author: POPOVICH, Judge: JOHNSON, Judge,

text:
    461 A.2d 1281
    COMMONWEALTH of Pennsylvania v. Thaddeus FORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1983.
    Filed June 10, 1983.

      Martin L. Trichon, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

After a bench trial before Judge Goldman of the Court of Common Pleas of Philadelphia County, the appellant, Thaddeus Ford, was adjudged guilty of Aggravated Assault, Attempted Murder, Criminal Conspiracy, Recklessly Endangering Another Person, Carrying a Firearm on a Public Street or Public Property in Philadelphia, Carrying a Firearm Without a License and Possession of an Instrument of Crime. Following the denial of post-trial motions, appellant was sentenced: 1) five to ten years for Criminal Conspiracy; 2) two and one-half to five years for Possession of an Instrument of Crime, which was to run concurrently with the Conspiracy term; 3) two and one-half to five years for Carrying a Firearm Without a License, which was to run consecutively to the Possession of an Instrument of Crime sentence but concurrently with the Conspiracy sentence; and 4) five to ten years for Attempted Murder, which was also ordered to run consecutively to the Conspiracy sentence. No sentence was imposed for the convictions of Aggravated Assault and Recklessly Endangering Another Person. This appeal followed. We vacate and remand for proceedings consistent with this Opinion.

The facts, viewed in a light most favorable to the verdict winner, the Commonwealth here, Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971), consist of the following: At approximately 8:00 p.m. on the 27th of September, 1980, Kevin Mason summoned Lawrence Brown to the home of Leon Jones in the Point Breeze section of South Philadelphia. Mr. Brown made his way to the Jones’ residence on his ten-speed bicycle. En route, Brown met the appellant, who was in Mason’s company, and the trio entered the house together. Once there, Mason borrowed Brown’s bicycle and returned fifteen minutes later with Alphonso Beecher.

When Beecher arrived, appellant removed a .32 caliber, blue steel revolver from the back of his pants. He then handed it to Beecher and remarked, “I can’t take this bust.” The appellant could not afford “to get locked up” because possession of a firearm would constitute a violation of his existing probation. As a result, Beecher took the weapon, which Brown recognized as belonging to Mason, and placed it in his own pants. (N.T. 11-15, 23, 25-27, 29-30).

Mason, Beecher, Brown, Jones and appellant left the house as a group and walked about three blocks to a park located on 23rd Street, between Reed and Dickinson Streets. When the group reached the park, appellant, Mason and Jones separated from Brown and Beecher, both of whom continued to walk for slightly less than half a block. At this point, according to Brown, appellant screamed, “Go ahead. Now.” Within the span of a minute, Beecher fired six shots at Brown at point-blank range, hitting him four times in the back. Beecher ran from the scene, while appellant, Mason and Jones walked away.

The shooting that left both of Brown’s legs totally paralyzed occurred about twenty minutes after the appellant had handed the .32 caliber weapon to Beecher; the gun Beecher used was the same one that changed possession in Jones’ house. (N.T. 17-19, 21, 28, 31-35, 39-41 & 44)

To rebut the Commonwealth’s case-in-chief, the appellant produced two witnesses (Patricia Johnson and Sharon Washington) who admitted to conversing with the appellant at the scene, but denied hearing him make any statement even resembling the phrase, “Go ahead. Now” immediately preceding the shooting in question. (N.T. 49-50, 53 & 59)

The trier of fact, after hearing and weighing all of the evidence, found the appellant guilty as charged and sentenced him to the terms of imprisonment recounted supra.

On appeal, appellant challenges the sufficiency of the evidence to sustain the verdict and the propriety of “the sentence ... for three (3) different inchoate crimes ... pursuant to 18 Pa.C.S. § 906.” (Appellant’s Brief at 3)

Since we find that the evidence presented was sufficient to establish appellant’s guilt as to some, but not all, of the offenses charged, we will deal with each offense separately for ease of discussion.

To start with, appellant asserts that the evidence produced at trial was insufficient to prove beyond a reasonable doubt that a conspiracy existed. Thus, he contends that he was improperly convicted of Attempted Murder, Aggravated Assault and Recklessly Endangering Another Person under the rubric of a conspirator of Alphonso Beecher and the others to cause injury to the victim, Mr. Brown.

On the question regarding the quantum of proof necessary to establish the existence of a conspiratorial agreement, this Court has stated:

The essence of conspiracy is a common understanding or agreement. Commonwealth v. Fontana, 265 Pa.Super. 387, 401 A.2d 1361 (1979). However, the Commonwealth is not required to establish the existence of a conspiracy by direct proof or an explicit or formal agreement. Id. “Indeed, direct proof of an explicit or formal agreement to commit a crime can seldom, if ever, be supplied and it need not be for ‘it is established law in this Commonwealth that a conspiracy may be proved by circumstantial evidence as well as by direct evidence.’ ” Commonwealth v. Roux, 465 Pa. 482, 488, 350 A.2d 867, 870 (1976). The nature of the crime usually makes it susceptible of no other proof than by circumstantial evidence. Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57 (1959), aff’d 399 Pa. 387, 160 A.2d 407 (1960), cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194, reh. denied, 364 U.S. 939, 81 S.Ct. 377, 5 L.Ed.2d 371. To assist the finder of fact in determining whether a corrupt confederation is present, the relationship and conduct of the parties and the circumstances surrounding their activities can be examined to deduce, inferentially, if a conspiracy exists. Commonwealth v. Fontana, supra. (Emphasis added)

Commonwealth v. Tumminello, 292 Pa.Super. 381, 386, 437 A.2d 435, 437-438 (1981).

Additionally, notwithstanding the fact that we are dealing with a situation in which the complained of assault was inflicted by someone other than the appellant, the law in Pennsylvania is settled that each conspirator is criminally responsible for the action of his co-conspirator, provided it is accomplished in furtherance of the common design, “even though one does not perform the immediate act [complained of].” (Citation omitted) Commonwealth v. Bachert, 271 Pa.Super. 72, 77, 412 A.2d 580, 583 (1980). Further, our Supreme Court, in discussing conspiratorial accountability, has held:

When there is evidence that one, who has not struck the fatal blow, has, nonetheless, shared in the criminal intent and the criminal activity, that person has aided and abetted in the commission of the crime and, thus, may be held responsible as an accomplice to another’s acts and the consequences of those acts. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972); Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733 (1953). “The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all." Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79 (1937). (Emphasis added)

Commonwealth v. Vaughn, 459 Pa. 35, 39-40, 326 A.2d 393, 395 (1974).

Moreover, as noted in Commonwealth v. Cox, 466 Pa. 582, 586, 353 A.2d 844, 846 (1976):

... the Commonwealth was not required to establish that appellant was part of the joint effort to cause the death of ... the victim by direct evidence. This burden may be sustained by means of wholly circumstantial evidence.

Thus, based on the cases just cited, we need to decide if the evidence presented was sufficient to prove, beyond a reasonable doubt, the existence of a conspiratorial agreement so as to hold appellant guilty for the acts of his confederates. In particular, whether the evidence supports a finding that the appellant shared, with his cohorts, the intent specifically necessary to establish the deliberate, willful and premeditated (attempted) killing of the victim, see Commonwealth v. Bachert, supra, and whether he “participated in or encouraged the offense.” (Citations omitted) Commonwealth v. Young, supra, 446 Pa. at 125, 285 A.2d at 500. On this issue, we find the case of Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980) instructive.

In Smith, the appellant engaged in a fistfight with a Leon Mayo. After this dispute terminated, appellant engaged in a second fistfight in the same neighborhood with a Jerry Crew later on that same day. Smith left the scene of the second fight but warned he would return. Thereafter, appellant joined Eugene Blocker and Alan Blocker, as well as several of his other friends, and the group proceeded to Mayo’s house. Once there, appellant and his group confronted Mayo, Crew, Darryl Hill and several other youths. Smith and Crew resumed fighting until the police arrived and broke up the argument. After the police left, the fight continued in an alley behind Mayo’s house before it was dispersed by Mayo’s sister. Then, Mayo’s group walked to a nearby high school where they were confronted by Smith and his friends. Smith wanted to continue fighting with Crew, but Mayo informed him that Crew had not come with them because he did not want to fight anymore. With this response, Smith suddenly dashed toward the corner where Eugene Blocker stood and shouted, “now, now” while simultaneously making two downward motions with his right hand, index finger pointing. Thereupon, Blocker fired one shot from a gun that fatally wounded Darryl Hill. The Court in Smith found the appellant “legally accountable” for Blocker’s act of shooting Hill and, consequently, upheld the convictions of murder of the third degree, criminal conspiracy, possession of an instrument of crime and possession of a prohibited offensive weapon.

Instantly, the appellant proffers the accounting of two female companions, who were present at the scene of the shooting, to dispute the complainant’s testimony that he (Ford) shouted, “Go ahead. Now” immediately preceding the firing of the 6 shots by Beecher, 4 of which struck the complainant. Here, as in Smith, these conflicts in the testimony were for the fact-finder to resolve, Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978), and, as the record demonstrates, the trial court found that Ford did yell, “Go ahead. Now.” We are not persuaded to alter such a determination in the absence of record evidence that it was so unreliable and contradictory that the fact-finder erred in making the finding. Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1307 (1978); Commonwealth v. Smith, supra.

