author: SPAETH, Judge:

text:
    471 A.2d 555
    COMMONWEALTH of Pennsylvania v. Carl Terry MASON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1983.
    Filed Dec. 30, 1983.
    Reargument Denied March 6, 1984.

      William Roy Shaffer, Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

Appellant was convicted by a jury of robbery. On appeal from the judgment of sentence, he argues (1) that he should be granted a new trial because a tipstaff refused the jury’s request to see an exhibit, without informing the trial court of the request; or (2) that if a new trial is denied, the case should be remanded for resentencing because the sentencing judge did not adequately state of record the reasons for the sentence. We agree that the action of the tipstaff was error, but find that it was harmless. Appellant’s second argument has been waived. We therefore affirm.

Appellant was charged with committing an armed robbery at the L’il Shopper in Slippery Rock, Pennsylvania, on February 2, 1981. At the trial,' on June 25, 1981, the Commonwealth’s evidence consisted primarily of the testimony of the cashier, who said that the man who robbed her was wearing a red ski mask and a denim jacket, N.T. 8-9; the testimony of the investigating officer, Thomas Eckels, who noticed distinctive footprints in the snow outside the store, and later noticed that, when arrested, appellant was wearing boots that would leave similar prints, N.T. 25-26, 28-29, 36-37, 38; and the testimony of an informant, who said that appellant had admitted to him that he was responsible for the robbery, N.T. 50. In addition, the left boot and denim jacket that appellant was wearing when arrested were admitted into evidence and sent out with the jury. Appellant offered two principal witnesses: his mother, who said that she had seen appellant go to bed about an hour before the robbery, N.T. 86, and that he could not have left the house without being seen, N.T. 87; and appellant himself, who gave the same account of his activities as his mother did, N.T. 97-98.

Appellant’s argument for a new trial arises out of a conversation that a juror had with a tipstaff after deliberations had begun. An evidentiary hearing was held on August 21, 1981 at which time the juror testified that:

A. I went to the door and requested of the tipstaffs that we have the search warrant and some notes that Officer Eckles [sic; Eckels] had made the evening of the robbery of the Little Shopper.
Q. And what did the tipstaff reply to you?
A. We were told that we were not permitted to have the evidence.
N.T. 3 (8/21/81).

The tipstaff did not advise the juror that if the juror would put the jury’s request in writing, he would give it to the trial judge; nor did the tipstaff inform the judge of his conversation with the juror.

The behavior of the tipstaff was clearly erroneous. In his charge to the jury the trial judge had said:

If a question arises during your deliberations, write out the question and send it to the court by way of a tipstaff. When everyone has reassembled in the courtroom we will return to the courtroom and answer the question.
N.T. 127.

It was the tipstaff’s duty to follow this procedure. But the tipstaff’s error went further. At the close of the evidence there was some discussion of the exhibits. This discussion was not transcribed, but at a later evidentiary hearing the trial judge’s “recollection” was that the substance of the discussion was that he had declined to rule on whether the documentary exhibits should be sent to the jury room because they may have contained prejudicial matter, and that his “instructions” were that if the jury requested an exhibit, he “would answer the question in open court.” N.T. 10-11 (8/21/81). Thus, in telling the jury that it could not have Officer Eckels’s notes, the tipstaff, in effect, made his own evidentiary ruling.

Having found error, we must decide whether it was harmless. Error can be harmless only if the Commonwealth proves beyond a reasonable doubt that the error is harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a “ ‘reasonable possibility’ ” that an error “ ‘might have contributed to the conviction,’ ” the error is not harmless. Commonwealth v. Davis, 452 Pa. [171] at 178, 305 A.2d [715] at 719, quoting Chapman v. California, 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705 (1967) ].
Id., 476 Pa. at 409, 383 A.2d at 164.

A review of the record convinces us beyond a reasonable doubt that there is no reasonable possibility that the tip-staffs error contributed to the jury’s verdict. The exhibit in question, as we have indicated, was the investigating officer’s handwritten notes regarding the robbery. In them, he records his actions in following the only set of footprints in the snow in the direction the cashier said the robber fled. Also, he describes the approximate length and width of the prints, and notes that there were “cut marks or a small piece out of it” on the sole of the left boot. Cmw.Ex. 1. This part of the notes was read into the record by the officer. N.T. 28-29. If the jury had been given the exhibit, the only reasonable possibility is that it would have corroborated the officer’s testimony — an effect that could in no way aid appellant.

Appellant argues that if given the exhibit, the jury might have concluded from it that it was not made shortly after the robbery, but perhaps as late as the preliminary hearing. Brief for Appellant at 9. Specifically, appellant says, “The issue is the credibility of Officer Eckels and whether he made the notes behind the scene of the crime in the blowing snow or sometime later, perhaps as late as after the preliminary hearing.” Id. After looking at the exhibit, we fail to see how the jury could possibly have reached any conclusion as to when it was made. What appellant’s argument comes down to is this: Since the officer said he made his notes at the scene, and since it was snowing, the notes would have gotten wet. If the jury had seen the notes, they would have seen nothing to suggest that the notes had gotten wet. From that, they would have concluded that the officer was lying about when he made his notes. The argument seems to us close to being frivolous. Its underlying assumption— that the notes would have gotten wet, and so wet as to wrinkle the paper — is mere speculation.

-2-

Appellant was sentenced on October 13, 1981. Pa.R. Crim.P. 1410 requires that a motion to modify a sentence be filed with the sentencing court within ten days after imposition of sentence. Appellant’s motion to modify was filed on December 3, 1981. We therefore will not consider appellant’s argument that the sentencing judge did not adequately state of record the reasons for the sentence, for by failing to file a timely motion to modify, appellant has waived that argument. Commonwealth v. Walls, 248 Pa. Superior Ct. 335, 375 A.2d 125 (1977), aff'd 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Tolassi, 303 Pa.Superior Ct. 177, 449 A.2d 636 (1982).

Affirmed.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    471 A.2d 558
    COMMONWEALTH of Pennsylvania v. Bill Dee BRADSHAW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1983.
    Decided Jan. 27, 1984.
    Petition for Allowance of Appeal Denied July 10, 1984.

      Robert A. Lechowicz, Telford, for appellant.

      Douglas Maloney, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

This case involves an appeal from the judgment of sentence entered against appellant, Bill Dee Bradshaw, on February 2, 1982, in the Court of Common Pleas of Bucks County. Appellant was convicted by a jury on charges of burglary, theft, and receiving stolen property.

On January 25, 1980, appellant burglarized the home of Mr. and Mrs. Glenn Limburg, 32 Deep Dale Drive East, Levittown, in Bucks County. Appellant was arrested the next day in Philadelphia for attempting to use a credit card belonging to Mrs. Limburg. The Philadelphia police conducted a search of appellant’s person incident to that arrest. This search yielded several items which were taken in the burglary, including various credit cards, Mr. Limburg’s wallet, and the contents of the wallet.

On January 29, 1980, Detective Richard Dechant of the Middletown Township Police Department, Bucks County, filed a criminal complaint and affidavit of probable cause for the arrest of appellant on charges arising from the January 25th burglary. Because appellant was in police custody in Philadelphia, Detective Dechant lodged a detain-er with the Philadelphia Police Department. Appellant was made available to Middletown Township authorities on February 8, 1980, on which date he was arrested and arraigned on the above charges. No further search was conducted by the police at this time. Hence, the only items seized from appellant were those seized incident to his arrest in Philadelphia on January 26, 1980.

Subsequently, appellant filed a pre-trial motion to suppress the evidence seized from him “prior to and incident to and subsequent to the arrest” on February 8, 1980. Appellant did not, however, specifically challenge or refer to either the arrest or seizure which occurred on January 26, 1980.

At the suppression hearing, the Commonwealth produced the affidavit of probable cause for arrest and presented the testimony of Detective Dechant. This evidence was introduced in order to establish that probable cause existed for an arrest. The Commonwealth did not, however, present evidence at the suppression hearing to establish that any searches or seizures were valid. Detective Dechant, who was subjected to cross-examination, testified that no items were seized from appellant on February 8, 1980, the date appellant referred to in the motion to suppress.

As a result of appellant’s failure to attack specifically the seizure of January 26, the suppression hearing judge, the Honorable Edmund B. Ludwig, denied appellant’s motion to suppress. The case proceeded to a jury trial on May 15, 1980, and on May 19, 1980, the jury convicted appellant on all charges. Post trial motions were filed and denied. On February 2, 1982, appellant was sentenced to a term of imprisonment of one to five years. This appeal followed.

Appellant’s first contention is that the suppression court was in error when it denied appellant’s motion to suppress. The essential thrust of this claim is that since the suppression court heard no testimony as to how evidence was seized, the Commonwealth failed to meet its burden of showing that the evidence was legally obtained. Appellant relies on Pennsylvania Rule of Criminal Procedure 323(h) which states that: “The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights.” Appellant argues that Detective Dechant’s testimony and the affidavit of probable cause were insufficient in that they did nothing to establish the legality of the search and seizure.

