author: BROSKY, Judge:

text:
    477 A.2d 872
    Dolores CONNELL v. Joseph CONNELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed June 8, 1984.

      Anne N. John, Uniontown, for appellant.
    Joseph R. Rygiel, Uniontown, for appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

Before us on appeal is an order directing appellant to pay support for Jeffrey Connell. Jeffrey is one of four children born to the parties during their marriage. Mr. and Mrs. Connell were married in 1952 and were separated finally in 1972, although there was also apparently an earlier separation. In 1972 Mrs. Connell sought support for three of the couple’s children: Jeffrey, born May, 1969; John, born December, 1970 and Joseph, born May, 1956. Mr. Connell denied that he was the father of John and Jeffrey and blood grouping tests were therefore taken which were interpreted as excluding appellant from being Jeffrey’s father. The tests indicated that Mr. Connell is John’s father, however, and appellant no longer contests the paternity of the younger boy.

After the blood tests were made there were apparently no further proceedings in the case until October 25, 1979 when Mrs. Connell filed an action seeking support for both John and Jeffrey.

A hearing was held in October, 1979 following which another blood test was conducted at the same laboratory that performed the 1972 test.

The result of the 1979 test, though, indicated that appellant could not be excluded as Jeffrey’s father.

On March 26, 1980, following hearing, the lower court issued an order decreeing that appellant is Jeffrey’s father and directing that support payments be made by him. However, the order also granted leave to appellant to seek further blood testing at the Paternity Testing Laboratory in Pittsburgh.

H.L.A. tests were conducted by the Pittsburgh Laboratory in 1980 and the results excluded appellant from being Jeffrey’s father.

Appellant then filed a petition to decrease the amount of support that he had been ordered to pay, which was denied in February, 1981, following hearing.

On March 12, 1981 appellant filed a Petition for Blood Test which was granted, the court directing the parties to submit to blood groupings testing at the Rh Typing Laboratory, Inc. in Baltimore. Mr. Connell was ordered to pay for the test and also for Mrs. Connell’s and Jeffrey’s transportation.

Appellant did provide Mrs. Connell with the required sum and she and her son met Mr. Connell at the laboratory. Unfortunately, however, the scene was an emotional one due in part, it seems, to the presence of Mr. Connell’s girlfriend, and in part to Jeffrey’s anxiety about the repeated blood tests he had undergone. The court and parties had agreed not to tell Jeffrey the reason for the tests and apparently he was very nervous about the situation.

The result of the emotional scene at the laboratory was that Mrs. Connell and Jeffrey left without being tested. The lower court, however, found that the situation was caused by what it considered Mr. Connell’s insensitivity in taking his girlfriend to the laboratory and concluded any further testing would adversely affect Jeffrey.

Based then on the record before it, including the Rh blood and H.L.A. tests, the court reaffirmed its March 1980 finding of paternity and order of support. This appeal followed.

Mr. Connell argues on appeal that: (1) in fact all the experts agreed that he is not the father, (2) the trial court should have based its decision solely on the blood tests which excluded paternity, (3) Mrs. Connell did not meet her burden of proving paternity by a preponderance of the evidence, and (4) following the incident at the Baltimore laboratory in March, 1981, the lower court should either have dismissed the support action or ordered another blood test.

We will dispose of the first two issues quickly.

Contrary to appellant’s contention, not all the expert evidence agreed that he could be excluded as Jeffrey’s father.

While the 1972 test conducted by Dr. Ayres did exclude appellant, the 1979 test did not. Dr. Ayres testified that the 1979 results were correct and the lower court opinion states that a third test conducted by Dr. Ayres confirmed the 1979 result that could not exclude appellant. Dr. Ayres’ results differed from those of the H.L.A. test. Nor do we agree with appellant’s contention that Dr. Ayres indicated that he would no longer consider his results correct, if a H.L.A. test result differed from his. In fact Dr. Ayres testified that the results could be confirmed by another Rh test and that H.L.A. testing would not be necessary.

Because we find that in fact the expert evidence did not agree that appellant could be excluded, we must also reject appellant’s argument that the trial court should have relied solely on the blood test results in deciding the case.

The Uniform Act on Blood Tests to Determine Paternity, 42 P.C.S. § 6136 provides:

§ 6136. Effect of test results
If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon the evidence, (emphasis added).

Before recounting the evidence, we note that appellant has argued that appellee had the burden to prove his paternity by a preponderance of the evidence. If the child had been born out of wedlock this would indeed be the case. See 42 Pa.C.S. § 6704(d).

Jeffrey, however, was born during the parties’ marriage, while they were living together. Under these circumstances there arises a strong presumption of legitimacy. Commonwealth ex rel. Spangler v. Spangler, 283 Pa.Super. 190, 423 A.2d 1053 (1980). The burden of proof rested on appellant, to show clear, direct, convincing and unanswerable evidence of non-access or lack of sexual intercourse or impotency. See Spangler, supra, (Brosky, J. concurring). See also Commonwealth ex rel. Johnson v. Peake, 272 Pa.Super. 340, 415 A.2d 1228 (1979); Burston v. Dodson, 257 Pa.Super. 1, 10, n. 10, 390 A.2d 216, 220, n. 10 (1978). Appellant did not meet this burden.

Jeffrey was born in May, 1969. While appellant did testify that he and his wife did not have sexual relations in 1968, Mrs. Connell testified directly to the contrary, saying that they had engaged in a fairly regular pattern of intercourse. Credibility, of course, is for the fact finder. Given the trial court’s finding of paternity, we conclude that it rejected Mr. Connell’s claim not to have engaged in relations with his wife with whom he resided during the relevant period.

Even following the Connells’ separation three years after his birth, Mr. Connell sent Jeffrey several birthday and holiday cards and gifts of money expressing his love for the boy and signed “Dad”. Mrs. Connell testified that while they were living together her husband introduced Jeffrey as his son.

Additionally the Rh blood tests conducted in 1979 indicated that Mr. Connell could not be excluded as Jeffrey’s father. Based on this evidence the lower court issued its March 26, 1980 order declaring appellant to be Jeffrey’s father. We find no error in that determination.

We turn finally to appellant’s claims that the H.L.A. test should be treated as conclusive or, in the alternative, that further testing should be ordered. Generally we would find that the court having already determined the paternity issue, appellant would be precluded from requesting further blood tests. See Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1948). See also Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982) (once paternity is established, the issue cannot be relitigated).

In this case, however, the March 26, 1980 order expressly granted appellant leave to seek another blood test. While we therefore agree that the lower court could have properly considered the H.L.A. results, we do not agree that the result of that test should be treated as being conclusive. Nor do we believe that the court erred in refusing to order yet another test after the Baltimore incident.

In our opinion in Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983) we held that the result of H.L.A. tests are relevant to a determination of paternity. We concluded that the test is generally reliable and helpful in establishing paternity, but we were careful to state, ... “[o]ur holding is limited to the conclusion that H.L.A. blood test results may be introduced as some evidence of paternity. We do not hold that this evidence is conclusive.” (312 Pa.Superior Ct. at 164, 458 A.2d at 565).

In sum we conclude that the lower court properly concluded that Jeffrey is Mr. Connell’s child. The addition of the H.L.A. results did not mandate a different result in view of all of the evidence before the court. Nor was the court required to permit yet another test, when the child in question had already been tested four times.

In this connection see 42 Pa.C.S. § 6133 which provides that the court may order blood tests on the motion of any party made at such time as not to delay the proceedings unduly. The instant proceedings began in 1972 and were reinstituted in 1979. The lower court did not err in refusing in 1981 to order a fifth blood test.

Order affirmed.

      . Although the record is not clear on this point, it appears that the Ayres Medical Laboratory which conducted the first blood grouping tests may have conducted a third test on Jeffrey alone confirming the 1979 results. Such a test was to be performed following the March 18, 1980 hearing.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    477 A.2d 876
    OGONTZ CONTROLS COMPANY, a corporation v. Frederick L. PIRKLE, individually and trading as Controls Consulting Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1984.
    Filed June 8, 1984.

      Thomas B. Kenworthy, Philadelphia, for appellant.
    Fred T. Cadmus, III, West Chester, for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court improperly issued a preliminary injunction without granting him a hearing as required by Pa.R.Civ.P. 1531(d). Because we find procedural defects in the proceedings below, we vacate the lower court order continuing the preliminary injunction.

