text:
    462 A.2d 762
    COMMONWEALTH of Pennsylvania v. Jane DOE a/k/a Joan Hill, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 13, 1982.
    Filed June 24, 1983.

      Peter J. Savage, Wilkes-Barre, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant was found guilty by a jury on August 27, 1981 of violating the Pennsylvania obscenity statute, 18 Pa.C. S.A. § 5903(a)(2), in that she sold and displayed obscene materials to adults. Following denial of her oral post-verdict motions, she was sentenced to three years probation and fined $1,000. This appeal followed.

The facts indicate that on March 26, 1981, a Detective Greenwalt entered the Adult House, an adult bookstore located in Millbourne, Pennsylvania. Appellant was the sole employee present in the store at that time and she was observed seated at the cash register in the front of the store by a Detective Greenwalt. He observed various sexual devices hanging on racks on the wall including vibrators, artificial penises and artificial vaginas, all of which were displayed for sale. In the center of the store, Detective Greenwalt noticed a table on which were piled numerous magazines. The covers of these magazines depicted various types of sexual conduct by either males or females exclusively or both. Books, films and additional magazines were displayed for sale throughout the store. At the rear of the store, Detective Greenwalt observed plywood video booths or “peep shows”, where movies or portions thereof could be viewed after depositing quarters into a coin box.

Detective Greenwalt browsed throughout the store for approximately ten minutes. He then obtained change from Appellant and watched two movies which included various sexual acts by a male and female including scenes of bondage, anal and vaginal intercourse. Detective Greenwalt then selected two magazines and a book which he brought to Appellant at the front of the store. Appellant rang up the sale, Greenwalt paid her, and Appellant placed the items in a bag.

Shortly thereafter, Trooper Donald Fredericks of the Pennsylvania State Police entered the store and browsed around for approximately ten minutes. Trooper Fredericks then obtained change from Appellant and proceeded to the “peep show” area. Trooper Fredericks viewed a film depicting a male and female engaged in several sex acts. A second film viewed by Fredericks depicted two females engaged in sexual acts. Fredericks selected three magazines which he purchased from Appellant and then departed.

Based upon the observations of these officers, an arrest warrant was obtained and Appellant was arrested and charged with violations of the obscenity statute, 18 Pa.C. S.A. § 5903.

Appellant raises seven issues on appeal, viz., (1) the adequacy of the scope of the voir dire, (2) whether it was essential to conduct a voir dire with respect to the educational, occupational and religious backgrounds of the prospective jurors, based on the charge in the instant case, (3) whether it was prejudicial for the trial court to permit an assistant district attorney, who had met with Appellant some three months prior to her arrest, to testify regarding Appellant’s control of the store, (4) whether the assistant district attorney’s testimony disclosed and revealed confidential communications, (5) whether the trial court erred in permitting the detective and trooper to testify regarding their viewing of certain films and observing certain items for sale in the store, (6) whether adequate proof of knowledge or scienter regarding the nature of the items seized was presented, and (7) whether the statute, 18 Pa.C.S.A. § 5903, is unconstitutional.

As to Appellant’s first two issues relating to the voir dire of prospective jurors, no specific objections were made at the time of voir dire and therefore, these issues have been waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Glover, 265 Pa.Super. 19, 401 A.2d 779 (1979) (issue concerning improper restriction of voir dire of prospective jurors waived by failure to preserve issue for review by timely objection and in post-verdict motions).

Appellant’s third and fourth issues concern the testimony of assistant district attorney Margaret Hutchinson. Attorney Hutchinson’s testimony involved her prior contact, in December of 1980, with Appellant as the result of a robbery which occurred at the Adult House. Appellant was the victim of that robbery. Attorney Hutchinson stated, inter alia, that Appellant had testified at a suppression hearing concerning the robbery to being the manager of the Adult House at the time of the robbery. This testimony was introduced to show the length of Appellant’s employment and her employee status in order to prove her knowledge or reason to know the nature of the items sold at Adult House.

Appellant argues in her third issue that the introduction of this testimony was prejudicial and improper, as merely in response to Appellant’s opening statement, wherein counsel stated that Appellant had been employed in the store for only a day or two at the time of her arrest. We disagree. It is clear from the record that Attorney Hutchinson’s testimony was presented to circumstantially prove an element of the crime charged, namely Appellant’s knowledge or reason to know that the items sold by her were obscene. The law is clear that evidence which tends to establish facts material to a criminal prosecution or which tends to make a fact at issue more or less possible, is relevant. Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980).

Also, the purpose of this testimony was to prove the scienter element made a part of this statute. The Commonwealth was required to prove that Appellant either had general knowledge, reason to know or belief or ground for belief which would warrant further inspection or inquiry of the obscene character of the materials involved. See Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966) (federal constitution requires proof of scienter in state obscenity prosecutions).

Appellant further argues that this testimony was introduced improperly as a prior inconsistent statement. It is true that prior inconsistent statements are not admissible if concerned with collateral matters. In re Farms, 216 Pa.Super. 445, 268 A.2d 170 (1970). However, as we have determined that this testimony is not merely collateral but goes to proof of an element of the crime, we find no merit to this argument.

Therefore, the evidence of Appellant’s length of employment and employment status was both relevant and material and as such, properly admitted by the trial court.

Appellant also alleges in her fourth argument that Appellant’s communications with Attorney Hutchinson were confidential. Appellant argues that because the district attorney’s office prosecuted this case, they are barred from calling a non-participating assistant district attorney to testify. We disagree. Attorney Hutchinson did not participate in the trial prosecution, other than as a Commonwealth witness. Appellant’s citations to authority are therefore not determinative of this issue, as they discuss situations where an attorney appears both as an advocate and as a witness. Attorney Hutchinson was not an advocate in this case. As we find no authority for the allegation that this testimony was confidential, we hold this issue to be merit-less.

Appellant’s fifth issue alleges that the testimony of the detective and trooper was inadmissible, as to their description of the films they viewed while in the store and various items for sale which they testified were on display.

Appellant alleges that because she was not on trial for any violation concerning the sale or use of these items and films, that any testimony with regard to their presence in the store was collateral and prejudicial. Appellant correctly states that this testimony did not indicate that Appellant advised either the detective or trooper to view any film or purchase any item whatsoever. Nor did it indicate that Appellant knew of the actual contents of the items purchased. However, as with the testimony of Attorney Hutchinson, the evidence was relevant to prove that Appellant had reason to know or inquire into the obscene nature of the items sold to the authorities. This testimony was therefore properly admitted.

Appellant’s sixth issue questions the adequacy of proof concerning her knowledge of the obscene nature of the items purchased.

As stated supra, knowledge or scienter is an essential element in an obscenity conviction. The statute in the instant case states:

§ 5903. Obscene and other sexual materials
(a) Offenses defined.—No person, knowing the obscene character of the materials involved, shall:
(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner; ...

Section (b) of the statute defines “knowing” as:

“Knowing.” As used in subsection (a), knowing means having general knowledge of, or reason to know or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any material described therein which is reasonably susceptible of examination by the defendant.

In reviewing a challenge to the sufficiency of the evidence, all evidence favorable to the Commonwealth must be accepted as true, as must all reasonable inferences which may be drawn from that evidence. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

There is no dispute that Appellant did not examine the specific articles purchased by the detective and trooper, but that she merely processed the actual sale, without viewing the contents. However, the other evidence presented was, on our review of the record, adequate to prove beyond a reasonable doubt that Appellant had reason to know or inquire into the obscene nature of the material in question.

The record shows that Appellant was the sole employee of the store at the time of the sale and had been employed for a number of months. Her own testimony indicated that she placed books and the magazines on display as part of her duties. The detective and trooper also testified as to various items displayed in plain view throughout the store. They also testified to the pictorial content of the covers of certain magazines which, although wrapped in clear cellophane so that the actual contents between the outside covers could not be viewed, clearly displayed sexual acts being performed. We find, upon reviewing the entire record, that sufficient evidence was presented.

