a prior alcohol related offense. On appeal, after the trial court denied a post-trial motion in arrest of judgment and imposed sentence, Fetsick contends that the stopping of his vehicle was illegal and that the evidence thereby obtained should have been suppressed.

On March 30, 1988, at or about 3:35 a.m., Officer Ronald Scavo of the Forrest Hills Borough Police Department was parked at a service station at the intersection of Braddock Road and Greensburg Pike in the Borough of Churchill. While parked, Scavo observed a gray Pontiac coupe traveling south on Braddock Road in Forrest Hills. As the vehicle approached, its headlights flickered on and off several times, causing Scavo to believe that the vehicle’s headlights were malfunctioning or its operator was trying to give a signal. When the vehicle passed him, Scavo followed, intending to pull the vehicle over as soon as a safe area to do so had been reached. When the vehicle pulled into a high school parking lot, Scavo signaled for the driver to stop. Scavo then approached the vehicle and asked the operator whether there was a problem with the headlights. Scavo also asked the operator to produce for inspection his driver’s license and vehicle registration. The operator told the officer that his license was under suspension. Following confirmation of appellant’s driving status, Scavo issued a citation to the operator, Ronald J. Fetsick, for driving while his license was under suspension.

The Municipal Police Jurisdiction Act provides, in pertinent part, as follows:

§ 8953. Statewide municipal police jurisdiction
(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.

42 Pa.C.S. § 8953(a)(2). In interpreting this provision, we are mindful that the Municipal Police Jurisdiction Act “does not fall within the classes of statutes which are to be strictly construed____[and], therefore, [it] must be liberally construed to effect its objects and to promote justice.” Commonwealth v. Ebersole, 342 Pa.Super. 151, 155, 492 A.2d 436, 438 (1985), citing 1 Pa.C.S. § 1928(b) and (c). See also: Commonwealth v. Sestina, 376 Pa.Super. 441, 446, 546 A.2d 109, 112 (1988); Commonwealth v. Roberts, 356 Pa.Super. 309, 315, 514 A.2d 626, 629 (1986). “The general purpose of the statute is to restrict the jurisdiction of police to their own municipalities, on the one hand, while allowing certain practical and policy exceptions to the general rule on the other hand.” Commonwealth v. Merchant, 385 Pa.Super. 264, 268, 560 A.2d 795, 796-797 (1989). The Merchant court observed:

There is no question that the Act contemplates and allows police to enter another jurisdiction to investigate matters originating in their own jurisdiction and also to arrest an individual for a crime committed in their jurisdiction.
The Act clearly does not contemplate or condone extraterritorial patrols. In fact, the entire purpose of the Act is to provide a general limitation on such activity while allowing exceptions, for, in essence, extra-territorial activity in response to specifically identified criminal behavior, that occur[s] within the primary jurisdiction of the police.

Id., 385 Pa.Superior Ct. at 272-273, 560 A.2d at 799 (footnote omitted).

Our research has disclosed no appellate decision which has considered the precise issue which we decide today. However, an arrest under similar circumstances was before the Court of Common Pleas of Adams County , in Commonwealth v. Kuykendall, 29 D. & C.3d 611 (1984). There, a police officer employed by the Borough of Fairfield had been in the Township of Hamiltonban when he observed the defendant driving on the wrong side of the road within the borough limits. When the defendant crossed into Hamilton-ban Township, the officer pursued and ultimately stopped the defendant driver. The officer thereupon observed that the defendant exhibited signs of intoxication and placed him under arrest for driving while under the influence of alcohol. The defendant contended that the arrest was unlawful under 42 Pa.C.S. § 8953(a)(2) because the police pursuit had not commenced within the officer’s primary jurisdiction. The court rejected the argument, saying:

The arresting officer personally observed acts committed within the Borough which would have justified a stop and a pursuit. If we adopt defendant’s argument, we would be engrafting in the statute a hypertechnical requirement not justified by its plain language. We are instructed to construe the statute in a liberal, common sense manner. Commonwealth v. Magwood, [503] Pa. [169], 469 A.2d 115 (1983).

Doing so, we conclude again that the arrest was lawful. Id. at 615.

