text:
    434 A.2d 827
    COMMONWEALTH of Pennsylvania v. Sandor TURNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1981.
    Filed Sept. 18, 1981.

      Marc Alan Krefetz, Philadelphia, for appellant.
    Eric I. B. Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   POPOVICH, Judge:

Following a non-jury trial, appellant, Sandor Turner, was convicted of attempted burglary, and possessing instruments of crime. Post-verdict motions were denied and appellant was sentenced to serve a term of imprisonment of one to five years for attempted burglary and three years probation for possessing instruments of crime, the sentences to run concurrently.

In this direct appeal appellant argues that (1) the evidence was insufficient to sustain a conviction for attempted burglary; (2) trial counsel was ineffective for failing to object to appellant’s improper conviction of both attempted burglary and possessing instruments of crime; and (3) because of his failure to obtain a continuance, thus preventing appellant from securing the presence of a defense witness.

We affirm the judgment of sentence for attempted burglary; and vacate judgment of sentence for possessing instruments of crime.

Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, see Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973), the following facts were established at trial:

At approximately 3:00 on the afternoon of May 18,1978, a city detective observed appellant walking down Warnock Street, in the City of Philadelphia. Appellant stopped in front of a residence, looked in both directions, stepped onto the porch, and proceeded to the front door. After ringing the doorbell, knocking twice, and looking under the curtains of the front door window, appellant returned to the street and again looked in both directions. He then returned to the front door and, with “a screwdriver, or an instrument that appeared to be a screwdriver,” began prying at the door while butting it with his shoulder. (N.T. 11/28/78, p. 5-8) Appellant walked to the street a second time, looked in both directions, returned to the front door, and resumed his activities. When police sirens could be heard approaching the vicinity, appellant abandoned his endeavors and proceeded to a nearby alley. The detective followed appellant to the alley and heard the sound of metal objects dropping. A police officer who also was observing appellant testified that he retrieved two screwdrivers and a hammer from the alley immediately after appellant’s exit. Both the detective and complainant testified that they found fresh pry marks in the area of the door lock. The complainant further testified that appellant had not been given permission to enter her home.

Appellant first argues that the evidence was insufficient to sustain his conviction for attempted burglary. The Crimes Code provides, in pertinent part, that “[a] person is guilty of burglary if he enters a building . . . with intent to commit a crime therein.” 18 Pa. C.S.A. § 3502(a). An attempt is committed when “with intent to commit a specific crime, [a person] does any act which constitutes a substantial step toward the commission of that crime.” Id. § 901(a). The Commonwealth’s information charged appellant with attempted burglary with the intent to commit theft. When the information specifies theft as the crime which appellant intended to commit once inside the premises, proof of two distinct intents on the part of appellant are necessary. The Commonwealth must establish the intent to enter the house and the intent to commit theft after entry. Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979); Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979).

Appellant argues that because the detective failed to testify as to damage to the lock itself, the evidence was insufficient to establish the requisite intent to enter the building. Specifically, appellant contends that had he “intended to enter the premises, he would have had to tamper with the lock or break it off the door.” Brief for Appellant at 10. The evidence of fresh pry marks, appellant argues, is sufficient only to support an inference that he intentionally tried to damage the door and, therefore, could be charged with a crime no greater than criminal mischief. We disagree. It is a well-known principle that specific intent to commit a crime “may be found in [appellant’s] conduct, or from the attendant circumstances together with all reasonable inferences therefrom.” Commonwealth v. Tingle, 275, Pa.Super. 489, 495, 419 A.2d 6, 9 (1980). In the instant case, we have the testimony of a city detective who observed appellant attempting to pry open the front door of the house. The fresh pry marks on the door, appellant’s periodic checks to ensure that his conduct was unobserved, and his abandonment of his endeavors when police sirens were heard in the vicinity, all support the inference that appellant intended to effectuate an unauthorized entry into the house. We note that any one of the foregoing findings, viewed as an isolated occurrence, would be insufficient to sustain a conviction. See Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976) (flight from scene of crime insufficient evidence to sustain a conviction); Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973) (lack of evidence connecting appellant with damaged screen precludes conviction for attempted burglary); Commonwealth v. Beauford, 286 Pa.Super. 297, 428 A.2d 1000 (1981) (mere presence at scene of crime presents insufficient evidence to sustain a guilty verdict). Nevertheless, we find that the totality of the above circumstances enabled the fact finder to conclude, beyond a reasonable doubt, that appellant intended to enter the house.

Appellant’s actions in ringing the front doorbell, knocking twice, and looking under the curtains all suggest that he wanted to ensure that the house was unoccupied. One could easily draw the inference that appellant’s intent was “to commit theft, rather than some other crime requiring the presence of a victim.” Commonwealth v. Morgan, 265 Pa.Super. at 235, 401 A.2d at 1187. Likewise, the fact that appellant attempted to enter a residence directly supports the inference that he intended to commit theft. See Commonwealth v. Morgan, supra, (one ordinarily expects a residence to contain items of value that can be removed by a single individual).

From a review of all the evidence we are satisfied that the fact finder could find, beyond a reasonable doubt, that appellant intended to enter the house with the intent to commit theft therein. Accordingly, we affirm the judgment of sentence for attempted burglary.

Appellant’s second issue on appeal addresses trial counsel’s ineffectiveness for allowing appellant to be convicted improperly of two inchoate crimes. Because the issue of illegality of sentence can never be waived, see Commonwealth v. Brunner, 243 Pa.Super. 55, 364 A.2d 446 (1976), appellant need not have alleged that trial counsel was ineffective. Instantly, appellant was convicted and sentenced for attempted burglary and possessing instruments of crime; a result clearly illegal under 18 Pa. C.S.A. § 906; and Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980). Section 906 of the Crimes Code prohibits a conviction for more than one inchoate crime when the conduct engaged in is designed to end in the commission of only one crime. Here, appellant's possession of a screwdriver and his subsequent use of it in an attempt to gain unauthorized entry into a residence was clearly “conduct designed to culminate in the commission of the same crime”—burglary of the house. 18 Pa. C.S.A § 906; Commonwealth v. Jackson, supra.

We agree that appellant was improperly convicted of both attempted burglary and possessing instruments of crime and, therefore, have the option of either remanding for resentencing, or amending the sentence directly. 42 Pa.C.S.A. § 706 (1981); Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Because appellant was sentenced concurrently to a term of imprisonment of one to five years and three years probation, we need not remand to the lower court for resentencing. Rather, we will vacate appellant’s sentence for possessing instruments of crime as the lesser offense.

Finally, appellant argues that counsel’s failure to obtain a delay by requesting that the trial judge recuse himself, prevented appellant from securing the presence of a defense witness whose testimony would have corroborated appellant’s version of the facts. Appellant contends that this alleged error constitutes ineffective assistance of counsel. When ineffective assistance of counsel is alleged, this court must first ascertain whether the abandoned claim is of arguable merit. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

For the following reasons, we find appellant’s argument is frivolous.

Appellant would have us find, on appeal, that counsel was ineffective for failing to request that the judge recuse himself despite a record showing that appellant voluntarily and knowingly waived his right to have the judge disqualified. Here, the trial judge, sitting as suppression judge, indicated prior to trial that the subject evidence was admissible. Therefore, the trial judge heard nothing at the suppression hearing that he would not have heard at trial. The fact finder was not exposed to highly prejudicial or inadmissible evidence and, therefore, appellant suffered no bias. See Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978).

In any event, trial counsel did request a continuance, and the court denied its request. Appellant had failed to establish that the witness could be procured, nor did he establish with any certainty the content of the witness’s testimony. The trial court found that even if the witness’s testimony would corroborate appellant’s version of the facts, it would be cumulative and, therefore, the court deemed the witness unessential to appellant’s defense. (Trial Court Opinion at 6, Record No. 7) In Commonwealth v. Plath, 267 Pa.Super. 1, 405 A.2d 1273 (1979), this court, confronted with substantially similar circumstances, held that the trial court’s denial of a continuance based on the absence of a witness was proper.