On September 19, 1983, appellee, Ogontz Controls Company, filed a complaint in equity against appellant, Frederick L. Pirkle, alleging that Pirkle, a former Ogontz employee, had violated his employment contract by unfairly using confidential information and trade secrets to compete with Ogontz. On the same day, upon appellee’s motion, and without a hearing or notice to appellant, the lower court entered an ex parte preliminary injunction against appellant, subject to a $5,000 surety bond. The court also set a date for a hearing on the continuance of the injunction for September 23, 1983. The hearing was held on September 23, 27, and 28, during which time appellee presented the testimony of several witnesses. On the afternoon of September 28, during appellant’s cross-examination of appellee’s president, the lower court, noting that it was almost quarter to 5:00, called for an off-the-record conference in chambers. (N.T. September 28, 1983 at 161). On September 29, the court heard oral argument by counsel and, upon appellant’s request, agreed to hear his offer of proof as to the testimony he proposed to produce on the preliminary injunction. On September 30, appellant presented his offer of proof and also moved for a supersedeas and to increase the bond to $1,000,000. The court denied the motions and stated: “I’m going to enter an order on Monday continuing the preliminary injunction and fix bond in the amount of $20,000, and I will prepare that order and have it filed by yesterday. You are certainly free to appeal.” (N.T. September 30, 1983 at 16). The lower court then expressed its intention to set a final hearing date and ascertained from counsel how much time each party would need to conclude their cases. The order continuing the preliminary injunction until the final hearing was dated September 29, 1983. This appeal followed.

Appellant alleges specifically that there was no “hearing” held as required by Pa.R.Civ.P. 1531(d) because he was not given the opportunity to present evidence on his own behalf. Generally, the court can issue a preliminary injunction only after written notice and hearing; however, an exception is made when “immediate and irreparable injury” will result before notice can be given or a hearing held. Pa.R.Civ.P. 1531(a). Rule 1531(d) provides that:

An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five (5) days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct.

Pa.R.Civ.P. 1531(d). The question of what constitutes an adequate hearing for a preliminary injunction was addressed by our Supreme Court in Pubusky v. D.M.F., Inc., 428 Pa. 461, 239 A.2d 335 (1968), which concluded that:

While the testimony at a hearing for a preliminary injunction which seeks only to preserve the status of the parties until the issue is finally determined need not always be as extensive as that at a final hearing, the litigants should not be deprived of their right to fully cross-examine all adverse witnesses, nor of the opportunity to present testimony which is relevant to the question of whether or not the injunction should issue.

Id., 428 Pa. at 463, 239 A.2d at 337. In Pubusky, eight days after the complaint was served on the defendants, a hearing was held on the plaintiffs preliminary injunction motion. At the hearing, the plaintiff testified and was cross-examined. Then, before any other witness was called, the Chancellor, over objection, abruptly ended the hearing and entered the preliminary injunction decree. Upon the defendants’ request for permission to produce testimony for the record in defense of the action, the Chancellor responded: “You may place it on the record, but you are not going to get the opportunity to produce it, because we don’t have the time. We will place the case on the next equity list regardless of what you say.” Id., 428 Pa. at 463, 239 A.2d at 336. Under these circumstances, the Supreme Court found a denial of the parties’ “basic rights” to cross-examine witnesses and present relevant testimony and, accordingly, vacated the preliminary injunction decree. Similarly, in Veneziale v. Raudenbush, 43 Pa.Commonwealth Ct. 263, 402 A.2d 295 (1979), during the preliminary injunction hearing, the appellants were not permitted to cross-examine witnesses or present testimony on their own behalf. In his opinion, the chancellor characterized the appellants’ contention that they were denied due process rights at the hearing as “utterly without merit”. The Commonwealth Court disagreed and vacated the preliminary injunction decree, stating: “Whether or not Appellants’ position was ‘illegal, unjust and unconscionable,’ as the Chancellor found, the Appellants were nevertheless entitled to a fair hearing which encompasses at the very least the right to cross-examine witnesses and present testimony.” Id., 43 Pa.Commonwealth Ct. at 265, 402 A.2d at 296, citing Pubusky v. D.M.F., Inc., supra. However, in Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 345 A.2d 664 (1975), the Court found the preliminary hearing sufficient under the Pubusky criteria because both parties were given “wide latitude” and “ample opportunity to fully develop their respective positions.” Id., 463 Pa. at 573, 345 A.2d at 668. The appellant in that case filed preliminary objections to the complaint and introduced an opposing affidavit and several exhibits. Upon appellant’s motion, the notes of testimony of a prior proceeding before the Commonwealth Court, denying a third party’s request for injunctive relief against appellant, were offered and considered by the Chancellor. Additionally, the record revealed that the appellant made no request to offer any additional testimony prior to the Chancellor’s ruling although the opportunity was clearly available, and that the Chancellor ended the hearing only after it became apparent that the arguments were becoming repetitive and counsel was becoming emotionally involved. Lastly, in Boyd v. Cooper, 269 Pa.Superior Ct. 594, 410 A.2d 860 (1979), after listening to counsel’s arguments, the Chancellor dismissed the application for a preliminary injunction on the ground that the appellants had an adequate remedy at law. The Chancellor noted the absence of any fact issues and found that there was no necessity for taking testimony. On appeal, this Court found that the Chancellor erred in refusing to accord the appellants an evidentiary hearing on their injunction request, stating that the purpose of such a hearing was to develop a “factual basis for the requested relief.” Id., 269 Pa.Superior Ct. at 597, 410 A.2d at 862. See also Rosenzweig v. Factor, 457 Pa. 492, 327 A.2d 36 (1974) (preliminary injunction issued without notice or hearing was fatally defective as being in violation of Pa.R.Civ.P. 1531).

In view of these cases, we find that the instant hearing, although commenced within five days pursuant to Rule 1531(d), fell far short of the judicial requirements outlined in Pubusky v. D.M.F., Inc., supra, and confirmed in Veneziale v. Raudenbush, supra. Those decisions clearly mandate that the hearing on the preliminary injunction motion must be one at which both parties are given the opportunity to fully cross-examine witnesses and present relevant testimony. Here, however, the lower court entered a decree continuing the preliminary injunction after a hearing at which only appellee’s evidence was introduced. Appellant was never permitted to present testimony on his own behalf prior to the court’s ruling on the preliminary injunction continuance. Thus, the instant case is distinguishable from Safeguard Mutual Insurance Company v. Williams, supra in which the appellant was given ample opportunity to present evidence prior to the Chancellor’s ruling. This case is more factually similar to Pubusky and Veneziale in that appellant was prevented from presenting evidence on his own behalf at the preliminary hearing. The only real difference is that the hearing in Pubusky and Veneziale preceded the preliminary injunction while the instant hearing was held after the injunction order was entered in accordance with Pa.R.Civ.P. 1531. In either situation, however, we believe that allowing a preliminary injunction to stand after a hearing which gave only one party an opportunity to present evidence is error.

Although the record indicates that the lower court planned to allow appellant to present his case at the final hearing, see N.T. September 30, 1983 at 16-17, we find such a procedure defective under the Pubusky requirement that both parties be given the opportunity to present relevant testimony at the preliminary injunction hearing. The lower court apparently intended to combine the preliminary injunction proceedings with the final proceeding, thereby ignoring the distinction between the two. See Pubusky v. D.M.F., Inc., supra. Such an action defeats the purpose of the preliminary injunction, which is to preserve the status of the parties until the final hearing. Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981).

Accordingly, because we hold that appellant was denied his right to a fair hearing pursuant to Rule 1531(d), we must vacate the order of the court below continuing the preliminary injunction and remand for proceedings consistent with this opinion.

Vacated and remanded. Jurisdiction is relinquished.

      . The preliminary injunction order entered September 19, 1983 provided:
      AND NOW, this 19th day of September, 1983, upon consideration of the plaintiff’s verified motion for Preliminary Injunction, and plaintiffs verified Complaint in Equity, it appearing to the Court that immediate irreparable harm will be sustained by plaintiff before a hearing can be held on plaintiff’s motion for Preliminary Injunction in that before such hearing can be held, defendant will have continued his conduct in violating the employment contract between the parties using confidential information to the great harm and injury of plaintiff and causing it great loss and damage in its business and otherwise, it is.
      ORDERED that, upon plaintiff posting a security bond with the Prothonotary in the amount of $5,000 the defendant, Frederick L. Pirkle, individually and trading as Controls Consulting Company their agents, servants, and employees, and all persons acting with them, we and they are hereby enjoined and prohibited from directly or indirectly using, exploiting, or any way profiting from the plaintiff's snap-acting drain valve or other products or trade secrets as well as confidential business information or from reproducing or making any of the same, soliciting orders or sales for plaintiff’s aforesaid products and engaging in unfair competition with plaintiff.
      ORDERED that pursuant to Pa.R.C.P. 1531(d) a hearing pertaining to the continuance of this Preliminary Injunction will be held on September 23, 1983, at 9:30 a.m. in Courtroom 4, Courthouse, West Chester, Pennsylvania; and
      FURTHER, a Rule is hereby entered upon the defendants to show cause at the above date and time, why this Preliminary Injunction should not be continued.