The Statutory Construction Act, 1 Pa.C.S. § 1921(c)(5), suggests that we should also consider “[t]he former law, if any, including other statutes upon the same or similar subjects.” Therefore, we have examined the Intra-State Hot Pursuit Act, 42 Pa.C.S. § 8901, which substantially re-enacted the Act of August 6, 1963, P.L. 511, No. 267, § 1, 19 P.S. § 11, as amended, and which, in turn, was repealed and replaced by 42 Pa.C.S. § 8953(a)(2). In Commonwealth v. Montgomery, 513 Pa. 138, 518 A.2d 1197 (1986), cert. denied, 480 U.S. 935, 107 S.Ct. 1579, 94 L.Ed.2d 769 (1987), the Supreme Court interpreted the prior law by stating:

The Intra-State Hot Pursuit statute does not require that probable cause for an arrest exist before a pursuing officer crosses the boundary of his political subdivision. By its terms, the statute confers extraterritorial authority to make an arrest when (1) an offense has been committed within the officer’s political subdivision; (2) pursuit continues following commission of the offense; and (3) the officer exercises only that power of arrest which he would have if he were acting in his own jurisdiction. We do not believe that the legislature intended to make the knowledge possessed by the officer at the time the territorial boundary is crossed to be determinative of the validity of an arrest made pursuant to this statute. Often, pursuit of a criminal suspect has its inception in an officer’s reasonable belief that criminal activity has occurred or is about to occur. As “the chase” ensues, pertinent information is radioed to the officer or the officer makes certain observations with respect to the suspect which then give rise to probable cause for purposes of effectuating a valid arrest. The point at which probable cause arises is immaterial under this statute.

Id., 513 Pa. at 144, 518 A.2d at 1200. Similarly, in Commonwealth v. Garner, 314 Pa.Super. 566, 569-570, 461 A.2d 302, 304 (1983), the Superior Court said that “[a]ny police officer of any political subdivision may arrest any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after the commission of the offense.”

The Superior Court has also held that where a police officer is in pursuit of a vehicle which has been observed being operated illegally within the officer’s primary jurisdiction the officer can lawfully arrest-the defendant for drunken driving outside of such primary jurisdiction, even though probable cause to suspect defendant’s intoxication does not arise until the officer has left his primary jurisdiction. Commonwealth v. Robb, 238 Pa.Super. 62, 352 A.2d 515 (1975). The initial stop in Robb was proper because the officer had observed the driver’s commission of the summary offenses of driving through a red light and failing to drive on the right side of the road within the territorial limits of the officer’s primary jurisdiction. See also: Kinzer v. Commonwealth, Dept. of Transportation, 119 Pa. Commw. 604, 547 A.2d 863 (1988).

We conclude that the arrest in the instant case was lav/ful. Officer Scavo’s authority to stop appellant outside the limits of his primary jurisdiction was not defeated merely because the officer was already outside the territorial limits of such jurisdiction when he observed the flickering lights of appellant’s vehicle as it was being operated in Forrest Hills. At that point, the officer could have lawfully stopped the vehicle in Forrest Hills because he had reason to believe that the vehicle’s lights were in an unsafe condition. The officer could also pursue appellant’s vehicle when it left Forrest Hills and entered the Borough of Churchill. After the officer had stopped the vehicle, he acquired additional information which established probable cause for him to believe that appellant had been driving while his license was under suspension. He could then make a lawful arrest for driving while under suspension.

We are not persuaded by appellant’s argument that 42 Pa.C.S. § 8953(a)(2) must be read to require that police pursuit begin within the territorial limits of the officer’s primary jurisdiction. The suggestion in Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981), that pursuit must begin in the jurisdiction where police are authorized to act and where the crime has been committed was not necessary to the Court’s decision and was dictum. Fiume had been injured in an accident in Plum Borough, Allegheny County, and had been sent by a Plum Borough police officer to a hospital in New Kensington, Westmoreland County. The officer had radioed to a second Plum Borough officer who was already at the hospital on another matter and asked him to investigate the accident. The second officer determined that the defendant had been driving while intoxicated and placed him under arrest. The lead opinion, written for a six judge court, with one judge concurring, three judges concurring in the result, and one judge dissenting, held that there had been “no pursuit” and that the arrest in Westmoreland County, therefore, had been illegal. The observation made by the author of the lead opinion that pursuit must begin in the jurisdiction where the officer is authorized to act is pure dictum and lacks precedential value. The facts in Fiume, as we have observed, are not the same as the facts of the instant case; and, therefore, the lead opinion, in addition to being non-binding, is also not persuasive.

Appellant’s reliance on Commonwealth v. Bable, 254 Pa.Super. 72, 385 A.2d 530 (1978), is also misplaced. There, a police officer from Greenville, in Mercer County, had heard a radio call announcing a burglary in Hempfield Township, an adjoining municipality. The officer responded to the call and pursued a suspected burglar from Hempfield Township into Adamsville, Crawford County, where an arrest was made. The crime, in Bable, had not been committed within the territorial limits of the arresting officer’s jurisdiction; and, therefore, it was held that he had no authority to make an arrest in an adjoining county. The municipality in which the pursuit commenced, under these circumstances, was not determinative.