Judgment of sentence for possessing instruments of crime is vacated; and judgment of sentence for attempted burglary is affirmed.

      . 18 Pa. C.S.A §§ 901(a), 3502(a) (1973).

      . Id § 907(a).

      . Appellant relies on the following direct testimony to support his contention:
      BY MR. MICHELMAN:
      Q. Did you notice anything about the lock itself?
      A. I did not notice anything about the lock itself, no, sir. (N.T. 11/28/78, p. 12).
      We find appellant has erroneously relied on the above testimony, especially in light of the witness’s statement that: “There were fresh pry marks on the door.” (N.T. 11/28/78, p. 11).

      . 18 Pa. C.S.A. § 3304 (1973).

      . We note that the trial court incorrectly opined that, because appellant failed to raise this issue in post-verdict motions, it was waived.

      . Attempted burglary is a felony of the second degree, 18 Pa. C.S.A. §§ 905, 3502(a), and possessing instruments of crime is a misdemean- or of the first degree, 18 Pa. C.S.A § 907.


source: Caselaw Access Project

author: PER CURIAM: VAN der VOORT, Judge,

license: Public Domain

text:
    434 A.2d 831
    COMMONWEALTH of Pennsylvania, v. Jimmy Lee TOWNS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1980.
    Filed Sept. 18, 1981.

      Donald R. Calaiaro, Pittsburgh, for appellant.
    Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

On August 29, 1979, after a non-jury trial, appellant was convicted of simple assault and unlawful restraint. Following the denial of post-verdict motions and imposition of sentence, appellant took this appeal in which he challenges the effectiveness of his trial counsel. For the reasons which follow, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Appellant contends that his trial counsel was ineffective for failing to call at trial a particular witness who would have corroborated his version of the incident which resulted in the above-mentioned charges. We note, however, that appellant’s trial counsel and his present counsel are both from the office of the Public Defender of Allegheny County.

When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office which represented him at trial, the proper procedure is to remand to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Sherard, 477 Pa. [429], 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 398, 374 A.2d [1272] 1273 (1977). In such circumstances, it cannot “be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.” Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 200.

Commonwealth v. Patrick, 477 Pa. 284, 286-87, 383 A.2d 935, 936 (1978). See also Commonwealth v. Quarles, 11 Pa.Super. 473, 426 A.2d 145 (1981); Commonwealth v. Harrison, 275 Pa.Super. 249, 418 A.2d 706 (1980). While an appellate court “will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record before [it], [it] will not reject such a claim without a remand for appointment of new counsel.” Commonwealth v. Fox, 476 Pa. 475, 479, 383 A.2d 199, 201 (1978). Here, as in Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), the present record does not show that trial counsel had been ineffective for failing to call the witness. Consequently, we must remand this case for appointment of new counsel and an evidentiary hearing on the issue of trial counsel’s alleged ineffectiveness. Cf. Commonwealth v. Stiefel, 286 Pa.Super. 259, 428 A.2d 981 (1981) (where record clearly showed counsel’s ineffectiveness for failing to call a particular witness, appropriate relief was granted without remand for appointment of new counsel). If, following the hearing, the court determines that appellant was denied effective assistance of counsel, it shall enter an order granting appropriate relief. If, however, the court determines that counsel was not ineffective, then it shall reinstate the judgment of sentence. Either party aggrieved by the court’s ultimate decision may take a new appeal to this Court, as allowed by law. On that appeal, the parties may present any issue properly preserved for appellate review. Commonwealth v. Twiggs, supra; Commonwealth v. Quarles, supra; Commonwealth v. Harrison, supra

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

Shortly after 2:00 A.M. on June 1, 1979, Priscilla Nevels hired a “jitney” to take her from the Uptown section of Pittsburgh to her home in the nearby Hill District section. Appellant Jimmy Lee Towns asked to share the jitney, since the car would be passing close to his residence. The car proceeded to appellant’s address, where appellant got out and stated that he would go inside to get money for the fare. At the driver’s request, Ms. Nevels went into the building to get the fare from appellant, and found him pounding on the door of a first-floor apartment, where appellant’s landlady apparently lived. Ms. Nevels reported back to the driver that appellant was attempting to wake someone in order to get the money, then she once again entered the building. Appellant closed and locked the door behind her, and asked her to come upstairs to his apartment while he got the money. An altercation then took place, which caused someone to call the police.

The police arrived and heard the woman hollering, and also heard a male voice saying, “I’m going to kill you bitch.” The police were unable to kick in the heavy wooden door; however, another resident of the building eventually opened a rear door to let them in. Pittsburgh Police Officer David E. Black entered to find appellant jabbing at Ms. Nevels with a steak knife, and the woman fending him off with a telephone stand or end table. Ms. Nevels sustained two minor cuts during the scuffle. The police forceably removed the knife from appellant’s hand, and arrested him. Appellant was charged with aggravated assault, unlawful restraint, and recklessly endangering another person. The later charge was nolle pressed, and aggravated assault was reduced to simple assault prior to trial.

Trial was held, non-jury, on August 29, 1979, and appellant was found guilty of simple assault and unlawful restraint. On September 11,1979, sentence of eight to sixteen months imprisonment was imposed. Post-trial motions were filed and denied, and direct appeal was taken to our court. Appellant’s sole argument on appeal is that his trial counsel was ineffective for failing to call as a witness the driver of the jitney. The majority, finds that since appellant counsel and trial counsel are both from the Public Defender’s Office, the judgment of sentence must be vacated and the case remanded. I respectfully disagree.

This current appeal is clearer than the situation that existed in Commonwealth v. Stiefel, 286 Pa.Super. 259, 428 A.2d 981 (1981). In Stiefel, it was contended that counsel was ineffective in not subpoenaing certain witnesses. The majority finding that no reasonable basis could have existed for failing to produce such witnesses, awarded Stiefel a new trial. In a Dissenting Opinion, I argued that the matter to which the missing witnesses would have testified was collateral to the issues at trial, and therefore appellant was not entitled to relief. I believe such a conclusion is even more appropriate in the current case.

The law does not require trial counsel to call to the witness stand a witness mentioned by a criminal defendant if there is a reasonable basis for the attorney to believe that the witness will not be helpful to the defense of the client. Commonwealth v. Robinson, 232 Pa.Super. 328, 332, 334 A.2d 687, 689 (1975). In the case before us, appellant merely argues that the driver could have testified that the victim entered the apartment building for the purpose of engaging in sexual relations with appellant, and not (as the victim testified) to collect the jitney fare. It is difficult to see how such testimony would have aided appellant’s defense to charges of assault and unlawful restraint. Even if the victim entered the building with appellant voluntarily, she had the right to leave whenever she chose to do so. The victim testified that appellant locked the door, and that she was unable to open it without a key. Officer Black testified that he found the door locked, and that it could only be opened, even from the inside, with a key. Clearly, the victim’s purpose in entering the building was collateral to the issue of whether appellant was guilty of unlawful restraint and assault. I would find that appellant has failed to carry his burden of demonstrating counsel’s incompetence. Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973).

As I can find no arguable merit to appellant’s contention of ineffectiveness, I find no reason to remand for the appointment of new appellate counsel. I respectfully dissent and would affirm the judgment of sentence.

       Should appellant desire to retain current counsel, he must, of course, be permitted to do so. Accordingly, we also direct the court to inform appellant of the facts necessary to ensure that his choice is a knowing and intelligent one. See Commonwealth v. Quarles, supra; Commonwealth v. Harrison, supra.


author: LIPEZ, Judge:

text:
    434 A.2d 834
    COMMONWEALTH of Pennsylvania, Appellant, v. Jeff GUINTHER.
    Superior Court of Pennsylvania.
    Argued June 12, 1980.
    Filed Sept. 4, 1981.