Finally, Appellant questions the constitutionality of 18 Pa.C.S.A. § 5903 as vague and overbroad.

It is well-settled that obscene material is not protected by the First Amendment. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Long v. 130 Market St. Gift & Novelty of Johnstown (hereinafter Long), 294 Pa.Super. 383, 440 A.2d 517 (1982). There is also no fundamental right to protection from prosecution for the publication of matter abusive of the right to free expression, such as obscene matter, under the Pennsylvania Constitution, Article I, § 7. Long supra.

Because obscenity is not constitutionally protected, a state may create such classifications as necessary to effectuate the regulation of such materials’ dissemination or publication, so long as the state has a legitimate interest in such regulation. Long supra. The U.S. Supreme Court in Miller v. California laid down the standard for such state regulation:

State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value.

413 U.S. at 24-5, 93 S.Ct. at 2614-15, 37 L.Ed.2d at 430-1 (citation and footnote omitted). The court also set forth the basic guidelines to be used by the trier of fact in determining whether a work is obscene:

(1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

413 U.S. at 24, 93 S.Ct. at 2614-15, 27 L.Ed.2d at 431.

We note at the outset of our analysis that there is a strong presumption in favor of the constitutionality of statutes and the burden rests heavily upon parties seeking to upset legislative action on constitutional grounds. Commonwealth v. Finnegan, 280 Pa.Super. 584, 421 A.2d 1086 (1980). We hold that Appellant has failed to meet this burden.

Appellant first argues that section (a)(2) of the statute is overbroad in that it intrudes into the individual’s protected zone of privacy by, e.g., making the mere possession of obscene material criminal, in contravention of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In Stanley, the court held that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. However, in Stanley, the defendant was charged with a portion of a Georgia statute making criminal the mere knowing possession of obscene matter. The Pennsylvania statute requires more, namely that the party either sell, distribute, exhibit, etc., offer to sell, distribute, exhibit, etc. or have in his possession with intent to sell, distribute, exhibit, etc. These additional elements of the Pennsylvania statute clearly distinguish it from the Stanley case involving private possession only. We therefore find no merit in this argument.

Appellant further argues that the statute is vague and overbroad in terms of the definition of knowing, which term is an element of the crime of obscenity. As stated earlier in this opinion, scienter or knowledge is constitutionally required to support a state obscenity conviction. See Mishkin v. New York, supra. See also Hamling v. U.S., 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).

A reading of the statute as a whole clearly indicates that only those who are in some manner aware of the character of the material alleged to be obscene may be convicted under 5903(a)(2). See Hamling v. U.S., 418 U.S. at 123-4, 94 S.Ct. at 2910-11, 41 L.Ed.2d at 624; Ginsberg v. New York, 390 U.S. at 644-45, 88 S.Ct. at 1283, 20 L.Ed.2d at 206-7 (refusing to hold nearly identical New York statutory provision defining “knowing” unconstitutionally vague).

We therefore hold that 18 Pa.C.S.A. § 5903(a)(2) and the definition of the term “knowing” in section (b) are not unconstitutionally vague nor overbroad.

Judgment of sentence is affirmed.

POPOVICH, J., concurs in the result.

      . We note that the side-bar conferences during voir dire were not transcribed. However, even if proper objections were set forth at side-bar, we are restricted to the record concerning preservation of issues for appeal. See Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976).

      . We note that the majority of Attorney Hutchinson’s testimony concerned her recollection of Appellant's testimony at a suppression hearing. Therefore, any alleged "privilege” concerning communications between Appellant and Attorney Hutchinson was waived as to any statements voluntarily made under oath by Appellant at said hearing. Hence, the communications were not confidential.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    462 A.2d 768
    COMMONWEALTH of Pennsylvania v. Russell Elmer KISSINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed June 24, 1983.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    'Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Following pleas of guilty to charges of robbery, theft, two counts of simple assault, terroristic threats, and resisting arrest, appellant was sentenced to IV2 to 4 years on the robbery charge, 1 to 2 years on each of the simple assault charges, the terroristic threats charge, and the resisting arrest charge (all to be served consecutive to the sentence for robbery but concurrent with each other), and a sentence of 1 to 3 years on the theft charge (to be served concurrent with the sentences imposed for simple assault and terroristic threats).

A timely motion to modify sentence was filed and denied, followed by a direct appeal to this court on October 23, 1981. The record establishes that appellant was represented by counsel at his guilty plea tender on July 17, 1981, and at time of sentencing on September 25, 1981, as well as for the post-sentence motion to modify. Counsel was the same attorney from the Office of the Public Defender throughout the pre-appeal proceedings. The judge at both the guilty plea and sentencing proceedings was the Honorable Paul A. Mueller.

Between the date of the acceptance of the guilty plea, on July 17, 1981, and the date of sentencing, September 25, 1981, the appellant, while still represented by counsel, filed a pro se Petition for Withdrawal of Guilty Plea, from the Lancaster County Prison. From the record, we note that both the Petition and a cover letter directed to the Lancaster County Clerk of Courts are dated September 4, 1981. Both documents were filed in the clerk’s office on September 8, 1981. Appellant in his cover letter expressly requested that the Petition “be filed and directed to the Honorable Ronald L. Buckwalter, Judge.”

As soon as Judge Mueller, the sentencing court, learned of the pro se petition, on or about October 29, 1981 and following the perfecting of the appeal to this court from judgment of sentence, he scheduled a hearing on the petition for November 24,1981. Although the notes of testimony from such hearing have not been included in the record certified to this court on appeal, we note from the Memorandum Opinion filed on or about November 25, 1981 that appellant testified that he never said anything to his attorney prior to sentencing concerning his filing of the pro se Petition for Withdrawal of Guilty Plea. We note further that appellant’s counsel also testified at the November 24th hearing that he knew nothing about the Petition at the time of sentencing and only learned about that Petition later.

Our independent review of the sentencing transcript satisfies us that appellant was afforded time to review the pre-sentence report and consult with his attorney during a recess in the sentencing proceedings. Thereafter, when asked by the court whether there was anything that he wanted to add or say to the court prior to sentence being imposed, appellant simply responded:

Just that I have a drinking problem.

Finally, we note that the Motion to Modify Sentence filed on October 5, 1981 (but acknowledged by counsel for appellant on September 30,1981) cites only the alleged excessiveness of sentence as grounds for modification. This motion was denied by the sentencing court on October 6, 1981, by opinion and order.

On September 28, 1981, unbeknownst to the sentencing judge, the Honorable Ronald L. Buckwalter entered a rule upon the Commonwealth to show cause why the defendant’s Petition for Withdrawal of Guilty Plea should not be granted, returnable in 20 days.

On this appeal, appellant presents two questions for our review:

(1) Whether the sentence imposed on September 25, 1981 was invalidated by the sentencing court’s failure to consider the pro se petition to withdraw the guilty plea filed on September 8, 1981 with directions for delivery to another judge?

(2) Whether the sentence resulting in a minimum of 2lk and a maximum of 7 years, to begin at the expiration of any and all sentences being served or imposed prior to September 25, 1981, is excessive under the circumstances?

Finding no error, we affirm.

Initially, we note that the sentencing court, by its Memorandum Opinion of November 24, 1981, has requested this court to remand the record to Number 255 of 1981, Lancaster County Court of Common Pleas (the robbery conviction) in order that a trial may be held on the robbery charge. The basis for the trial court’s request is that the pro se Petition for Withdrawal of Guilty Plea was filed before the date of sentencing and was in the hands of another judge of that court, but not the proper judge, due to the appellant’s directions. The sentencing court, believing a “mistake” had been made by the appellant in submitting his petition for withdrawal, reasoned that the petition should be granted. We cannot agree.

The judgment of sentence was entered on September 25, 1981 at a proceeding where the appellant was aware of the petition which he had filed without notice to either his own counsel or the sentencing court, and where the defendant chose to remain silent as to his independent act. The appeal from that sentence was timely filed on October 23, 1981.