After review of the record, we conclude that the Commonwealth was not derelict with respect to either a burden of production or persuasion at the suppression hearing. We base this conclusion on our reading of Rule 323 in its entirety, including, of course, a consideration of the mandates of Rule 323(h). Although Rule 323(h) places the burden of going forward on the Commonwealth to establish the validity of a search, this burden is not triggered automatically upon filing of a motion to suppress. Rather, in order for the burden on the Commonwealth to obtain, the underlying motion must meet certain threshold standards. We note in particular, Rule 323(d), which provides that: “(t)he motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof” (Emphasis added). See also Pa.R.Crim.P. 306(b).

Bald statements or boilerplate allegations of illegally obtained evidence are insufficient to trigger the Commonwealth’s burden of going forward and proving that a search was legal. Commonwealth v. Ryan, 296 Pa.Super. 222, 442 A.2d 739 (1982); Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 443 A.2d 795 (1981); See Commonwealth v. Menginie, 312 Pa.Super. 293, 458 A.2d 966 (1983).

Instantly, appellant’s motion to suppress did not specifically challenge the search and seizure which occurred incident to appellant’s arrest by Philadelphia police officers on January 26,1980. The casual averment of impropriety is wholly deficient in specificity or particularity; it is of insufficient substance to advise the Commonwealth, the suppression court, or this Court of the alleged police misconduct. To require the Commonwealth to prove the legality of all its investigatory techniques, in a situation where no specific or particular course of conduct is clearly challenged, is not within the contemplation of 323(h). Under these circumstances we may assume that the Commonwealth obtained the evidence in a legal manner, without requiring proof of legal procedures. Thus, there is insufficient basis upon which the suppression court could grant appellant’s motion to suppress.

Appellant’s second allegation of error is that the trial court improperly admitted into evidence the testimony of Detective Thomas, a rebuttal witness for the Commonwealth. Detective Thomas was called to the stand to recount an interview he had with appellant on January 30, 1980, wherein appellant volunteered a detailed confession of guilt for the crimes committed on January 25, 1980. Detective Thomas’ testimony was intended to rebut the testimony of appellant, where appellant denied making a confession. At a side bar conference, counsel for appellant objected to the admission of Detective Thomas’ testimony, arguing that it would merely repeat testimony given earlier by Detective Dechant, a Commonwealth witness.

Although the substance of Detective Thomas’ testimony was in large part repetitious of testimony earlier given by Detective Dechant, the trial court determined that certain new and material information could be elicited. This determination was a finding of fact which should not be disturbed. Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982); Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982). On the basis of the possible introduction of new matter, the trial court permitted the Commonwealth to examine the witness.

Appellant now contends that the lower court should have disallowed Detective Thomas’ testimony because the Commonwealth failed to disclose his name as a potential witness, pursuant to pre-trial discovery requests. Pa.R. Crim.P. 305, subd. B(lj(b). We need not address the substance of this claim.

It is well settled that a party may not raise an issue for the first time on appeal. Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982); Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 442 A.2d 1158 (1982). Although appellant did object to the admission of Detective Thomas’ testimony on the grounds that the substance would merely reiterate prior testimony, appellant did not bring to the lower court’s attention the matter of a pre-trial discovery violation. As the lower court was not given the opportunity to rule upon the discovery violation claim, we cannot allow appellant to posit this alternate theory here. See Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982); In re S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980).

Judgment of sentence affirmed.


author: WIEAND, Judge:

text:
    471 A.2d 826
    COMMONWEALTH of Pennsylvania, Appellee, v. Roger L. WINTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Dec. 30, 1983.

      Courtney J. Graham, Chambersburg, for appellant.
    John F. Nelson, III, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from an order which denied a motion to quash, on double jeopardy grounds, those informations which charged Roger Winter with burglary and related offenses arising out of thefts from two churches in Franklin County. Appellant contends that because a jury in Somerset County rejected the testimony of an alleged accomplice and acquitted a co-defendant, Ferron Cromwell, on a separate burglary charge, principles of collateral estoppel preclude a trial against appellant in Franklin County where the Commonwealth’s case also depends, at least in part, on the testimony of the same alleged accomplice. There is no merit in this contention; and, therefore, we affirm the order of the trial court.

Appellant correctly observes that principles of collateral estoppel are a part of the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See also: Commonwealth v. Hude, 492 Pa. 600, 611-612, 425 A.2d 313, 319 (1980). Collateral estoppel is issue preclusion. “ ‘It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” In the Interest of R.R., 317 Pa.Super. 334, 345, 464 A.2d 348, 354 (1983), quoting Commonwealth v. Peluso, 481 Pa. 641, 645, 393 A.2d 344, 346-347 (1978) and Ashe v. Swenson, supra 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. In civil cases, collateral estoppel may be asserted even where there has been no identity of the parties in the two actions. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236-237, 464 A.2d 1313, 1319 (1983). In such cases, collateral estoppel may be “ ‘used as either “a sword or a shield” by a stranger to the [prior] action, as long as the party against whom the defense is invoked is the same.’ ” Id., 318 Pa.Superior Ct. at 236-237, 464 A.2d at 1319, quoting Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 265, 323 A.2d 341, 344 (1974).

However, this Court, in Commonwealth v. Lewis, 306 Pa.Super. 81, 452 A.2d 13 (1982) held that the doctrine of nonmutual, collateral estoppel is not applicable to criminal cases. The interest of the Commonwealth in enforcing its criminal laws, the Court held, outweighs its interest in judicial economy; and, therefore, collateral estoppel as a defense to a criminal charge is available only where prior, criminal litigation involved the same parties. See also: Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).

The decision in Lewis is controlling of the instant case. Appellant was not a party to and did not participate in the trial in Somerset County. The fact that the jury in Somerset County did not accept the testimony of the alleged accomplice in those proceedings does not prevent the Commonwealth from attempting to prove that appellant committed separate burglaries in Franklin County. This is so even though the Commonwealth must rely, at least in part, upon the testimony of the same alleged accomplice whose testimony was rejected by the jury in Somerset County.

Order affirmed.


author: WICKERSHAM, Judge:

text:
    471 A.2d 827
    COMMONWEALTH of Pennsylvania v. Roger Lee WINTER, Appellant. COMMONWEALTH of Pennsylvania v. Matt S. HILL, Appellant. COMMONWEALTH of Pennsylvania v. Ferron CROMWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 9, 1983.
    Filed Jan. 20, 1984.
    Reargument Denied March 14, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      George H. Newman, Philadelphia, for Winter, appellant. Robert C. Fogelnest, Philadelphia, for Hill, appellant. Alan Ellis, Philadelphia, for Cromwell, appellant.
    Merrill W. Kerlin, District Attorney, McConnellsburg, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   WICKERSHAM, Judge:

This is a consolidated appeal from orders of the Court of Common Pleas of Fulton County, denying the appellants’ pre-trial motions to dismiss based on double jeopardy/collateral estoppel grounds.

The facts are not in dispute. The appellants, Roger Winter, Matt Hill, and Ferron Cromwell, were charged with having committed several burglaries and theft related offenses in Fulton County as part of a multi-county burglary ring operating in. south-central Pennsylvania in 1980-81.

One of the appellants, Ferron Cromwell, was tried in the Court of Common Pleas of Somerset County on a number of charges which arose in that county, and was acquitted by a jury on October 30, 1981. Appellants Hill and Winter were not tried for any offenses in Somerset County.

Subsequently, all three appellants filed pre-trial motions to dismiss the Fulton County cases on the ground that the prosecutions were barred by the doctrines of double jeopardy and collateral estoppel. Appellants claimed that the evidence presented at Cromwell’s Somerset County trial was substantially the same as the evidence to be presented at the Fulton County trials; that the question of the accomplices’ credibility as to appellants’ involvement in the multicounty burglary ring had been litigated and rejected by the jury in Somerset County; and that the Commonwealth was attempting to relitigate an issue finally litigated in the Somerset County proceeding.

The lower court dismissed the pre-trial motions without hearings on November 20, 1981 and December 1,’ 1981. The court also filed an opinion in support of the decision to dismiss the motions, which we have examined closely. It is from the lower court’s orders dismissing the motions that appellants have now appealed to this court.

Appellants present to us the following question:

Does collateral estoppel bar the instant prosecutions where the issue of appellants’ involvement in a multicounty burglary ring was previously litigated in Somerset County and decided adversely to the Commonwealth?

Consolidated Brief for Appellants at 10.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court held that collateral estoppel was part of the fifth amendment’s protection against double jeopardy and is applicable to the states through the fourteenth amendment under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit. Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. Even where the offense charged is not literally the same as the one previously tried, collateral estoppel bars relitigation between the same parties of issues actually determined at the previous trial. For example, in Ashe, the defendant had been tried and acquitted by a general verdict of the robbery of one of six poker players. The state then tried and convicted him of the robbery of another player. The Supreme Court reversed, holding that the issue of identity having once been determined by a jury in the defendant’s favor, the state could not relitigate it in a subsequent prosecution against the same defendant for a “separate” offense.