      . Although the court on September 30, 1983, stated only that it was "going to set a hearing date”, we conclude that it meant a final hearing date because the court, at that point, had already decided to enter an order continuing the preliminary injunction. Moreover, in its opinion, the lower court states: "Following the last such hearing [on September 28, 1983], we continued the injunction until a final hearing.” (Lower Court Opinion at 1). Appellee apparently confuses the term "final hearing" to mean a final hearing on the preliminary injunction. (Brief for Appellee at 5). Such a belief is clearly erroneous because the order continuing the preliminary injunction was entered September 29, 1983, prior to the court ever setting a date for the final hearing on the parties’ rights. See also Pubusky v. D.M.F., Inc., 428 Pa. 461, 463, 239 A.2d 335, 336 (1968) (distinction made between preliminary hearing and final hearing).

      . The lower court decree entered September 29, 1983, provided: “AND NOW, this 29th day of September, 1983, after oral argument from counsel for the parties in open Court, it is Oí DERED AND DIRECTED that the Preliminary Injunction entered September 19, 1983, in the above matter is hereby continued until further Order of this Court.”

      . Alternatively, if the injunction has been issued without notice, the defendant can waive a hearing on the continuance of the injunction and proceed directly to a final hearing. Pa.R.Civ.P. 1531(d) note.


author: CAVANAUGH, Judge: CIRILLO, Judge,

text:
    477 A.2d 879
    COMMONWEALTH of Pennsylvania v. Philip VELEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 14, 1984.
    Filed June 19, 1984.
    Robert J. Liptak, Bethlehem, for appellant.
    Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence. Appellant argues, on appeal, that the sentencing court erred in (1) not placing on the record the reasons for the disparity between appellant’s sentence and his co-defendants’ sentences, and (2) considering inaccurate facts and by not giving defendant’s individual circumstances adequate consideration. We agree that appellant’s first contention of error may have merit, and therefore remand for reconsideration of sentence, thus not reaching appellant’s second contention of error.

Appellant was sentenced on various criminal charges on September 7, 1983, by the Honorable Michael Franciosa. The sentences of appellant’s co-defendants as well as the identity of the sentencing judge of these co-defendants, do not appear on the sentencing hearing transcript. In addition, we cannot ascertain these facts from any part of the record on appeal. In the absence of these facts, we find that remand is appropriate, as the sentencing judge may have failed to state the reasons for disparity of sentence, if any, among co-defendants pursuant to Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978); and Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980).

The above cited cases hold that in order for a trial judge to impose different sentences on co-defendants, he must find differences between the co-defendants to justify the sentences. Commonwealth v. Sinwell, supra 311 Pa.Super. at 427, 457 A.2d at 960; Commonwealth v. McQuaid, supra 273 Pa.Super. at 611, 417 A.2d at 1216; Commonwealth v. Thurmond, supra 257 Pa.Super. at 467, 390 A.2d at 1331. The reason that one co-defendant receives a more severe sentence than another must be stated on the record. Commonwealth v. Sinwell, supra, Commonwealth v. McQuaid, supra.

In the instant case, not only are we unable to discern the identity of the co-defendants’ sentencing judge from the record, we are also unable to discern whether appellant did, in fact, receive a disparate sentence in relation to his co-defendants because the sentencing hearing transcript does not refer to the co-defendants’ sentences. The sole mention of appellant’s co-defendants, which is at all relevant to appellant’s contention herein, is in the guilty plea colloquy where Investigator Doyle, a Commonwealth witness, testified that the co-defendants had already been convicted or offered to plead. However, we cannot glean from the record, whether the co-defendants had actually been sentenced at the time appellant was sentenced. Without this information, it is not possible to ascertain whether the sentencing judge erred in sentencing appellant without discussing, on the record, the sentences of appellant’s co-defendants.

The dissent would have us go outside of the record below and call the prothonotary to ascertain the identity of the sentencing judges of appellant’s co-defendants. The rationale behind this proposal appears to be that these matters are recorded as business records of the court. The dissent at the same time recognizes that it is well established that an appellate court may not consider information outside the record on appeal. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). (An appellate court will not consider the statement of the trial judge that he instructed the jury on reasonable doubt where the transcript does not include instruction.) The record produced by the proceedings in the court below and general court records kept by clerical personnel are entirely different and the latter may not be utilized by an appellate court in adjudicating an appeal. The principle that an appellate court may not seek out evidence on its own is basic to our adversary system and should be absolute.

An appellate court may only review the decision of the lower court by taking into account matters that are of record. (“It is well established that an appellate court may not consider facts unless they are duly certified in the record.”); Commonwealth v. Walsh, 252 Pa.Super. 111, 113, 380 A.2d 1307, 1308 (1977); Commonwealth v. Jones, 478 Pa. 172, 180, 386 A.2d 495, 499 (1978) (“It is axiomatic that an appellate court may consider only matters that appear of record.”); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494 (1980); Commonwealth v. Glover, 500 Pa. 524, n. 1, 458 A.2d 935, n. 1 (1983); Pittsburgh’s Airport Motel v. Airport Asphalt, 322 Pa.Super. 149, 469 A.2d 226 (1983); Commonwealth v. Roberson, 258 Pa.Super. 471, 393 A.2d 455 (1978); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1983); Cf., Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983); Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983). In light of these cases, we do not believe the word “record” applies to court records not made as a matter of record during the proceedings which occur in the court below. That is, the records that employees of the judiciary keep as a matter of the day to day record keeping of court business are not meant to be included as records in the meaning espoused in the above cited cases.

We remand this case for reconsideration of sentence to determine whether appellant’s co-defendants were sentenced by the same judge, and if they were, whether the sentences were in fact disparate. Following proceedings below a new appeal may be taken. We do not retain jurisdiction.

CIRILLO, J., filed dissenting opinion.

CIRILLO, Judge,

dissenting:

The majority remands this case today because it is unable to determine from the transmitted record whether the same judge sentenced both appellant and his co-defendants. In my view a remand in these circumstances is wholly unnecessary and contrary to our concerns for judicial economy. We can easily and reliably ascertain whether the same judge presided over the sentencing of the several co-defendants, without needing to resort to a remand.

In Pennsylvania we function under a unified judicial system, of which the Superior Court and all common pleas courts are a part. Pa. Const., Art. 5, § 1; 42 Pa.C.S. § 301. “It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistent with the character of the matter and the resources of the system.” Pa.RJ.A. 1901. “One of the purposes of a unified court is, of course, to simplify procedure and remove archaism from the judicial system.” Gorden v. Cutler, 324 Pa.Super. 35, 43, 471 A.2d 449, 453 (1983). I fault the majority for failing to utilize our unified judicial system in an economical fashion.

I recognize the long settled rule that an appellate court may not consider matters outside the record on appeal. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Nevertheless, I respectfully submit that the identity of the presiding judge at the time of sentencing is a matter of record which we may take notice of and consider, whether it is included in the transmitted record or not.

The record keeping practices of our trial courts are controlled by statute and supervised by our Supreme Court, and their records are eminently reliable. 42 Pa.C.S. 4301; Pa.R.J.A. 505(11). By arrangement of the Court Administrator of Pennsylvania, certain uniform docketing procedures have been established throughout the common pleas court system in this Commonwealth. Particularly noteworthy is the uniform practice of recording the name of the sentencing judge. If we are to take the concept of a unified judiciary seriously, we should not hesitate to utilize these fine records in order to learn certain administrative facts which may not appear in the record transmitted for appeal.

In this case, we need only determine whether the same judge or different judges presided over the sentencing of appellant and his co-defendants. Although the identity of the judge who sentenced appellant’s co-defendants is not found in the transmitted record, we may learn this information through simple inquiry to the clerk of the court of common pleas.

In the interest of justice and judicial economy, I see no cause to remand this case. We now have a modern, fully integrated court system. There is no compelling reason that we should not, in this limited situation, make full use of the resources available to us through this system — and recognize certain administrative records of our co-constituent courts as if they were our own.