Generally, a trial court is precluded from proceeding further in any matter after an appeal has been taken; Pa.R.A.P., Rule 1701(a); Commonwealth v. Borris, 280 Pa.Super. 369, 421 A.2d 767 (1980). While certain exceptions are expressly provided under Rule 1701(b), our review of the rule does not permit us to conclude that the facts, here involved, comport with any of the exceptions. Although Rule 1701(b)(3) permits reconsideration of an order which is the subject of the appeal, the two express conditions required to permit operation of the exception are that (1) the application for reconsideration be filed in the trial court within the time prescribed by law, and (2) any order “expressly granting reconsideration” be filed in the trial court within the time prescribed for the filing of the notice of appeal.

We have no difficulty in concluding that the petition for withdrawal of the guilty plea was filed within the time prescribed by law. Rule 320 of the Rules of Criminal Procedure provides:

At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

However, we do not view the entry of Judge Buckwalter’s rule to show cause, on September 28, 1981, as “an order expressly granting reconsideration of such prior order” as contemplated by Rule 1701(b)(3)(ii). In point of fact, the only order subject to reconsideration in this case is the judgment of sentence entered September 25, 1981, filed some three days prior to the entry of the rule to show cause.

On October 29, 1981, the sentencing court did issue an order directing that a hearing be held on appellant’s petition for withdrawal of guilty plea and a hearing was fixed on the petition for November 24, 1981. Even if we were to accept this order as meeting the requirement of the express grant of reconsideration of a prior order of the sentencing court, its issuance some thirty-four days following sentencing takes it beyond the period of time within which the sentencing court could properly take action pursuant to Pa.R.A.P. 1701(b).

We thus must conclude that both the order of the sentencing court seeking to reconsider the guilty plea, and the order of November 24, 1981 seeking to grant appellant leave to withdraw his guilty plea on the robbery charge, are of no force or effect.

Because we find that neither the action of Judge Buck-waiter, in issuing the rule to show cause on September 28, 1981 (following the entry of judgment of sentence), nor the actions of Judge Mueller, directing that a hearing be held and thereafter granting the petition for withdrawal, are in compliance with Rule 1701, we need not consider what effect should be given a petition seeking withdrawal of a guilty plea which is filed before sentencing but delivered, at defendant’s request, into the hands of a judge other than the sentencing judge.

We agree with the Commonwealth that the case of Commonwealth v. Karabin, 292 Pa.Super. 374, 437 A.2d 431 (1981) controls the disposition of appellant’s first contention. In Karabin, the defendant had presented to the court a request to withdraw his guilty plea at the sentencing hearing, and prior to sentence being imposed. The trial court postponed ruling on the withdrawal petition and, without objection from trial counsel, proceeded to impose a sentence of 5 to 10 years upon defendant on the charge of aggravated assault to which the defendant had pled guilty. On appeal, this court found that the defendant had waived any claim that the procedure followed at the sentencing hearing was improper, citing Commonwealth v. Clair, 458 Pa. 418, 826 A.2d 272 (1974).

Here, we are constrained to conclude that appellant, by not objecting to the sentencing procedure and by withholding from both his own attorney and the sentencing court his unique knowledge of his earlier request to withdraw his guilty plea, has waived any claim relating to the regularity of his sentence.

With respect to appellant’s second issue concerning the alleged excessiveness of the sentence, we have carefully reviewed the Notes of Guilty Plea of July 17, 1981, the Sentencing Transcript of September 25, 1981 and the concise Memorandum Opinion and Order filed October 6, 1981 by the Honorable Paul A. Mueller in response to the Motion to Modify Sentence. We find the issue to be wholly without merit. The Memorandum Opinion of the trial court fully disposes of the matter and is accepted, on this issue, for purposes of allocatur.

Judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 3921(a).

      . Id. § 2701(a)(1).

      . Id. § 2706.

      . Id. § 5104.

      . The robbery occurred January 10, 1981. The theft occurred March 3, 1981. The simple assault and remaining offenses all occurred April 3, 1981.

      . Notes of Guilty Plea, July 17, 1981, p. 14.

      . The Memorandum Opinion was certified from the trial court record on November 25, 1981, but bears a filing stamp in the Superior Court dated April 22, 1982. The Order accompanying the Opinion is dated November 24, 1981.

      . Rule 1701, in pertinent part, provides:
      Rule 1701. Effect of Appeal Generally
      (a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken ... the lower court ... may no longer proceed further in the matter.
      (b) Authority of lower court or agency after appeal. After an appeal is taken ... the lower court ... may:
      (1) Take such action as may be necessary to preserve the status quo, correct errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal ...
      (2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.
      (3) Grant reconsideration of the order which is the subject of the appeal ... if:
      (i) an application for reconsideration of the order is filed in the lower court ... within the time provided or prescribed by law; and
      (ii) an order expressly granting reconsideration of such prior order is filed in the lower court ... within the time prescribed by these rules for the filing of a notice of appeal ... with respect to such prior order, or within any shorter time provided or prescribed by law for the granting of reconsideration.


author: HOFFMAN, Judge:

text:
    462 A.2d 772
    COMMONWEALTH of Pennsylvania v. Kirk Otto BENNETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed June 24, 1983.

      James Lee Goldsmith, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying his Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. Because we cannot say that appellant’s contentions totally lack merit, we reverse and remand for a hearing.

On May 19, 1980, appellant pled guilty to robbery, burglary, theft, criminal conspiracy and two counts of false imprisonment. He was sentenced to consecutive terms of imprisonment on all charges, totalling 20-to-40 years, to run concurrent with a previously imposed life sentence. Appellant, who had separate counsel at his plea and at sentencing, filed this PCHA petition that was later amended by a third advocate. The lower court denied the petition without a hearing, prompting this appeal.

Appellant challenges counsel’s ineffectiveness in failing to object to the court’s (1) failure to inform him of his right to allocution; (2) failure to place on the record its reasons for imposing sentence; and (3) sentencing him on the burglary and theft charges he claims should have merged. We cannot hold these contentions totally without merit. Nor can we evaluate them, however, because the lower court denied a hearing. Accordingly, we must remand for a hearing.

“A motion for Post Conviction Relief may be dismissed without a hearing after the defendant has been provided an opportunity to have counsel when the motion is patently frivolous or when the facts alleged would not, even if proven, entitle the defendant to relief.” Pa.R.Crim.P. 1507(b). “While the right to an evidentiary hearing is not absolute, unless the PCHA court is certain of the total lack of merit of an issue raised in a PCHA petition, a hearing should be held on the issue.” Commonwealth v. Rhodes, 272 Pa.Superior Ct. 546, 555, 416 A.2d 1031, 1035-36 (1979) (emphasis added).

Appellant first challenges his sentencing on burglary and theft, alleging that the two charges should have merged. In determining if two crimes merge for sentencing purposes, we compare the elements of the crimes. Commonwealth v. Crocker, 280 Pa.Superior Ct. 470, 474, 421 A.2d 818, 820 (1980). “In merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts ... for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be a merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.” Id., 280 Pa.Superior at 475, 421 A.2d at 820-21. In the instant case appellant was sentenced, inter alia, on burglary and theft. The burglary charge arose from a nighttime entry into the victims’ house, where the victims were bound and gagged while appellant and his partner ransacked the house. The theft charge arose from appellant’s entering the victims’ detached garage and stealing their automobile. Appellant contends that because he intended to commit the theft in the garage upon entering the house, the charges should merge. We cannot say that this claim is patently frivolous or totally lacks merit. We are unable to determine on the record why neither guilty plea nor sentencing counsel asserted this merger argument. Accordingly, we must remand for that determination.

Appellant next challenges the denial of his right to allocution at sentencing and the lower court’s failure to place on the record its reasons for the sentence imposed. Pa.R.Crim.P. 1405(a) requires the lower court to “afford the defendant the opportunity to make a statement in his own behalf.” See Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980). The record indicates that at the time of sentence, appellant was not asked if he had a statement to make to the court. There is, therefore, some merit to his contention that counsel was ineffective for failing to object to this oversight. Similarly, appellant challenges the lower court’s failure to state its reasons for the sentence as required by Pa.R.Crim.P. 1405(b). The record demonstrates that the lower court did fail to indicate its reasons. Thus, counsel’s failure to object should be explored at an evidentiary hearing.