Pennsylvania has a statute on the subject of collateral estoppel,'18 Pa.C.S.A. § 110, which states in pertinent part:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(1) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

The differences between collateral estoppel and the traditional aspects of double jeopardy were laid out by the Pennsylvania Supreme Court in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980):

First, collateral estoppel does not require that the offenses charged in the two prosecutions be the same. Second, collateral estoppel only bars a redetermination of those issues necessarily determined between the parties in the first proceeding. Third, collateral estoppel requires a final judgment in the first proceeding. Thus it becomes clear that while the traditional aspects of double jeopardy could readily be deemed inapplicable to a subsequent perjury prosecution of a criminal defendant, such is not the case with collateral estoppel. As the Ashe Court noted, collateral estoppel was intended to enhance the traditional double jeopardy protection and to provide relief from the growing threat of multiple prosecutions. To that end that Court directed the principle of collateral estoppel be applied with ‘realism and rationality’ and not ‘applied with the hypertechnical and archaic approach of a 19th century pleading book.’ Id. [397 U.S.] at 444, 90 S.Ct. at 1194.

Id., 492 Pa. at 611-12, 425 A.2d at 319.

The approach set forth by Ashe to determine the applicability of the principle of collateral estoppel where a previous judgment of acquittal was based upon a general verdict, requires the court to

examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.

Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (quotations omitted).

With this standard in mind, we now examine the appellants’ arguments herein. Appellants contend that the issue litigated and finally decided in the Somerset County trial was the credibility of the prosecution witnesses as to appellants’ involvement in a multi-county burglary ring, and that this is the very issue to be decided in the Fulton County cases. We find this contention to be erroneous.

Jurisdiction in criminal matters in Pennsylvania is countywide. Commonwealth v. Nichelson, 294 Pa.Super. 438, 440 A.2d 545 (1982). A court has no jurisdiction unless the act charged occurred in the county where the defendant is tried. Commonwealth v. Firestone, 253 Pa.Super. 577, 385 A.2d 489 (1978). Appellants Winter and Hill were not charged with burglary in Somerset County at all. Appellant Cromwell was charged with four counts of burglary related offenses in Somerset County and four unrelated burglaries in Fulton County. Therefore, appellants could only be tried in separate proceedings in the two counties. The crimes allegedly committed in Fulton County were on a different day, at a different place, in a different county. Different property was taken and different persons were involved. The factual situation of the crimes alleged in Fulton County is completely different from those crimes alleged in Somerset County.

In Commonwealth v. Harris, 275 Pa.Super. 18, 418 A.2d 589 (1980), the defendant was convicted in Montgomery County of an assortment of offenses, including terroristic threats. Earlier, he had been convicted in Philadelphia County of several crimes arising from the same incident, in which the victim had been forcibly taken from her home in Philadelphia to Montgomery County. Our court held that since the Court of Common Pleas of Philadelphia County had no jurisdiction to try the defendant for making terroristic threats in Montgomery County, prosecution for that crime in Montgomery County was not barred by the defendant’s earlier convictions in Philadelphia County arising from the same incident.

In Commonwealth v. Niehelson, supra, the defendant was charged in Philadelphia County with a number of crimes arising from an incident in which the victim was kidnapped in Philadelphia and taken to Chester County where a number of other offenses took place. The defendant was convicted of all but two of the Philadelphia charges, whereupon he moved to quash the related charges in Chester County on the basis of double jeopardy/collateral estoppel. Our court held that the Chester County prosecution involved acts entirely separate and distinct from those previously adjudicated in Philadelphia County and was not barred by principles of double jeopardy or collateral estoppel.

Like Harris, supra, and Nichelson, supra, appellant Cromwell was tried for burglary related offenses in one county and later charged with burglary related offenses in another county. The offenses in both Harris and Nichelson arguably derived from the same episode or transaction. Here we have no relationship in time or place between the offenses.

Appellants argue that Commonwealth v. Hude, supra, controls the outcome of these appeals. While we find comparison between Hude and the instant cases to be appealing, appellants’ reliance on Hude is misplaced. In Hude and its companion case, Commonwealth v. Klinger, our supreme court rejected the argument that “the doctrine of collateral estoppel should be construed as providing an automatic bar to all perjury prosecution which stems from testimony of an acquitted defendant during the substantive trial.” Commonwealth v. Hude, supra, 492 Pa. at 624, 425 A.2d at 326. In Hude, the defendant was acquitted of possession and delivery of marijuana and in Klinger, the defendant was acquitted of murder. Both were later prosecuted for perjury involving their testimony in their respective trials. In these perjury cases, the same witnesses repeated the same testimony. Limited to these facts, the supreme court held that a perjury conviction could not follow an acquittal if the attempt was to relitigate an issue finally resolved at an earlier trial.

However, that is not our case here. As the lower court correctly stated:

Ferron Cromwell was acquitted in Somerset County and the witnesses who appeared against him may be some of the same witnesses who will appear against him in Fulton County. And these same witnesses may be witnesses against the defendants Matt Hill and Roger Lee Winter. But the cases are different cases and do not involve the same set of facts. [Appellants] have apparently picked a statement from the Hude decision that the trial litigated the question of the informant’s credibility as to his knowledge of Hude’s drugs dealings and rejected it as the foundation for these motions to dismiss.
In the cases to be tried in Fulton County it may be some of the same witnesses will testify, but they will not be repeating the same testimony, for the offenses in Fulton County are obviously different than those in Somerset County. They were allegedly committed at different scenes, different things were taken, etc. Moreover in the case against Hill and Winter, no decision has been made anywhere as to the credibility of any witnesses.
We understand that if a fact has finally been litigated, it should not be relitigated. However, it is our impression that in a legal sense the credibility of a witness is not a fact to be determined by the jury. Rather it is a matter to be resolved by the jury to permit it to determine the facts. It might be more precise to say that the credibility of the witness as to a particular set of facts had been litigated. Thus the resolution of the credibility against the Commonwealth in two cases permitted the jury to find as a fact that Hude did not deal and Klinger did not kill. For surely, as the Court responded, it could not be said the testimony of the Commonwealth’s Hude and Klinger witnesses could never be believed again.

Lower ct. op. at 3-5.

It would seem that Hude would apply only if appellant Cromwell were brought to trial for perjury as a result of testimony given in the Somerset County case, and then only if this court concluded that the perjury charges would result in relitigation of previously resolved issues. That clearly is not the case presently before us involving appellant Cromwell. Therefore, we find that collateral estoppel does not bar prosecution of appellant Cromwell in Fulton County.

The situations of appellants Winter and Hill present a slightly different problem. The issue of whether collateral estoppel will prevent the trial of a defendant where a codefendant has been acquitted has been previously addressed by the appellate courts of this Commonwealth. We find Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977) to be controlling as to appellants Winter and Hill. In Brown, our supreme court held that the acquittal of a criminal defendant will not prevent the relitigation of an issue in the subsequent prosecution of a codefendant even though the same transaction is involved. Although the case involved the question of accomplice liability rather than principals, we find the distinction to be inconsequential. In the instant case, we are also faced with the trial of a defendant where a co-defendant has already been tried, albeit for different crimes, and acquitted.

The supreme court noted in Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980), that:

An acquittal at any trial is never a guarantee that no crime has been committed. Rather it signifies only that the Commonwealth has not proved its case to the satisfaction of the jury. Thus in the present case, different verdicts may well have been due solely to the different composition of the two juries. Alternatively, the difference may have been due to a variety of other circumstances, including a difference in the proof offered at trial---- It is error to assume that the failure of a jury to convict one conspirator necessarily invalidates the Commonwealth’s verdict, won from a different jury, at a separate trial.

Id., 490 Pa. at 552-53, 417 A.2d at 177.

Finally, we find that our position is buttressed by a recent decision of the United States Supreme Court. In Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), affirming United States v. Standefer, 610 F.2d 1076 (3rd Cir.1976), the Court held that the outcome of a co-defendant’s prosecution had no effect on the defendant’s conviction. In that case, the defendant had been charged, inter alia, with aiding and abetting a revenue official in accepting compensation not authorized by law. Under the authority of 18 U.S.C. § 2, the defendant was tried as a principal. Prior to defendant’s trial on five counts of the offense, the co-defendant revenue official had been acquitted of all but two of the counts of accepting the additional compensation. Defendant was subsequently convicted of all five counts. The Court concluded that the doctrine of non-mutual collateral estoppel would not bar the Government from relitigating the facts at defendant’s trial, including the guilt of the revenue official as to violations on which he had been previously acquitted, in order to prove that the defendant had aided and abetted in the commission of those violations. We find this to be dispositive of the present appeals of Winter and Hill.

Therefore, we find that neither collateral estoppel nor double jeopardy bars prosecution of the instant cases. In the absence of mutuality of parties, collateral estoppel is inapplicable. United States v. Standefer, supra; Commonwealth v. Lewis, 306 Pa.Super. 81, 452 A.2d 13 (1982). The scope of the doctrine as applied in criminal matters is not co-extensive with that applied in civil cases, particularly where the bar of collateral estoppel is raised on behalf of defendants who were not parties to the prior proceedings. Commonwealth v. Brown, supra. Furthermore, none of the appellants have ever faced prosecution of the Somerset County charges in Fulton County or vice versa. Under the circumstances, jeopardy has not attached.