Since I find appellant’s remaining claim to be without merit, I would affirm judgment of sentence.

      . Appellant had five co-defendants. From the record, we can ascertain that two of these co-defendants are juveniles, and one co-defendant turned state's evidence. There is no additional information regarding the other two co-defendants.

      . 42 Pa.C.S. 4301 pertains to the "Establishment and maintenance of judicial records.” This section provides that the docketing procedures of all courts of this Commonwealth “shall be uniform to the maximum extent practicable."

      . Pursuant to directives issued by the Court Administrator, all counties except Philadelphia complete and submit a docket transcript form on all criminal cases. This form requires identification of the judge who presided at the time of sentencing. Philadelphia County does not submit the docket transcript form, however, the clerk of quarter sessions routinely enters the pertinent information in its automated docket (which is then accessed by the Court Administrator).

      . Through inquiry I have learned that appellant and his co-defendants were tried separately and sentenced by different judges. Disparity of sentences among co-defendants in such circumstances need not be explained by a sentencing judge. Commonwealth v. Kalson, 301 Pa.Super. 31, 446 A.2d 1320 (1982).


author: PER CURIAM:

text:
    477 A.2d 882
    COMMONWEALTH of Pennsylvania v. Robert JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed June 22, 1984.

      Leroy Larner, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   PER CURIAM:

This is an appeal from an order denying appellant’s petition filed pursuant to the Post Conviction Hearing Act. 19 P.S. § 1180-1 et seq. (Since reenacted at 42 Pa.C.S.A. § 9541 et seq.). We must quash the appeal.

Rule 2101, Pennsylvania Rules of Appellate Procedure requires that briefs shall conform with the various appellate rules and if the briefs are substantially defective the reviewing court may quash the appeal. The courts of this Commonwealth have on numerous occasions invoked the punitive measures of Rule 2101. See Commonwealth v. Davis, 309 Pa.Superior Ct. 506, 455 A.2d 725 (1983); A.M. Skier Agency v. Pocono Futures, Inc., 308 Pa.Superior Ct. 481, 454 A.2d 637 (1982); Commonwealth v. Taylor, 306 Pa.Superior Ct. 1, 451 A.2d 1360 (1982); Commonwealth v. Sanford, 299 Pa.Superior Ct. 64, 445 A.2d 149 (1982); Wicker v. Civil Service Com’n, 74 Pa.Cmwlth. 548, 460 A.2d 407 (1983).

The brief filed on appellant’s behalf is one of the most inadequate attempts at appellate advocacy that the members of this panel have ever had the displeasure of attempting to review. Counsel has garbled the statement of questions involved, and more importantly his “Argument” is void of any substance in law or fact. His four sentence argument, contains no citations, no references to the record, and does not even address the merits of the appeal beyond a bald allegation of ineffectiveness of counsel. We conclude that appellant’s brief either ignores or seriously undermines the following Pennsylvania Rules of Appellate Procedure:

2115 (Order or Other Determination in Question);
2116 (Statement of Questions Involved);
2118 (Summary of Argument);
2119(a) (Argument — General rule);
2119(b) (Citations of Authorities);
2119(c) (Reference to record);
2119(d) (Synopsis of evidence); and
2174(b) (Tables of citations).

Appeal quashed.


author: CAVANAUGH, Judge:

text:
    477 A.2d 883
    Frank A. DESCH, Appellant, v. Margaret D. DESCH.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1984.
    Filed July 6, 1984.

      J. Kerrington Lewis, Pittsburgh, for appellant.
    Eric C. Rome, Pittsburgh, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal is from an order entered in a divorce proceeding, converting a preexisting spousal support order into an order of alimony pendente lite. Appellant contends that he was improperly denied an opportunity to contest the entry of this converted order.

The parties to this appeal have lived separate and apart since 1962. A 1963 support order, as last amended in 1972, required appellant to pay his wife, appellee, spousal support in the amount of $65.00 per month. On October 27, 1980, the lower court granted appellant a unilateral, section 201(d) divorce a.v.m., but retained jurisdiction to dispose of the economic aspects of the marriage. On November 19, 1980, the lower court, acting upon the ex parte motion of appellee, “converted” the then existing 1963 spousal “support” order into an otherwise identical order of “alimony pendente lite,” pending adjudication of the economic aspects of the marriage.

The Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101, et seq. (Supp.1984), made fundamental changes in the law of divorce. Among other things, the Code allows “bifurcated” divorce proceedings, such as occurred in this case, where the divorce may be granted while the time-consuming adjudication of the more complex economic matters is deferred. In such a case, the economically dependent spouse could be placed at a great disadvantage during the interim period if his or her right to support were eliminated by the prior entry of the divorce decree. As a result, the law of support has appropriately evolved so as to generally continue the obligation for spousal support at pre-divorce levels pending resolution of the economic matters. Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983); Klein v. Klein, 16 D & C 3 651 (1980).

In this case, the conversion of the preexisting order of “support” to an order of “alimony pendente lite” was merely a change in form and not substance. The underlying obligation remained unaltered and, therefore, did not require an opportunity for a hearing. Indeed, if the support obligation had been terminated or otherwise changed, then an opportunity for a hearing would have been required.

For the foregoing reasons, the order of the lower court is affirmed without prejudice to appellant to petition for modification upon a showing of changed circumstances since the 1972 amendment.

Order affirmed.


text:
    477 A.2d 885
    Dominick PANGALLO v. Mary M. PANGALLO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1984.
    Filed May 18, 1984.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.

      Richard E. Myers, Greensburg, and Lois J. McKee, McKessport, for appellant.
    Richard E. Myers, Greensburg, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   BROSKY, Judge:

In this appeal from a divorce decree appellant argues that the court erred in granting the divorce pursuant to Section 201(d)(1) of the Divorce Code because, she contends, the parties had not lived separate and apart for three years. Mrs. Pangallo also contests the distribution of marital property ordered by the lower court. We affirm.

The parties were married in June, 1942. Since 1943 they have resided on farm property owned by them in Westmoreland County.

In 1979 Mr. Pangallo filed a divorce complaint under the former Pennsylvania Divorce Law. After the enactment of the Divorce Code, however, he amended the complaint to seek a divorce pursuant to Section 201(d) of the Code which provides:

(d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
(i) the respondent does not deny the allegations set forth in the affidavit; or
(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.
28 P.S. § 201(d).

Appellant did not contest that the parties’ marriage is irretrievably broken, but she disputed the allegation that they have been separated since 1977 and sought alimony, alimony pendente lite, counsel fees and equitable division of the marital property.

A hearing was held before a master at which evidence was presented both as to grounds for divorce and as to the parties’ financial situation. The master found the following facts relevant to the grounds for divorce.

Mr. and Mrs. Pangallo resided on property owned by them on which is situated a house, barn, garage, trailer and several outbuildings. At the time of the hearing the property comprised approximately 112 acres, one acre having been given to each of the couple’s three children.

Since 1975 the parties have not engaged in sexual relations. The record indicates that at that time they began to use separate bedrooms.

In the fall of 1977 Mrs. Pangallo left the farm house and went to live for a period of time at the couple’s daughter’s house, which is located on the acre which had been part of the farm property. Mr. Pangallo continued to reside in the house to which Mrs. Pangallo would return from time to time.

It was Mr. Pangallo’s testimony that when his wife would spend a night in the home, he would sleep at his son’s residence, also on property which was part of the farm.

Apparently, this pattern continued from the fall of 1977 to January 1981 at which time Mrs. Pangallo returned to the residence. Mr. Pangallo testified that he spent the nights in that period at his son’s home, that he and his wife were in their home at the same time for only brief periods during the day, and that after 1977 they did not socialize together, eat together or speak, except to argue.

Mrs. Pangallo’s testimony did not dispute that of her husband as to their sleeping arrangements or lack of communication, although she did say that she did not consider that she was separated from him until October, 1981 when she again went to live with their daughter. Mrs. Pangallo stated that she took care of the couple’s finances until 1978 when Mr. Pangallo sold the cows that they had used for milking.

The master concluded that the Pangallos’ marriage was over in 1977 and that they had separated then. He therefore found that they should be divorced pursuant to Section 201(d) of the Code.

It is Mrs. Pangallo’s contention that the evidence does not support a finding that the couple was separated before 1981 because until that date they resided in the same house. We agree with the master’s conclusion that the facts of this case do indicate that a separation took place in 1977 even though the parties both spent some time at the residence.