Accordingly, appellant is entitled to be heard on the merits of his claims. Only after that inquiry can his attorneys’ effectiveness be fairly evaluated.

Reversed and remanded for an evidentiary hearing.

Jurisdiction not retained.

      . The lower court here imposed the life sentence for a murder occurring during a different crime spree.

      . Counsel's effectiveness, which must be explored at the hearing we are presently ordering, will be deemed constitutional if "we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

      . 18 Pa.C.S.A. § 3502(d) provides: A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.
      A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. 18 Pa.C.S.A. § 3502(a) (emphasis added).

      . The fact that appellant chose not to speak at his guilty plea colloquy does not, as the Commonwealth asserts, indicate a subsequent desire to remain silent.

      . The Commonwealth’s mention of the court’s familiarity with appellant is no substitute for the absence of a record detailing the reasons for the court’s sentence.


author: PER CURIAM: WICKERSHAM, Judge,

text:
    462 A.2d 774
    COMMONWEALTH of Pennsylvania v. Kirk Otto BENNETT.
    Superior Court of Pennsylvania.
    Submitted March 9, 1983.
    Filed June 24, 1983.

      Mark T. Silliker, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   PER CURIAM:

Kirk Otto Bennett appeals the order of the court of common pleas, Dauphin County, which dismissed without a hearing his Post Conviction Hearing Act Petition. We vacate the order.

Bennett was arrested following a chase and exchange of gunfire with a police officer. He entered into a plea bargain with the Commonwealth whereby Bennett agreed to plead nolo contendere to charges of loitering, prowling and aggravated assault, in return for which the Commonwealth agreed not to press a charge of robbery and agreed to impose sentence for the charges to run concurrently with sentences Bennett was already serving (life sentence on a murder charge and a fifteen to thirty year sentence to run consecutively). At the time of the plea bargain and sentence, Bennett was represented by counsel.

Bennett submitted his P.C.H.A. Petition pro se and in forma pauperis, with the assistance of a fellow prisoner at Huntingdon Correctional Institution. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Bennett’s Petition presents three substantive issues: (1) the lower court failed to state on the record the reasons for his sentence, in violation of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); (2) denial of allocution at the time of sentencing, in violation of Pa.R.Crim.P. 1405(a) and Commonwealth v. Johnson, 282 Pa.Super. 21, 422 A.2d 655 (1980); (3) the trial court was without jurisdiction to hear his case because the criminal information was not signed by a District Attorney but simply bore a rubber stamp facsimile.

For the reasons that follow, we do not address the merits of these contentions. In response to Item 12 on the P.C. H.A. Petition, Bennett indicated that he did not have a lawyer or resources to hire one, and that he wished the court to appoint a lawyer to represent him. He also wrote: “I request that any attorney who is appointed to represent me in this case be required to file a supplemental petition within the time frame ordered by this court” (R.23). No counsel was appointed for Bennett in the matter and the Petition was summarily dismissed.

On appeal, Bennett (now represented by counsel) claims that the lower court erred in denying his Petition without a hearing, and in failing to honor his indigent request for legal counsel to assist in his P.C.H.A. Petition. We hold that the failure to appoint counsel for Bennett was reversible error. Our holding rests squarely on the authority of Commonwealth v. Sinwell, 259 Pa.Super. 544, 393 A.2d 959 (1977) which ruled that a P.C.H.A. petitioner, alleging indigency and issues that had never been previously litigated, was entitled to a hearing to determine whether he was indigent and, if so, to appointment of counsel to assist him. Sinwell implemented Pa.R.Crim.P. 1504(a) and Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976) which places an affirmative duty on the hearing court to appoint counsel for an indigent petitioner before disposition of the Petition. In Commonwealth v. Bostic, 251 Pa.Super. 224, 380 A.2d 459 (1977) this Court held that even where the petitioner’s claim is patently frivolous and without support in the record, appointment of counsel is necessary. There can be no summary dismissal without such appointment. See also Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981).

The order of the lower court is vacated and the case is remanded to that court with instruction to appoint counsel to represent Bennett in the filing of an amended P.C.H.A. Petition, in the event that Bennett and his court-appointed counsel desire to file an amended Petition.

So ordered.

WICKERSHAM, J., files dissenting statement.

WICKERSHAM, Judge,

dissenting:

I would affirm the order of the Honorable Clarence C. Morrison of September 10, 1981 dismissing appellant’s post conviction petition without a hearing. In his petition, appellant raised three issues which the record clearly indicates are patently frivolous. Appellant had counsel at the guilty plea hearing when the record was established. See Pa.R. Crim.P. 1507(b).


author: WIEAND, Judge:

text:
    462 A.2d 776
    COMMONWEALTH of Pennsylvania v. Rose DEEMER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed July 1, 1983.

      Margaret H. Poswistilo, Assistant Public Defender, Easton, for appellant.
    Elviria C. LaBarre, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Rose Deemer was tried nonjury and was convicted of theft by receiving stolen property and conspiracy in connection with the taking of two chain saws from a farm supply store in Palmer Township, Northampton County. On direct appeal, after post trial motions had been denied and sentence imposed, appellant contends that the evidence was insufficient to support the guilty verdicts and that evidence regarding the discovery and seizure of one of the stolen chain saws, as well as appellant’s oral statements, should have been suppressed because they were obtained following an illegal arrest. We find no merit in these contentions and, accordingly, affirm.

In determining the sufficiency of the evidence to convict, we view all the evidence, and permissible inferences to be drawn therefrom, in the light most favorable to the Commonwealth. The test is whether, accepting as true the evidence most favorable to the Commonwealth together with all reasonable inferences therefrom, the evidence is sufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983); Commonwealth v. Kennedy, 499 Pa. 389, 392, 453 A.2d 927, 928 (1982); Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Commonwealth v. Scarborough, 313 Pa.Super. 521, 525, 460 A.2d 310, 312 (1983); Commonwealth v. Ruth, 309 Pa.Super. 458, 460-61, 455 A.2d 700, 701 (1983); Commonwealth v. Davis, 308 Pa.Super. 431, 433-34, 454 A.2d 612, 613 (1982). In making this determination, we evaluate the entire trial record and consider all evidence actually received, whether or not the trial court’s rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Scarborough, supra, 313 Pa.Superior at 526, 460 A.2d at 312; Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983); Commonwealth v. Barnes, 310 Pa.Super. 480, 483, 456 A.2d 1037, 1038 (1983).

The Commonwealth’s evidence showed that during the early morning hours of March 11, 1981, two yellow, John Deere chain saws, Model 40V, had been stolen from Seiple’s Farm Equipment Company. Later on the same morning, police in Palmer Township received information from an unidentified informant that Steven Fucci, Diane Mingle, Bruce Deemer and appellant were in possession of the stolen saws and were in New Jersey. The informant stated further that someone from this group, or perhaps all of them, would be coming over the bridge from New Jersey into the City of Easton in a small green car in order to sell the saws. The Palmer Township police relayed this information at once to neighboring law enforcement agencies, including the Police Department of the City of Easton. At or about 3:30 p.m., detectives from the Easton Police Department set up surveillance at a place known as the “Trader’s Den,” a place known to the police to be a place where stolen goods were traded. A short time later, they observed a small, green car pull into the street which they were watching. Appellant was driving the car and was accompanied by Steven Fucci and another person. The car stopped near the rear entrance to the Trader’s Den, and Fucci exited, carrying a yellow chain saw partially covered by two paper bags. He entered the Trader’s Den with the saw and returned shortly thereafter, still carrying the saw. When he returned to the car, the detectives approached the vehicle, where they observed the chain saw lying on the passenger’s side of the vehicle. Detective Serfass picked up the saw, matched its serial number to the serial number which had been provided by the Palmer Township Police, and placed the occupants of the car under arrest. At the police station, appellant was told of her Miranda rights and signed a waiver thereof before giving a statement that she had “assumed” the saw to be stolen but had nevertheless agreed to drive Fucci to Easton for $5 so that Fucci could sell it.