Moreover, in this case, the record not only shows that the appellant was together with his confederates prior to and during the commission of the attempted homicide, but he supplied the assailant (Alphonso Beecher) with the means (a .32 caliber gun) by which to carry out the assault. See Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). Also, we have a statement attributed to the appellant (“I can’t take this bust”) indicating that he was cognizant that a criminal act was about to be perpetrated, yet no evidence that appellant’s participation in the conspiracy had terminated. See Commonwealth v. Laurin, 269 Pa.Super. 368, 409 A.2d 1367 (1979). Quite the contrary, appellant not only accompanied his cohorts from the residence into the park in an attempt to lull the victim into a false sense of security, but he gave the signal (“Go ahead. Now”) to commence firing at the victim. The command was followed by Alphonso Beecher firing six shots, at point-blank range, at the victim’s back, four of which found their mark. See Commonwealth v. Pierce, 437 Pa. 266, 263 A.2d 350 (1970).

Therefore, based on the actions and statements of the appellant, we hold that the fact-finder was warranted in concluding that the appellant conspired to commit the crime of Attempted Murder. See Commonwealth v. Smith, supra; Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); cf. Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982) (common understanding among alleged co-conspirators is indispensable element of the crime; however, mere association or presence, or knowledge that another proposes to commit an unlawful act, will not establish a conspiracy absent proof that the accused became an active partner in the criminal enterprise with knowledge of the agreement) and compare Commonwealth v. Bachert, supra. As for the sufficiency of the evidence to sustain appellant’s conviction for Aggravated Assault and Recklessly Endangering Another Person, we do not take issue with this aspect of the trial court’s verdict. To explicate, one is guilty of Attempted Murder if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act. See Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983); Commonwealth v. Bey, 306 Pa.Super. 288, 452 A.2d 729 (1982), petition for reargument denied December 13, 1982. The killing, under common law definition, must be unlawful and done with malice aforethought. Malice “consists of an express intent to kill or inflict serious bodily harm, or a ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty’ which indicates an unjustified disregard for the likelihood of death or great bodily harm and an extreme indifference to the value of human life.” Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974), quoting Commonwealth v. Chermansky, 430 Pa. 170, 175, 242 A.2d 237, 240-241 (1968).

Next, we see that Aggravated Assault is committed when a person “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under the circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Recklessly Endangering Another Person occurs when a person “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The element of recklessness may be demonstrated by showing that an accused acted in conscious disregard of a substantial and unjustifiable risk that death or serious bodily injury would result, 18 Pa.C.S.A. § 302(b)(3), or it may be established by conduct which is committed intentionally or knowingly. 18 Pa.C.S.A. § 302(e).

Consequently, when the Commonwealth established that appellant’s co-conspirator Beecher shot and wounded the victim four times in the back, this evidence was sufficient to constitute the commission of an Attempted Murder. See Commonwealth v. Bey, supra. However, because the facts that went to establish the commission of such an offense were exactly the same as those to prove appellant guilty of Aggravated Assault and Recklessly Endangering Another Person, the latter two offenses merged with the Attempted Murder conviction for sentencing purposes. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-105, 21 A.2d 920, 921 (1941); see also Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth v. Wilcox, 310 Pa.Super. 331, 456 A.2d 637 (1983); Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983); Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982), petition for allocatur denied January 31, 1983; Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981). Therefore, instantly, the trial court did not err when it found appellant guilty as charged and imposed no separate sentences for Aggravated Assault and Recklessly Endangering Another Person, since assault and recklessly endangering were, under the facts of this case, a constituent offense of Attempted Murder and, for purposes of sentencing, merged with the more serious offense. See Commonwealth v. Laing, supra; Commonwealth v. Walls, supra.

The last two offenses to be dealt with under the caption of sufficiency of the evidence will be appellant’s convictions for Carrying a Firearm in a Public Place and Carrying a Firearm Without a License. As for the Possession of an Instrument of Crime conviction, it is more appropriately dealt with in the context of the propriety of the sentence entered in regard thereto, and is discussed infra.

All parties agree, including the trial court, that because the Commonwealth failed to introduce any evidence of non-licensure in regard to the offense of Carrying a Firearm Without a License, such a conviction cannot stand. See Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) (proof of a license being an essential element of 18 Pa.C.S.A. § 6106, the prosecution’s failure to prove such an element necessitated reversal of defendant’s conviction for that charge). Our review of the record confirms this point, and, accordingly, we reverse appellant’s conviction for this offense. See Commonwealth v. Bundridge, 303 Pa.Super. 267, 449 A.2d 681 (1982).

However, because lack of a license is not made an element of the offense of Carrying a Firearm on Public Streets or Public Property in Philadelphia (18 Pa.C.S.A. § 6108), see Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979); Commonwealth v. Monroe, 281 Pa.Super. 328, 422 A.2d 193 (1980), the prosecution’s failure to prove licensure is not fatal to appellant’s conviction for this offense.

An examination of the evidence reveals that the victim encountered the appellant and Kevin Mason along the way to Jones’ house, to which the victim was summoned by Mason, and the three walked into the house together. Within fifteen minutes after entering the premises, appellant removed a pistol from his pants and, while handing it to Alphonso Beecher, remarked that he could not “take this bust.” Shortly thereafter, the victim was shot by Beecher in a nearby park at the direction of the appellant. From the complainant’s accounting of having met the appellant on the way to the Jones’ house, it can reasonably be inferred that appellant possessed the firearm on his person, prior to the shooting, as he walked on a public street in Philadelphia. See Commonwealth v. Monroe, supra; Commonwealth v. Goosby, 251 Pa.Super. 326, 380 A.2d 802 (1977). Even if, arguendo, the prosecution had not proven that the appellant personally carried the gun in a public place or street, it did introduce substantial evidence that his accomplice, Beecher, carried and used the weapon in a public place pursuant to appellant’s direction. We find that such evidence would also justify the trial judge, the trier of fact here, in holding appellant legally accountable for co-conspirator Beecher’s carrying and use of the firearm. See Commonwealth v. Smith, supra. Although the conviction under Section 6108 withstands the scrutiny of a sufficiency examination, the sentence will be vacated, nonetheless, because of the interdependence of one sentence upon the other (see note 13, infra) and the course of action taken by this Court in the succeeding part of this Opinion.

Having dispensed with the sufficiency question, we now turn our attention to appellant’s allegation that because his “conviction and sentencing ... on multiple inchoate offenses[, i.e., Attempted Murder, Criminal Conspiracy and Possession of an Instrument of Crime,] ar[o]s[e] out of the commission of one ultimate crime [such] is barred by 18 Pa.C.S.A. § 906 and was therefore improper.” (Appellant’s Brief at 9) The Commonwealth counters that inasmuch as the appellant “offers this challenge for the first time on appeal[,] ... this claim has been waived.” (Commonwealth’s Brief at 8) More particularly, the Commonwealth asserts that appellant’s failure to attack his convictions at the post-trial level, as violative of 18 Pa.C. S.A. § 906 (prohibiting multiple convictions for conduct designed to culminate in the commission of a single crime), precludes him from assailing the legality of his sentences now at the appellate level. In support of such an averment, the Commonwealth cites the decisions of this Court in Commonwealth v. Sheldon Jackson, 269 Pa.Super. 583, 410 A.2d 854 (1979) and Commonwealth v. Gadson, 234 Pa.Super. 648, 341 A.2d 189 (1975), both of which held that an assault on the convictions for offenses proscribed by 18 Pa.C.S.A. § 906 (i.e., Criminal Conspiracy, Possession of Instruments of Crime and Prohibited Offensive Weapons,) was waived by appellants’ failure to raise the issue in post-trial motions. However, unlike the appellants in Jackson and Gadson, Ford is questioning the lawfulness of the sentences imposed upon his convictions. As such the claim has not been waived and is properly before us. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). This position is consistent with this Court’s most recent pronouncement in Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981) (Commonwealth’s Petition for Limited Reconsideration Denied March 17, 1982), wherein we held that a Section 906 sentencing claim, albeit not raised in post-trial motions, was reviewable at the appellate level. We based our decision on the oft-stated precept that: “As to the propriety of inquiring into the validity of the sentence, ... a question as to the legality of the sentence is never waived, despite the fact that it was not raised in the court below. See Commonwealth v. Walker, [supra]; Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1980).” Id. 295 Pa.Super. at 246, 441 A.2d at 752. Accord Commonwealth v. Riquelmy, 303 Pa.Super. 403, 449 A.2d 750 (1982); Commonwealth v. Martinez, 293 Pa.Super. 260; 438 A.2d 984 (1982); Commonwealth v. Sandor Turner, 290 Pa.Super. 428, 432-433, 434 A.2d 827, 830-831 (1981); Commonwealth v. Herbert Jackson, 280 Pa.Super. 522, 525 n. 4, 421 A.2d 845, 846 n. 4 (1980); Commonwealth v. Edward Turner, 265 Pa.Super. 486, 488-489, 402 A.2d 542, 543-544 (1979).

In fact, “[t]he illegality of sentence is not a waivable matter and may be considered by the appellate courts of the Commonwealth sua sponte.” (Citations omitted) Corn- monwealth v. Thomas, 291 Pa.Super. 263, 268, 435 A.2d 901, 903 (1981); Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 419 A.2d 596 (1980); Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978) and compare Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978).

Consequently, despite the Commonwealth’s argument to the contrary, we hold that the appellant has not waived his attack on the legality of the sentence imposed for Attempted Murder, Criminal Conspiracy and Possession of an Instrument of Crime. See Commonwealth v. Smith, 499 Pa. 507, 454 A.2d 1 (1982). Thus, we find the appellant’s convictions for the three aforementioned inchoate crimes to be violative of 18 Pa.C.S.A. § 906, which provides:

A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.