      Jerry A. Snyder, Assistant District Attorney, Allentown, for Commonwealth, appellant.
    Howard N. Stark, Allentown, for appellee.
    Before WICKERSHAM, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

This is a Commonwealth appeal from a pretrial suppression order, in a prosecution on two counts of possession of a controlled substance and two counts of possession with intent to deliver a controlled substance. Being unable to resolve the issues on this record, we vacate the suppression order, and remand for further proceedings.

The Commonwealth’s evidence at the suppression hearing consisted of testimony by two police officers, Pesóla and Williams. Officer Pesóla testified that he had seen a juvenile about five feet within the edge of the grounds of an unenclosed municipal park in Bethlehem at 9:30 p. m. on July 22,1979. The park had a posted closing time of 9:00 p. m., and a Bethlehem ordinance provided penalties for being in a municipal park after closing time.

Officer Pesóla saw the juvenile walk out of the park and get into defendant’s car. Defendant started to drive away. Officer Pesóla shone a spotlight on the car. Defendant stopped, and got out of the car. Officer Pesóla walked past him and approached the car, where he saw some green vegetable matter on the passenger side floor in a plastic bag. The juvenile passenger was trying to stuff the bag under the seat. Officer Pesóla examined the bag’s contents, determined it was marijuana, and arrested the juvenile passenger.

Officer Williams, who had accompanied Officer Pesóla in a separate car, approached defendant, and asked if defendant had any more marijuana in the trunk of his car. Defendant said he did not, and Officer Williams asked if defendant would mind opening the trunk so he could check. Defendant opened the trunk and picked up a bag, which he tossed toward the forward portion of the trunk. Officer Williams retrieved the bag and found marijuana inside. Defendant was arrested. Officer Pesóla inspected an eyeglass case, which was also removed from the car trunk, and discovered 25 tranxene tablets.

Defendant moved to suppress the marijuana and tranx-ene, as well as the statements he had made immediately following his arrest. The Commonwealth contended in the court below, as it does here, that: (1) Officer Pesóla had a right to stop defendant’s car in order to issue a citation to defendant’s juvenile passenger, who had violated the Bethlehem ordinance by being in the park after closing; and (2) defendant consented to the search of his trunk.

At the conclusion of the suppression hearing, the court below did not make findings of fact and conclusions of law, as required by Pennsylvania Rule of Criminal Procedure 323(i). The reasons for the suppression order are stated only in the opinion filed by the court below after this appeal was taken from the order. In its opinion, the court concluded that Officer Pesóla had no right to stop defendant’s car, because the juvenile passenger had not violated the ordinance. The court did not decide the issue of whether defendant had consented to the search of his trunk, since the search was only made possible by stopping the car. Hence the court considered what was found in the trunk as the fruit of the illegal stop, and should be suppressed regardless of whether defendant consented after being stopped.

The ordinance at issue and its enforcement and penalty provisions read as follows:

941.08 OPERATING POLICY
(a) Hours. Except for unusual and unforeseen emergencies, parks shall be open to the public every day of the year from 6:00 a. m. to 9:00 p. m. The Director of Parks and Public Property is authorized to extend the hours for special events upon request of any group or organization; provided such request is made at least forty-eight hours prior to the date of the special event. No individual shall enter any park area before the opening hours or remain in any park after closing hours, unless such individual has written permission of the Director of Parks and Public Property. (Ord. 2573 § 3. Passed 9-6-77.)
941.09 ENFORCEMENT
(a) Officials. The Director of the Department of Parks and Public Property and park attendants shall, in connection with their duties imposed by law, diligently enforce the provisions of this article.
(b) Ejectment. The Director and any park attendant shall have the authority to eject from the park any person acting in violation of this article.
(c) Seizure of property. The Director and any park attendant shall have the authority to seize and confiscate any property, thing or device in a park which violates or is used in violation of this article. (Ord. 2211 § 10. Passed 9-22-70.)
941.99 PENALTY
Whoever violates any of the provisions in this article shall be fined not more than three hundred dollars ($300.00) or imprisoned not more than ninety days, or both. (Ord. 2211 § 11. Passed 9-22-70.)

In determining that defendant’s juvenile passenger had not violated the park ordinance, the court below analogized the ordinance to the defiant trespass action of the Crimes Code, 18 Pa.C.S. § 3503(b)(1), which provides:

(b) Defiant trespasser.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor;
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders.

The lower court’s opinion states that in Commonwealth v. Conyers, 238 Pa.Super. 386, 357 A.2d 569 (1976), this court held that a violation of section 3503(b)(1) occurs only if one remains on the property after a warning to leave has been given. The court was apparently referring to this statement in the Conyers opinion: “The crime of defiant trespass occurs when a person remains in a place where he is not privileged to remain after notice of trespass is given.” Id., 238 Pa.Super. at 389, 357 A.2d at 579 (footnote omitted). Conyers did not say, however, that these are the only circumstances under which defiant trespass can be committed. The statute itself which is quoted in the footnote accompanying the foregoing quote from Conyers, uses the language “enters or remains.” (Emphasis supplied). Moreover it is clear from that footnote that the court in Conyers was relying solely on section 3503(b)(1)(i) as the method of giving notice against trespass which fit the facts of that case. Cf. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1385 (1981). Neither Conyers nor Tate implies that subsections (b)(1)(h) or (iii) cannot be applied to satisfy the notice requirement, since the statute makes them alternatives by using the word “or” to separate them.

Even assuming that the court below was correct in interpreting the Bethlehem ordinance by analogizing it to the defiant trespass statute, it is plain that Commonwealth v. Conyers, supra, does not provide a proper basis for the lower court’s interpretation of the ordinance. Since the stated basis for the decision below was incorrect and the court did not make findings under Rule 323(i), we are left with nothing to review in order to determine the correctness of the court’s decision. In reviewing a suppression court’s determination, we are merely to decide whether the evidence supports the findings and the legitimacy of the conclusions drawn from those findings. E. g., Commonwealth v. Watson, 487 Pa. 169, 172, 409 A.2d 19, 20 (1979).

Here the lower court made no findings. We are also unaided by the discussion in the lower court’s opinion, because the basis for the determination of the first issue was incorrect, and there has been no determination at all on the second issue. Therefore we must remand for a new suppression hearing, after which the court below shall make the specific findings required by Rule 323(i), and enter a new order on the motion to suppress. See Commonwealth v. Spaulding, 275 Pa.Super. 261, 262, 418 A.2d 712, 713 (1980).

Order vacated, and case remanded for further proceedings consistent with this opinion. Jurisdiction of this court is not retained.

      . The Commonwealth has certified that the question presented is purely one of law, and that the lower court’s suppression order will terminate the prosecution.

      . It is questionable whether this appeal has been taken to the proper court, in light of section 762(a)(4)(i)(B) of the Judicial Code, which provides in pertinent part:
      (a) General rule.—Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following cases:
      (4) Local government civil and criminal matters.—
      (i) All actions or proceedings ... where is drawn in question the application, interpretation or enforcement of any:
      (B) home rule charter or local ordinance or resolution.
      42 Pa.C.S. § 762. As discussed infra, the proceeding below clearly called into question the application, interpretation and enforcement of a municipal ordinance, so that if the Judicial Code is to be read literally, Commonwealth Court would have jurisdiction of this appeal. We need not decide this question, because even if Commonwealth Court were the court to which this appeal should have been brought originally, our jurisdiction would now be perfected by appellee’s failure to object, and we would have discretion to dispose of the case or transfer it to Commonwealth Court. 42 Pa.C.S. § 704; Pa.R.A.P. 741; Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 465-66 n.1, 406 A.2d 1133, 1135 n.1 (1979). We would exercise that discretion to dispose of the case here, since there is no point in transferring the case to Commonwealth Court, when the present state of the record prevents resolution of the issues.