The Commonwealth, on behalf of the victims of the Fulton County burglaries, should have a right to its day in court within the appropriate jurisdiction of the offenses.

The orders of the Court of Common Pleas of Fulton County are affirmed.

      . An order denying a pre-trial motion to dismiss on the grounds of double jeopardy/collateral estoppel is a final, appealable order. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v.

        Yost, 305 Pa.Super. 316, 451 A.2d 549 (1982); Commonwealth v. Stewart, 302 Pa.Super. 203, 448 A.2d 598 (1982).

      . Other counties involved were Bedford, Blair, Franklin, Huntington, Juniata, and Somerset.

      . We note that the same question is presented in related appeals presently before this court, involving Juniata and Franklin Counties.

      . 1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973.


author: BROSKY, Judge:

text:
    471 A.2d 833
    Michael BARTASAVICH, Appellant, v. Donald MITCHELL, In His Capacity as Director of Clearfield County Children’s Services, and Clearfield County Children’s Services, and Dennis Geppert, and Adeline Geppert. In re Michelle BARTASAVICH. Appeal of Michael BARTASAVICH. In re Michelle BARTASAVICH. Appeal of Michael BARTASAVICH.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1983.
    Filed Jan. 13, 1984.

      Michael J. Bresnahan, State College, for appellant.
    Kim C. Kesner, Clarion, for appellees.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

These consolidated appeals are from three orders of the same date which: (1) terminated appellant Michael Bartasavich’s parental rights; (2) denied Mr. Bartasavich’s petition for visitation; and (3) granted custody of Michelle Bartasavich to Clearfield County Children’s Services for purposes of placing her for adoption. For the reasons that follow we reverse and remand for further proceedings.

Appellant is the father of Michelle who was born on December 22, 1971 to Mr. Bartasavich and his wife, Mary. On October 14, 1974, during a domestic dispute, appellant stabbed and killed his wife. He immediately took his then two year old daughter to the home, of a neighbor, returned home and .stabbed himself with a fork. Mr. Bartasavich was arrested and charged with his wife’s homicide while in the hospital recuperating from his self-inflicted wounds.

On October, 1974 while an inmate at the Clearfield County Jail, appellant signed a petition which led to the placement of Michelle in the custody of Clearfield County Child Welfare Services.

The Child Welfare service permitted Michelle’s maternal grandparents, with whom she had been staying since her mother’s tragic death, to retain custody of her. Michael Bartasavich entered a guilty plea to a charge of voluntary manslaughter, and in February 1975, was sentenced to a term of imprisonment of 5 to 10 years.

From October, 1974 to June, 1976 Michelle was taken by her grandparents to visit with her father who was incarcerated from October, 1974 to October, 1979.

In June, 1976, Clearfield County Child Welfare Services permitted the Gepperts to stop taking Michelle to visit her father, because she had apparently displayed a negative reaction to the visits. The Gepperts reported that Michelle suffered stomach ailments and other manifestations of anxiety during the periods surrounding the visits.

The Gepperts claim that Michelle feared her father. A psychologist retained by appellant when the visits ceased concluded that Michelle had “ambivalent” feelings about her father, and did seem to fear him. Prior to the cessation of the visits, Michelle began to refer to her father as “Mike” although she had formerly called him “Dad.”

In May, 1978, while still incarcerated, appellant filed a Petition for Writ of Habeas Corpus, seeking a resumption of visitation.

On June 15, 1978, Clearfield County Children’s Services filed a petition seeking the termination of appellant’s parental rights.

On January 4, 1979 a hearing was held on the parental termination and visitation petitions before the Honorable John K. Reilly, Jr., in the Court of Common Pleas of Clearfield County. Judge Reilly recused himself because he had sentenced appellant on the voluntary manslaughter conviction.

On May 16, 1979 another hearing on the petitions was held in the Clearfield County Court. The hearing was conducted by a specially appointed judge.

No order was entered following this hearing, but following disposition of Petitions for Review and recusal filed by appellant’s counsel, another brief hearing was held in June, 1981. An opinion was prepared by the lower court in February, 1982 in which the court explained its decision to terminate appellant’s parental rights and deny his visitation petition. Orders effecting these decisions were entered on August 24, 1982 and this appeal followed.

The lower court terminated appellant’s parental rights on the basis of Section 311(2) of the Adoption Act. That section required that three things be shown before a natural parent’s right in a child will be terminated: (1) repeated and continued incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, abuse, neglect or refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will not be terminated. See In Re Geiger, 459 Pa. 636, 331 A.2d 172 (1975).

Our courts have recognized the severity of a termination of parental rights and have accordingly imposed strict standards of proof. See In Re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976). The United States Supreme Court has held that in termination of parental rights cases, the moving party must prove its case by clear and convincing evidence. Santosky v. Kramer, Commissioner, Ulster County Department of Social Services, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

In Santosky, Id., the Supreme Court explained:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than those resisting state intervention into ongoing family affairs.

Id. at 753, 102 S.Ct. at 1394.

Our Supreme Court recently held that in all proceedings to involuntarily terminate parental rights, which are not yet final, the petitioner must prove the statutory criteria for that termination by clear and convincing evidence. In Re T.R., 502 Pa. 165, 465 A.2d 642 (1983). The Court remanded the T.R. case for rehearing in accordance with the clear and convincing burden of proof. We do the same in the instant appeal, because we find that the lower court misapplied the burden of proof.

While the trial court opinion in this case suggests that it found the evidence “compelling” as required by In Re R.I., supra, it is clear to us from a thorough reading of the opinion that the lower court did not place upon the petitioners the burden to prove their case by clear and convincing evidence.

The trial court opinion indicates that aside from the question of which burden of proof should be utilized, the Court assessed the burden against appellant, rather than appellee. The Court suggested that the appellant had failed to show his mental capacity or financial ability to care for his daughter. We note most emphatically that it is not appellant’s burden to show his capability, but rather, it is the burden of the petitioner who seeks the termination of his parental rights to show his incapacity. See Santosky, supra, In Re T.R., supra.

As the trial court opinion notes, the evidence adduced at the hearing in this case shows that appellant has made efforts to see his daughter many times since the cessation of visitation. He has corresponded to this end with Clear-field County Child Welfare Services and has employed a psychologist to evaluate his daughter. Mr. Bartasavich has attempted to write to his daughter many times, but his letters have been returned to him. He has paid his daughter’s elementary school tuition. Appellant attempted, while incarcerated, to provide some financial support to Michelle, but the Gepperts returned his checks to him. Mr. Bartasavich has written to his daughter’s school seeking information about her and has asked for pictures of her.

Additionally, officers in charge of appellant during his incarceration verified his testimony that he was virtually unsupervised at the prison and that he would be recommended for parole.

Having noted the above recited findings, the trial court nonetheless terminated appellant’s parental rights saying that appellant lacks the ability to satisfy Michelle’s psychological and physical needs. Specifically the court found that appellant had been rendered incapable of parenting Michelle because he had killed her mother. The court also noted the lack of evidence of appellant’s financial and occupational situation, implying incorrectly that appellant had the burden of proof..

Appellant’s killing of his wife was certainly a tragic event, which has surely caused harm to Michelle. We are not prepared to conclude that it alone, however, meets the statutory requirements for termination of parental rights which were relied upon by the petitioner, Children’s Services.

As outlined in In Re Geiger, supra, the incapacity must be repeated and continuous. Appellant’s action was not repeated, although it could be argued that it is continuous in its effect.

The incapacity must have caused the child to be without essential parental care. Appellant’s action certainly did cause Michelle to be without essential parental care.

The incapacity cannot be terminated. We cannot say based on the evidence before us that appellant’s incapacity cannot be terminated. It is, of course true that because of appellant’s action, Michelle will be permanently deprived of her mother’s care. Her loss in this regard is complete and irretrievable. However, she may not be without essential parental care insofar as she may have available to her the care of her father. We do not agree with the trial court’s conclusion that the permanence of the loss of her mother necessarily rendered appellant permanently incapable of parenting her.

We note that in a case factually identical to the one before us, the New Jersey Supreme Court found that the killing of a mother by a father was not alone sufficient to find that the father had abandoned his child. The Supreme Court in In Re Adoption of J., 73 N.J. 68, 372 A.2d 607 (1977) reached its decision based substantially on the reasoning expressed in a dissenting opinion to the Superior Court decision in that case. The Superior Court had found that the father’s parental rights should be terminated because of his killing of the child’s mother. In a dissenting opinion, Judge Crahay noted “A child’s relationship with a parent is of such moment that all doubts are to be resolved against its destruction.” In Re Adoption of J, 139 N.J.Super. 533, 354 A.2d 662 (1976) (Dissenting Opinion by Crahay, J.A.D.). We agree with Judge Crahay’s observation and reiterate that the burden placed on those seeking a termination of parental rights is a heavy one.