All three offenses fall within the purview of Chapter 9 of the Crimes Code, the Chapter referred to in Section 906, and it is apparent from our review of the facts that the offenses were perpetrated with one objective in mind—the (attempted) killing of Lawrence Brown. Accordingly, appellant’s conviction for the three crimes was improper. Commonwealth v. Von Aczel, supra; Commonwealth v. Herbert Jackson, supra; Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980); Commonwealth v. Ronald Jackson, 261 Pa.Super. 355, 396 A.2d 436 (1978); Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978); Commonwealth v. Wallace, 235 Pa.Super. 733, 345 A.2d 247 (1975).

In light of the error committed by the trial court, we have the option either to remand for resentencing or amend the sentence directly. Commonwealth v. Von Aczel, supra; Commonwealth v. Sandor Turner, supra; 42 Pa.C.S.A. § 706. Instantly, we think it advisable to vacate the judgments of sentence and remand for resentencing. We do so because: 1) the sentencing court imposed consecutive terms of five to ten years imprisonment for Criminal Conspiracy and Attempted Murder, with a concurrent term of two and one-half to five years for Possession of an Instrument of Crime; and 2) the conspiracy and attempt offenses are each graded felonies of the second degree. 18 Pa.C.S.A. §§ 901, 903 & 905. The preceding points counsel against our vacating the sentence for either the conspiracy or attempted murder charge without remanding, since such a practice is followed, normally, where we vacate the concurrent sentence of a lesser offense and let stand the sentence for the greater offense. See Commonwealth v. Kinnon, 308 Pa. Super. 28, 453 A.2d 1051 (1982); Commonwealth v. Bey, supra; Commonwealth v. Walls, supra; Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982) (POPOVICH, J., Concurring Opinion); Commonwealth v. Von Aczel, supra; Commonwealth v. Sandor Turner, supra; see also Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982); Commonwealth v. Cadogan, 297 Pa.Super. 405, 443 A.2d 1185 (1982). Here, because of the imposition of consecutive sentences and the presence of offenses (conspiracy and attempted murder) of equal grading (felonies), we think it prudent to vacate and remand, leaving it to the sentencing court to decide which one of the three inchoate convictions to let stand and the sentence to be entered in accordance thereto. Commonwealth v. Martinez, supra, 293 Pa.Super. at 262 n. 6, 438 A.2d at 985 n. 6. To do otherwise, as the Commonwealth urges, we believe would constitute too much of an intrusion into the bailiwick of the sentencing court in light of the facts here. In other words, given the manner in which the trial court entered its sentence, our reluctance to substitute our judgment for that of the sentencing court (as, for example, to which one of the three inchoate convictions should be affirmed, and, in turn, which sentences should be vacated) is valid. The decision as to which course to follow in regard to the inchoate crimes impacts directly on the manner of sentencing (concurrently or consecutively) as to some of the other offenses, e.g., Carrying a Firearm on a Public Street or Public Property in Philadelphia. See note 13, supra.

As for the Aggravated Assault and Recklessly Endangering Another Person convictions, since no judgments (sentences) per se were entered by the lower court because it determined, and rightly so, that these offenses merged for sentencing purposes with the Attempted Murder conviction, we merely hold that the evidence was sufficient to support such convictions. See Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244 (1951) (As is well known, the judgment in a criminal case is the sentence and not the conviction; final judgment in a criminal case means sentence); Commonwealth v. Maguire, 307 Pa.Super. 80, 452 A.2d 1047 (1982); 10A P.L.E. Criminal Law § 811 (1970).

However, this determination does not foreclose the lower court from imposing a sentence for either Aggravated Assault or Recklessly Endangering Another Person, see generally Commonwealth v. Wilcox, supra; Commonwealth v. Laing, supra, if it decides to issue a sentence for Criminal Conspiracy, as opposed to the Attempted Murder charge.

The prospects that such a sentence may be entered is not violative of one’s Fifth Amendment right to be free from being punished twice for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2073, 2076, 23 L.Ed.2d 656 (1969) (double jeopardy protects against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense). In the case at bar, the fact that there was no initial sentence entered for either Aggravated Assault or Recklessly Endangering Another Person, the Constitutional prohibition against altering a sentence that results in an increased punishment for the same offense is obviated. See Commonwealth v. Johnson, 269 Pa.Super. 122, 409 A.2d 94 (1979); Commonwealth v. Walter, 240 Pa.Super. 433, 367 A.2d 1113 (1976); Commonwealth v. Tomlin, 232 Pa.Super. 147, 336 A.2d 407 (1975). On this exact subject the Third Circuit Court of Appeals held, in United States v. Busic, 639 F.2d 940 (3d Cir.1981), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981), that:

[WJhen a defendant has been convicted after trial and sentenced under a multi-count indictment and on appeal his conviction and sentence as to certain counts is set aside because such counts enhanced the sentence for the predicate felony which contained its own enhancement provision, the constitutional guarantee against double jeopardy does not preclude vacating the sentence on the predicate felony counts and the imposition of a new sentence by the trial judge on the remaining counts, which may be greater than, less than, or the same as the original sentence.

Id. at 953.

The Third Circuit also stated:

Because defendants’ initial composite sentences would not be increased by their analysis on resentencing, the due process protections against vindictiveness alluded to in North Carolina v. Pearce, supra, are inapplicable here. Furthermore, because the appeal could not result in a higher sentence than that originally imposed, there could be no deterrent to an appeal. Even if there were, the possibility that a defendant might be deterred from the exercise of a legal right to appeal does not violate the due process clause, see Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667-668, 54 L.Ed.2d 604 (1978), or the Double Jeopardy Clause, see Chaffin v. Stynch-Combe, 412 U.S. 17, 29, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973).

Id. at 951 n. 12. Accord United States v. Henry, 680 F.2d 403 (5th Cir.1983).

Likewise, in the case sub judice, appellant’s aggregate sentence on remand will not exceed the original sentence, regardless of whether the term of imprisonment for Aggravated Assault [which cannot exceed 10 years (18 Pa.C.S.A. §§ 2702(a)(1) & 1103(2)) ] or Recklessly Endangering Another Person [imprisonment cannot exceed 2 years (18 Pa.C. S.A. §§ 2705 & 1104(2))] may be substituted for the Attempted Murder sentence (i.e., 5 to 10 years).

Thus, based on the record before us, we, as did the Court in Busic, need not express any opinion as to whether the new aggregate sentence may be greater than the original sentence. But see United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (Court held that 18 U.S.C. § 3576, which authorizes the United States to appeal from a sentence imposed by a federal district judge on the ground that the sentence is too lenient and further permits the appellate court to increase the severity of the initial sentence, violates neither the prohibition against multiple punishments nor the prohibition against multiple trials embodied in the Double Jeopardy Clause of the Fifth Amendment).

Accordingly, the following ruling is made: Judgments of sentence for Attempted Murder, Criminal Conspiracy, Carrying a Firearm on a Public Street or Public Property in Philadelphia, Carrying a Firearm Without a License and Possession of an Instrument of Crime are vacated, and the case is remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

Although I concur in the majority’s determination to vacate the judgments of sentence and remand the instant case to the trial court, I note my disagreement concerning the majority’s alternative determination that evidence of co-conspirator Beecher’s possession of the weapon can, by itself, support appellant’s conviction for carrying firearms in Philadelphia, 18 Pa.C.S.A. § 6108.

My review of Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980), cited for support by the majority, fails to reveal any specific discussion on the issue of whether the defendant in Smith could be held legally accountable for a co-conspirator’s possession of a weapon, as opposed to the act of shooting the victim. 490 Pa. at 332-334, 416 A.2d at 496. Granted, the court in Smith did affirm the defendant’s convictions for possession of an instrument of crime and possession of a prohibited offensive weapon. However, the instant case concerns an offense under the Uniform Firearms Act, not a weapons offense in the Crimes Code chapter dealing with inchoate offenses, as found in Smith.

I cannot agree that a person can be convicted under 18 Pa.C.S.A. § 6108 for another’s possession of a weapon by means of an accomplice or conspiracy theory. In my view, a violation of section 6108 is personal and cannot be imputed to another.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. §§ 901 & 2502.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 6108.

      . 18 Pa.C.S.A. § 6106.

      . 18 Pa.C.S.A. § 907.

      . Specifically, appellant testified that he "ran into Thaddeus Ford and Kevin Mason ... on Point Breeze, between Titan and 20th” Streets, while making his way to Leon Jones’ house on the 1900 block of Titan Street. (N.T. 13) The three then went to Jones’ house.

      . It is true that appellant makes reference in his brief to the propriety of his convictions for Attempted Murder, Criminal Conspiracy and Possession of an Instrument of Crime in the context of inchoate offenses, as defined in Chapter 9 of the Crimes Code. See 18 Pa.C.S.A. §§ 901, 903 and 907. The Commonwealth seizes on this to label appellant’s claim as purely one of questioning his convictions. We do not agree, for the Commonwealth gives too narrow a reading to appellant’s position. Rather, we interpret appellant’s argument as one alleging that the trial court erroneously convicted and sentenced him for three inchoate crimes (see Appellant’s Brief at 9), the remedy for which is either amending the sentence, vacating the sentence for the lesser offenses, or remanding for resentencing. See Commonwealth v. Maguire, 307 Pa.Super. 80, 452 A.2d 1047 (1982); 42 Pa.C.S.A. § 706.

      . It requires mentioning that the Commonwealth’s Petition for Reconsideration was limited specifically to whether appellant waived his Section 906 claim, having failed to raise it in post-trial motions.