To prove appellant guilty of theft by receiving, it was incumbent upon the Commonwealth to show that the saw was stolen, that appellant was in possession of it, and that she knew or had reason to know it was stolen. See: Commonwealth v. Peluso, 481 Pa. 641, 646, 393 A.2d 344, 347 (1978); Commonwealth v. Wilcox, 310 Pa.Super. 331, 337, 456 A.2d 637, 640 (1983); Commonwealth v. Grabowski, 306 Pa.Super. 483, 488, 452 A.2d 827, 830 (1982); Commonwealth v. Harrison, 289 Pa.Super. 126, 132, 432 A.2d 1083, 1086 (1981); Commonwealth v. Worrell, 277 Pa.Super. 386, 390, 419 A.2d 1199, 1201 (1980); 18 Pa.C.S.A. § 3925. Here, there was no doubt that the saw had been stolen or that appellant knew or believed it to be stolen. It is her contention, however, that the evidence failed to show that she had been in possession of the saw. She relies upon the decision in Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980), where the defendant, a passenger in a stolen van carrying two stolen lawn mowers, was apprehended after the driver of the van had refused to stop for police until forced to do so. The Supreme Court reversed Scudder’s conviction for theft by receiving stolen property, holding presence in the van to be insufficient to show conscious dominion or control of either the van or the lawn mowers. However, the Court observed:

Even though the Commonwealth was proceeding under a theory of joint possession, the Commonwealth was, nevertheless, required to establish the conscious control or dominion over the goods by the accused. Of course, if the evidence established a conspiracy, of which the accused is a member, and that conspiracy had as its objective the possession of the goods, or the possession of the goods served as a means to achieve the objective of the conspiracy, this requirement would be satisfied.

Id., 490 Pa. at 419-420 n. 2, 416 A.2d at 1006 n. 2. See also: Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). In the instant case, appellant’s statement to the police and the Commonwealth’s evidence at trial established the existence of a conspiratorial agreement. She had been the driver of the car in which the goods were found; the car was registered in her brother’s name; and she had agreed to provide transportation for $5 to effect the sale of a saw which she knew or believed to have been stolen. This was sufficient to prove conscious dominion or control over the saw; it proved that appellant had the power and intent to exercise control over the same.

Appellant contends that evidence of the stolen chain saw should have been suppressed because her arrest was not based on probable cause and was, therefore, illegal. We disagree. It is, of course, a basic concept in the law that in order for a warrantless arrest to be deemed valid, it must be supported by probable cause. Commonwealth v. Lovette, supra, 498 Pa. at 671, 450 A.2d at 978; Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 680 (1976); Commonwealth v. Jackson, 459 Pa. 669, 673, 331 A.2d 189, 191 (1975); Commonwealth v. Rutigliano, 310 Pa.Super. 364, 369, 456 A.2d 654, 656 (1983); Commonwealth v. Brown, 298 Pa.Super. 11, 19, 444 A.2d 149, 153 (1982); Commonwealth v. Bynum, 265 Pa.Super. 13, 16, 401 A.2d 776, 777 (1979). Probable cause exists where the arresting officers at the time of the arrest have knowledge of facts and circumstances, based upon reasonably trustworthy information, sufficient to warrant a person of reasonable caution in believing that the suspect has committed or is committing a crime. Commonwealth v. Bartlett, 486 Pa. 396, 400, 406 A.2d 340, 341 (1979); Commonwealth v. Stokes, 480 Pa. 38, 43, 389 A.2d 74, 76 (1978); Commonwealth v. Jones, 478 Pa. 172, 177, 386 A.2d 495, 497 (1978); Commonwealth v. Rutigliano, supra, 310 Pa.Superior at 369, 456 A.2d at 657; Commonwealth v. Plusquellic, 303 Pa.Super. 1, 9, 449 A.2d 47, 51 (1982); Commonwealth v. Wise, 298 Pa.Super. 485, 489, 444 A.2d 1287, 1289 (1982).

Appellant’s specific contention is that the hearsay information provided by the confidential informant to the Palmer Township police was not sufficient for probable cause because the informant was not shown to be reliable. In Commonwealth v. Reel, 499 Pa. 381, 453 A.2d 923 (1982), the Supreme Court recently restated the controlling principles as follows:

The argument is that the witnesses’ information is hearsay and may not be used to establish probable cause to arrest unless the information meets the two pronged tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) requiring (1) the officer must know some of the underlying circumstances from which the informer concluded that the suspect participated in the crime and (2) the officer must have some reasonable basis for concluding that the informant is credible or his information is reliable.

Id., 499 Pa. at 384-85, 453 A.2d at 924. See: Commonwealth v. Smith, 453 Pa. 326, 328, 309 A.2d 413, 414 (1973); Commonwealth v. Garvin, 448 Pa. 258, 262-263, 293 A.2d 33, 36 (1972); Commonwealth v. Jenkins, 288 Pa.Super. 232, 236-237, 431 A.2d 1023, 1025 (1981); Commonwealth v. Waters, 276 Pa.Super. 584, 589, 419 A.2d 612, 614 (1980). If the probable cause for appellant’s arrest were required to be based solely upon the unnamed informant’s tip, appellant’s argument might be more tenable. It is well settled that conclusory statements as to the reliability of an informant—the testimony showed that the Palmer Township police believed the informant to be reliable—does not alone suffice to meet the requirements of the Aguilar-Spinelli test. Commonwealth v. Hall, 451 Pa. 201, 207, 302 A.2d 342, 345 (1973); Commonwealth v. Waters, supra, 276 Pa.Superior at 589, 419 A.2d at 619; Commonwealth v. Benjamin, 260 Pa.Super. 1, 6, 393 A.2d 982, 985 (1978). See: Commonwealth v. Archer, 238 Pa.Super. 103, 109, 352 A.2d 483, 486 (1975).

Appellant’s arrest, however, was not the result of an informant’s tip alone; the police had used the tip only as a starting point for further investigation. The informant had identified by name the four persons having possession of the stolen saw and had described their car as a small green car. When a car answering the general description of the car described by the informant showed up and an occupant emerged carrying a yellow chain saw, partially obscured by paper bags, the tip had been corroborated. When police approached the green vehicle to investigate, they observed the chain saw lying in plain view. The law is well settled that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Commonwealth v. Tann, 500 Pa. 593, 598, 459 A.2d 322, 325 (1983), quoting Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968). See: Commonwealth v. Norris, 498 Pa. 308, 315, 446 A.2d 246, 249 (1982); Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978); Commonwealth v. Bridgeman, 310 Pa.Super. 441, 447-48, 456 A.2d 1017, 1020-1021 (1983); Commonwealth v. Westerfer, 308 Pa.Super. 474, 478, 454 A.2d 633, 635 (1982); Commonwealth v. Sweeper, 304 Pa.Super. 537, 478, 450 A.2d 1368, 1370 (1982); Commonwealth v. Plusquellic, supra, 303 Pa.Superior Ct. at 9, 449 A.2d at 52; Commonwealth v. Seip, 285 Pa.Super. 551, 556, 428 A.2d 183, 185 (1981).

When the police examined the serial number on the saw, they found that it corresponded with the number on the saw previously reported stolen. This constituted probable cause for appellant’s arrest. The Easton detectives, by their own independent investigation, had corroborated the information previously received from the informant and thereby had acquired probable cause to make an arrest. Indeed, one might say that they caught appellant “red-handed.” See: Commonwealth v. Miley, 314 Pa.Super. —, —, 460 A.2d 778, 782 (1983); Commonwealth v. Barba, 314 Pa.Super. —, —, 460 A.2d 1103, 1115 (1983); Commonwealth v. Salvaggio, 307 Pa.Super. 385, 394, 453 A.2d 637, 641 (1982); Commonwealth v. Frazier, 269 Pa.Super. 527, 535, 410 A.2d 826, 830 (1979); Commonwealth v. Whitehouse, 222 Pa.Super. 127, 133, 292 A.2d 469, 472 (1972). See also: Commonwealth v. Hunt, 256 Pa.Super. 140, 143, 389 A.2d 640, 642-643 (1978). Thus, appellant’s arrest was valid, and both the chain saw and her statements were properly used as substantive evidence by the Commonwealth.

The judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 903.

      . The owners of the burglarized business had supplied the Palmer police with the serial number for one of the saws, the one found in appellant’s car.


author: CIRILLO, Judge:

text:
    462 A.2d 780
    In the Matter of ESTATE OF Caren ROSS A/K/A Caren P. Ross, Deceased. Appeal of Robert ANDERMAN, Guardian for Anthony Jason Ross and Francesca F. Ross, Minors, Dennis Klinger, Executor.
    Superior Court of Pennsylvania.
    Argued March 16, 1983.
    Filed July 1, 1983.

      Richard H. Anderson, Media, for appellants.
    Arnold L. New, West Chester, for participating party.
    Before CERCONE, President Judge, and ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from a decree of the Court of Common Pleas of Delaware County, Orphans’ Court Division, which dismissed a petition for citation sur appeal contesting the decision of the Register of Wills admitting a Will to probate.

Caren Ross died testate on September 16, 1976. Surviving her were her two children, Anthony Jason Ross and Francesca F. Ross, the appellants in the instant case. On October 10, 1978, Robert Anderman, Esquire, guardian of testator’s children and by whom the instant appeal is brought on behalf of the minor children, filed a petition for citation sur appeal, claiming that the Will should not have been admitted to probate because it was procured through undue influence. A hearing was held on the petition on January 16, 1979. At the conclusion of the hearing, the Orphans’ Court dismissed the petition finding that the appellants had not sustained their burden. Timely exceptions were filed and denied.

The testimony presented at the hearing on the petition established that Caren Ross executed her Will on December 11, 1974, in the office of her attorney, Norman A. Oshtry, Esquire. As to the terms of the Will admitted to probate, after making a bequest of a Cartier wrist watch to her sister, Amy Feinberg, the Will in Paragraph Third provides:

All the rest, residue and remainder of my property and estate, both real and personal, of whatever kind and wheresoever situated, of which I die seized or possessed, or of which I shall be entitled to dispose at the time of my death, I give, devise and bequeath to my friend, Dennis Klinger.

Paragraph Fifth of the Will appointed Dennis Klinger Executor and Norman A. Oshtry, Contingent Executor.

Paragraph Fourth of the Will provided that Amy Feinberg should inherit the residue should Dennis Klinger predecease Amy Feinberg, but the words “my sister, Amy Feinberg” were crossed out and the words “my children in equal shares, share and share alike” were added by the testatrix in her own handwriting, according to the testimony of Norman A. Oshtry, Esquire.

The appellants contend that the evidence presented at trial was sufficient to show that the Will was procured through undue influence by the appellee, Dennis Klinger, the man with whom the testatrix was living at the time the Will was executed and at the time of her death and who was the sole beneficiary of the bulk of the estate under the Will. Therefore, appellants contend that the Orphans’ Court erred by failing to shift the burden of proof to the appellee to explain and prove the absence of undue influence. We disagree.

Our review in a will contest is limited to determining whether the findings of fact by the trial court are based on legally competent and sufficient evidence and whether an abuse of law has been made or an abuse of discretion committed. Ziel Estate, 467 Pa. 531, 359 A.2d 728 (1976); DiPietro Estate, 306 Pa.Super. 238, 452 A.2d 532 (1982). It is not our task to try the case anew. Credibility of the witnesses is for the hearing judge who has seen and heard them and the record will be reviewed by us in the light most favorable to the appellee. Ziel Estate, supra, 467 Pa. at 537, 359 A.2d at 731.

Our Supreme Court has considered the meaning of undue influence in Ziel Estate, supra, and stated at 467 Pa. 540, 541, 359 A.2d 728, 733 (1976):

The word “influence” does not refer to any and every line of conduct capable of disposing in one’s favor a fully and self-directing mind, but to control acquired over another that virtually destroys his free agency____ In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind ... fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a will. Williams v. McCarroll, supra, 374 Pa. [281] at 295-296, 97 A.2d [14] at 20 quoting from Phillips Estate, 244 Pa. 35, 43, 90 A. 457, 460 (1914).

To show undue influence: “[T]he contestant must establish by clear and convincing evidence that 1) when the will was executed the testator was of weakened intellect, and 2) that a person in a confidential relationship with the testator 3) receives a substantial benefit under the will.” Fickert Estate, 461 Pa. 653, 657, 337 A.2d 592, 594 (1975). (Emphasis added). There is no question that the third requirement was met as appellee was the sole beneficiary of the testatrix’s residuary estate. We are not satisfied, however, that there was sufficient evidence to carry the burden of demonstrating that the appellee was in a confidential relationship with the testatrix or that the testatrix was of weakened intellect when she executed her Will.

For purposes of voiding a will on the ground of undue influence, a confidential relationship exists whenever circumstances make it certain that the parties did not deal on equal terms but that on the one side there was an over-mastering influence, and on the other, dependence or trust, justifiably reposed. Ziel Estate, supra; Clark Estate, 461 Pa. 52, 334 A.2d 628 (1975); DiPietro Estate, supra. The Orphans’ Court found that “the evidence simply does not show that Caren Ross and Dennis Klinger dealt with each other on unequal terms, nor does it show that Dennis Klinger was an over-mastering influence over Caren Ross.” This conclusion is amply supported by the record. The appellants presented Robert Le Strange, a licensed private investigator who had been retained by Milton Ross, the estranged husband of the testatrix and who had observed the testatrix for a period of three years. Mr. Le Strange testified that over a six month period, beginning in the Spring of 1974, he observed the testatrix with the appellee “rather frequently.” There is no indication whatsoever that the appellee took advantage of or in any way had an over-mastering influence over the testatrix. Furthermore, there is no indication that there was any weakness or dependence of the testatrix on the appellee. The record, therefore, does not show that the appellants established a confidential relationship between the testatrix and the appellee by clear and convincing evidence.

We are also not convinced that the appellants sustained their burden of demonstrating that the testatrix was of weakened intellect at the time she made her Will. The appellants attempted to show through various witnesses that the testatrix used and abused numerous drugs which had been prescribed for her. However, the evidence of drug usage during 1974 was quite minimal. Dr. Charles Phillip O’Brien, an expert witness for the appellants, stated that he could not give an expert opinion regarding testatrix’s drug condition after December, 1973, since there was no evidence to show that she even took drugs after 1973. Dr. O’Brien did testify that it would be highly unlikely that she could completely free herself from drug abuse overnight, but it is noteworthy that the Will was signed in December, 1974, approximately one year after the time when the testimony indicates she was receiving large quantities of prescription drugs.

The appellants also presented Dr. Harry Fields, testatrix’s gynecologist. He testified that he prescribed certain drugs for her in September, 1974, but this evidence does not show that Caren Ross was incapable of handling her own affairs or was abusing the prescribed drugs. Dr. Fields testified that he saw the testatrix on August 12, 1974, and she was not her lively, cheerful self. However, he stated that he was aware that the testatrix was going through a bitter divorce and that in his professional opinion, a woman who is having difficulty seeing her children would be upset and less lively than usual. He also testified that in all other aspects, he was able to communicate with her and she was able to comprehend what was being said.

The record also indicates that Mr. Oshtry, the scrivener of the Will, testified that he questioned the testatrix concerning her failure to name her children as beneficiaries. According to Mr. Oshtry, the testatrix stated that she did not trust her former husband and that her former husband and her mother had plenty of money and she believed her children would be well taken care of. Further, she indicated that she believed that if anything happened to her, Dennis Klinger would care for her children. We note that it is not an unusually strange disposition of property for a person who is in the midst of a disputed divorce and custody battle to provide in her Will that her property would not go to the parties with whom she was having the dispute.