The Divorce Code defines the term “separate and apart” at Section 104, as the “complete cessation of any and all cohabitation.” The definition was proposed by Rep. McVerry who said when he introduced the amendment defining the term:

MR. McYERRY: Mr. Speaker, the provision that was adopted prior to the lunch break which provided a ground for unilateral divorce on the basis of living separate and apart for a period of 2 years requires, in my estimation, that the bill be amended to include a definition of “separate and apart,” so that there is no problem that might arise with regard to two people occupying the same premises but not occupying it as husband and wife.
Accordingly, people may think that they live separate and apart when they no longer engage in marital relations but occupy the same domicile. I submit that separate and apart as a grounds for divorce should mean complete cessation of any and all cohabitation. Accordingly, I would request the House to approve the inclusion of a definition in the definitional section of the bill to read “separate and apart shall mean complete cessation of any and all cohabitation.”
* * * * * *
MR. McVERRY: ... All this amendment does is include, in the definitional section of the bill, a definition of “separate and apart”, and it defines “separate and apart” and “Complete cessation of any and all cohabitation” such that we cannot have a circumstance where two people occupy the same dwelling but consider themselves to be living separate and apart because they are not engaging in family affairs or marital relations, shall we say.

Remarks of Rep. McVerry, Legislative Journal — House, Session of 1979, at 1961-62 (October 10, 1979).

Discussion of the amendment was brief and it was passed by an overwhelming majority.

We conclude that where, as in the instant case, the parties sleep in separate dwellings and are present in their home at the same time only sporadically, that they do in fact live separate and apart. The evidence supports a finding that Mr. and Mrs. Pangallo led separate lives, though they resided on a farm owned by both of them. They did not reside in the same dwelling at the same time, even though they both had access to the house.

Therefore even if we assume arguendo that Section 201(d) is not meant to govern cases in which a couple occupies the same dwelling, we nonetheless find it applicable to the instant case.

We believe our conclusion is consistent with the policies stated in the Divorce Code, among which is to make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience. 23 P.S. § 102(a)(1). The parties to this appeal have resided for forty years on a farm owned by them on which property also dwell in separate residences their three children. That their separation involved trips to and from their house and those of their children seems to us consistent with the physical, social and perhaps economic realities of their lives. Despite the fact that both parties used the house on occasion, we find that they did so separately.

We turn now to appellant’s contention that the trial court erred in its division of marital property. Specifically she argues that the trial court ignored her ill health, and contribution as a homemaker and co-worker on the farm.

Mrs. Pangallo contests the denial of her claims for alimony, alimony pendente lite and counsel fees, as well as the division of the marital property.

Our review of these claims is limited to determining whether the lower court abused its discretion. See Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) (review of alimony, alimony pendente lite and counsel fees awards limited to abuse of discretion.); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983) (abuse of discretion standard applied to equitable distribution awards.)

The Divorce Code at Section 102(a)(6) (23 P.S. § 102(a)(6)) affirms that it is the policy of this Commonwealth to:

Effectuate economic justice between parties who are divorced or separated and apart or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
To this end, Section 401(d) provides:
(d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

We have carefully reviewed the record in this case, the master’s report and trial court opinion and concluded that the trial court did not abuse its discretion in its distribution of the Pangallos’ property. The master and the court displayed genuine concern for the well being of the parties and fashioned what they believed the most equitable solution to a difficult problem. Contrary to appellant’s assertion we find that the trial court did consider her age, health and contribution both as a homemaker and working farm partner.

Nor do we believe the Court erred in denying alimony pendente lite and counsel fees. The record indicates that Mrs. Pangallo had secured adequate funds from the couples’ savings to cover her needs during the pending litigation. We note in this regard that the husband was ordered to pay masters’ fees and court reporter’s fees.

Finally, we find no abuse of discretion in the trial court's decision not to award alimony to Mrs. Pangallo.

Section 501 of the Act (23 P.S. § 501) directs the courts to consider the following factors in determining whether to award alimony:

(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

23 P.S. § 501(b).

It was disclosed at the hearing that although Mr. Pangallo had worked as a school bus driver for some years, he had been injured and was uncertain of returning to his employment. At the time of the hearing Mr. Pangallo was 68 years old and his wife was 60. Mr. Pangallo received social security and when she becomes 62, Mrs. Pangallo will receive a portion of her husband’s social security payment.

The trial court divided the marital property in such a way as to enable the parties to maintain the standard of living they had enjoyed during their marriage. We find no abuse of discretion in the denial of alimony.

Order affirmed.

      . 23 P.S. § 201(d)(1).

      . Act of May 2, 1929, P.L. 1237, § 1; 23 P.S. § 1 et seq. repealed by Act of April 2, 1980, P.L. 63, No. 26 § 101, et seq.

      . Our trial courts have concluded in several cases that husband and wife who continue to reside in the same house may nonetheless be considered to have lived "separate and apart.” See e.g. Amelio v. Amelio, 18 D & C 3d 673 (1981) (the Code use of the term "separate and apart” refers to "separate lives, not separate roofs”.); Meyerl v.

        Meyerl, 129 Pitt LJ. 397 (1981) (husband who lived in separate residence for two years returned to marital domicile to live in basement for two months; this did not constitute cohabitation within meaning of the Code.)
      Despite the obvious problems of proof associated with finding a couple residing in the same house to actually be living "separate and apart”, the courts of other jurisdictions have found that sharing a joint residence does not necessarily mean a couple is cohabitating. See Heckman v. Heckman, Del., 245 A.2d 550 (1968).
      But see Lillis v. Lillis, 235 Md. 490, 201 A.2d 794 (1964) (since parties lived intermittently in the same house, they did not live “separate and apart”, cessation of sexual relations alone not enough).
      See Rounick, Pennsylvania Matrimonial Practice, Part 1, § 4-4 for a discussion of case law and adoption of the Amelio view.
      We conclude that the present case unlike, for example Amelio, does not involve parties who actually resided in the same dwelling. Nor is the sole evidence of separation a cessation of sexual relations. Instead, the parties clearly did not reside in the same house at the same time and in fact lived in such a manner as to indicate to the neighborhood that they no longer resided together.
      Therefore, we leave to another day the question of whether the Amelio approach is correct.


author: JOHNSON, Judge:

text:
    477 A.2d 890
    COMMONWEALTH of Pennsylvania v. Edward J. WOODBURY, Appellant.
    Superior Court of Pennsylvania.
    June 8, 1984.
    Submitted Feb. 3, 1984.

      Melvin B. Goldstein, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Defendant-appellant Edward Woodbury initially appeared before the trial court on March 25, 1982 charged with possession of an instrument of crime, involuntary and voluntary manslaughter, and murder. Following a waiver of trial by jury appellant was found guilty of possession of an instrument of crime and murder in the third degree. Post-verdict motions were denied after the hearing of argument, and the appellant was then sentenced. Subsequently, an appeal was timely filed to this court.

The sole issue raised on appeal is the sufficiency of the evidence to sustain the verdicts in this case. Appellant argues mainly that the voice identification testimony elicited by a witness in the case was insufficient. In considering appellant’s contention as to sufficiency as a whole, this court must view the evidence in the light most favorable to the Commonwealth, as verdict winner. Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978). We must also accept as true all evidence and reasonable inferences upon which, if believed, the factfinder could have properly based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Biggs, 320 Pa.Super. 265, 467 A.2d 31 (1983).

The record indicates the facts as follows:

On May 20, 1981, Philadelphia Police Officer Lois Jones, who was assigned to a radio patrol car, was approached by a female at 22nd and Lehigh Avenue in Philadelphia. The female directed her to the 2400 block of Lehigh Avenue where another individual asked the officer to go to a row house at 2416 West Lehigh Avenue. Upon her arrival at that address, Officer Jones proceeded to the second floor where she observed a black male, later identified as Alexander Jackson, lying in the hallway on his right side with blood coming from his nose and mouth. Based upon her observations Officer Jones concluded that Jackson was alive and she called for a Rescue Squad car. Alexander Jackson was pronounced dead at the Medical College of Pennsylvania on May 22, 1981. An autopsy performed the same day by Dr. Catherman, Deputy Medical Examiner for Philadelphia, revealed that the cause of death was a gunshot wound which had entered the cranial cavity. A bullet recovered from Jackson’s brain was turned over to the police and determined to be a .22 caliber bullet. It was stipulated at trial that Alexander Jackson’s body was identified by family members who would testify that he was alive and well prior to May 20, 1981.