      . It should be noted that the imposition of duplicitous sentences, which is the case instantly, see Commonwealth v. White, 264 Pa.Super. 495, 503 n. 8, 400 A.2d 194, 198 n. 8 (1979), are beyond the power and jurisdiction of the sentencing court and, therefore, can be considered despite our normal rules concerning waiver and sua sponte review. Commonwealth v. Schilling, 288 Pa.Super. 359, 370 n. 15, 431 A.2d 1088, 1093 n. 15 (1981) (citing cases); see also Commonwealth v. Walker, 468 Pa. 323, 330 n. 3, 362 A.2d 227, 230 n. 3 (1976).

      . In its brief, the Commonwealth argues that because ”[i]t was the court’s intention to sentence [appellant] to a total of ten to twenty years’ imprisonment on the major offenses of conspiracy and attempted murder/aggravated assault),]” and since ”[t]his intention may be effected by [our] substituting sentence as to the aggravated assault for that previously tied to the attempted murder[,]” "no remand is necessary.” (Commonwealth's Brief at 12-13) We do not accept the Commonwealth’s invitation to substitute our judgment for that of the sentencing court, especially in light of the ultimate ruling of this Court as to the judgments of sentence being vacated and the interrelationship of one sentence to the other. See note 13, infra.

        Also, we note that the trial court admitted to the presence of some confusion on its part as to those offenses for which appellant could be convicted and sentenced vis-a-vis those for which such was not the case. Accordingly, it decided to “defer further consideration of these sentencing issues pending guidance from the Superior Court____” (Lower Court Opinion at 7)

      . The judgments of sentence ordered by the court consist of:

        Criminal Conspiracy at Bill No. 631—five to ten years;

        Attempted Murder at Bill No. 627—-five to ten years, to be served consecutively to the sentence at Bill No. 631;

        Possession of an Instrument of Crime at Bill No. 630—two and one-half to five years, to be served concurrently with the sentence at Bill No. 631;

        Carrying a Firearm in a Public Place and Carrying a Firearm Without a License at Bill No. 629—two and one-half to five years, to be served consecutively to the sentence at Bill No. 630 and concurrently with the sentence at Bill No. 631; and

        Aggravated Assault at Bill No. 626 and Recklessly Endangering Another Person at Bill No. 628—no sentence was imposed for either conviction since the trial court deemed both offenses to merge with the Attempted Murder conviction for purposes of sentencing.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    461 A.2d 1292
    George HATALOWICH and Audry C. Hatalowich, his wife, Appellants, v. Kate BEDNARSKI, E. Richard Bednarski and Delores J. Bednarski, his wife, Edward E. Olesh, Kenneth R. Strawberry and Edwin G. Warman, Individually, Edward E. Olesh, Kenneth R. Strawberry, and Edwin G. Warman, t/d/b/a W.P.Q.R.-F.M., W.P.Q.R.-F.M., an unregistered fictitiously named enterprise, Warman Broadcasting Company, Inc., a corp., and Tom Hunchuck, a/k/a Thomas Hunchuck, individually and Tom Hunchuck a/k/a Thomas Hunchuck as employee and servant of Edward E. Olesh, Kenneth R. Strawberry, and Edwin G. Warman, individually or Edward E. Olesh, Kenneth R. Strawberry, and Edwin G. Warman, t/d/b/a W.P.Q.R.-F.M. or W.P.Q.R.-F.M., an unregistered fictitiously named business enterprise, or Warman Broadcasting Co., Inc., a corp.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed June 17, 1983.

      D. Keith Melenyzer, Charleroi, for appellants.
    William C. Porter, Washington, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

This appeal is from a Non Pros, issued by the Court of Common Pleas in Washington County. Appellant argues, inter alia, that a trial court lacks the authority to enter an order of Non Pros, sua sponte. We agree that this is the law; but it is not clear that any such motion was made. Therefore, we remand, under Pa.R.A.P. 1926, for a determination to be made as to whether or not a motion was made.

Without ever going to trial, this case has been in the courts for six years; including a period of total inactivity of more than two years. Under circumstances that would seem to clearly justify it, if a motion had been made, the trial judge declared a, Non Pros.

The granting of a Non Pros, by a judge is governed by Pa.R.Civ.P. 1037(c). “In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.” For our purposes, the pertinent language is “on motion of a party.” Thus, on its face, the Rule appears to prohibit a judge issuing a Non Pros, on his own motion.

This interpretation of Rule 1037(c) was employed by Commonwealth Court only last year. Matter of Slavonic Literary Ass’n, 62 Pa.Cmwlth. 546, 436 A.2d 1257 (1981). In that case, Slavonic was appealing a revocation of its liquor license to the Court of Common Pleas. The case was continued three times over 14 months at the request of appellee, the Liquor Control Board. The Common Pleas judge then reversed the revocation due to these delays. In the opinion of the Court, Judge Rogers stated, “there was no motion for judgment and the court was without power to enter judgment on its own motion.” Slavonic, supra, 62 Pa.Cmwlth. at 548, 436 A.2d at 1258.

Slavonic is almost entirely on point here; but can only be persuasive authority as the decisions of the Commonwealth Court are not binding on this Court.

Slavonic itself relied on a Pennsylvania Supreme Court case. Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971). Paulish involved a trial court entering judgment on the pleadings without a motion by one of the parties. The Supreme Court disapproved of this action stating, “A court is without power under ... Rule 1037(c) ... to enter judgment on its own motion.” Paulish, supra, 442 Pa. at 443, 275 A.2d at 322.

The situation dealt with in Paulish, a judgment on the pleadings, differs factually from the one before us, a Non Pros. Even though a holding may be stated in general terms, as was the one quoted above from Paulish; sound jurisprudential practice limits the binding effect of the holding to the type of factual situation which was involved in the opinion. Application of a broadly stated rule to a new context should be undertaken only after careful consideration and with great circumspection. With this attitude in mind, we hold that the policy stated in Paulish should be extended to the Non Pros, context.

Further, we find the Commonwealth Court case, Slavonic, entirely worthy of being followed by this Court. Finally, the plain meaning of the Rule itself also leads us to the conclusion that a judge may not enter a Non Pros, sua sponte, without motion by a party.

The trial court stated in its opinion that it was basing its action on Pa.R.Civ.P. 218. That rule applies “When a case is called for trial” and “one party is ready and the other is not ready, without satisfactory excuse being made known to the court...” While the trial court held that the case had been called to trial, appellant disputes this characterization. It is, however, unnecessary for us to reach that issue. This is due to a provision of Rule 218 which states “... a non-suit may be entered on motion of the defendant...” (emphasis supplied). The plain meaning of this phrase— that a motion for non-suit must be made by defendant in order for a non-suit to be granted—was the basis for a Common Pleas decision, Elder v. Elder, 3 Adams L.J. 184, 25 D & C 325 (1961). We can discern no compelling reason to depart from Elder and the plain meaning of the Rule.

Thus, it is irrelevant whether the non-suit had been entered pursuant to Rule 1037(c) or Rule 218. Both Rules require that a motion be made.

Even though it has been established that a motion is necessary, it is not apparent what a correct disposition of this case would be. This is because there is no motion for Non Pros, on the record before us, yet there are allegations that a motion was made. Indeed, the court below, in its opinion, stated that a motion was made. Further, appended to its opinion was an affidavit of appellee’s counsel that he had made such a motion.

However, a fact cannot become of record by virtue of its inclusion in the trial court opinion. McCaffrey v. Schwartz, 285 Pa. 561, 132 A. 810 (1926). See also Pa.R. A.P. 1921. The affidavit, as appended to that opinion, and not entered in the record in an adversary proceeding, is similarly also not of record. Nor is appellee’s statement in his brief that the motion was made part of the record. Commonwealth v. Rini, 285 Pa.Super. 475 at 481, 427 A.2d 1385 at 1388 (1981).

Our refusal to formally recognize the existence of a motion in no way indicates that we discredit the word of the trial court or of appellee’s counsel. We are simply constrained from taking cognizance of this motion having been made on the basis of the record before us.

Fortunately, there is a way for this factual dispute to be resolved so that we may dispose of this case on its legal merits. Pennsylvania Rule of Appellate Procedure 1926 provides, in part:

Correction or Modification of the Record
If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident ... the appellate court ... of its own initiative may direct that the omission ... be corrected...

Our appellate courts have, on several occasions, remanded a case for an evidentiary hearing as to whether a motion had been made. Commonwealth v. Harbaugh, 253 Pa.Super. 24, 384 A.2d 957 (1978) (requested points for charge); Commonwealth v. Walsh, 252 Pa.Super. 111, 380 A.2d 1307 (1977) (post-verdict motions); Commonwealth v. Hobson, 481 Pa. 526, 393 A.2d 29 (1978) (motion for a change of venue).

In the interests of having this case decided on the basis of an accurate record, we follow that example. We remand the case before us for an evidentiary hearing, finding and potential supplementation to the record on whether or not a motion for Non Pros, was made by appellee. Jurisdiction is retained.


author: CIRILLO, Judge:

text:
    461 A.2d 1294
    COMMONWEALTH of Pennsylvania v. Guy BOYD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1983.
    Filed June 17, 1983.
    Appeal Granted and Vacated in Part Dec. 27, 1983.

      Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    Katherene Holtzinger, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

A jury convicted Guy Boyd, Jr., of unlawful delivery of a controlled substance (heroin), possession of a controlled substance (preludin), and “possession of a misbranded controlled substance.” On April 23, 1981, the Court of Common Pleas of Dauphin County sentenced Boyd to eleven to twenty-three months in the county prison on the delivery charge, and six to twelve months in the county prison on each of the possession charges, all time to be served concurrently. The court also sentenced Boyd to pay fines and costs on all three charges. This appeal followed.