Therefore, we find that the appellants did not establish by clear and convincing evidence that the testatrix was subject to undue influence at the time she made her Will. The evidence introduced in the Court below to establish undue influence is based primarily on the testatrix’s history of drug usage and falls short of the necessary showing that appellee in any way imprisoned the body or mind of the testatrix or exercised moral coercion destroying her free agency when making her Will, Ziel Estate, supra. Furthermore, the evidence does not clearly indicate that the testatrix was of weakened mental capacity making her subject to such coercion. Therefore, the burden of proof does not shift to the proponent of the Will but remains with the contestant.

In addition, the appellants contend that the trial court improperly placed the burden of proof upon the contestants when the evidence showed that the scrivener had a conflict of interest in representing the testatrix and the beneficiary, Dennis Klinger. Evidence in the record does indicate that the scrivener, Norman Oshtry, Esquire, had previously represented Dennis Klinger. Appellants argue that when a will has been prepared by an attorney associated with the beneficiary, an explanation is called for and it is a question of fact for the jury to decide whether the proffered explanation is adequate, citing In Re: Will of Elmore, 346 N.Y.S.2d 182, 42 A.D.2d 240 (1973). In the instant case, the scrivener was neither related to nor associated with Dennis Klinger. He had merely performed legal services for Mr. Klinger in the past and the Court does not find it unusual for an attorney to receive a referral of a client from a previous client.

Furthermore, the evidence presented does not indicate that the appellee, Dennis Klinger, was ever present during the two times when Norman Oshtry met with Caren Ross nor does it indicate that Dennis Klinger had any input whatsoever into the making of the Will nor do the facts indicate that Dennis Klinger was even aware of the existence of this Will at the time it was drafted.

Finally, the appellants advance the argument that the adjudication filed from the petition sur appeal failed to conform with Pa.R.C.P. 1517(a), 42 Pa.C.S.A., as required by Rule 3.1 of the Orphans’ Court Rules. Rule 1517(a) provides:

Rule 1517. The Adjudication. Notice
(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.

The purpose of this rule is to assure that the adjudication provides an adequate basis for appellate review. Fiumara v. Fiumara, 285 Pa.Super. 340, 427 A.2d 667 (1981). The appellants, however, fail to state any prejudice which they suffered as a result of the claimed failure of the Orphans’ Court to file an Order which conformed with Rule 1517(a). They do not cite any reasons or undisputed facts concerning any inability to file proper exceptions to the adjudication or to properly frame the issues. Furthermore, the appellants did file timely exceptions. At no time did they indicate to the Judge that they could not adequately prepare exceptions nor that there was ever any question as to facts or law. Therefore, the purpose of Rule 1517(a) has been fulfilled. To remand this case based on this contention would merely serve to delay the settlement of an estate which currently has been delayed for over five years.

The record fails to reveal or establish any basis in law or in fact for disturbing the decree of the trial court.

Affirmed.

      . Appellants predicate this argument on the rule of law which provides that once undue influence is shown by clear and convincing evidence, the burden of proof shifts to the proponents of the Will to refute the charge of undue influence. Ziel Estate, 467 Pa. 531, 359 A.2d 728 (1976).

      . The appellants argue that a presumption of undue influence arises where the testator disinherits his children in favor of a beneficiary with whom he maintains improper sexual relations. Chidester’s Estate, 227 Pa. 560, 76 A. 418 (1910). Upon review of the record, there is insufficient evidence that the testatrix maintained improper sexual relations with Dennis Klinger.

      . Additionally we note that the appellants place too much emphasis on the fact that the testatrix did not leave her property to her children. It has always been the law of Pennsylvania that a parent does not have to leave any of her property to any of her children and does not have to disclose her reasons for disinheriting them. In Re Sommerville’s Estate, 406 Pa. 207, 214, 177 A.2d 496, 499 (1962). In the instant case the fact that the testatrix chose to disinherit her children in no way indicates the existence of undue influence.


author: BECK, Judge:

text:
    462 A.2d 785
    COMMONWEALTH of Pennsylvania v. James BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1982.
    Filed July 1, 1983.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

      Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

Appellant has filed a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, alleging that the trial judge improperly refused to declare a mistrial or issue a cautionary instruction to the jury regarding a Commonwealth witness’s explanation of his prior inconsistent statements and that the trial judge incorrectly charged the jury concerning the definition of reasonable doubt. We affirm the decision of the trial court.

On the evening of September 30, 1978, the victim/complainant attended a party at which Appellant was also present. After being at the party for approximately ninety minutes, the complainant departed and observed that Appellant left the party immediately after she did.

While walking to her car the complainant noticed that Appellant was walking behind her. Upon entering the driver’s side of her car the complainant saw that appellant was sitting in the passenger’s seat of her car. The complainant ordered Appellant to leave whereupon Appellant began beating the complainant about her head and face. The complainant managed to escape from her car but was pursued and caught by Appellant. The scuffle between the complainant and Appellant outside the complainant’s car drew the attention of two men who approached the struggling pair. However, Appellant warned the two men not to interfere, and following a brief discussion with Appellant the men departed.

Appellant then dragged the complainant to her car, beat her, raped her, and stole $35.00 from her pocketbook. As a result of the severe beating the complainant suffered a dislocated jaw, a fractured arm, two black eyes, and a cut lip which necessitated ten sutures.

Subsequently, Appellant was charged with rape, aggravated assault, simple assault, and robbery. After the Commonwealth deleted the charge of simple assault, the matter proceeded to trial before a jury which found Appellant guilty of all three remaining charges. In accordance with Pa.R.Crim.P. 1123 Appellant filed post-verdict motions.

[Bjefore post-verdict motions were argued, defense counsel contended that the trial judge had indicated that he was going to impose a maximum sentence before having reviewed the pre-sentence and psychiatric reports and therefore asked the trial judge to recuse himself ____ [I]n order to eliminate any possible complaints about the sentence imposed ..., the trial judge caused a court en banc to be empanelled and thereafter recused himself from considering the motions and did not participate in the sentencing____ The ... judges of the court en banc denied the post-verdict motions, and then reviewed the pre-sentence and psychiatric reports. They imposed a sentence of ten to twenty years on the rape bill ... and a consecutive ten to twenty years on the robbery bill. They ruled that the conviction for aggravated assault merged with the robbery conviction and therefore no further sentence was imposed.

(Trial court opinion at pp. 1-2 (footnote deleted).)

On appeal Appellant’s first argument is that the trial judge should have declared a mistrial or cautioned the jury not to infer Appellant’s guilt from the Commonwealth witness’s explanation of the inconsistencies between the pretrial and at-trial statements made by the witness.

During direct examination at trial the witness testified that he was one of the two men who spoke with Appellant as Appellant struggled with the complainant outside the complainant’s car. The witness positively identified Appellant as the complainant’s assailant.

However, on cross-examination the witness admitted that during pre-trial questioning by the police, the trial attorneys, and a defense investigator, he (1) had asserted his inability to identify the assailant positively because he had viewed the attack from the porch of his home which was one-half block from the scene of the assault; (2) had denied speaking with the assailant during the commission of the crime, and (3) had claimed never to have seen the assailant before the time of the attack. Moreover, the witness acknowledged not contacting the police after discovering that the complainant had been the victim of a crime rather than a participant in a domestic squabble.

Responding to the witness’s answers on cross-examination, defense counsel attempted to impeach the witness’s credibility by suggesting that the contradictions in the witness’s pre-trial and at-trial statements indicated that the witness had fabricated the identification testimony offered at trial on direct examination.

Consequently, on redirect examination counsel for the Commonwealth found it necessary to rehabilitate the witness by establishing the reasons underlying the witness’s contradictory pre-trial and at-trial statements. The'witness explained that his remarks before trial resulted from his hesitancy to “get involved,” his concern that Appellant might hold the witness or the witness’s family responsible for a conviction (“put [the witness’s] ... family or [the witness] in debt”), and his observation that Appellant’s family were “kind of hard people” who, he feared, might “com[e] threatening.” (N.T. at 108-11.) Additionally, the witness stated that he had told the truth at trial because he “was tired of lying.” (N.T. at 109.)