      . We do not imply that the lower court’s conclusion that the juvenile did not violate the ordinance was necessarily incorrect, but only that the court’s stated basis does not support the conclusion. There was some testimony, for example, that the park was posted with the closing time, although defendant contests the adequacy of the posting. The dispute over the adequacy of the posting to afford notice is only one of a number of discrepancies which must be resolved at the lower court level, before we can adequately review the determination below.

      . We have also been unable to resolve the issues by determining that one side must win, even if the other is given the benefit of every favorable finding an inference which could have been made. See Commonwealth v. Hunt, 280 Pa.Super. 205, 208 n.2, 421 A.2d 684, 685 n.2 (1980). Neither is this a case which can be decided on a question of law, without the need for factual determinations by the lower court. See Lucas Enterprises, Inc. v. Paul C. Harman Company, Inc., 273 Pa.Super. 422, 424, 417 A.2d 720, 721 (1980).

      . Since there has not yet been a trial in this case, it is in a different procedural posture from Spaulding, and therefore the trial court’s new order will only be appealable by the losing party, if it meets the usual requirements for an appeal of a pre-trial order.


author: CAVANAUGH, Judge:

text:
    434 A.2d 838
    COMMONWEALTH of Pennsylvania, v. Barry BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1981.
    Filed Sept. 11, 1981.

      Roy H. Davis, Assistant Public Defender, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

Barry Brown, the appellant, was convicted by a jury on charges of robbery, rape, unlawful restraint, indecent assault, theft by unlawful taking, theft by receiving stolen property and criminal conspiracy. He was acquitted of a charge of kidnapping. Motions for a new trial and in arrest of judgment were denied. Concurrent sentences of two- and-a-half to ten years were imposed for rape and robbery. Sentence was suspended as to the remaining convictions.

I

Appellant’s first contention is that the evidence was insufficient to support the verdicts. The evidence, viewed in the light most favorable to the Commonwealth, the verdict winner, disclosed that on March 2, 1978, the victim a twenty-nine year old widow, while driving in Philadelphia, stopped at a traffic light. Another car driven by appellant’s co-defendant, Stephen Jones, stopped in the adjoining lane. With Jones were appellant who sat on the passenger side in front, and two other male passengers in the back seat. The four men tried to attract the victim’s attention by blowing the horn, screaming, and attempting to force her car off the road. Some four blocks further on, at another traffic light, the victim opened her door and yelled a racial epithet at the four men. Appellant went to her car, pulled her out, and pushed her into the Jones’ vehicle. She asked to, but was not allowed to leave, Jones placing a hand on her thigh and Jones placed his arm around her neck.

Jones drove around for some ten to fifteen minutes, during which time the men and the victim were talking and smoking “angel dust”. The victim testified that she spoke and smoked so as to appear not to be afraid. She also offered Jones or Brown some “angel dust” of her own in the hope of making them less alert. The back seat passengers were dropped off. As the Jones’ car continued the victim kicked the windshield and screamed so as to attract two police officers standing in front of a diner. Jones and appellant grabbed her legs. Eventually the car arrived at a motel in Tinicum Township. Jones opened the door to a motel room with a key. Appellant pulled the victim from the car and pushed her into the motel room. As soon as she entered the room, she noticed what she believed to be a pool of blood in the middle of the sheet on the first bed. The victim thought she was going to be killed because appellant had told her Jones had a gun.

Appellant began talking on the telephone. Jones sat on a bed. The victim left her seat by the door but was restrained from leaving by both men. Appellant began to touch her privates while Jones rubbed her buttocks. She was pushed on to the bed. Jones took off her boots while Brown started to rip off her clothes. She pulled appellant closer to her and suggested he get rid of Jones and that she would have intercoürse with appellant if he kept Jones away from her, in the belief that it would be easier for her, and possibly avoid the entire incident by acting agreeably and concealing her fear. Jones left.

Appellant again started to tear at the victim’s clothes. To stall for time and avoid her clothes being torn off, she suggested that she remove her own clothes and did take off her outer garments.

At that point, Jones banged on the door, screaming that he wanted to enter. Appellant told him to come back in fifteen minutes. Jones left again. At the request of the victim, appellant secured the chain lock and also placed a chair in front of the door, so as to keep Jones out, she being very afraid of Jones. Thereafter, appellant pulled off her undergarments, pushed her onto the bed and while holding her down with his body, forcibly had intercourse with her.

When appellant had finished, Jones returned. Appellant or Jones then took her handbag from the floor and went into the bathroom with it. When the men walked to the rear of the room, the victim ran out screaming wrapped in a bedspread through the parking lot to the motel office where she reported to the desk clerk that she had just been raped. The desk clerk testified that the victim was hysterical, very upset, and crying very badly. The police were called.

The handbag was found the next day in a park in Chester, Pennsylvania but the victim’s identification, checks, two credit cards and cash in the amount of $2,275 were missing.

The defendants presented evidence that the victim had acted of her own free will throughout. As to the handbag, Jones testified that while they were driving to Chester, he saw the handbag slide out from under the car seat and suggested to appellant that it be thrown out the window which appellant allegedly did.

Appellant, by brief here, while acknowledging that the issue of guilt is basically one of fact, urges that the victim’s version was so illogical and improbable as to be insufficient to establish appellant’s guilt as to rape beyond a reasonable doubt. We do not agree. There was that in the victim’s testimony which could arguably point to her consent. Nevertheless, her testimony was a logical recount of the desperate stratagems of a lone female in peril from the time when Jones first attempted to force her car off the road. Moreover, her testimony as to absence of consent on her part was corroborated by the desk clerk. The jury obviously resolved the credibility of the witnesses in favor to the victim. Commonwealth v. Brown, 228 Pa.Super. 166, 232 A.2d 281 (1974). As to robbery, we agree with the court below that “the victim’s testimony revealed that she was being threatened and that she was in fear of imminent serious bodily injury, which atmosphere prevailed up until the time the victim ran out of the motel room leaving her handbag in the possession of the defendants”; that there was sufficient evidence for the jury to conclude that appellant committed a theft; and in the course of committing that theft he, in the language of 18 Pa.C.S.A. § 3701(a)(l)(iv) threatened the victim with or intentionally put her in fear of immediate bodily injury. Again, the jury resolved the credibility of the witnesses in favor of the Commonwealth and disbelieved the defendants in this regard.

II

Appellant argues that the convictions for theft by unlawful taking and theft by receiving stolen property merge into robbery and that the conviction for indecent assault merges into the conviction for rape and that no sentence may be imposed on the lesser included crimes. The Commonwealth acknowledges the validity of this argument. We will, therefore, vacate the suspended sentences for indecent assault, theft by unlawful taking or deposition and theft by receiving stolen property. Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979); Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975).

Lastly, appellant attacks the suspended sentences which were given on the charges of conspiracy and unlawful restraint as illegal. Appellant simply cites the sentencing alternatives under the Sentencing Code (42 Pa.C.S.A. § 9721) which include:

(1) An order of probation.
(2) A determination of guilty without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.