The Commonwealth’s chief witness, Charlene Booker, testified that she had known both the decedent and the appellant for several years prior to May 20, 1981. On that date she was present on the second floor of 2416 West Lehigh Avenue along with Helen Hill, a person named Dave, and Alexander Jackson, who lived on the third floor of the building. At approximately 1:30 a.m. she heard a knock at the door and a male voice she recognized as that of Edward Woodbury identifying himself as “Woodie”. Ms. Booker then observed Alexander Jackson leave the apartment and go into the hallway to meet the appellant, who was standing alone. Immediately after Jackson exited the apartment, she heard an argument ensue between Jackson and Wood-bury. Woodbury was demanding money owed to him by Jackson. Ms. Booker testified that she heard the appellant state that he would beat Jackson with a gun. Within seconds after the beginning of the argument Ms. Booker heard a gunshot. She opened the apartment door and found Jackson lying on the floor bleeding from the face. Ms. Booker testified that during the time she heard the argument and the shot, she was in the apartment bathroom which was approximately six feet from the door leading to the hallway.

A warrant for the arrest of Edward Woodbury was obtained on May 22, 1981 but appellant was not arrested until October 4, 1981. Appellant gave a false name and identification papers to the detectives who arrested him in the residence of Mr. Skipworth. Prior attempts to arrest the appellant at the address where he had resided prior to the incident had been unsuccessful.

In a statement given by the appellant to Detective Twyman of the Homicide Division and in his testimony at trial, the appellant admitted that he had gone to the decedent’s apartment building to ask him for money owed but denied shooting Jackson. According to the appellant Jackson was shot by another man, named “Dutch”, who was also standing in the hallway. Woodbury asserted “Dutch” shot Jackson after insulting him. The appellant further testified that during the five (5) months between Jackson’s shooting and his arrest he knew that he was being sought by the police, but was avoiding apprehension until he had sufficient funds to retain an attorney.

Utilizing the appropriate standard, in a light most favorable to the Commonwealth as verdict winner, the evidence is clearly sufficient to sustain the convictions as to the charges of possession of an instrument of crime and murder in the third degree. The appellant denies the allegations and renders a completely different version as to the course of events. However, passing upon the credibility of witnesses and the appropriate weight to be accorded the evidence produced at trial is within the sole province of the trier of fact. Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982). Additionally, the weight to be given voice identification testimony is also within the province of the trier of fact. Sterling v. Huey, 155 Pa.Super. 398, 400, 38 A.2d 515, 516 (1944). It is clear that the factfinder chose to believe the version presented by the Commonwealth. The evidence, thus taken as a whole, is sufficient to sustain the convictions as to the charges of possession of an instrument of crime and third degree murder.

Essentially appellant contends that the voices heard by Charlene Booker, while she was in the bathroom, were that of decedent and another person named “Dutch”, and that appellant was not involved in the realm of the ensuing argument. Therefore he asserts that he could not be the murderer, and that it was not his voice that Booker heard.

Appellant argues that the voice identification is insufficient because there was no evidence as to peculiarity of the voice, relying mainly on Commonwealth v. Derembeis, 120 Pa.Super. 158, 182 A. 85 (1935). Judge Cunningham, speaking for this court in Derembeis, said:

“The established rule is that while the sound of the voice is a relevant circumstance to be considered on the question of identity, the value of such testimony depends first upon some peculiarity of the voice and second, the extent of the familiarity of the voice. Wharton’s Criminal Evidence, Vol. 2, p. 1803; Brown v. Commonwealth, 76 Pa. 319 (1874).”

Derembeis, 120 Pa.Super. at 166, 182 A. at 88. Derembeis, even though a case involving identification by the sound of a voice, is not controlling. The evidence presented in Derembeis as to the voice identification was dubious and was also contradicted by an extremely well-supported alibi. Those circumstances warranted the granting of a new trial.

Additionally, Derembeis has been distinguished by subsequent decisions. In Sterling v. Huey, supra, this court cited the rule from Derembeis and then said:

“Of course if there is something abnormal, exclusive or individual in a voice, testimony identifying it would probably carry more weight than if the voice was without any peculiarity. But if one is familiar with and is able to identify, a voice by its sound or tone quality, that testimony is admissible and the weight to be given it is a question for the [factfinder].”

The weight to be given voice recognition testimony is a question for the factfinder, but in Derembeis the testimony as to voice identification was branded insufficient as a matter of law to support the conviction.

There is testimony on the part of Charlene Booker of a long existing acquaintanceship with appellant and a familiarity with his voice, which she positively recognized as the one which uttered the threats immediately before the decedent was attacked and shot. A witness may testify to a person’s identity from his voice alone. Commonwealth v. Reid, 448 Pa. 288, 292 A.2d 297 (1972); Commonwealth v. Johnson, 201 Pa.Super. 448, 193 A.2d 833 (1963); Sterling v. Huey, supra. “Further, evidence of identification need not be positive and certain in order to convict, although indefiniteness and uncertainty go to its weight.” Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973).

Charlene Booker was a competent witness and her testimony was sufficient if accepted by the factfinder, as it was, to identify the appellant as the one who murdered the decedent. The appellant was afforded every opportunity to present any defense that he might have, was given a full and fair opportunity to be heard, and was represented by able counsel. By reason of the foregoing, this court finds no merit in appellant’s contention that the voice identification was not sufficient to sustain the third-degree murder conviction.

Appellant further asserts that the evidence was insufficient to support the guilty verdict as to possession of an instrument of crime.

The only evidence in support of the accusation of possession was purely circumstantial. However, once the factfinder concluded that the appellant was the slayer and that the death resulted from the infliction of a gunshot wound, the factfinder could logically have concluded from all of the evidence that appellant had possession of a gun, that the gun was an instrument commonly used for criminal purposes, and that his possession of the gun was, under the circumstances, not manifestly appropriate for any lawful use that the gun may have had. See Commonwealth v. Keaton, 276 Pa.Super. 518, 522, 419 A.2d 578, 580 (1980), where a conviction for this offense was upheld based only upon circumstantial evidence and with an absence of any direct evidence of actual physical possession of the weapon. Therefore, appellant’s conviction for this offense was grounded upon competent evidence. The evidence brought out during the course of the trial is sufficient to sustain both the conviction for murder in the third degree and the conviction for possession of an instrument of crime.

Judgments of sentence are affirmed.

      . 18 Pa.C.S. § 907.

      . Id. § 2502.

      . The following section defines possessing an instrument of crime in relevant part:
      § 907. Possessing instruments of crime
      (b) Possession of weapon. — A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.
      (c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:
      “Instrument of crime.”
      (1) Anything specially made or specially adapted for criminal use; or
      (2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

        “Weapon.” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have____


author: SPAETH, President Judge:

text:
    477 A.2d 1342
    COMMONWEALTH of Pennsylvania v. Tyrone GORDON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed May 11, 1984.

      Jacqueline M. Roberts, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   SPAETH, President Judge:

This is an appeal from judgments of sentence for criminal conspiracy, burglary, and criminal trespass. Appellant argues that the evidence was insufficient; that his trial counsel was ineffective for failing to move to have his case severed from his co-defendant’s case; and that his sentences were excessive. The first two arguments are without merit. On the third argument: We vacate the sentence for criminal trespass because the trespass merges with the burglary. We affirm the sentence for burglary. The trial court attempted to modify the sentence for criminal conspiracy, but by the time it made the attempt, it had lost jurisdiction. We therefore modify the sentence ourselves, so that it will be as the trial court intended.

Before we can consider appellant’s arguments, we must resolve a procedural difficulty.

On July 20, 1981, following a non-jury trial, appellant was found guilty of criminal conspiracy, burglary, and criminal trespass. On December 2, 1981, after denying post-verdict motions, the trial court sentenced appellant to four to ten years in prison for criminal conspiracy, with concurrent sentences of ten years probation for burglary and criminal trespass. Appellant filed a timely motion for reconsideration of the sentence, and, on December 29, 1981, filed an appeal; this is Appeal No. 3331 Phila.1981. The trial court did not hear the motion for reconsideration until March 31, 1982, when it modified the sentence for criminal conspiracy from four to ten years in prison to three to ten years; it reimposed the concurrent sentences of ten years probation for burglary and criminal trespass.

In response to the modified sentence, counsel for appellant took two actions. First, on April 5, 1982, counsel withdrew the appeal from the original sentence. Second, on April 27, 1982, counsel filed an appeal from the modified sentence; this is Appeal No. 1288 Philadelphia 1982.