The charge of delivery of heroin arose from an undercover drug investigation undertaken by the Harrisburg Police Department in March of 1980. The investigation focussed on suspected drug trafficking in the area of Third and Hamilton Streets in Harrisburg. Police employed a civilian, Larry Ferdinandus, to make undercover drug buys in the area. A surveillance team would covertly monitor Ferdi-nandus and photograph his transactions.

Pursuant to this undercover operation, on April 10, 1980, Detective Sergeant Linden Gates searched Ferdinandus, gave him $110.00 with which to purchase drugs, and dropped him off near the targeted area. At the corner of Third and Hamilton, Ferdinandus spotted appellant, whom he knew simply as “King.” Ferdinandus approached “King” and asked in street jargon whether he had any heroin or cocaine for sale. “King” replied that he did, and the two went to a nearby vacant lot, where “King” gave Ferdinandus “a quarter T” of heroin in exchange for $25.00. After “King” had gone, Ferdinandus put the heroin in a glassine packet, which he marked with a “B” to denote heroin, with the name “King,” and with the time of the transaction, 2:25 p.m. The surveillance team of officers Richard Schultz and Ronald Davis witnessed and photographed the meeting between Ferdinandus and “King.” The officers could not clearly see the actual transaction, but they did recognize appellant from having seen him before in the area. Detective Gates picked up Ferdinandus at about 4:30 p.m., at which time Ferdinandus gave Gates the fruits of the day’s activities, including the drugs bought from “King.” Based on the sale, police drew up a complaint charging one “King” with unlawful delivery of a controlled substance.

On July 15, 1980, police culminated their investigation by rounding up suspected drug dealers implicated through the undercover operation. Detective Gates and Officer Davis found appellant, whom they still knew only as “King,” in the Wattstax Bar in uptown Harrisburg. They arrested appellant and seized from him an unlabelled plastic bottle containing fifteen pills later determined to be preludin, a controlled substance. Police then drew up an additional complaint charging appellant with possession of a controlled substance and “possession of a misbranded controlled substance.” Based on the complaints, the district attorney prepared three informations, upon which appellant was convicted at a consolidated trial.

On appeal, Boyd raises three separate instances of his trial counsel’s ineffectiveness. Specifically, Boyd argues that counsel was ineffective (1) for failing to move timely for separate trials on the delivery and possession charges; (2) for failing to request that the jury be instructed that the Commonwealth must prove each and every element of the offenses charged beyond a reasonable doubt; and (3) for failing to raise or preserve the issue of sufficiency of the evidence with respect to appellant’s conviction under 35 P.S. § 780-113(a)(2).

In evaluating ineffectiveness of counsel claims, we do not employ hindsight to determine whether other alternatives seem more reasonable than the course of action chosen by counsel. Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the course of action taken by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Ergo, only where counsel’s course of action was in no way reasonably designed to further his client’s interests, may we find that counsel was ineffective.

The Commonwealth charged appellant with “possession of a misbranded controlled substance” under 35 P.S. § 780-113(a)(2), which prohibits, “[t]he adulteration or misbranding of any controlled substance, other drug, device or cosmetic.” Possession is not an element of the crime of misbranding a controlled substance. Nevertheless, the Commonwealth prosecuted and obtained convictions on two distinct charges against appellant: “possession of a controlled substance” and “possession of a misbranded controlled substance.” The former is made a crime by 35 P.S. § 780-113(a)(16), which prohibits one from “[k]nowingly or intentionally possessing a controlled ... substance by a person not registered under this act____” There is no authority that “possession of a misbranded controlled substance” is a separate crime.

In this case, the only evidence adduced to substantiate either possession charge was testimony that appellant, when arrested, had an unlabelled vial of preludin pills in his pocket. Obviously the possession offenses merge into the single crime of simple possession, unless the fact that the vial was unlabelled alone can support an additional conviction under § 780-113(a)(2). We hold that it cannot. The statute, as a penal law, must be construed according to its plain meaning. The act prohibited by § 780-113(a)(2) clearly is the actual misbranding of a controlled substance. “Misbranding” is defined in detail in 35 P.S. § 780-108. Read in conjunction, the statutes are addressed to preventing the dissemination in commerce of deceptively or dangerously misbranded controlled substances, and not to possession per se. See, Demarco v. Commonwealth Department of Health, 40 Pa.Cmwlth. 248, 397 A.2d 61 (1979).

We need not address whether appellant was in possession of “misbranded” pills, or under what circumstances mere possession of a controlled substance supports an inference that the possessor did the actual misbranding. It is apparent from the informations and from the prosecution’s case at trial that the Commonwealth proceeded all along under the assumption that appellant’s possession of mis-branded preludin, without more, would support a conviction under § 780-113(a)(2). On appeal, the Commonwealth persists in arguing this theory of law. The trial court gave its stamp of approval to this erroneous view of the law when it instructed the jury “that if a person does have in their possession pills or drugs that are mislabelled or not labelled and they should be, then of course that would be a violation of the law.” Trial counsel’s failure to object at any stage of the proceedings that appellant was tried and convicted for a noncrime clearly constitutes ineffective assistance of counsel. Appellant’s conviction under 35 P.S. § 780-113(a)(2) must be reversed, and the judgment of sentence vacated.

Appellant’s next claim of ineffectiveness of counsel concerns trial counsel’s failure to move timely for separate trials on the possession charges and the delivery charge. Appellant was arraigned on October 2, 1980, and trial on all three charges was scheduled for November 10, 1980. Any pretrial motion to sever the informations for trial, to be timely, should have been made within thirty days after arraignment. Pa.R.Crim.P. 306, 307, 42 Pa.C.S. Appellant’s trial counsel did not move for severance until December 15, 1980, the date trial actually began. The court denied the motion as untimely, and all charges were tried together.

At the time of appellant’s trial, the propriety of consolidating informations for trial was governed by Pa.R.Crim.P. 228(b):

Two or more offenses ... may be charged in the same information if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan____

Although the express terms of the rule address themselves to joinder of charges in one information, our appellate courts have made the rule equally applicable to consolidation of informations for trial. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981) (decided under companion rule for indictments, Pa.R.Crim.P. 219); Commonwealth v. Vickers, 260 Pa.Super. 469, 394 A.2d 1022 (1978).

The courts have held that consolidation of separate informations for trial is a matter of discretion with the trial judge, and that the exercise of this discretion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Morris, supra; Commonwealth v. Vickers, supra. However, the Superior Court long has measured the trial court’s exercise of discretion against a stringent standard; denial of a motion for severance is proper only if (1) the facts and elements of the two crimes are easily separable in the minds of the jurors, and (2) the crimes are such that the fact of commission of each crime would be admissible as evidence in a separate trial for the other. Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982); Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981); Commonwealth v. Vickers, supra; Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976); Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975).

In the case before us, appellant concedes, as he must, that the facts of the crimes consolidated for trial were easily separable in the minds of the jury. The first information charged appellant with delivering a small packet of heroin to Larry Ferdinandus on April 10, 1980. The second information involved a totally discrete set of facts: appellant’s possession of fifteen preludin pills when police arrested him in the Wattstax Bar on July 15, 1980. Likewise, the elements of the two crimes charged are dissimilar and easily distinguishable. Under the first information the Commonwealth had to prove intentional delivery of heroin; under the second, intentional possession of preludin. Although both heroin and preludin are controlled substances, there is no danger that the jury might have confused them in the simple context of this case.

Appellant argues, however, that evidence of the fact of commission of the delivery offense would be inadmissible in a separate trial for the possession offense, and vice versa, so that a court’s refusal to sever the informations would be an abuse of discretion under the “independent admissibility” standard. Generally, evidence of other crimes is independently admissible in a trial for a distinct crime to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) identity, where there is such a logical connection between the crimes that proof of the extraneous crime naturally tends to show that the accused committed the crime he is charged with. Commonwealth v. Morris, supra; McCormick on Evidence, § 190 (2d Ed. 1972). The fact of commission of an extrajudicial crime is not otherwise admissible because of the danger that the jury will find guilt on the basis that the defendant is a bad man rather than on evidence of the crime charged. See, Commonwealth v. Taylor, supra. The danger of prejudice also occurs when the defendant is tried at one trial for several offenses. This prejudice may be of three types: (1) the defendant may be embarrassed or confounded in presenting defenses, as where his defense to one charge is inconsistent with his defenses to others; (2) the jury may use evidence of the additional crimes to infer criminal disposition, and find guilt on the basis of this inference; or (3) the jury may cumulate evidence of the various crimes to find guilt, when it would not so find had it considered the evidence of each offense separately. Accordingly, the interest of judicial economy served by consolidating informations must be weighed against these possibilities of prejudice in determining the propriety of consolidation. Commonwealth v. Morris, supra; Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979).