Since a “suspended sentence” is not among these alternatives it is argued such a disposition is illegal. The Commonwealth in its brief does not specifically address this argument concerning the conspiracy and unlawful restraint sentences, but in its argument relative to the suspended sentences for the merged offenses argues that courts still retain the power to “indefinitely suspend sentence”. Although the record discloses that on September 5, 1979, the defendant appeared before the court for reconsideration of sentence, we have no indication that the legality of the various suspended sentences was considered at that time. We recognize that our cases demonstrate that the legality of sentence may be raised on direct appeal for the first time. Commonwealth v. Turner, supra; or even addressed by the court sua sponte; Commonwealth v. Betoni, 254 Pa.Super. 26, 385 A.2d 506 (1978). We are also cognizant that Pennsylvania sentencing practices have used the term suspended sentence in a number of ways. There were those cases where the court suspended the imposition of sentence and placed the defendant on probation under the Act of May 7, 1925, P.L. 554, § 1, as amended, 19 P.S. § 1051 (now repealed). See Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978); Commonwealth v. Cole, 222 Pa.Super. 229, 294 A.2d 824 (1972). In another case our court has interpreted a suspended sentence to mean that a sentence of probation was, in fact, intended under the Sentencing Code of 1972. Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979). In Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964), the Supreme Court recognized the long standing practice in Pennsylvania trial courts of “suspending sentence” without providing for a period of probation. In the Duff case the court concluded that the practice had no basis in law and should be discontinued. Finally, moreover, there are undoubtedly those instances where the trial court suspends sentence meaning that it is its intention to give no sentence. This latter alternative would seem to be covered presently by the Sentencing Code alternative of determination of guilt without penalty. However, this interpretation might not be valid since we do not know if the trial judge’s intention was to not sentence as opposed to sentence of no further penalty. Therefore, we remand this case since although we might reasonably deduce the trial judge’s intention, we do not think it appropriate for us to do so on an issue which might have far reaching implications with respect to the legality of sentencing practices in Pennsylvania.

We have decided that the suspended sentences for the merged offenses must be vacated since that is what was done in Commonwealth v. Richardson, supra. Touching upon the legality of the suspended sentence issue, however, is the problem pointed out by the Commonwealth in its brief in a situation where, unlike here, the conviction for the more serious offense is set aside on appeal and the Commonwealth must fall back on the sentence of a lesser included offense and in such cases the trial courts are in a dilemma since they may be well aware of the merger and therefore of the illegality of giving sentences for the lesser offense but at the same time may want to make a disposition which would allow a reasonable degree of flexibility in sentencing should the more serious crime be set aside. Although our disposition does not reach this issue, it is some evidence that the suspension of sentence may have some role to play under Pennsylvania sentencing practices. Whether, in fact the suspended sentence in any form has any viability, we do not think it prudent to decide on the state of the record.

Judgments of sentence for rape and robbery affirmed; judgments of sentence for theft by unlawful taking and theft by receiving stolen property and indecent assault vacated. Case remanded to permit appellant, if he so desires, to move for clarification of the judgments of sentence for conspiracy and unlawful restraint. A new appeal may be taken from any such order which may be entered.

      . Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979).


author: SPAETH, Judge:

text:
    434 A.2d 1233
    William E. LEBEAU v. Marion B. LEBEAU, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed May 15, 1981.
    Reargument Denied Oct. 9, 1981.

      Henry E. Rea, Jr., Pittsburgh, for appellant.
    Maurice A. Nernberg, Pittsburgh, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an action to recover damages for breach of privacy arising from the divulgence of the contents of an intercepted telephone conversation. The jury returned a verdict for $100 damages plus $2,800 counsel fee, and the lower court refused to enter judgment n. o. v. We have concluded that judgment n. o. v. should be entered.

The action arises from a marital dispute. The parties were married in December 1947 but separated in May 1972, and in October 1972 appellee filed a complaint in divorce. Sometime before October 24, 1972, appellant’s father gave her a tape cassette of appellee talking with another woman. Appellant testified that she had not participated in making or procuring the tape cassette, but she admitted playing it for her brother and for the two attorneys who represented her in the divorce action.

Section 5702 of the Invasion of Privacy Act provided: A person commits a misdemeanor of the second degree if he:

(1) intercepts without permission of the parties to the communication a message or other communication by telephone or telegraph;
(2) installs or employs any device for overhearing or recording communications passing through a telephone or telegraph line with intent to intercept a communication in violation of this chapter; or
(3) divulges or uses without the consent of the sender or receiver the existence or contents of any such message or other communication if the actor knows that the message was illegally intercepted, or if he learned of the message in the course of employment with an agency engaged in transmitting it.

Act of Dec. 6, 1972, P.L. 1482, No. 334 § 1, eff. June 6, 1973, 18 Pa.C.S.A. § 5702.

Section 5704 of this Act provided:

Any person who violates or aids, abets, or procures a violation of this chapter shall be liable to any person whose communication is unlawfully intercepted or divulged for treble the amount of any damage resulting from such unlawful interception, divulgence or use, but in no event less than $100 or a reasonable attorney’s fee.

Appellant argues that she is not liable to pay damages and an attorney’s fee under section 5704 of the Invasion of Privacy Act because the Act was not in effect when appel-lee’s conversation with another woman was recorded. So far as subsections 1 and 2 of section 5702 of the Act are concerned, the point is well taken, for it is uncontested that the conversation occurred and was recorded sometime before October 24, 1972. Since the Act did not become effective until June 6, 1973, appellant could not have intercepted or installed or employed any device to record the conversation on or after the effective date of the Act. However, the possibility remains of a violation of subsection 3 of section 5702, which proscribes the divulgence or use of an intercepted communication. In other words: Granting that the conversation was intercepted before the Act became effective, does the evidence nevertheless show that appellant “divulge[d] or use[d] . .. [the conversation] knowing] that [it had been] illegally intercepted”?

The first attorney appellant retained to represent her in appellee’s action for divorce, Maurice Braunstein, testified that appellant gave him the tape cassette and that he kept it from October 24, 1972, until October 10, 1973, when he returned it to appellant. Appellant testified that sometime thereafter, she gave the tape cassette to the second attorney she retained to represent her in the action for divorce, Henry E. Rea, Jr. She also testified that she played the tape for her brother, and her brother testified that he heard the tape sometime between 1973 and 1975.

The lower court concluded that “[t]here was sufficient evidence which, if believed, established that the content of at least one tape recording was divulged after the effective date of the Act by playing it for [appellant’s] brother sometime between 1973 and 1975.” (Slip op. at 2.) It will be observed, however, that this conclusion is not equivalent to a conclusion that there was sufficient evidence to establish a violation of subsection 3. That subsection required not only proof of divulgence or use, but also, proof that “the actor [who divulges or uses] knows that the message was illegally intercepted . . . . ”

Appellant argues that “illegally intercepted” meant “intercepted in a manner forbidden by this Act.” Since the Act was not effective when the interception occurred, she concludes, when she divulged appellee’s conversation to her brother she was not divulging an “illegally intercepted” conversation. Appellee, on the other hand, argues that “illegally intercepted” incorporated prior statutes proscribing the interception of telephone conversations, and that appellant therefore violated subsection 3 if, when she divulged appellee’s conversation to her brother, she knew that it had been illegally intercepted under the law in effect at the time of the interception. Under that law, appellee concludes, the conversation had been illegally intercepted, and in support of this conclusion he cites the Act of July 16, 1957, P.L. 956, No. 411, § 1, 18 P.S. § 3742 (1973-74 Supp.), which provided:

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1. No person shall intercept a communication by telephone or telegraph without permission of the parties to such communication. No person shall install or employ any device for overhearing or recording communications passing through a telephone or telegraph line with intent to intercept a communication in violation of this act. No person shall divulge or use the contents or purport of a communication intercepted in violation of this act. Whoever wilfully violates or aids, abets or procures a violation of this act is guilty of a misdemeanor, and shall be punishable by imprisonment of not more than one year, or by fine of not more than five thousand dollars ($5000), or both, and shall be liable to any person whose communication is unlawfully intercepted or divulged for treble the amount of any damage resulting from such unlawful interception, divulgence or use, but in no event less than one hundred dollars ($100) and a reasonable attorney’s fee. The term “person” includes natural persons, business associations, partnerships, corporations, or other legal entities, and persons acting or purporting to act for, or in behalf of, any government or subdivision thereof, whether Federal, State or local. The term “divulge” includes divulgence to a fellow employe or official in government or private enterprise or in a judicial, administrative, legislative or other proceeding. Except as proof in a suit or prosecution for a violation of this act, no evidence obtained as a result of an unlawful interception shall be admissible in any such proceeding. Nothing in this act shall be interpreted to apply to acts done by personnel of any telephone or telegraph carrier in the performance of their duties in connection with the construction, maintenance or operation of a telephone or telegraph system.