The New Mexico Court of Appeals found abandonment in the killing of one parent by another in In the Matter of the Adoption of John Doe, 99 N.M. 278, 657 P.2d 134 (1982), but noted that abandonment would not be found only on the basis of the parent’s incarceration for that crime. The court explained that other elements of importance include lack of parental affection, shown parental neglect and the failure to contribute financially to the child. None of these other elements is shown to be present in this case. Indeed, quite the contrary seems to have been the case.

We note that our review is of a record made in the spring of 1979. Three and one-half years have passed since then. Appellant has been paroled. Michelle has grown. We are unwilling to make any final determination on the basis of such an out of date record and we therefore remand for a new evidentiary hearing to be conducted in light of Santosky, supra and its progeny.

The hearing should be presided over by a judge other than the judge whose opinion is before us. While we recognize the difficulty of a case such as this, we note that the trial court enlarged the record before it beyond the evidence introduced by the parties. The Court relied upon a psychological report prepared by a psychologist for use in the criminal proceedings in which appellant was involved. The report had not been introduced in the instant proceedings. Particularly in a case in which the burden on petitioner is as stiff as it is here, we as a court should not enlarge upon that record. The judge should then recuse himself for much the same reasons as those of the first judge to hear evidence in this case who then recused himself because he had sentenced appellant.

We reverse the order which terminated appellant’s parental rights. The order granting permanent custody to Clear-field County Child Welfare Service reversed. Custody was given to the Child Welfare Service in 1974 and must remain with them pending the outcome of further proceedings below.

Due to the changed circumstances of the parties since the last hearing, a new evidentiary hearing is to be held on appellant’s request for visitation. The visitation and termination of parental rights matters may be consolidated. Order terminating parental rights reversed.

Order denying visitation reversed.

Order granting permanent custody to Clearfield County Children’s Services reversed.

Custody to remain with Clearfield County Child Welfare Services under the terms of the 1974 order. Case remanded for further proceedings consistent with this opinion.

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

McEWEN, Judge, concurring and dissenting:

Michelle Bartasavich was born on December 22, 1971, and was not yet three years of age when her natural father, Michael Bartasavich killed Mary Bartasavich, his wife and the mother of Michelle. Her maternal grandparents immediately assumed custody of Michelle and have since that time raised and cared for her as well as seen her grow to be, at the present time, a young lady of twelve years of age. The Clearfield County Child Welfare Service, a short time after the killing, provided for confirmation of this custody arrangement by completion of the formal placement procedure. Appellant, three months after the tragedy, acknowledged that the killing was intentional when he pleaded guilty to a charge of voluntary manslaughter for which he was sentenced to a term of imprisonment of from five to ten years, a term from which he was released on parole in October of 1979, after five years of imprisonment. Michelle was taken by her grandparents, with the permission of the County Children’s Services, to visit appellant in prison during 1975 and the first part of 1976. This practice halted, however, in 1976 when Michelle was still but four years of age as the visits caused her distress.

Three years later in May of 1978, appellant initiated formal proceedings in the Common Pleas Court in an effort to force the resumption of the visits, an effort that was shortly followed, in June of 1978, by a petition of the Clearfield County Children’s Services to terminate his parental rights.

The opinion of the majority provides a very careful and persuasive rationale for each of its conclusions. I am of a mind, however, that the statute and decisions relating to termination of parental rights, including the decision of the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), were not drafted for application to this factual situation. Since I am not, therefore, compelled by either statute or decision and since it is perilous to proceed to a pronounciation of principle in this special situation, I consider only Michelle, now upon the threshold of womanhood, and conclude the wiser course in this case would cause entry of the following orders:

The permanent custody of Michelle shall remain in the Clearfield County Children’s Services and in the maternal grandparents.
The order terminating parental rights is reversed without need to conduct further proceedings or to make further findings or conclusions or to enter further decree until and unless the circumstances reflected by the current record are substantially modified.
The Order denying visitation is reversed and the case remanded for the sole purpose of enabling the same hearing judge to personally confer with Michelle so that her wishes, in view of her present age, with regard to the terms of visitation, if any, may be a controlling factor in the decision of the court regarding visitation; the efforts of the hearing judge to confer with Michelle for this purpose may be in the presence of other parties to and counsel in this litigation or may be in private provided, in any event, that all such conferences shall be upon the record.

      . Mr. Geppert is actually Michelle’s step-grandfather.

      . Both Petitions for Review were denied by this court.

      . Act of July 24, 1970, P.L. 620, No. 208, § 311(2); P.S. § 311(2); 1 P.S. § 311(2); repealed. The present Adoption Act is the Act of Oct. 15, 1980, P.L. 934, No. 163 § 1, effective Jan. 1, 1981. The instant proceeding was commenced prior to the effective date of the new act and the parties have continued to proceed under the former law. See Comment to 23 Pa.C.S.A. § 2101.

      . We are not unmindful of our earlier opinion in In Re Gertrude Anderson, 317 Pa.Super. 490, 464 A.2d 428 (1983) in which we found that "As a matter of legal construction looking to the plain meaning of the words, “compelling” evidence is at least as stringent a requirement as "convincing” evidence. Our holding today is based on the unique facts of this case.

      . In this connection we note that it may well be the case, as Judge Crahay found it to be in Adoption of J., supra, that Michelle’s best interests are served by her remaining in the custody of the grandparents. As Judge Crahay observed.
      In this matter J’s best interests are presently being served by the order giving her custody to plaintiffs as guardians. One may presume that those interests will not be lightly disturbed. They will be under the court’s superintendence until, and if, some modification is ordered. All this can be done without doing violence to the principle that a child’s significant relationship with its parents may be forever destroyed without compelling reasons.
      On this record I would permit F to continue to be J’s parent, albeit not her custodian. The future courses of matters such as these are not easily predicted. We should be slow to fix them unalterably.

        Adoption of J., at 548, 354 A.2d at 669.

      . We note that visitation has been limited or denied only where a parent has been shown to suffer severe mental or moral deficiencies that constituted a grave threat to the child. In Re: Mary Lou Long, 313 Pa.Super. 47, 459 A.2d 403 (1983) (citing cases).

      . We recognize that the issue of the proper scope of review applied in involuntary termination of parental rights cases is presently before our en banc Court in the case of In Re: Adoption of James J., 2776 Phila., 81, argued February 11, 1983; however, the exercise of a different scope of review in this case would not affect the result.


author: McEWEN, Judge:

text:
    471 A.2d 839
    Dolores N. SCHIFANO, Appellant, v. John A. SCHIFANO.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed Jan. 13, 1984.

      Damon John Faldowski, Washington, for appellant.
    John R. Valaw, Pittsburgh, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

This appeal is taken from an order of the Court of Common Pleas of Washington County which (1) dismissed a petition for modification of a separation agreement which had been incorporated into a foreign divorce decree and (2) discharged a rule to show cause why appellee should not be held in contempt for failure to pay arrearages under a prior order of support. We affirm in part, reverse in part and remand.

Appellant, Dolores N. Schifano, and appellee, John A. Schifano, were married on July II, 1953, in Pennsylvania. Four children, all of whom are now emancipated, were born of the marriage. After the parties separated in September of 1976, husband initiated divorce proceedings in Allegheny County on October 19, 1976. Thereafter, husband was ordered by the Allegheny County Court to pay $450.00 per month for the support of his wife and $150.00 per month for the support of a minor child. The order of support was subsequently reduced to $350.00 for the support of the wife alone, the minor child having attained the age of eighteen.

On May 23, 1980, husband effectuated by praecipe the dismissal of the divorce action he had initiated in Allegheny County, only to institute, one month later, an action in divorce in Mahoning County, Ohio.

Five months later, wife, a resident of Washington County, filed a complaint in divorce in Allegheny County. Preliminary objections alleging improper venue were filed by husband, who was then residing in Mahoning County, Ohio. These objections were sustained by the Allegheny County Court and the case was transferred to the Court of Common Pleas of Washington County by order dated January 21, 1981.