Applying these guidelines, we agree with appellant that proof of his possession of preludin at the time of his arrest would have been inadmissible and prejudicial at a separate trial on the heroin delivery charge, and that the charges should have been severed for trial. The possibility that the jury might have used the evidence of preludin possession to infer criminal disposition, or that they might have cumulated the evidence to find a general inclination on appellant’s part to involve himself with drugs, is apparent. Appellant’s defenses to the separate charges were entirely consistent with each other, and so the danger of prejudice of type (1) was minimal. But a review of the Commonwealth’s case and appellant’s defense on the delivery charge convinces us that none of the “other crimes” exceptions would have allowed the Commonwealth to introduce evidence of appellant’s preludin possession at a separate trial on that charge. Appellant’s entire defense to the charge was designed to prove that the Commonwealth had arrested the wrong man. He testified that he had been visiting Greenville, North Carolina, during Easter and for the week following, which included the 10th of April, 1980. Two witnesses corroborated appellant’s alibi; one, a lieutenant in the Greenville police department, testified to having issued appellant a traffic warning citation on the morning of April 10. Appellant also claimed that he had never seen Larry Ferdinandus before. Appellant presented further evidence to show that the police had mistaken him for someone else. Two witnesses testified that officers Gates and Davis had exhibited hesitancy in identifying appellant in the Wattstax Bar on the night of the arrest, and the Clerk of Courts was called to testify that one Kenneth Patterson, a/k/a “King,” had been charged with drug offenses in 1972. It is clear that appellant’s motive, intent, or absence of mistake or accident were not in issue on the heroin delivery charge. Nor did appellant’s possession of preludin tend to show a “common scheme, plan, or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the other.” See, Commonwealth v. Taylor, supra; Commonwealth v. Vickers, supra; Commonwealth v. Fiorini, 257 Pa.Super. 185, 390 A.2d 774 (1978); Commonwealth v. Jones, supra. Indeed, the only contested issue on the heroin delivery charge was the identity of the perpetrator. But any “logical connection” between appellant’s possession of fifteen preludin pills on the date of his arrest and an isolated heroin transaction three months earlier is far too tenuous to meet the test of independent admissibility to prove identity. The only factor common to both crimes is that each involves a controlled substance. Our Supreme Court has adopted Professor McCormick’s suggestion that evidence of other crimes may come in under the identity exception only when it is distinctive and unusual enough to show a common modus operan-di:

The Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.

Commonwealth v. Morris, 493 Pa. at 176, 425 A.2d at 721. See also, Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783, 786 (1971).

Appellant had a right to severance of the possession and delivery charges, and trial counsel’s untimely motion to sever reflected his judgment that separate trials would advance his client’s interests. Under the circumstances, there can be no reasonable basis for counsel’s actions, and his assistance to appellant must be deemed constitutionally infirm. Commonwealth v. Smith, 495 Pa. 362, 433 A.2d 1349 (1981); Commonwealth v. Von Smith, 486 Pa. 564, 406 A.2d 1034 (1979).

Had trial counsel timely moved for severance, it would have been an abuse of discretion for the trial court to deny the motion. However, this is not to say that both of appellant’s convictions must now be reversed. A new trial must be granted on the charge of delivery of heroin, because the possibility that the evidence of preludin possession unfairly influenced the jury’s verdict outweighs any permissible justification for the evidence. But we are convinced that evidence relating to the heroin transaction would have been independently admissible to prove motive, intent, and absence of mistake or accident at a separate trial for possession of preludin, and that this evidence did not deprive appellant of a fair trial on the possession charge.

At trial, appellant did not deny that police found a vial of preludin pills in his pocket when they arrested him. Appellant produced a friend, Princ Henby, to testify that he had visited appellant in Harrisburg recently, and that he had left the vial of pills in appellant’s car. Henby testified that the pills had been prescribed for him for weight loss, and he identified a defense exhibit as a prescription label which he had removed from a bottle of preludin purchased at a pharmacy in North Carolina. Appellant corroborated Hen-by’s testimony, and testified further that he had been carrying the vial of preludin in his pocket intending to mail it to Henby when police made the arrest. The only contested issue on the possession charge, therefore, was whether appellant had the guilty knowledge necessary to convict him of possession of a controlled substance. To rebut appellant’s claim that he possessed the drugs innocently, the Commonwealth elicited Detective Gates’s testimony that overweight people often obtain preludin prescriptions, then sell the drug to street dealers who resell it illegally. Gates testified that this type of trafficking constitutes by far the most common use of the drug preludin. Had the Commonwealth been limited to presenting this evidence as rebuttal in a separate trial for preludin possession, its case would have been hampered severely. We believe that evidence that appellant earlier had dealt heroin to Larry Ferdinandus would have been admissible at a separate trial to prove appellant’s guilty knowledge and intent in possessing the preludin, and to rebut his contention that it was mere accident that he happened to be carrying the preludin when police arrested him. See, United States v. Mehrmanesh, 689 F.2d 822 (9th Cir.1982); United States v. Rocha, 553 F.2d 615 (9th Cir.1977); United States v. Castro-Castro, 464 F.2d 336 (9th Cir.1972), cert. denied, 410 U.S. 916, 93 S.Ct. 971, 35 L.Ed.2d 278 (1973); McCormick on Evidence, supra. In this instance, we find that the probative worth of the evidence of appellant’s prior drug dealing outweighs any tendency the jury might have had to cumulate the crimes or convict on the basis of “criminal disposition.” See, Commonwealth v. Morris, supra.

Appellant’s final contention is that trial counsel rendered ineffective assistance in failing to request an instruction that the Commonwealth must prove each and every element of the offenses charged beyond a reasonable doubt. The court did instruct the jury that the defendant was presumed to be innocent, and that the Commonwealth, to overcome the presumption, was obliged to prove his guilt beyond a reasonable doubt. The court also described, diligently and in detail, the elements of the various offenses and the meaning of “reasonable doubt.” In Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977), the Supreme Court held that the trial court had erred in refusing, despite a specific defense request, to instruct the jury that the Commonwealth had the burden of proving every essential element of the crime of first-degree murder beyond a reasonable doubt. In Commonwealth v. Shoats, 297 Pa.Super. 236, 443 A.2d 814 (1982), a three-judge panel of this Court, with Judge Wickersham dissenting, held that trial counsel’s failure to request an “every essential element” instruction in accordance with Bishop, constituted ineffectiveness of counsel per se. However, we do not find the holding in Shoats applicable to the facts of this case. In Shoats the defendant was convicted of escape, robbery, kidnapping, and assault. The charges arose from a crime spree during which the defendant first joined with fellow inmates in taking over a cell block in a state prison, next escaped from the prison, and finally, while at large, abducted a prison guard and his family from their home and held them hostage. Given the complex set of facts in the Shoats case, and the complicated elements of the various crimes, the defendant might have derived some benefit from an “each and every element” instruction. In the instant case, as appellee’s brief points out, the facts and elements bearing on the charge of possession of a controlled substance are simple and to a certain degree self-explanatory. Possession and mens rea are the only elements of the crime; the fact of possession was not in dispute, and the court went to considerable lengths to instruct the jury that they had to find intentional criminal conduct in order to convict. Cf. Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980). The court complied with the cardinal rule of jury instruction, under which the only issue is whether the law is adequately, accurately, and clearly presented for the jury’s consideration. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). Therefore, trial counsel had a reasonable basis for not objecting to the instruction. Commonwealth ex rel. Washington v. Maroney, supra.

For the reasons given in this opinion, we order the following: at No. 1151 C.D.1980, delivery of a controlled substance, that the judgment of sentence be reversed and the case remanded for a new trial; at No. 1152 C.D.1980, possession of a controlled substance, that the judgment of sentence be affirmed; at No. 1152(a) C.D.1980, possession of a misbranded controlled substance, that the judgment of sentence be reversed and the information quashed.

      . Act of April 14, 1972, P.L. 233, No. 64, § 13; 35 P.S. § 780-113(a)(30).

      . Id. § 780-113(a)(16).

      . Id. § 78-113(a)(2).

      . Joshua Lock, a privately-retained attorney, represented Boyd at trial and perfected this appeal. Before the time for submission of appellate briefs, Lock withdrew and Larry A. Kalikow, Assistant Public Defender for Dauphin County, entered his appearance. Since this appeal is the earliest opportunity at which Boyd is represented by new counsel, the ineffectiveness of. trial counsel is properly raised before us. Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982).

      . The court also expressed its opinion that consolidation for trial of the delivery and possession informations was proper.

      . The relevant portions of Rule 228 have been replaced by Pa.R. Crim.P. 1127, effective July 1, 1982.

      . Since we reverse appellant's convictions on the other two charges, there is no point in discussing the propriety of the instructions relating to those charges.


author: HOFFMAN, Judge: CAVANAUGH, Judge,

text:
    461 A.2d 1301
    Walter M. OSTTOWSKI, Jr. v. Joseph A. SMITH and Blue Comet Express, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1983.
    Filed June 17, 1983.

      Charles W. Craven, Philadelphia, for appellants.
    George F. Schoener, Jr., Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in striking the judgment of non pros entered against appellee for failure to answer interrogatories. We agree and, accordingly, reverse the order of the lower court and reinstate the judgment.

In July, 1976, twenty-three months after a motor vehicle accident, appellee filed an action in trespass against appellants. Appellants’ counsel sent copies of interrogatories to appellee’s counsel in November, 1976 but received no response. In late December, appellants’ counsel again requested answers, to no avail, and notified appellee’s counsel on January 21, 1977, that if answers were not forthcoming, action would be taken to file a praecipe and interlocutory order for sanctions pursuant to Philadelphia Civil Rule 4005*(d). On March 18, 1977, the prothonotary entered an interlocutory order directing appellee to answer appellants’ interrogatories within thirty days. When appellee did not comply, appellants’ newly retained counsel filed a Supplemental Praecipe for Final Judgment of Non Pros and a Notice of Judgment and the prothonotary entered judgment on June 20, 1977. In May, 1979, appellee retained new counsel and brought a legal malpractice action against his original attorney; that case is still pending. In July, 1981, the lower court granted appellee’s petition to strike the judgment of June 20, 1977, prompting this appeal.