We need not decide how “illegally intercepted” should be construed. If we accept appellee’s construction, still, there was insufficient evidence to support a finding that when appellant divulged appellee’s conversation to her brother, she knew that it had been illegally intercepted, either under the Act of July 16, 1957, supra, 18 P.S. § 3742, or otherwise. The only evidence of appellant’s knowledge was her testimony that her father had told her that “he had taken steps to make inquiries or have them made—I don’t recall his exact words—but that he had taken steps to protect me and, again, as much information as was possible to protect me for the future.” (R. 128a) By the time of trial, appellant’s father had died. It was appellee’s burden to prpve appellant’s knowledge of the illegality of the interception. However, appellee offered no evidence of such knowledge. Thus the case may be compared to one involving a charge of receiving stolen property, where the Commonwealth proves that the goods were stolen, but offers no evidence to prove that the defendant knew or should have known they were. Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973); Commonwealth v. Burke, 229 Pa.Super. 176, 324 A.2d 525 (1974).

Appellee argues that evidence of appellant’s knowledge that his conversation had been illegally intercepted was available but was improperly excluded by the lower court’s ruling that appellant’s two attorneys could not testify as to their conversations with her due to the attorney-client privilege. We need not consider this argument. Appellee prefaces it with this statement:

There is one additional matter which needs consideration in this case. Should this court decide in one way or another to grant a new trial, then the court should take cognizance of the fact that neither Attorney Maurice Braunstein nor Attorney Henry E. Rea, Jr. were permitted to testify in much detail as the court sustained objections to questions purpounded [sic] them.
Brief for Appellee at 9.

However, appellant has not argued that we should grant a new trial; she has only argued that judgment n. o. v. should be entered.

The order of the lower court is reversed and judgment n. o. v. is entered in favor of appellant.

      . This Act was repealed and replaced by The Wiretapping and Electronic Surveillance Act, Act of October 4, 1978, P.L. 831, 18 Pa.C.S.A. § 5701 et seq., effective December 1978.

      . This provision has been repealed. See footnote 1, supra.

      . This Act was repealed by the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 eff. June 6, 1973; 18 Pa.C.S.A. § 5702.


text:
    434 A.2d 1236
    BETHLEHEM STEEL CORPORATION, v. TRI STATE INDUSTRIES, INC., et al. Appeal of Leona P. BOILEAU.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1979.
    Filed June 12, 1981.
    Reargument Denied Oct. 13, 1981.
    Petition for Allowance of Appeal Denied Nov. 30, 1981.

      Cletus P. Lyman, Philadelphia, for appellant.
    John G. Harkins, Jr., Doylestown, for appellees.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       Joseph F. O’Kicki, President Judge, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   CAVANAUGH, Judge:

Appellant Leona P. Boileau appeals the lower court’s order dismissing her petition to strike a consent judgment and dismissing her preliminary objections. She argues that her petition to strike the consent judgment entered against her should have been granted for three reasons: that the judgment was entered without her authority; that the transfer of real estate pursuant to the judgment violates the statute of frauds; and that the complaint does not set forth a cause of action against her. She also contends that her preliminary objections to the amended complaint should have been sustained. We affirm.

In January, 1972 the plaintiff began actions in trespass, assumpsit, and equity against various defendants. Appellant’s husband was a defendant in all three actions and the appellant was a defendant in the equity action. The complaints alleged that appellant’s husband had embezzled funds from the plaintiff during the course of his employment. Appellant’s husband hired an attorney to represent him in these matters. The attorney entered his appearance on behalf of both the appellant and her husband in the equity action. Around the time these lawsuits were begun the appellant was separating from her husband and was residing in another state. Settlement discussions were held between the plaintiff and the attorney who had entered his appearance for the appellant and her husband. As a result of these discussions in June 1972 two judgments were entered against the appellant and her husband. One judgment awarded damages in favor of the plaintiff and against various defendants jointly and severally, enjoined the defendants from transferring their property to anyone other than plaintiff, adjudged that defendant’s property was equitably owned by the plaintiff, that plaintiff had an equitable lien thereon, and that the defendants held the property in a constructive trust for the benefit of the plaintiffs. The other judgment directed the appellant and her husband to convey their interest in all their real property to the plaintiff.

Appellant did not participate in the discussions which resulted in these judgments. However, within weeks after the consent judgments were entered, she was informed of the entry of judgment. At that time she objected to them and told her husband and Mr. O’Hare, the lawyer who had entered his appearance for her, that her husband and Mr. O’Hare did not represent her.

In July, 1972 Mr. O’Hare informed the plaintiff that appellant was unwilling to execute deeds as required by the judgments. Later in July, 1972 the court held a hearing at which the court designated the prothonotary to execute the deeds on appellant’s behalf pursuant to statute.

In August, 1972 another hearing was held in which Mr. O’Hare informed the court and plaintiff that appellant had objected to the judgments and had stated that he did not represent her. Mr. O’Hare also stated that appellant knew the hearing was scheduled that day and knew the purpose of the hearing was to have the prothonotary execute documents on appellant’s behalf. Appellant denies any such knowledge of the hearing. At the hearing the documents which appellant was supposed to execute were executed by the sheriff as ordered by the court.

Nearly six years later, in June, 1978, appellant filed the instant petition to strike off the judgment and later filed preliminary objections. The lower court dismissed the petition to strike and dismissed the preliminary objections and this appeal followed.

Since Pa.R.Civ.P. 1019(b) requires that fraud be alleged with particularity, appellant argues that the consent judgment should be stricken because the amended complaint filed against her did not sufficiently specify the fraudulent acts in which she was alleged to have conspired. For this argument appellant relies on paragraph 4(c) of the amended complaint. Appellant’s brief 39. This argument ignores other parts of the complaint such as paragraph 4 and 4(a) which allege specific acts of fraud. R.R. 70a. Thus we agree with the lower court that the amended complaint is sufficiently specific. Lower court opinion 13.

Appellant also argues that the consent judgment should be stricken because of a violation of the statute of frauds. She contends that since consent judgments are like contracts, see discussion infra, and since the instant consent judgment, inter alia, directed her to convey real property to the plaintiff, the statute of frauds, 33 P.S. § 1, is applicable. Moreover since there is no writing signed by her or by her agent whose authority is in writing agreeing to the transfer of the realty, she asserts that the statute of frauds is violated and the judgment must be stricken. We assume without deciding that the statute of frauds applies to the instant case. Nevertheless the petition to strike the judgment was properly dismissed since it was not filed within a reasonable time after the judgment was entered.

In Pennsylvania some statutes of frauds make oral agreements in violation thereof void or unenforceable while other statutes of frauds merely constitute declarations of public policy. Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965). Those statutes of frauds which make oral agreements void or unenforceable can be raised by a demurrer in preliminary objections, Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972) (promise to answer for the debt of another); Pa.R.C.P. 1017(b)(4), and can even be raised in a motion for judgment on the pleadings, Leonard v. Martling, 378 Pa. 339, 106 A.2d 585 (1954) (same). They constitute limitations on the power of the judiciary to afford a remedy. Brown v. Hahn, supra, 419 Pa. at 49-50, 213 A.2d at 345-46. In contrast, those statutes of frauds which merely constitute declarations of public policy can be waived by failing to raise the issue in new matter in a responsive pleading. Id.; see Pa.R.C.P. 1030, 1032; 2 Goodrich-Amram 2d § 1032:3. The statute of frauds relating to interests in land, 33 P.S. § 1, is the type which is waivable and constitutes a declaration of public policy. Id. The statute of frauds relating to interests in land is, therefore, not the type of statute which renders oral agreements void.