The general rule regarding a trial court’s power to modify a sentence is that

except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
42 Pa.C.S. § 5505 (1981).

If an appeal has been taken, then the general rule is that the trial court has no jurisdiction to modify its sentence. Pa.R.App.P. 1701(a). However, Pa.R.App.P. 1701(b)(3) contains an exception to this general rule: even after a defendant takes an appeal, the court may reconsider its sentence provided two conditions are satisfied. First, the defendant must file a motion for reconsideration of sentence “within the time provided or prescribed by law.” Pa.R.App.P. 1701(b)(3)(i). The time “prescribed by law” for filing of a motion to modify a sentence is “within ten days of sentence.” Pa.R.Crim.P. 1410. Second, the trial court must issue “an order expressly granting reconsideration” of its sentence “within the time prescribed by these rules for the filing of a notice of appeal.” Pa.R.App.P. 1701(b)(3)(ii). The time “for the filing of a notice of appeal” is within 30 days of sentence. Pa.R.App.P. 903.

It is important to note that the trial court must “expressly grant reconsideration” within 30 days of sentence; an order that “all proceedings shall stay” will not suffice. Comment, Pa.R.App.P. 1701. In addition, while Pa.R. App.P. 1701(b)(3) requires only that the trial court issue an order “expressly granting” reconsideration, the trial court does have the power to vacate a sentence within 30 days. Thus, the soundest procedure for the trial court to follow, and the procedure that will avoid the sort of difficulty that has occurred in this case, is to vacate the sentence when granting reconsideration. See, Commonwealth v. Thomas, 301 Pa.Super. 333, 335-36, 447 A.2d 994, 995 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 55 n. 2, 444 A.2d 170, 172 n. 2 (1982).

Here, the first condition of Pa.R.App.P. 1701(b)(3) was satisfied, but the second was not: appellant filed a motion for reconsideration of the sentence within ten days of the sentence, but the trial court failed to issue an order expressly granting reconsideration of the sentence, instead only scheduling a hearing on the motion for reconsideration, and making no attempt to modify the sentence for more than three months.

We have consistently held that the trial court lacks jurisdiction to modify a sentence once the 30 day period for filing an appeal has passed. Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982). In Lynch, for example, the trial judge sentenced the defendant, and the defendant filed a timely appeal. Four and one-half months later, the trial judge vacated the sentence and imposed a more lenient sentenced Both the Commonwealth and the defendant filed timely appeals from the “New Sentence.” This court, citing 42 Pa.C.S., § 5505, held that the trial court’s attempt to modify the sentence was a nullity, “both because the appeal had already been taken and because more than 30 days had passed since entry of the original sentence.” Commonwealth v. Lynch, 304 Pa. Super. 248, 251, 450 A.2d 664, 666 (1982). We therefore vacated the “New Sentence” and dismissed both the Commonwealth’s and the defendant’s appeal from that sentence.

We noted in Lynch that the defendant was in no way prejudiced by our dismissal of his appeal from the “New Sentence,” because his appeal from the original sentence remained operative. Id., 304 Pa.Superior Ct. at 248 n. 1, 450 A.2d at 666 n. 1. Here, in contrast, if we acted in a similar manner, appellant would be prejudiced. Presumably because he believed that the trial court’s untimely attempt to modify the sentence was valid, counsel for appellant withdrew the appeal from the original sentence and filed an appeal from the new sentence. Thus, if we were to vacate the new sentence and dismiss the appeal from that sentence, as we did in Lynch, we should not have an operative appeal before us.

Furthermore, to act as we did in Lynch would be a waste of judicial resources. Counsel had no reasonable basis for withdrawing the appeal from the original sentence. See, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant could therefore file a claim pursuant to the Post Conviction Hearing Act, alleging ineffective assistance of counsel, and eventually this case would again be before us.

We shall therefore take the following procedural steps. First, we vacate the trial court’s invalid sentence of March 31, 1982, and dismiss appellant’s appeal from that sentence (Appeal No. 1288 Philadelphia 1982). The effect of this action is to reinstate the original sentence of December 2, 1981. Second, we reinstate appellant’s appeal from the December 2, 1981, sentence (Appeal No. 3331 Philadelphia 1981). We can now consider appellant’s several arguments challenging that sentence.

-1-

Appellant was tried with a co-defendant, Charles McDowell. The Commonwealth’s only witness was A1 Zikowitz, a security guard for the Philadelphia School Board. Mr. Zikowitz testified as follows. On November 11, 1980, a school holiday, at approximately 6:15 p.m., he was notified of a possible break-in at the Rhodes Middle School. N.T. 17. He entered the school and discovered appellant and the co-defendant inside Instrument Room No. 4, on the second floor of the school. Appellant was removing musical instruments from a closet and piling them on the floor, and the co-defendant was standing on the other side of the room, also piling instruments on the floor. N.T. 19-20. Mr. Zikowitz apprehended appellant and the co-defendant and handed them over to the police outside of the school. He then re-examined the premises. Certain plywood boards, which had been used to board up a previously broken window, had been removed from that window. N.T. 41. A metal gate in front of the broken window had been pulled away from the ground, leaving enough room for a man to crawl under. N.T. 25. A door that connected an alcove near the window to a main hallway had been opened; the opening of this door had triggered a silent alarm. N.T. 25, 26. The lock on the door to the instrument room had been broken, and several locks on closet doors inside the room had been broken off of the doors. N.T. 51-52.

The only witness for the defense was the co-defendant. He testified that he and appellant had been walking through the schoolyard when Mr. Zikowitz came out of the school and apprehended them. N.T. 60-63. After the co-defendant’s testimony, counsel for appellant and the district attorney stipulated that appellant’s testimony would be cumulative, and appellant did not testify.

Appellant argues that this evidence was insufficient to support a verdict of guilty on any of the charges. This argument is without merit.

In testing the sufficiency of the evidence, we accept as true all evidence upon which the finder of fact could properly base the verdict, giving the Commonwealth the benefit of all reasonable inferences from the evidence, Commonwealth v. Madison, 263 Pa.Super. 206, 210, 397 A.2d 818, 820 (1979), and then ask whether, so viewed, the evidence was sufficient to prove guilt beyond a reasonable doubt, Commonwealth v. Peterson, 251 Pa.Super. 462, 468, 380 A.2d 872, 875 (1977). Although a guilty verdict may not be based on “suspicion or surmise,” Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982), the Commonwealth may rely on circumstantial evidence to prove its case, Commonwealth v. Madison, 263 Pa.Super. 206, 210, 397 A.2d 818, 820 (1979).

Appellant argues that the Commonwealth failed to prove beyond a reasonable doubt that he and the co-defendant had entered into a “common agreement or understanding,” the existence of which is an essential element of the crime of conspiracy. 18 Pa.C.S. § 903 (1983); Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). The existence of a common agreement may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981); see also, Commonwealth v. Mitchell, 270 Pa.Super. 146, 411 A.2d 221 (1979) (Spaeth, J., concurring in part, dissenting in part), and from the relationship between and the conduct of the parties, Commonwealth v. Sadusky, 484 Pa. 388, 392, 399 A.2d 347, 349 (1979). Appellant claims that to prove the existence of an agreement in this case, the evidence would have had to show, for example, that he was handing the instruments to the co-defendant. However, while evidence of mere presence together at the scene of the crime is insufficient to establish the existence of a criminal conspiracy, Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Com monwealth v. Holman, 237 Pa.Super. 291, 352 A.2d 159 (1975), if the defendant is not only present at the scene but is also identified as one of the perpetrators of the crime, the finder of fact may conclude that a criminal agreement existed, Commonwealth v. Johnson, 265 Pa.Super. 418, 421, 402 A.2d 507, 509 (1979). Here, the security guard found appellant and the co-defendant together in the instrument room of the school, after 6:00 p.m., on a school holiday, each with a pile of musical instruments in front of him. This evidence was more than sufficient to support an inference beyond a reasonable doubt that the two men had entered into a common agreement.

Appellant also argues that the Commonwealth failed to prove an overt act, which is a necessary element of the crime of criminal conspiracy. See, 18 Pa.C.S. § 903(e) (1983). The Commonwealth proved several overt acts: the removal of the plywood boards; the bending back of the gate in front of the window; and the breaking of the lock on the instrument room door.