A motion to strike a judgment will be granted only if a defect exists on the face of the record. Samango v. Hobbs, 167 Pa.Superior Ct. 399, 401, 75 A.2d 17, 19 (1950), quoting Johnson v. Royal Insurance Co. of Liverpool, 218 Pa. 423, 67 A. 749 (1907). The judgment here is defective because Rule 4005*(d), empowering the prothonotary to enter judgment was held to conflict with Pa.R.Civ.P. 4019, vesting discretion in the courts to determine appropriate sanctions for failure to respond to interrogatories. Gonzales v. Procaccio Bros., 268 Pa.Superior Ct. 245, 407 A.2d 1338 (1979). In invalidating the local rule, the Gonzales Court held that the need to fit the punishment to the crime dictated the exercise of judicial discretion. Id., 268 Pa.Superior at 252, 407 A.2d at 1341-42.

In Tice v. Nationwide Life Insurance Co., 284 Pa. Superior Ct. 220, 425 A.2d 782 (1981) (Tice II) we concluded that a judgment of non pros, entered under the invalid rule, “must be stricken, if as here, an appeal was pending when Gonzales was handed down.” Id., 268 Pa.Superior at 227, 425 A.2d at 786. We are now faced with the question of whether to strike the judgment as void where the motion was not filed until after the Gonzales decision. We find that a rule declaring all such judgments void would be inappropriate, causing parties in whose favor the judgment was entered to be forever potentially subject to motions to strike. See Samango v. Hobbs, supra (void judgments are always subject to motions to strike and laches does not run against them). We hold these particular judgments more closely akin to defective, voidable judgments, and thus subject to motions to strike dependent upon considerations inherent in each situation. See Washington v. Liberi, 273 Pa.Superior Ct. 48, 49-51, 416 A.2d 1082, 1083 (1979) (Gonzales not applied retroactively) (footnote omitted).

Voidable judgments, occuring where there is an irregularity or defect on the face of the record, must be challenged by a motion to strike within a reasonable time. Triangle Building Supply & Lumber Co. v. Zerman, 242 Pa.Superior Ct. 315, 363 A.2d 1287 (1976) (seven year delay unreasonable both for a motion to strike and a petition to open judgment); Eastman Kodak Co. v. Osenider, 127 Pa.Superior Ct. 332, 193 A. 284 (1937) (nine year delay unreasonable for motion to strike a judgment). Justice v. Meeker, 30 Pa.Superior Ct. 207, 210 (1906) (“where defects complained of are irregularities only, not jurisdictional in nature, although they may have been sufficient to cause the judgment to be set aside, if proper diligence had been used the defendant, having permitted a judgment to stand unquestioned for many (10) years, msut be held to have waived the irregularities.”). “[Although a motion to strike lacks the equitable characteristics of a petition to open, it is nonetheless subject to a defense akin to laches____” Triangle Building Supply & Lumber Co. v. Zerman, supra 242 Pa.Superior Ct. at 321, 363 A.2d at 1290. See also Restatement (Second) of Judgments, Ch. 2 at 19 (subjecting invalid judgments to avoidance but hinging that determination “on the nature of the defect concerning the particular requirement, the opportunity that the complaining party had to challenge the defect, and whether there has been reliance on the judgment since its rendition.”); contra Restatement of Judgments (invalid judgment a legal nullity for all purposes).

Applying these considerations to the instant case, we must conclude that the lower court erred in striking the judgment. Judgment was entered in June, 1977. In July, 1979, Gonzales was decided, alerting the bar to the invalidity of Rule 4005*(d). Despite this, appellee did not file his motion to strike until July, 1981, two years after Gonzales, and more than four years after the entry of judgment. In addition, appellants have relied on this judgment which was entered only after repeated unsuccessful attempts at discovery. See Harper v. Biles, 115 Pa. 594, 8 A. 446 (1887) (irregular judgment entered one day early not challenged for six years despite notice of date of judgment twice within three weeks, not stricken because of unreasonably long delay). It would be exceedingly unfair to compel appellants to defend against the underlying personal injury action so long after final judgment was entered. Because we find the judgment voidable and hence subject to a motion to strike for only a reasonable period of time, we hold that appellee has waited too long to challenge its entry.

Appellee claims also that the judgment should be stricken because he did not receive an executed copy of the Prothonotary’s interlocutory order. The record belies this contention. The official docket sheet notes the certification of service of the interlocutory order on March 18, 1977 at 1:22 E.S.T. We are satisfied by this notation that appellee was indeed furnished with a copy of the interlocutory order.

We find that the lower court incorrectly struck the judgment of non pros and, accordingly, order its reinstatement.

Reversed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I agree that the order striking the judgment of non pros entered against appellee should be reversed and the judgment reinstated. Unlike the majority, however, I would not base the decision on a determination of whether the judgment was “void” or “voidable.” Instead, I would adopt the view of the Restatement (Second) of Judgments, as advocated by Judge Spaeth in his Concurring Opinion in Tice v. Nationwide Life Insurance Co., 284 Pa.Super. 220, 425 A.2d 782 (1982) (Tice II).

Under the Restatement (Second), an invalid judgment, such as the one in the instant case, would 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. Restatement (Second) of Judgments, Ch. 2 at 19. Applying the Spaeth analysis to the present case where the motion to strike was not filed before the Gonzales opinion was filed and the judgment remains unsatisfied, the approach of the Restatement (Second) should be used “to determine whether it would be in the interests of justice to grant a motion to strike on the basis of Gonzales.” 284 Pa.Super. at 238, 425 A.2d at 792.

Under the present circumstances, I would conclude, as does the majority, that the judgment of non pros should not be stricken since appellee did not file his motion to strike until two years after Gonzales was filed and more than four years after entry of the judgment, and the appellants “have relied on this judgment which was entered only after repeated unsuccessful attempts at discovery.” (Majority opinion at 5). I would hold, therefore, that even though the judgment entered in this case is “invalid,” appellee should not be permitted to have it stricken at this late date.

      . Philadelphia Civil Rule 4005*(d) was retitled Philadelphia Civil Rule 145.

      . Other decisions of our Court, following Gonzales, have not presented the issue directly before us. Pavone v. Anthony, 273 Pa.Superior Ct. 376, 417 A.2d 697 (1980), holding that Gonzales dictated the judgment entered pursuant to 4005*(d) be struck, was pending on appeal when Gonzales was decided. Graham v. Kutler, 275 Pa.Superior Ct. 188, 418 A.2d 676 (1980) struck a judgment entered pursuant to the invalid rule because appellants had not been served with the proper interlocutory order required in Strickler v. United Elevator Co., 248 Pa.Superior Ct. 258, 375 A.2d 86 (1977).

      . We note that appellee's motion to strike was filed a mere five months after the Tice II decision, leading us to believe that appellee sat on his right until the probability of success appeared ripe. This is no excuse, however, for the unreasonable delay in failing to bring the motion to strike the judgment until four years after its entry.

      . The considerations dictating this result are analagous to the policies embodied in the two-year personal injury statute of limitations: (1) that rights should be enforced and wrongs redressed without unreasonable delay; (2) that defendants should be spared the prejudice and inconvenience resulting from defense of a stale claim; and (3) that judicial resources are wasted if used to decide stale claims on stale evidence. Anthony v. Koppers Co., 284 Pa.Superior Ct. 81, 105-107, 425 A.2d 428, 441 (1980), rev’d for incorrect application of statute of limitations, 496 Pa. 119, 436 A.2d 181 (1981).

      . The lower court failed to address this issue, striking the judgment on the basis of the Tice II decision.

      . Tice II was heard by a seven member court en banc. The lead opinion had three votes, as did Judge Spaeth’s concurring opinion. The present writer dissented on a different ground and did not reach the issue herein. However, I later cited the Spaeth analysis with approval in Bethlehem Steel Corporation v. Tri-State Industries, 290 Pa.Super. 461, 434 A.2d 1236 (1981).


author: CERCONE, President Judge:

text:
    461 A.2d 1305
    COMMONWEALTH of Pennsylvania v. Rufus E. LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1983.
    Filed June 24, 1983.

      Neil Leibman, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   CERCONE, President Judge:

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County on December 3, 1981.

Appellant was arrested on March 15, 1981 by an officer of the Philadelphia Police Department and subsequently charged by information with receiving stolen property and unauthorized use of an automobile. In a bench trial conducted on December 3, 1981, appellant was convicted of the summary offense of unauthorized use of an automobile but was adjudged not guilty of receiving stolen property. After denying appellant’s single oral post-verdict motion, the lower court sentenced appellant to two years probation.

On appeal, appellant challenges the sufficiency of the Commonwealth’s evidence, arguing that there was inadequate proof that (1) he was in fact “operating” the subject vehicle at the time of his arrest; and (2) the vehicle was being operated without the consent of its “owner”.

Our review of the record leads us to the conclusion that we are required to vacate the judgment of sentence and remand the case to the lower court.

Instantly, appellant raises for our resolution an argument which was not advanced in his oral post-verdict motions. Normally, we are required to regard such an issue as waived so far as our review is concerned. Commonwealth v. Dunston, 496 Pa. 552, 437 A.2d 1178 (1981). However, as our Supreme Court stated in Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1975), the failure to file post-trial motions will be construed as waiver only in cases where the record “affirmatively demonstrate[s] that the appellant was aware of his right to file post-trial motions, and that he knowingly and intelligently decided not to do so.” Id., 458 Pa. at 235, 328 A.2d at 169. Consequently, where the record demonstrates that the post-verdict court did not comply with the mandate of Pa.R.Crim.P. 1123(c) that the defendant be advised, after verdict, of his or her right to file post-verdict motions within 10 days, and that any issues not raised in those motions will be forever waived on appeal, it cannot be said that the defendant knowingly and intelligently surrendered his right to advance arguments on appeal by failing to include them in post-trial motions. Commonwealth v. Von Aczel, supra; and Commonwealth v. Getson, 291 Pa.Superior Ct. 632, 436 A.2d 679 (1981).