Since the statute of frauds relating to land does not render oral agreements void, the instant consent judgment is not void, if, as we assume without deciding, the statute of frauds applies. Because violation of the statute of frauds instantly does not make the judgment void and such a defect is not jurisdictional, a motion to strike must be filed within a reasonable time or the defect will be considered waived. King Athletic Sporting Goods Co. v. Redevelopment Authority, 481 Pa. 504, 393 A.2d 18 (1978). There the Supreme Court said:

“The general rule is that if a judgment is sought to be stricken off for an irregularity, not jurisdictional in nature, which merely renders the judgment voidable, the application to strike off must be made within a reasonable time, or the irregularity will be held to be waived.”
7 Standard Pennsylvania Practice Ch. 30, § 196 (1961). Accord Samango v. Hobbs, 167 Pa.Super. 399, 75 A.2d 17 (1950), quoting Eastman Kodak Co. v. Osenider, 127 Pa. Super. 332, 193 A. 284 (1937).

Id., 481 Pa. at 508, 393 A.2d at 20.

Instantly the petition to strike was filed nearly six years after the judgment had been entered, and nearly six years after the appellant knew judgment had been entered. Hence her claim that the judgment should be stricken for violation of the statute of frauds was asserted too late. The third argument appellant asserts is that the judgment should be stricken since it was entered without her authority.

In Pa. Human Relations Commission v. Ammon K. Graybill, Jr., Inc., 482 Pa. 143, 393 A.2d 420 (1978) our Supreme Court discussed the nature of consent decrees:

Although a consent decree does not represent a legal determination by a court or administrative tribunal of the matters in controversy, Universal Builders Supply, Inc. v. Shaler Highlands Corporation, 405 Pa. 259, 265, 175 A.2d 58, 61 (1961), it nevertheless has important consequences. A consent decree has a res judicata effect, binding the parties with the same force and effect as a final decree rendered after a full hearing upon the merits. International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 456 Pa. 436, 440, 318 A.2d 918, 921; Zampetti v. Cavenaugh, 406 Pa. 259, 265-66, 170 A.2d 906, 909. See Annotation, “Res judicata as affected by fact that former judgment was entered by agreement or consent,” 2 A.L.R.2d 514, 528 (1948). In the absence of fraud, accident or mistake, a court has neither the power nor the authority to modify or vary the terms of a consent decree. Universal Builders Supply, Inc., supra 405 Pa. at 265, 175 A.2d at 61; accord, Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 603, 207 A.2d 861, 863 (1965), 27 Am.Jur.2d, Equity, § 246 (1966). Nor is such a decree subject to a collateral attack. International Organization Masters, Mates and Pilots of America, Inc., supra, 456 Pa. at 441, 318 A.2d at 921, citing Baran v. Baran, 166 Pa.Super. 532, 537, 72 A.2d 623, 625 (1950).
Given the conclusive nature of a consent decree, it is imperative that each party to it has willingly and freely assented to its terms. Like any contract, a consent decree requires mutuality of understanding and concerted action by the parties. Universal Builders Supply, Inc., supra, 405 Pa. at 265, 175 A.2d at 61. As this Court observed in

Id., 482 Pa. at 147-48, 393 A.2d at 422-23.

Moreover, in Senyshyn v. Karlak, 450 Pa. 535, 299 A.2d 294 (1973), the court held that an attorney has no authority to enter into a consent decree without the client’s knowledge or consent; the court observed that “[t]he very nature of a consent decree requires understanding of or ratification by the respective parties.” Id., 450 Pa. at 539, 541, 299 A.2d at 296, 297.

Appellant argues that Attorney O’Hare did not have authority to enter a consent judgment against her. The method by which appellant has raised this issue is significant. Appellant has raised this issue through her petition to strike the judgment; appellant has not filed a petition to open the judgment.

We have recently stated the differences between a petition to strike a judgment and a petition to open a judgment:

A petition to strike a judgment is a common law proceeding, Hamborsky v. Magyar Presbyterian Church, 78 Pa.Super. 519, 522 (1922), and operates as a demurrer to the record, Advance Building Services Co. v. F. & M. Schaefer Brewing Co., 252 Pa.Super. 579, 582 n.3, 384 A.2d 931, 932 n.3 (1978), citing, Master Homecraft Co. v. Zimmerman, 208 Pa.Super. 401, 222 A.2d 440 (1966). Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken. Cameron v. Great Atlantic and Pacific Tea Co., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979); Advance Bldg. Services Co. v. F. & M. Schaefer Brewing Co., supra; Metropolitan Federal Savings & Loan Ass’n of Eastern Pennsylvania v. Bailey, 244 Pa.Super. 452, 368 A.2d 808 (1976); Policino v. Ehrlich, 236 Pa.Super. 19, 345 A.2d 224 (1975).

A petition to open a judgment is an appeal to the court’s equitable powers and is a matter for judicial discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Hamborsky v. Magyar Presbyterian Church, supra. In considering a petition to open a judgment, the court may consider matters dehors the record. See Matlock v. Lipare, 243 Pa.Super. 167, 170-71, 364 A.2d 503, 504 (1976). Ordinarily, a petition to open a judgment will not be granted unless three factors coalesce: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” McCoy v. Public Acceptance Corp., supra 451 Pa. at 498, 305 A.2d at 700; Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Liquid Carbonic Corp. v. Cooper & Reese, Inc., supra; Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979); Queen City Electrical Supply Co., Inc. v. Soltis Elec. Co., Inc., 258 Pa.Super. 305, 392 A.2d 806 (1978); Day v. Wilkie Buick Co., 239 Pa.Super. 71, 361 A.2d 823 (1976).

Kophazy v. Kophazy, 279 Pa.Super. 373, 375-76, 421 A.2d 246, 247 (1980) (footnote omitted).

Appellant instituted proceedings to challenge the judgment nearly six years after it was entered.

Since a petition to open judgment must be promptly filed, Kophazy, supra, appellant has proceeded solely by way of a petition to strike the judgment. However, since a court in ruling on a petition to strike will not consider matters dehors the record, Kophazy, supra, appellant argues (1) that the attorney’s authority to enter a consent judgment must appear on the record or (2) that evidence of lack of an attorney’s authority may be considered even though it is dehors the record.

We assume arguendo that an attorney’s authority to have a consent judgment entered against his client must appear on the record, see International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 456 Pa. 436, 441, 318 A.2d 918, 920 (1974); Senyshyn v. Karlak, 450 Pa. 535, 539, 541, 299 A.2d 294 (1973); Springer v. Springer, 255 Pa.Super. 35, 386 A.2d 122, 124 (1978), and that therefore appellant’s claim is cognizable through a petition to strike. Nevertheless, we must consider whether a court should grant such a petition to strike which is filed nearly six years after the petitioner knew of the entry of the consent judgment.

As we have previously discussed in our analysis of appellant’s statute of frauds argument, if an alleged defect is not jurisdictional in nature and merely renders the judgment voidable the application to strike must be made within a reasonable time. King Athletic Sporting Goods Co. v. Redevelopment Authority, 481 Pa. 504, 393 A.2d 18, 20 (1978). Here the lower court had jurisdiction of the subject matter and had jurisdiction over the parties. Hence the judgment is not void for lack of jurisdiction. In determining whether the judgment is otherwise void we consider the nature of the defect.

The leading case on the subject of an attorney’s authority to enter into a consent decree is Senyshyn v. Karlak, 450 Pa. 535, 299 A.2d 294 (1973). In Senyshyn v. Karlak, the defendants directly appealed from the entry of a consent decree. They asserted that their attorney had no authority to enter into a consent decree. The court stated that the question of authority was one of agency. Id., 450 Pa. at 539, 299 A.2d at 296. It held that an attorney has no authority to enter into a consent decree without the client’s knowledge or consent. Id., 450 Pa. at 539, 299 A.2d at 296. Moreover, the court characterized a consent judgment entered without the client’s knowledge or consent as one which “will not be binding” and that has “no binding force.” Id., 450 Pa. at 539, 542, 299 A.2d at 296, 298. Furthermore, the court indicated that the consent decree could be ratified by the parties. Id., 450 Pa. at 541, 299 A.2d at 296-297. Thus the court did not state whether a consent judgment entered without the client’s knowledge or consent is void or voidable.