Even if appellant’s interpretation of the statute were to be accepted, it would not compel suppression of the evidence that appellant had operated his vehicle while his license was under suspension. Not all violations of the Municipal Police Jurisdiction Act require suppression of evidence obtained as a result thereof. In Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (J. 120/89; filed December 13, 1989), the Supreme Court reviewed and discussed this issue as follows:

In Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), we held that suppression of evidence was an inappropriate remedy for a violation of the Rules of Criminal Procedure relating to the issuance and execution of a search warrant outside of a police officer’s primary jurisdiction where said violation did not implicate fundamental, constitutional concerns, was not conducted in bad faith or did not substantially prejudice the accused in the sense that the search would not otherwise have occurred or would not have been as intrusive. Automatic exclusion of evidence obtained by searches accompanied by relatively minor infractions of the rules of criminal procedure would be a remedy out of all proportion to the violation, or to the benefits gained to the end of obtaining justice while preserving individual liberties. Id. at 407, 490 A.2d at 426, quoting United States v. Searp, 586 F.2d 1117 (6th Cir.1978), cert. denied 440 U.S. 921[, 99 S.Ct. 1247, 59 L.Ed.2d 474] (1979); but cf. Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984).
The Superior Court has recognized that, under Mason, suppression of evidence may or may not be the appropriate remedy for a violation of section 8953 of the Act, depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused. Compare Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985); Commonwealth v. Peppers, 357 Pa.Super. 270, 515 A.2d 971 (1986); Commonwealth v. Sestina, 376 Pa.Super. 441, 546 A.2d 109 (1988): with Commonwealth v. Merchant, 385 Pa.Super. 264, 560 A.2d 795 (1989); Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981); Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626 (1986). We approve of this case-by-case approach to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the Act.

Id., 523 Pa. at 399-400, 567 A.2d at 1030.

The suppression of the evidence of appellant’s driving with a suspended license under the facts and circumstances of this case “ ‘would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.’ ” Commonwealth v. Saul, 346 Pa.Super. 155, 162, 499 A.2d 358, 361 (1985), quoting United States v. Searp, 586 F.2d 1117, 1123 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). See also: Commonwealth v. Peppers, 357 Pa.Super. 270, 273, 515 A.2d 971, 973 (1986).

For all these reasons, we hold that the trial court did not err when it refused to suppress the testimony of the arresting police officer.

The judgment of sentence is affirmed.

      . See: 75 Pa.C.S. § 1543(b).

      . The service station at which Officer Scavo was parked is situated on the side of Greensburg Pike which is in the Borough of Churchill. The opposite side of Greensburg Pike is in the Borough of Forrest Hills. Both Churchill and Forrest Hills are located in Allegheny County.

      . See: 75 Pa.C.S. §§ 4107(b)(2) and 4303(a).


author: CAVANAUGH, Judge:

text:
    572 A. 2d 1229
    COMMONWEALTH of Pennsylvania, Appellee, v. Henry ELROD, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1989.
    Filed March 7, 1990.
    Reargument Denied May 2, 1990.

      Leonard N. Sosnov, Philadelphia, for appellant.
    Hugh Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered by the Court of Common Pleas of Philadelphia County imposed on Information Nos. 3201-3205, January Session, 1988. Appellant was arrested on November 20, 1987 and charged in connection with an attack on a woman which occurred on the same day. At a bench trial on May 2, 1988, appellant was tried and found guilty of aggravated assault, simple assault, indecent assault, terroristic threats, recklessly endangering another and possessing instruments of crime. Post-verdict motions were denied and appellant was sentenced to ten to twenty years for aggravated assault, a consecutive term of two and one-half to five years for the weapons charges, and two consecutive terms of two years probation.

Appellant challenges his conviction for aggravated assault on the grounds that the evidence was insufficient. He also challenges his sentence relating to the aggravated assault conviction on the grounds the statute under which he was sentenced violates provisions in the U.S. and Pennsylvania Constitutions relating to cruel and unusual punishment, equal protection, and due process.

A brief review of the evidence presented at trial illustrates that the evidence was more than sufficient to sustain conviction on the charge of aggravated assault. The facts presented showed that on November 27, 1989, Yvonne Rush was walking on Carlisle Street in Philadelphia when appellant grabbed her around the neck, pulled her head back, and put a knife to her throat. Appellant dragged the victim to a nearby vacant lot and ordered her to lie on the ground. He held the knife blade to her face, threatened to stab her in the eye, and punched her repeatedly in the face and body. He cut her hand with the knife as she tried to keep the blade away from her face. He then forced her behind a truck and began removing her clothes. He threatened to cut off her breast and to stab her in the vagina. He pushed up her blouse and bra, pulled down her pants, and was running the knife blade over her breasts and genitals when a passerby intervened. The passerby restrained appellant while the victim ran and phoned police. She was treated at the hospital for cuts and injuries to her hand and mouth, and was later hospitalized for depression.