The Ohio action instituted by husband was scheduled for trial on October 7, 1981. Wife filed an answer in the action and was represented by counsel. Prior to the hearing on the matter, husband and wife entered into a separation agreement which was incorporated by reference into the final decree of divorce issued by the Ohio Court on October 7, 1981. The agreement provided, inter alia:

1. The parties were married in Pittsburgh, Pennsylvania on the 11th day of July, 1953.
2. There were four (4) children born as issue of said marriage, but all are now emancipated.
3. Differences have arisen between the parties and they are now living separate and apart from each other.
4. The parties hereto desire to and by this Agreement do, settle and determine and hereby provide for a division of all property belonging to the parties, or to either of them, and alimony.
5. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, AND THE MUTUAL PROMISES AND AGREEMENTS HEREINAFTER SET FORTH, the parties hereto agree as follows:
# jJ: Jfc *
ARTICLE III. EXPENSES AND DEBTS.
Each party shall be responsible for any and all outstanding obligations presently standing in their own name.
>k ‡ ‡ * jfc *
ARTICLE V. ALIMONY:
A. As and for distribution of marital property accumulated, Husband shall pay to the Wife, the sum of TWO THOUSAND DOLLARS ($2,000.00).
B. As and for periodic alimony, the Husband shall pay to the Wife, the sum of THREE HUNDRED DOLLARS ($300.00) per month in alimony through the Mahoning County Bureau of Support, County Building, Youngstown, Ohio. Said payments shall be payable in monthly installments on the 15th day of each and every month and shall commence on the 15th day of November, 1981. The Husband shall pay the poundage due each and every month to the Mahoning County Bureau of Support. This obligation shall terminate on the 15th day of October, 1983.
* * * * *
ARTICLE VIII. DISCLOSURE:
The parties hereto declare that each has disclosed to the other the full nature and extent of and have been fully informed of the true assets and liabilities of each, and that after such knowledge and information, each signs this Agreement freely and voluntarily, neither relying upon any representation other than those expressly set forth herein. No statement or prior written matter extrinsic to this Agreement shall then have any effect.
ARTICLE IX. UNDERSTANDING OF PARTIES:
Each party fully understands all of the terms herein set forth: all of said terms represent and constitute the entire understanding between them; each party has read this Agreement and finds the same to be in accordance with his and her understanding; and each party hereto hereby acknowledges that each of them is making, executing and affixing his and her signature, in the presence of the witnesses hereafter indicated, by his or her own free will and violation, and that no coercion, force, pressure nor undue influence has been used against either party to this Agreement or by any other person or persons.
ARTICLE XI. CONSTRUCTION OF AGREEMENT:
All provisions of this Agreement shall be construed and enforced in accordance with the applicable laws of the State of Ohio. If a divorce is granted by the Domestic Relations Court of Mahoning County, it is exclusively understood that this SEPARATION AGREEMENT shall be incorporated into the Court’s Decree of Divorcé as if fully rewritten therein.
ARTICLE XII. MODIFICATION OR WAIVER:
No modification or waiver of any of the provisions of this Agreement nor any alteration or change to this Agreement shall be valid unless in writing, signed by both of the parties hereto, (or by order of Court), and executed with the same formalities as this Agreement. No waiver of any breach or default hereunder shall be deemed the waiver of any subsequent breach or default of a same or similar nature.
IN WITNESS WHEREOF, the said Husband and Wife have set their hands this 7th day of October, 1981, at Youngstown, Ohio.

After the Ohio Court had issued a final decree in divorce, husband purchased a home in Washington County, Pennsylvania, where he is now domiciled. Wife continues to reside in Washington County.

On July 2, 1982, wife filed two petitions in the Court of Common Pleas of Washington County which, for the sake of clarity, we shall discuss separately.

The first petition sought modification of the alimony provisions of the separation agreement that had been incorporated into the decree of the Ohio Court. The hearing court dismissed this petition after it had concluded that the Ohio Courts had sole jurisdiction to modify the separation agreement which had been incorporated into the final decree of divorce entered there. Wife contends that this holding was error.

“Before a court may determine a legal action, it must possess both subject-matter jurisdiction and jurisdiction of the person.” Slezynger v. Bischak, 224 Pa.Super. 552, 553, 307 A.2d 405, 406 (1973). “ ‘The test of [subject matter] jurisdiction is the competency of the court to determine controversies of the general class involved, and whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case.’ ” Carelli v. Lyter, 430 Pa. 543, 546, 244 A.2d 6, 8 (1968) quoting Drummond v. Drummond, 402 Pa. 534, 538, 167 A.2d 287, 290 (1961) (emphasis supplied). See also Simpson v. Simpson, 404 Pa. 247, 251, 172 A.2d 168, 171 (1961). The court in the instant case clearly possessed subject matter jurisdiction over the controversy. Moreover, both appellee and appellant are residents of the Commonwealth of Pennsylvania and personal jurisdiction over appellee was properly obtained. See Simpson v. Simpson, supra, 404 Pa. at 251, 172 A.2d at 171; 42 Pa.C.S. § 5301. The court, therefore, possessed jurisdiction to determine the merits of the present controversy.

The separation agreement which wife sought to modify provides that all provisions of the agreement are to be construed and enforced in accordance with Ohio law. Therefore, the question of whether the alimony provisions of the agreement were susceptible to modification must be decided according to Ohio law. Restatement Second, Conflict of Laws § 187. See also Silvestri v. Slatowski, 423 Pa. 498, 501, 224 A.2d 212, 215 (1966); Gillan v. Gillan, 236 Pa.Super. 147, 152, 345 A.2d 742, 745 (1975).

A decree awarding temporary alimony is not subject to modification under Ohio law if the alimony award is not solely for support but is in settlement of the property rights of the parties. Wolfe v. Wolfe, 46 Ohio St.2d 399, 418, 350 N.E.2d 413, 425 (1976). Accord Crouser v. Commissioner of Internal Revenue, 668 F.2d 239 (6th Cir.1981). The separation agreement we review was clearly intended to provide for the division of all marital property as well as alimony. Moreover, the agreement provided for alimony in a definite amount payable in installments over a stated period of time without any contingencies. “Ohio courts will not modify alimony awards for a definite amount of money without contingencies when those judgments have been granted pursuant to an agreement of the parties.” Vaught v. Vaught, 2 Ohio App.3d 264, 268, 441 N.E.2d 811, 815 (1981). Accord: Drossman v. Drossman, 48 Ohio App.2d 81, 355 N.E.2d 891 (1975). “ ‘This rule of finality of judgments is especially applicable to divorce judgments where there is an agreement which is incorporated into the journal entry of the trial court and where the trial court has not reserved jurisdiction to modify. The reason that such a decree is final and the court does not have continuing jurisdiction to modify it is that the parties voluntarily entered into a legally binding and enforceable contract. Where parties enter into an agreement and it is submitted to the court, approved and incorporated into a divorce decree, justice requires- that the agreement be binding upon both parties.’ ” Vaught v. Vaught, supra, 2 Ohio App.3d at 266, 441 N.E.2d at 813 quoting Popovic v. Popovic, 45 Ohio App.2d 57, 64, 341 N.E.2d 341, 346 (1975).

It is apparent that under Ohio law the separation agreement is not susceptible to modification based upon changed circumstances. The trial court, therefore, properly dismissed the petition for modification filed by wife. In light of the fact that modification is prohibited by Ohio law, there is no need to consider the law of Pennsylvania upon the subject of modification of a foreign decree awarding alimony. See, however, Young v. Young, 320 Pa.Super. 269, 467 A.2d 33 (1983); Sohmer v. Sohmer, 318 Pa.Super. 500, 465 A.2d 665 (1983).

The other petition filed by wife sought to hold husband in contempt for a failure to comply with support orders entered in Allegheny County prior to the date of the final decree in divorce. Wife alleged that husband had failed to pay: (1) certain medical bills in accordance with an order dated April 18, 1979 and (2) real estate taxes for 1979, 1980 and 1981 due on their marital home. The hearing court entered a rule upon husband to show cause and scheduled argument upon the rule for August 6, 1982. Husband filed preliminary objections raising lack of jurisdiction based upon the Ohio divorce decree, but failed to appear at the scheduled hearing. The court thereupon entered the following order: ■

AND NOW, this 6th day of August, 1982, this being the return date of the Rule which was filed by Dolores N. Schifano in the above matter and it further appearing that no answer having been filed on behalf of the defendant, John A. Schifano nor did he appear in person or by counsel, the undersigned takes note of the following facts and circumstances of this matter:
1. The Court assumes jurisdiction of this matter after reviewing the order dated January 21, 1981 signed by the Honorable Eugene Strassburger of the Court of Common Pleas of Allegheny County thus sending the case to Washington County;
2. The court has been made aware that a divorce decree was entered on October 7, 1981 in Mahoning County, Ohio. In addition the Court has reviewed the stipulation and agreement that was signed by the parties on October 7, 1981 and incorporated into the Order of the Ohio decree;
3. The separation agreement executed by the parties does not address itself to the obligation of John Schifano to comply with the orders of the support court of Allegheny County which were entered during the period of April 18, 1979 until March 18, 1982 and therefore it would seem that the plaintiff has a right to request enforcement of the Allegheny County orders in this Court;
4. The court has reviewed the Order dated March 18, 1982 signed by Honorable Eugene Strassburger dismissing the case filed in Allegheny County and this Court believes that this Order did not dispose of the matter of arrearages accumulated through non-compliance of the previous Orders entered by the Court of Common Pleas of Allegheny County.
5. Pursuant to the aforesaid orders the defendant was to pay the real estate taxes on the jointly owned premises for the year 1979. In addition he was also ordered to pay the medical, dental and prescription expenses incurred by the plaintiff in the amount of $626.95.
The Court has been made aware that Dolores N. Schifano paid $862.00 to the Washington County Tax Claim Bureau for the real estate taxes due and owing for the year 1979;
6. Pursuant to the aforesaid orders dated November 15, 1979 the defendant was to pay the real estate taxes on the jointly owned premises and one-half of the delinquent utilities relative to the premises in the amount of $766.30 as of the date of the foregoing order;
7. Pursuant to the aforesaid orders dated March 17, 1980 the defendant was ordered to pay the 1980 real estate taxes on the jointly owned premises. A statement from the Washington County Tax Claim sets forth the taxes in the amount of $942.61;
8. Pursuant to the same dated January 2, 1981 the defendant, John A. Schifano, was ordered to pay real estate taxes on the jointly owned premises for this year in the amount of $966.00 approximately;
THEREFORE, AND NOW this 6th day of August, 1982 a Rule issues upon John A. Schifano, the defendant in the above captioned case, that he show cause if any there be why the various items of money asserted to be immediately receivable from him as arrearages on a support theory to wit:
(a) $626.95 for medical, dental and prescription bills,
(b) $2,770.61 for the 1979, 1980 and 1981 real estate taxes on the jointly owned premises, and
(c) $383.15 for V2 of the utilities due and owing not be aggregated and deemed duly payable today in the amount of $3,780.71 forthwith. Upon application and security post installment payments will be considered at return.
Rule returnable on August 19, 1982 at 2:30 p.m. in Courtroom No. 1 before the undersigned.