However, Senyshyn v. Karlak, did state that the question of an attorney’s authority to enter into a consent decree is a question of agency. We are therefore guided by those cases which involve the question of a partner’s authority to execute a warrant of attorney to confess judgment which is binding on the partnership since those cases also involve a question of agency!

In Sterle v. Galiardi Coal and Coke Co., 168 Pa.Super. 254, 77 A.2d 669 (1951), the defendant appealed from the lower court’s order refusing to strike a confessed judgment. The defendant argued, inter alia, that the judgment was improperly confessed against the partnership since the warrant of attorney was signed by only one partner and there was no averment that the one partner had authority to execute the warrant of attorney and confess judgment against the partnership. The court acknowledged that one partner could not execute a warrant of attorney to confess judgment against the partnership unless authorized by the partners or subsequently ratified by them. However, it also stated that such a confessed judgment was voidable, not void. Id., 168 Pa.Super. at 259, 77 A.2d 673; see Jamestown Banking Co. v. Conneaut L. D. & D. Co., 339 Pa. 26, 14 A.2d 325, 327 (1940); cf. Prestressed Structures, Inc. v. Bargain City, U. S. A., Inc., 413 Pa. 262, 196 A.2d 338, 341 (1964) (attack on agent’s authority to confess judgment must be through petition to open). Since a confessed judgment entered against a partnership on a warrant of attorney signed by only one partner is voidable even though one partner alone cannot bind the partnership, Stearle, supra, we hold that a consent judgment entered into by an attorney is also voidable even though the attorney alone cannot bind a party.

Bryn Mawr National Bank v. James, 152 Pa. 364,25 A. 823 (1893), which appellant cites, is not contrary to our holding that the consent judgment is voidable. In Bryn Mawr National Bank judgment was entered against the defendant for failure to file an affidavit of defense. When execution was attempted, the defendant moved to strike the judgment on the grounds that the attorney who had accepted service of the writ and statement was not her attorney, the attorney had never been consulted with respect to the suit and had no authority from the defendant to accept service of the writ and statement. The lower court found that the attorney had no authority and struck the judgment. The Supreme Court affirmed indicating that a judgment entered without authority is no judgment at all. Nowhere in the opinion does the court state that the judgment is void. Moreover the time between the entry of judgment and the rule to strike was less than five months. Cf. Lytle v. Hoover, 175 Pa. 408, 34 A. 734 (1896) (application to open a default judgment on ground that attorney had no authority to accept service of a summons was denied because of laches). Thus, Bryn Mawr National Bank does not require us to reach a different result.

Moreover, we are not persuaded to extend the statement in Centennial Bank v. Germantown-Stevens Academy, 277 Pa.Super. 134, 419 A.2d 698 (1980), to consent judgments. In Centennial Bank we stated that a judgment confessed against a party who has not authorized it is void. Id., 277 Pa.Super. at 139, 419 A.2d at 700. However, because warrants of attorney to confess judgment are subject to a particular scrutiny which is not applicable to consent judgments, we decline to extend such a statement to consent judgments. For example in Solebury National Bank of New Hope v. Cairns, 252 Pa.Super. 45, 380 A.2d 1273 (1977) we said:

If any doubt exists as to the propriety or effect of a warrant of attorney authorizing confession of judgment, the doubt must be resolved against the party in whose favor the warrant is given. See A. B. & F. Contracting Corp. v. Matthews Coal Co., 194 Pa.Super. 271, 166 A.2d 317 (1960). Our Court has recognized that this rule of strict construction may be constitutionally mandated in light of recent due process attacks on cognovit clauses. See Egyptian Sands Real Estate, Inc. v. Polony, 222 Pa. Super. 315, 294 A.2d 799 (1972); Citizens National Bank of Evans City v. Rose Hill Cemetery Assoc, of Butler, 218 Pa.Super. 366, 281 A.2d 73 (1971). Cf. Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa.1970), aff’d, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972).

Id., 252 Pa.Super. at 48, 380 A.2d at 1275.

Finally we note that the drafters of the Restatement (Second) of Judgments, in the Introductory Note to Chapter 2, “Validity of Judgments”, Restatement (Second) of Judgments (Tent.Draft No. 5, March 10, 1978), express the view that if a judgment is not valid, it may be avoided not as an automatic consequence, but depending on the nature of the defect, the opportunity of the complaining party to challenge the defect, and on whether there has been reliance on the judgment. Id. at 4-5. Judge Spaeth, in a concurring opinion joined by President Judge Cercone and Judge Price, has advocated the adoption of this view of the tentative draft of the Restatement (Second) of Judgments. Tice v. Nationwide Life Insurance Co., 284 Pa.Super. 220, 230, 425 A.2d 782, 787 (1981). Moreover, the concurring opinion in Tice, supra, also questions the view, expressed in cases such as Haverford Township School District v. Herzog, 314 Pa. 161, 171 A. 455 (1934), and Romberger v. Romberger, 290 Pa. 454, 139 A. 159 (1927), that laches does not run against a void judgment. Tice, supra, 284 Pa.Super. at 240, 425 A.2d at 791-792.

Under the analysis of the tentative draft of the Restatement (Second) of Judgments the instant consent judgment would not be stricken. The appellant had an opportunity to challenge the judgment for almost six years and in the intervening time at least some of the realty appears to have been transferred to third parties in reliance on the consent judgment. In appellee’s new matter to appellant’s petition to strike the judgment the appellee alleged that appellant had notice of judicial sales of the realty and appellant did not deny the allegation in her replication to the new matter. R.R. 132a, 134a-36a. Thus it appears that despite the appellant’s notice of judicial sales, she did not move to strike the judgment earlier. Therefore, if we employed the analysis espoused by the tentative draft of the Restatement (Second) of Judgments, the instant consent judgment would not be stricken even if the judgment were void.

The lower court did not err in dismissing the petition to strike. Moreover, since the petition to strike was properly dismissed, the judgment stands and appellant’s preliminary objections to the amended complaint were also properly dismissed.

Order affirmed.

      . Since the Prothonotary was unavailable, the court designated the sheriff to execute the deeds.

      . Appellant admits in her affidavit that within weeks of their entry she knew the consent judgment had been entered against her. R.R. 154a.

      . The lower court held that if appellant’s petition to strike were considered as a petition to open, it would fail since it was not filed within a reasonable time.

      . For this latter proposition appellant relies on Mullen v. Slupe, 360 Pa. 485, 62 A.2d 14 (1948) and Bryn Mawr National Bank v. James, 152 Pa. 364, 25 A. 823 (1893).

      . The judgments in the instant case, inter alia, involve title to real estate which was owned by appellant and her husband as tenants by the entireties. Neither party has raised the issue that the husband was acting as the wife’s agent. See generally Kennedy v. Erkman, 389 Pa. 651, 658, 133 A.2d 550, 553 (1957); Ripple v. Pittsburgh Outdoor Advertising Corp., 280 Pa.Super. 121, 421 A.2d 435 (1980); John M. Rouse, Inc. v. Logan, 268 Pa.Super. 376, 408 A.2d 514 (1979); Roman Mosaic and Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 313 A.2d 305 (1973).

      . We conclude this from the paragraph preceding the court’s opinion. There the reporter states that the record showed that service of the writ and statement was accepted on November 2, 1891 and on March 10,1892 the rule to strike off the judgment was made absolute. Bryn Mawr National Bank, supra, 152 Pa. at 365, 25 A. at 823.

      . Saupp v. Streit, 258 Pa. 211, 101 A. 939 (1913), also cited by appellant does not mandate a different result. Saupp, which involved a consent judgment, has different facts from the instant case and there is no statement that the judgment there was void.

      . In the court below appellant moved to join as additional parties subsequent transferees of the realty.