Instantly, upon the rendering of the verdict, defense counsel orally entered a single post-trial motion which was immediately denied by the lower court, which then proceeded to impose sentence. Although the court advised appellant of his right to request that the court reconsider its sentence, at no time did the court, prior to counsel’s advancing of the oral post-verdict motion and the subsequent passing of sentence, fully apprise appellant of his rights conferred by Rule 1123(c). As a result, appellant could in no way appreciate the consequences of his failure to argue orally before the post-verdict court all assignments of error which might later form the basis of an appeal to the Superior Court. Moreover, the record is bare of any consent on appellant’s part to present his post-verdict motions in oral argument and thereby waive his right to file written motions. See Pa.R.Crim.P. 1123(b). Accordingly, we must vacate the judgment of sentence and remand for the filing of post-verdict motions. Following the lower court’s decision on the propriety of granting these new motions, the parties may again appeal should they so elect. In taking such an appeal, they may advance any matters presented but left unresolved by the instant appeal. Commonwealth v. Bonarrigo II, 302 Pa.Superior Ct. 274, 448 A.2d 634 (1982); Commonwealth v. Rowe, 268 Pa.Superior Ct. 380, 408 A.2d 516 (1979).

The judgment of sentence, dated December 3, 1981, is vacated and the case remanded for the filing of supplemental post-verdict motions. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 3928.

      . Contrary to representations made by appellant in his brief, no written post-verdict motions were filed with the lower court.

      . 18 Pa.C.S.A. § 3928 reads in its entirety:

        Unauthorized use of automobile and other vehicles

      (a) Offense defined.—A person is guilty of a misdemeanor of the second degree, if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.

      (b) Defense.—It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he known of it. (Emphasis supplied.)

      . The oral presentation of a post-verdict motion is sufficient, for purposes of Pa.R.Crim.P. 1123, to preserve the matter raised in the motion for appellate review. Commonwealth v. Von Aczel, 295 Pa.Superior Ct. 242, 441 A.2d 750 (1981); Commonwealth v. Kinsey, 249 Pa.Superior Ct. 1, 375 A.2d 727 (1977), Cf. Pa.R.Crim.P. 1123(b).
      Appellant’s argument which was preserved for appellate review, viz. that the Commonwealth failed to prove that he was “operating” the vehicle in question, is patently frivolous. See generally Commonwealth v. Taylor, 237 Pa.Superior Ct. 212, 352 A.2d 137 (1975); Commonwealth v. Kloch, 230 Pa.Superior Ct. 563, 327 A.2d 375 (1974); Commonwealth v. Matsinger, 288 Pa.Superior Ct. 271, 431 A.2d 1043 (1981).

      . In Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981), we ruled that the strictures of Rule 1123 apply with equal force to summary violations.

      . We note that we address sua sponte the failure of the lower court to conduct a Rule 1123 colloquy. However, as we stated recently in Commonwealth v. Thomas, 305 Pa.Superior Ct. 158, 163 n. 7, 451 A.2d 470, 472 n. 7 (1982):
      We need not now determine the effect, if any, of appellant’s failure to argue the failure of the trial court to conduct a Rule 1123 colloquy. That question remains undecided here, as it did in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). As we stated there:

        In the past, there has been some question with regard to this Court’s sua sponte review of the record to determine whether the lower court complied with Rule 1123(c). Several cases have held that the absence of a specific allegation by appellant that his waiver was unintelligent or involuntary precludes an independent review of the record. Commonwealth v. Tegano, 265 Pa.Super. 453, 402 A.2d 526 (1979); Commonwealth v. Smith, 258 Pa.Super. 148, 392 A.2d 727 (1978) ; Commonwealth v. Harmon, 267 Pa.Super. 224, 406 A.2d 775 (1979) .
      However, another line of decisions mitigates the harshness of the automatic waiver rule by reasoning that if the record is devoid of an 1123 colloquy by the lower court then appellant cannot be found to have knowingly waived his rights thereunder. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976).
      Id., 288 Pa.Superior Ct. at 296-297, 431 A.2d at 1056.


author: HESTER, Judge:

text:
    461 A.2d 1307
    Joan GOLDBERG v. Harry GOLDBERG, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed June 24, 1983.

      James M. Dolan, Swarthmore, for appellant.
    Norman L. Goldberg, Media, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellee, Joan Goldberg, filed two Trespass/Assumpsit Complaints with the office of District Justice Martin J. Kerns in Delaware County, Pennsylvania, against appellant, Harry Goldberg, on May 23, 1979. Both complaints were consolidated for purposes of the hearing conducted on June 26, 1979. On June 27, 1979, judgment was entered for appellee on both cases in the respective amounts of $410.00 and $400.00 plus court costs.

District Justice Kerns mailed notice of both judgments to the parties on July 3, 1979, and appellant’s counsel received actual written notice of the judgments on July 6, 1979. On July 30, 1979, appellant filed Notices of Appeal with the Court of Common Pleas of Delaware County. Appellee countered with a Motion to Quash the Appeal on grounds that the Notices of Appeal were untimely filed. By Order of Court, dated October 2, 1980, appellee’s Motion to Quash was granted and appellant’s appeal to the lower court was quashed. Appellant now appeals from this Order quashing his lower court appeal.

Rule 1002 of the Pa.R.C.PJ.P. sets forth both the time and method of appeal:

A party aggrieved by a judgment may appeal therefrom within thirty (30) days after the date of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the State Court Administrator. (Emphasis added)

A district justice is bound to enter judgment at the conclusion of proffered evidence on the day of the hearing or within five days thereafter. Pa.R.C.PJ.P. No. 322. He is further obligated to promptly send written notice of judgment to all parties, except to those parties who were issued notice publicly on the day of the hearing. Pa.R.C.PJ.P. No. 324.

Appellant avers that “date of the judgment”, as that phrase is used in Rule 1002, supra, necessarily connotes the date notice of judgment is actually received by the appealing party and not the date judgment is made or entered. To hold otherwise, according to appellant, could result in frequent reduction of an appellant’s allotted thirty-day appeal period due to the sloth or negligence of court employees in mailing notice of judgment. We cannot subscribe to this argument.

The judiciary has little power to alter times affixed by the legislature for filing appeals. Appeal of Farrell, 69 Pa.Cmwlth. 32, 450 A.2d 266 (1982); West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); In Re Township of Franklin, 2 Pa.Cmwlth. 496, 276 A.2d 549 (1971). Statutory provisions for appeal must be strictly complied with, Id.; Commonwealth v. Philadelphia Eagles, Inc., 437 Pa. 25, 261 A.2d 309 (1970); mere hardship will not warrant appeals nunc pro tunc or any extension of the period within which to file an appeal. Tuttle v. Unemployment Compensation Board of Review, 160 Pa.Super. 46, 49 A.2d 847 (1946). Only two exceptions permitting appeals nunc pro tunc can be carved from these nearly impenetrable rules: 1) where a party is prevented from filing a timely appeal due to a breakdown or fraudulent activity within the court system; Conrad v. Kemmerer, 301 Pa.Super. 410, 447 A.2d 1032 (1982); Re: Revocation of Restaurant Liquor License No. R-8030 [Appeal of Shander Lounge, Inc.], 53 Pa.Cmwlth. 468, 417 A.2d 1327 (1980); and, 2) where a criminal defendant’s failure to file an appeal is the result of his counsel’s ineffectiveness. Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966).

Unless, therefore, the instant matter falls within the first of the two aforementioned exceptions (exception number 2 is obviously excluded since this is not a criminal appeal), we are powerless to extend appellant’s appeal time. Date of judgment here was June 27, 1979. The fact that notice of the judgments was mailed July 3, 1979 and received by appellant’s counsel on July 6, 1979 is immaterial, without proof of extraordinary circumstances. Appeal of Farrell, supra, Shander Lounge, Inc., supra. Unlike Rule 236(b) of the Pa.R.C.P., the thirty-day appeal period does not begin its run on the date judgment is entered, i.e., the date the prothonotary’s office enters the judgment on the docket and notes the mailing of notices of judgment. Here, the date of judgment, June 27, 1979, began the appeal period and rendered it expired on July 27, 1979. Appellant filed his appeal on July 30, 1979, three days beyond the statutory limit.

We find ourselves completely within the purview of Conrad v. Kemmerer, supra; the fact that the appeal in Conrad was taken from a default judgment, unlike here, is not pertinent. The district justice in Conrad issued the default judgment against the defendant on February 10, 1981. Notice of said judgment was not received by the defendant until February 20, 1981; therefore, using this latter date as the beginning of his thirty-day appeal period, the defendant filed his appeal on March 19, 1981. The Conrad court was not impressed with the defendant’s argument that notice and due process of law forbade the start of the appeal period before February 20, 1981; date of judgment, as simply and unequivocally used in Rule 1002, supra, began the running of the period.

As in Conrad, appellant here fails to carry his burden of proving his untimely appeal the result of administrative error, negligence or fraud. The Conrad defendant was deemed not prejudiced, although his appeal period was essentially reduced to twenty-two days. Similarly, appellant does not convince us that the twenty-four days following his receipt of actual notice of judgments was insufficient within which to file his appeal.

We are sensitive to the fact that notice of judgment received sometime later than six or eight days following date of judgment is more likely to result in prejudice to prospective appellants. In fact, we are not precluding the possibility that six or eight day delays in receipt of notice of judgment, under the proper circumstances, could result in prejudice and justify the allowance of appeal nunc pro tunc. We simply hold that delay alone is not likely to sustain a finding of prejudice; appellants must allege and prove more.

Order affirmed.