Thereafter, the learned President Judge Charles G. Sweet issued an opinion and order on November 22, 1982, holding, inter alia, that the separation agreement which had been incorporated into the foreign divorce decree did not specifically address the liability of husband for arrearages under the prior orders of support but declining to resolve the issue of arrearages on the basis of comity. Wife contends that this determination was error.

“ ‘Comity’, used in the legal sense, is not a rule of law, but a principle, given effect out of deference and respect for the action of courts of other jurisdictions. Technically it means ‘where one authority gives way to another.’ ” Wolgin v. State Mutual Investors, 265 Pa.Super. 525, 530, 402 A.2d 669, 672 (1979). See also P.L.E. Divorce § 202. The Ohio divorce decree which incorporated the separation agreement of the parties was entitled, however, to full faith and credit. Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); Watson v. Watson, 243 Pa.Super. 23, 364 A.2d 431 (1976); P.L.E. Divorce § 201. Article 4 § 1 of the U.S. Constitution provides that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. The purpose of the full faith and credit provision is to preserve rights acquired under the judicial proceedings of one state by requiring recognition of their validity in other states. Pink v. A.A.A. Highway Express, Inc., 814 U.S. 201, 62 S.Ct. 241, 86 L.Ed. 152 (1941), reh. denied 314 U.S. 716, 62 S.Ct. 477, 86 L.Ed. 570 (1942). If the separation agreement executed by the parties and incorporated into the Ohio divorce decree was intended to relieve husband of the obligation to pay the arrearages due under the prior orders of support, the full faith and credit clause would require that the petition filed by wife be dismissed.

The parties were free to provide in their separation agreement for the cancellation of all outstanding arrearages owed by husband under prior support orders and such provision would be binding upon this Court. Our review of the separation agreement, however, persuades us that the parties did not provide for the resolution of the issue of arrearages owed by husband. The agreement executed by the parties provided, inter alia: “[e]ach party shall be responsible for any and all outstanding obligations presently standing in their own name.” Ohio law on the interpretation of contracts is clear. “ ‘The first general maxim of interpretation * * * is, that it is not allowable to interpret what has no need of interpretation. When a * * * [writing] is worded in clear and precise terms; when its meaning is evident, and tends to no absurd conclusion, there can be no reason for refusing to admit the meaning which * * * [it] naturally presents.’ ” Allen v. Standard Oil Co., 2 Ohio St.3d 122, 124, 443 N.E.2d 497, 499 (1982) quoting Lawler v. Burt, 7 Ohio St. 340, 350 (1857).

The obligation of husband for arrearages due and owing under the prior support order was an outstanding obligation presently standing in his own name on October 7, 1981. The express provisions of the separation agreement provide that husband would remain liable for such obligations. The separation agreement, therefore, has no effect on the resolution of the issue of arrearages which accumulated prior to the divorce of the parties.

Husband also contends that the final decree of divorce relieved him of the obligation to comply with the prior orders of support entered by the Allegheny County Court. While the decree of divorce terminated husband’s duty to provide support, Commonwealth ex rel. Brown v. Brown, 254 Pa.Super. 410, 414-415, 386 A.2d 15, 17-18 (1978); Commonwealth ex rel. Platt v. Platt, 227 Pa.Super. 423, 424, 323 A.2d 29, 30 (1974), the divorce decree itself did not affect “ ‘his existing financial obligations that were legally fixed prior thereto.’ ” Commonwealth ex rel. Smith v. Smith, 260 Pa.Super. 203, 206, 393 A.2d 1224, 1226 (1978) quoting Commonwealth to use, v. Foltz, 50 Pa.Super. 576, 579 (1912). A court may compel compliance with a support order, including an order for the payment of arrearages, after the obligation of support has ceased, as long as the support order was entered before the divorce. Commonwealth ex rel. Smith v. Smith, supra, 260 Pa.Super. at 206, 393 A.2d at 1226. The decree of divorce, therefore, is not relevant to the resolution of the issue of husband’s liability for arrearages which accumulated prior thereto.

Wife alleges that husband has not complied with the order of April 18, 1979, which she contends obligated him to pay her medical expenses. However, the order of April 18, 1979, directed husband to pay only the first one hundred dollars of medical expenses incurred by wife during each calendar month. Moreover, the order of April 18, 1979, was amended by the subsequent order of November 15, 1979, which relieved husband of all obligation for medical bills incurred thereafter by wife. We are unable to determine from the record presently before us whether the bills for which wife seeks payment were incurred between April 18, 1979 and November 15, 1979, and were under the one hundred dollar monthly maximum. Upon remand, the trial court shall determine if husband was obligated, pursuant to the order of April 18, 1979, to pay these bills.

Wife also seeks payment of the 1979, 1980 and 1981 real estate taxes on the Washington County residence owned by the parties. Our review of the record discloses that prior to the date of the decree of divorce the Allegheny County Court entered orders directing husband to pay the 1979 and 1980 real estate taxes. We are unable to locate, however, any order directing him to pay the 1981 real estate taxes on the residence. For the reasons recited above, husband may be liable for arrearages resulting from his failure to pay the 1979 and 1980 real estate taxes. However, in the absence of a prior support order directing him to pay the 1981 real estate taxes, this amount may not be included in arrearages.

That part of the order of the Court of Common Pleas of Washington County dismissing the petition for modification of the foreign decree awarding alimony is affirmed. The order dismissing the rule to show cause why John Schifano should not be held in contempt is reversed and the case remanded for a determination of whether any amounts are owed under prior orders of support.

Jurisdiction is relinquished.

      . For the sake of clarity, we shall refer to appellant as "wife” and appellee as "husband” throughout this opinion, although the parties were no longer husband and wife after October 7, 1981.

      . Additionally, on April 18, 1979, husband was ordered to pay the real estate taxes on the Washington County residence owned by the parties, an automobile repair bill as well as medical bills incurred by wife up to the amount of $100.00 per month. On November 15, 1979, husband was ordered to pay $50.00 per month on accumulated arrearages of $329.50, the 1980 real estate taxes on the jointly held real estate and one-half of the $576.01 utility bills then overdue. On January 2, 1981, husband was ordered to pay an automobile repair bill incurred by wife in the amount of $126.78.

      . Due to failure to pay the filing fees, the case was not docketed until February 25, 1982.

      . Wife does not now, nor could she allege that the Ohio Court lacked jurisdiction over her person.

      . Section 187 of the Restatement, Second, Conflict of Laws provides: § 187. Law of the State Chosen by the Parties
      (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
      (2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
      (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
      (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
      (3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.

      . Wife alleges that appellee is liable for the following bills: A.J. FABIAN, DDS — $219.00; Hall Associates Ltd. — $239.00; Doty Prescription Opticians — $72.00; Dormont Chiropractic Clinic, $20.00; Warner & Cramer, MD — $35.00; Louis Signorella, MD, $15.00; McMurray Pharmacy, $26.95.


author: POPOVICH, Judge:

text:
    471 A.2d 847
    COMMONWEALTH of Pennsylvania v. Richard STAPLES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed Jan. 13, 1984.

      John A. Halley, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the summary dismissal of a petition for post-conviction relief filed by appellant under the Post Conviction Hearing Act (hereinafter referred to as PCHA). We affirm.

On July 12, 1972, appellant was found guilty by a jury of one count of murder of the second degree and one count of armed robbery. Post-trial motions were denied and appellant was sentenced to consecutive terms of imprisonment of 10 to 20 years for murder and 2 and V2 to 5 years for robbery. Following a direct appeal, judgment of sentence was affirmed by the Pennsylvania Supreme Court on October 16, 1974. See Commonwealth v. Staples, 457 Pa. 468, 326 A.2d 317 (1974).

Appellant filed the first of three PCHA petitions on February 18, 1975. Counsel was appointed and hearings were held on November 20, 1975 and December 11, 1975. In a lengthy opinion and order dated April 6, 1977, the court below denied appellant’s petition. The Supreme Court affirmed the denial of post-conviction relief in an opinion reported at 477 Pa. 552, 384 A.2d 1228 (1978). Appellant filed his second PCHA petition on March 2, 1981, which was dismissed by the lower court without a hearing or the appointment of counsel for the reason that the allegations raised had been previously litigated at the December 11, 1975, PCHA hearing. The instant pro se petition was filed on May 25, 1981, and was summarily dismissed for the same reason.