Aggravated assault does not require proof that serious bodily injury was inflicted but only that an attempt was made to cause such injury. 18 Pa.C.S.A. section 2702(a)(1). Serious bodily injury is defined as “bodily injury which creates a substantial risk of death” or “which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. section 2301. Appellant concedes that an assault occurred but argues that the evidence does not suffice to support an inference that he intended to cause serious bodily injury.

Where sufficiency of the evidence is raised, all reasonable inferences arising from the evidence are drawn in favor of the verdict winner. Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984). An intent to cause serious bodily injury may be shown by the circumstances surrounding the incident. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). The conduct giving rise to an inference that defendant intended to inflict serious bodily injury need not in itself be life-threatening. Commonwealth v. Gregory, 267 Pa.Super. 103, 406 A.2d 539 (1979) (“decoy” police officer punched and kicked by assailants but suffered little injury; sufficient for aggravated assault).

In Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978), evidence showing a rape attempt in a car in which the victim suffered a single punch in the nose before escaping was sufficient to prove aggravated assault. Also, Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983) (where appellant entered the victim’s house at night in an apparent rape attempt and choked the victim briefly before police arrived and stopped the attack, evidence was sufficient to show attempt to inflict serious bodily injury). As in Russell and Kibe, the instant case shows that a lone female was assaulted and sexually molested and the assailant’s attack was interrupted.

Appellant argues that he had had ample opportunity before the five-to-seven minute attack was interrupted to stab the victim and the fact that he did not do so within that time indicates that he would not have carried out his verbal threats to cut off the victim’s breasts, stab her in the eye, or stab her in the vagina. He claims that an intent to inflict the serious injuries with which he threatened the victim cannot be inferred from those threats or from his act of running the knife blade over the victim’s breasts or genitals.

We find it eminently reasonable for a trier of fact to have inferred that appellant did indeed intend to inflict at least some of the serious injuries with which he verbally threatened the victim. Appellant attempts to distinguish Russell and Kibe on the ground that the attack in the instant case went on for a longer period of time before being interrupted by intervention or escape. As the Commonwealth has aptly stated in its brief, the crucial factor is not how much time the attacker wastes in cruelly terrorizing his victim, but whether he was stopped short of the objective signalled by his words or conduct. Compare, Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) (defendant punched victim once, then walked away without being prevented from escalating his attack).

Defendant also argues that the trial court may have applied the wrong legal standard for intent, since the court discussed infliction of serious bodily injury by reckless conduct. However, the trial court also properly stated that an attempt to cause serious bodily injury is required for conviction. Moreover, the lower court will be affirmed where there is any proper basis for its decision. Commonwealth v. Pacell, 345 Pa.Super. 203, 497 A.2d 1375 (1985). Where, as here, the facts found by the court were more than sufficient to show intent to inflict serious bodily injury, the conviction will be sustained.

The second issue appellant presents for our review is whether aggravated assault is a lesser included offense of attempted murder, and if so, whether imposition of the maximum sentence of ten to twenty years for aggravated assault is unconstitutional because it is double the maximum sentence of five to ten years for attempted murder, purportedly the greater crime. Before we reach the merits of this issue, we must decide whether appellant’s failure to raise the issue below constitutes a waiver of this claim.

A claim that a sentence is illegal because the sentencing court lacked the statutory authority to impose the sentence received is not deemed waived by failure to raise it before the sentencing court. Commonwealth v. Smith, 375 Pa.Super. 419, 544 A.2d 991 (1988) (en banc). Nor is a claim that the terms of sentence exceeded the statutory maximum, e.g., Commonwealth v. Britton, 334 Pa.Super. 203, 482 A.2d 1294 (1984) (en banc), appeal dismissed by 509 Pa. 620, 506 A.2d 895 (1986). We do not, however, consider appellant’s claim to be one which challenges the legality of the sentence imposed since the sentencing judge was legislatively authorized to impose the given sentence of ten to twenty years for aggravated assault. 18 Pa.C.S.A. section 1103(2).

In the past, the Supreme Court has found that a litigant who failed to assert below her claim that the terms of sentence were unconstitutional waived her right to pursue that claim on appeal. Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975). This court recently cited Boone for the proposition that even issues of constitutional dimension may be waived. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). Appellant’s failure to raise this claim until appeal will be deemed a waiver of this claim.

Judgment of sentence affirmed.

POPOVICH, J. concurs in the result.

      . Any of these threatened injuries would constitute serious bodily injury. 18 Pa.C.S.A. Section 2301.