Appellant also argues that the evidence was insufficient to prove burglary. A person is guilty of burglary if “... he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S. § 3502 (1983). Appellant claims that there was no proof of entry because according to the Commonwealth’s evidence the plywood could have been removed either several hours before or forty minutes after the security guard arrived at the school. However, proof of entry does not require proof of a breaking-in; it is sufficient to prove that any part of the body of the intruder entered the premises. Commonwealth v. Rhodes, 272 Pa. Super. 546, 557, 416 A.2d 1031, 1037 (1979). Here, appellant was apprehended inside the school. See also, Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979) (fact that hole in screen door could have been made earlier in day goes to weight not sufficiency of the evidence).

Appellant also argues that since he did not take the stand, there was no proof that he entered the school with the intent to commit a crime. Intent, however, may be proved by circumstantial evidence. Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982); Commonwealth v. Gonzales, 297 Pa.Super. 66, 73, 443 A.2d 301, 304-05 (1982). In Franklin, for example, a police officer discovered the defendant and two others inside a showroom at night, with the defendant holding merchandise from the showroom. We held this evidence sufficient to prove that the defendant had entered the building with the intent to commit a crime. Similarly, appellant was discovered inside a building, without permission, at night, holding property that did not belong to him. Furthermore, this court has held that evidence of entry by force may be sufficient to establish the criminal intent of the intruder. Commonwealth v. Tingle, 275 Pa.Super. 489, 495, 419 A.2d 6, 9 (1980); Commonwealth v. Lynch, 227 Pa.Super. 316, 319, 323 A.2d 808, 810 (1974). Here, there was evidence that appellant used force to enter the school, and the instrument room.

Appellant alsó argues that the Commonwealth failed to prove that he and the co-defendant were not privileged to enter the school because Mr. Zikowitz was not qualified to testify as to permission. In similar circumstances, we have held to the contrary. Commonwealth v. Tate, 299 Pa.Super. 518, 445 A.2d 1250 (1982). In addition, lack of privilege may be proved from the surrounding circumstances. Commonwealth v. Knight, 276 Pa.Super. 348, 363-66, 419 A.2d 492, 499-501 (1980); Commonwealth v. Herman, 271 Pa.Super. 145, 151-52, 412 A.2d 617, 620 (1979). Here, lack of privilege could be inferred from the circumstances that appellant did not have permission to be in a locked school after 6:00 p.m. on a school holiday.

Finally, appellant argues that the evidence was insufficient to prove criminal trespass, 18 Pa.C.S. § 3503 (1983), because it did not show that he knew that he lacked a license or privilege to enter the building. Common wealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). The fact that he knew could be inferred from the evidence of the time and manner of his entry. Commonwealth v. Goldsborough, 284 Pa.Super. 435, 426 A.2d 126 (1981).

Appellant next argues that his trial counsel was ineffective for failing to move to have his case severed from his co-defendant’s case. In considering this argument, we must determine whether the “particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth v. Ford, 491 Pa. 586, 590, 421 A.2d 1040, 1042 (1980); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 352-53 (1967). We start by asking whether a motion to sever would have had arguable merit, for we will not find counsel ineffective for failing to pursue a course of action that had no arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 695-96 (1977). See, Commonwealth v. Roach, 479 Pa. 528, 530-31, 388 A.2d 1056, 1057 (1978); Commonwealth v. White, 476 Pa. 350, 357, 382 A.2d 1205, 1208-09 (1978).

The decision to sever or not is within the sound discretion of the trial judge, and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980). See, Pa.R. Crim.P. 228(d) (1974) (amended, 1982, see Pa.R.Crim.P. 1128). Where the defendants are charged in separate informations, as here, they may be tried together if they could have been charged in the same information. Commonwealth v. Norman, 272 Pa.Super. 300, 306, 415 A.2d 898, 900 (1979) (citing Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973)). “[T]wo or more defendants may be joined in the same information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses ...” Pa.R.Crim.P. 228(b) (1974). Thus in Norman, we held that the trial judge did not abuse his discretion in ordering joinder where the co-defendants were charged with offenses arising from the same incident, and proof of the offenses required substantially identical evidence as to each co-defendant. See also, Commonwealth v. Guess, 266 Pa.Super. 359, 376 n. 13, 404 A.2d 1330, 1338 n. 13 (1979); Commonwealth v. Garcia, 261 Pa.Super. 296, 396 A.2d 406 (1978). We have also stated that where conspiracy is alleged, the defendants should generally be tried together. Commonwealth v. Schwartz, 210 Pa.Super. 360, 233 A.2d 904 (1967), aff'd, 432 Pa. 522, 248 A.2d 506 (1968), cert. denied, 398 U.S. 957, 90 S.Ct. 2161, 26 L.Ed.2d 541 (1970); Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981); Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973).

Here, appellant and the co-defendant were charged with identical offenses. One of the offenses was criminal conspiracy. The charges arose from a single incident, and were based on the statement of a single witness, who allegedly caught appellant and the co-defendant red-handed. And the defense offered by appellant and the co-defendant was the same: they claimed that their version of the incident, not that of the security guard, was the correct one. Given these facts, appellant’s trial counsel properly refrained from making a motion to sever; it had no arguable merit, and would have been denied by the trial judge.

Nevertheless, appellant argues that he was prejudiced by a joint trial in that, he says, at a separate trial he couíd have called co-defendant as a corroborative witness. However, appellant does not claim that he would have testified differently at a separate trial. Furthermore, the co-defendant did in fact testify at the joint trial. We see no reason to suppose that the co-defendant’s testimony would have been more persuasive at a separate trial.

-3-

Finally, appellant argues that his sentence was excessive; appellant claims that the trial court should have given more consideration to the “back time” that he probably will have to serve because he was convicted of new offenses while on parole. See, 61 P.S. § 331.21a(a) (1964).

As a general rule, the imposition of a sentence is within the sound discretion of the sentencing court. Commonwealth v. Giffin, 279 Pa.Super. 264, 420 A.2d 1134 (1980); Commonwealth v. Williams, 274 Pa.Super. 464, 418 A.2d 499 (1980). Here, the sentence of five to ten years in prison was well within the limits prescribed by statute for conspiracy to commit burglary. See, 18 Pa.C.S. §§ 903, 1103, 3502 (1983). Before imposing sentence, the trial court obtained sufficient and accurate information: the court had before it both a presentencing report and a psychiatric evaluation, and it heard the sentencing recommendations of both the Commonwealth and of counsel for appellant. See, Commonwealth v. Martin, 466 Pa. 118, 131-32, 351 A.2d 650, 657 (1976); Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978). The court expressly considered the circumstances of the crime and appellant’s history, character and condition, including the fact that appellant was likely to receive back time. See, 42 Pa.C.S. § 9725 (1982). And finally, the court stated on the record the reasons for the sentence. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Pa.R.Crim.P. 1405(b). While the better procedure is to refer expressly to the guidelines specified in the Sentencing Code, we will not disturb the sentence where the record of the sentencing proceeding shows, as it does here, that the trial court followed the guidelines. See, Commonwealth v. Wareham, supra.

Nevertheless, we recognize that on appellant’s motion for reconsideration the trial court attempted to modify its sentence on the criminal conspiracy conviction from four to ten years in prison to three to ten years, and that the court failed in its attempt only because it did not act in the procedurally required manner. In these circumstances, out of deference to the trial court’s reconsidered judgment of what the proper sentence was, we shall ourselves modify the sentence so that it will be as the court intended.

We also note that it was improper for the trial court to impose separate sentences on the burglary and criminal trespass convictions. Those convictions merged for the purposes of sentencing because in practical effect appellant committed but one criminal act: the unlawful entry. Commonwealth v. Smith, 499 Pa. 507, 454 A.2d 1 (1982); Commonwealth v. Casella, 312 Pa.Super. 375, 458 A.2d 1007, 1009 (1983). However, since it is clear that the sentence for criminal conspiracy did not affect the sentence for burglary, we need not remand but will instead vacate the sentence imposed for criminal trespass as the lesser crime. Id.

On Appeal No. 1288 Philadelphia 1982: the judgment of sentence of March 31, 1982, is vacated and the appeal is dismissed. On Appeal No. 3331 Philadelphia 1981: the appeal is reinstated; the judgment of sentence of December 2, 1981, for criminal conspiracy is modified from a sentence of four to ten years in prison to a sentence of three to ten years in prison; the judgment of sentence of December 2, 1981, of ten years probation for burglary is affirmed; and the judgment of sentence of December 2, 1981, of ten years probation for criminal trespass is vacated.

WIEAND, J., concurs in the result.