On this appeal, appellant argues that the summary dismissal of his third PCHA petition was improper because it raised the issue of double jeopardy, which was never finally litigated. Appellant also alleges that prior PCHA counsel was ineffective for failing to preserve this issue for appellate review. Appellant maintains that although the jury could properly exercise its mercy in a felony-murder case by finding him guilty of murder of the second degree, instead of felony murder, which constituted murder of the first degree under the Crimes Code as it existed in 1972, it was improper for the jury to sever the constituent elements of felony-murder and for the court to sentence him for both murder and robbery. Appellant cites Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), for the proposition that all felony-murders in Pennsylvania other than that for which a defendant is found guilty of first degree murder is murder of the second degree. Appellant also relies on Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969), where the Court held that in a felony murder situation, the jury can exercise its mercy and convict of murder of the second degree rather than murder of the first degree even though the crime clearly fits statutorily within the latter. In summary, appellant contends that because there is no express authority that allows punishment for each of the constituent elements of felony-murder, his double jeopardy rights have been violated even though he was not convicted of first .degree felony-murder.

Before addressing the merits of appellant’s argument, we must first determine whether the issue of double jeopardy is properly before us. The record does not indicate that this issue was ever raised by trial counsel or direct appeal counsel, nor is it specifically mentioned in appellant’s first or second PCHA petitions. However, the record shows that the issue was raised and discussed by prior PCHA counsel at the November 20, 1975, PCHA hearing. Nevertheless, in its April 6, 1977, opinion and order denying post-conviction relief, the court below failed to rule on the double jeopardy issue. The issue was not mentioned by the Supreme Court when it affirmed the PCHA court’s order.

Under 42 Pa.C.S.A. § 9544(a) of the Post Conviction Hearing Act, an issue is finally litigated if:

“(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.”

In this case, it is clear from the record that neither the trial court, this Court, nor the Supreme Court has ruled on the merits of the issue of double jeopardy. Therefore, even though the issue has been raised orally at a prior PCHA hearing, appellant’s claim has not been finally litigated and the court below should not have summarily dismissed it. Furthermore, despite the fact that appellant has previously filed post-trial motions, a direct appeal to the Supreme Court, two prior PCHA petitions, and an appeal from the first of those petitions to the Supreme Court, the issue now raised involves the illegality of sentence, which is not a waivable issue. See Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189 (1981).

Because the sentencing issue before us has been briefed by present counsel for appellant and by the Commonwealth, we find it in the interest of judicial economy to review now the merits of the issue presented. The Commonwealth argues that appellant mistakenly assumes that the second degree murder statute under which appellant was convicted is the same as the second degree murder statute contained in the present Crimes Code. Therefore, according to the Commonwealth, appellant’s argument is patently frivolous.

It is clear from our reading of appellant’s brief that appellant has not mistakenly assumed that he was convicted under the present murder statute, and that appellant’s argument is not simply that the underlying felony should have merged into the murder conviction for sentencing purposes. See Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). Rather, appellant argues that despite the fact that he was not convicted of first degree felony murder, the Supreme Court cases which discuss a jury’s capacity to show mercy in felony murder cases, do not contemplate a defendant being sentenced for each of the constituent elements of felony murder. In this regard, appellant’s argument is similar to the single criminal episode theory, where a single act constitutes different crimes, but only one offense against the Commonwealth. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979).

The relevant facts of this case were aptly stated by the Supreme Court in its opinion of October 16, 1974, as follows:

“[T]he record establishes that a security guard was fatally shot near his car in a parking lot. His black briefcase was missing. Shortly before the shooting, witnesses had observed a 1965 black Chevrolet occupied by two black males in the parking lot. Two shots were heard and the same car was then seen traveling very fast going the wrong way on a one-way street not far from the parking lot. The arresting officers received a radio report that two black males, who were involved in a shooting, were traveling in a 1965 black Chevrolet toward the area where the officers were located. Shortly thereafter, about fifteen blocks from the scene of the shooting, the arresting officers spotted a 1965 black Chevrolet occupied by two black males. They followed the car and stopped it at a traffic light. The appellant was the driver of the car. On the floor of the car, the arresting officers found the victim’s briefcase and gun which killed the victim.”

The facts of the instant case are obviously distinguishable from those decided under the single-act theory. Appellant committed a robbery and a murder, not the single act which constituted both rape and statutory rape, which was the case in Commonwealth v. Walker, supra, or the single act of an unlawful entry which gave rise to convictions for both burglary and criminal trespass in Commonwealth v. Crocker, supra, or the single act of setting fire to a barn containing livestock, which constituted arson for the burning of the barn and criminal mischief for the burning of the livestock in Commonwealth v. Lezinsky, supra. We can find no intention by the Supreme Court in Commonwealth v. Redline, supra, to preclude sentencing for both second degree murder and another felony. In Commonwealth v. Collins, supra, the Supreme Court rejected appellant’s argument that because the evidence showed, if anything, a felony-murder, the trial court had erred in charging the jury that it could return a verdict of second degree murder. The court held that in a felony-murder it is error not to charge so, and stated:

“Where, as here, the evidence would support a verdict of first degree murder, the jury is nonetheless permitted to exercise its mercy and convict only of second degree.”

Id., 436 Pa. at 120, 259 A.2d at 163.

A literal reading of the above statement would seem to preclude a conviction for anything other than second degree murder in a felony-murder case where the jury has shown its mercy by not convicting the defendant of first degree murder. However, the Court in Collins was not deciding whether a jury could return a verdict of both second degree murder and robbery. The Court was only reiterating an established point of law that dealt with a jury’s ability to show mercy in first degree murder cases. There is no precedent which bars sentencing under the former Crimes Code for both second degree murder and robbery.

Where a defendant is contending that the offenses should be merged because the court is sentencing that defendant to multiple punishments for a single act, we must apply the standard articulated in Commonwealth ex rel. Mosczcynski v. Ashe, 343 Pa. 102, 104, 21 A.2d 920, 921 (1941):

“The true test of whether one criminal offense has merged in another is whether one crime necessarily involves another. The test is not whether the two criminal acts are ‘successive steps in the same transaction’. ‘The same transaction’ test is valid only when ‘transaction’ means a single act. When the ‘transac tion’ consists of two or more criminal acts, the fact that the two acts are ‘successive ’ does not require a conclusion that they have been merged.” (Emphasis supplied.)

We have already determined that the crimes in this case were not the result of a single act. Our guide for determining “whether one crime necessarily involves another” is: “Whether each provision requires proof of a fact which the other does not.” Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Accord Commonwealth v. Tarver, supra, overruling Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).

Applying the Blockburger test to the instant case, it is clear that the crimes for which appellant was convicted require proof of “a fact which the other does not.” Accordingly, judgment of sentence is affirmed.

      . 42 Pa.C.S.A. § 9541 et seq.

        . The Crimes Code as it existed when appellant was convicted has since been repealed. 18 P.S. § 4701 provided in relevant part:
      § 4701. Murder of the first and second degree
      All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.
      18 P.S. § 4705 provided:
      § 4705. Robbery with accomplice or while armed or by violence

        Whoever, being armed with an offensive weapon or instrument, robs or assaults with intent to rob another; or, together with one or more person or persons, robs or assaults with intent to rob; or robs any person, and at the same time, or immediately before or immediately after such robbery, beats, strikes, or ill-uses any person, or does violence to such person, is guilty of felony, and upon conviction, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or undergo imprisonment, by separate or solitary confinement at labor, not exceeding twenty (20) years, or both.
      The above statutes have been replaced by 18 Pa.C.S.A. § 2502 and 18 Pa.C.S.A. § 3701, which provide in relevant part:
      § 2502. Murder
      (a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
      (b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
      (c) Murder of the third degree. — All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
      § 3701. Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (1) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of the first or second degree;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
      (v) physically takes or removes property from the person or another by force however slight.
      (2) An act shall be deemed "in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

      . Counsel has been appointed for purposes of this appeal.

      . Pennsylvania Rule of Criminal Procedure 1504 provides:
      Rule 1504. Summary Dispositions.
      Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.

      . Because the illegality of sentence is not a waivable issue, we need not discuss the issue of prior PCHA counsel’s ineffectiveness.

      . This case was submitted to the Court on briefs.

      . The single-act theory has been utilized not only where multiple crimes are committed by a single act, but also where multiple victims are the result of a single criminal act. Commonwealth v. Frisbie, 318 Pa.Super. 168, 464 A.2d 1283 (1983); Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth v. Speelman, 235 Pa.Super. 109, 341 A.2d 138 (1975); and Commonwealth ex rel. Brockway v. Keenan, 180 Pa.Super. 78, 118 A.2d 255 (1955). For a critical discussion of this rule, see Commonwealth v. Frisbie, supra 318 Pa.Super. at 182-183, 464 A.2d at 1289 (Concurring and Dissenting Opinion by Popovich, J.).