In general, “ ‘threats by third persons against ... witnesses are not relevant [and thus not admissible into evidence] unless ... the defendant is linked in some way to the making of the threats.’ ” Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d 165, 167 (1969) (citation omitted). Nevertheless, an exception to the rule exists where the evidence in question was not offered to prove the accused’s guilt “but to explain a [witness’s] prior inconsistent statement.” Carr, 436 Pa. at 127, 259 A.2d at 167; Washington v. State of Maryland, 293 Md. 465, 445 A.2d 684 (1982) (citing Carr).

In the present case the Commonwealth witness revealed his subjective fear that Appellant or Appellant’s family might threaten him or his family if he testified against Appellant. The witness did not intimate that he had actually received threats from any source. Furthermore, the testimony concerning possible threats was not introduced to establish Appellant’s guilt but was adduced to reconcile the inconsistencies in the witness’s pre-trial and at-trial statements. Therefore, the witness’s testimony on redirect examination was not prejudicial to Appellant’s case and did not require the declaration of a mistrial. See Commonwealth v. Stewart, 304 Pa.Super.Ct. 382, 450 A.2d 732 (1982).

Alternatively, Appellant maintains that if the admission of the witness’s statements on redirect examination was proper, then the trial judge should have instructed the jury not to consider such statements as evincing Appellant’s guilt.

In Carr the Pennsylvania Supreme Court held that if an accused believed “that the jury would be inclined to consider [a] threat as relevant to the issue of his guilt, ... he could ... request[ ] the court to give a cautionary instruction.” Id. 436 Pa. at 128, 259 A.2d at 167. Appellant asserts that through his counsel he requested a cautionary instruction and was denied same.

The record shows that after the Commonwealth witness had stated on redirect examination that he had failed to report the truth prior to trial because he feared possible threats from Appellant’s family, the trial judge called the prosecuting and defense attorneys to a side bar conference held outside the presence of the jury. During the conference the following colloquy occurred after the court stenographer read the witness’s testimony concerning Appellant's family:

DEFENSE COUNSEL: I object to [the witness’s testimony regarding possible threats from Appellant’s family] and I move for a mistrial.
THE COURT: ... Your motion for a mistrial is denied
DEFENSE COUNSEL: Then I would ask the court as a cautionary instruction ... to instruct the Jury that ... there has [sic ] been absolutely no threats by the defendant [Appellant] or the defendant’s family to this witness at any time.
THE COURT: I don’t know that that is so.
THE COURT: ... I deny your [defense counsel’s] request.

(N.T. at 112-13.)

Thus, contrary to Appellant’s assertion, Appellant’s counsel did not ask that the jury be instructed to disregard the Commonwealth witness’s explanation of his contradictory pre-trial and at-trial statements as bearing upon Appellant’s guilt or innocence. “Having failed to do so, [Appellant] has no legitimate complaint about the admission of this evidence, clearly relevant to explain the prior inconsistent statement^].” Carr, 436 Pa. at 128, 259 A.2d at 167.

Appellant’s final argument on appeal is that the trial judge incorrectly defined the standard of reasonable doubt for the jury.

The trial court’s charge included the following definition of reasonable doubt:

[T]he defendant [Appellant] ... is presumed to be an innocent man ____ The presumption of innocence remains with him until and unless you are convinced of his guilt beyond a reasonable doubt.
... [T]he burden of proof is placed upon the Commonwealth to prove each and every essential element of the crime charged, beyond a reasonable doubt____
A reasonable doubt is an honest and genuine doubt arising solely from the evidence or the lack of evidence and nothing else.
____ It is such a doubt as would cause a reasonable person to hesitate and restrain from acting in a matter of importance in his or her life. Now, reasonable doubt is not a doubt ... which you conjure up in your own mind to avoid the performance of what might be an unpleasant duty____

(N.T. at 43-45 (emphasis added).)

Although the trial court’s charge contained all the essential language recommended by the Pennsylvania Supreme Court in Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954), Appellant contends nevertheless that reasonable doubt should have been explicated by the word “hesitate” instead of the word “restrain.”

Initially, we note that the trial court’s charge incorporated both the word “hesitate” and the word “restrain” and that the Pennsylvania Supreme Court has approved both words in jury instructions on reasonable doubt. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); compare Donough with Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398 (1939) (Donough accepts “restrain” whereas Kluska accepts “hesitate.”).

Furthermore, since the Pennsylvania Supreme Court has sanctioned both words, this court has repeatedly refused to prefer either word. Commonwealth v. Poindexter, 301 Pa.Super.Ct. 454, 447 A.2d 1387 (1982); Commonwealth v. Rozanski, 289 Pa.Super.Ct. 531, 433 A.2d 1382 (1981); Commonwealth v. Boone, 287 Pa.Super.Ct. 1, 429 A.2d 689 (1981), and Commonwealth v. Starkes, 268 Pa.Super.Ct. 108, 407 A.2d 853 (1979), allocatur denied, October 22, 1979.

Therefore, in charging the jury, the trial judge properly defined the standard of reasonable doubt.

Accordingly, we affirm the judgment of sentence of the court of common pleas.

SPAETH, J., concurs in the result.

      . At trial the Commonwealth witness stated on redirect examination that before the assault on the complainant he had “seen [Appellant] about, but ... never knew him ... personally" for approximately two years. (N.T. at 110.)

      . Appellant’s submitted written point for charge defined reasonable doubt by using the word “hesitate.” However, "[i]t is settled that ‘the trial court is not required to accept the language of the point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area [covered by the point for charge] is adequately, accurately and clearly presented to the jury for consideration.’ ” Commonwealth v. Boone, 287 Pa.Super.Ct. 1, 11, 429 A.2d 689, 694 (1981) (citation omitted).

      . In Commonwealth v. Young, 456 Pa. 102, 109-10, 317 A.2d 258, 261-62 (1974), the Pennsylvania Supreme Court unequivocally stated that it “has never required a single standard charge on reasonable doubt ... [but has] repeatedly placed [its] imprimatur on the charge expressed in Commonwealth v. Donough, 377 Pa. 46, 51-52, 103 A.2d 694, 697 (1954) [, and has] ... many times approved of the charge recommended in Commonwealth v. Kluska, 333 Pa. 65, 74, 3 A.2d 398, 403 (1939).” (Footnotes omitted.)


author: POPOVICH, Judge:

text:
    462 A.2d 789
    John James MORELLI v. Marie Bittner MORELLI, Appellant. John James MORELLI v. Marie Bittner MORELLI, Appellant. Marie B. MORELLI, Appellant, v. John J. MORELLI.
    Superior Court of Pennsylvania.
    Argued March 22, 1983.
    Filed July 1, 1983.

      Alexander Zdrok, Philadelphia, submitted a brief on behalf of appellant.
    Joseph I. Diamond, Radnor, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is a consolidated appeal from three orders of the trial court. Appeal No. 1599 is from the trial court’s order denying alimony pendente lite to appellant, Marie Morelli. Appeal No. 624 is from the trial court’s order, sitting en banc, which allows appellee, John Morelli, an opportunity to object to an order granting appellant’s application to transfer the divorce proceedings under the new Divorce Code of 1980. Appeal No. 723 is from the final decree entered by the trial court in a partition action. We must quash two appeals because the orders appealed are interlocutory and affirm one of the appeals for the reasons herein stated.

The procedural scenario surrounding this appeal reveal the following:

On February 26, 1979, appellee filed a divorce complaint under the Divorce Law of 1929 in the Court of Common Pleas of Chester County. Appellant then filed a petition for alimony pendente lite, counsel fees, and expenses on May 11,1979. The trial court granted appellant’s petition in part and awarded appellant counsel fees and expenses in the amount of $500.00. The trial court dismissed appellant’s petition for alimony pendente lite. Appeal No. 1599 then followed.

In the meantime, hearings had been conducted by a master on appellee’s complaint in divorce, and on June 20, 1980, the master filed a report recommending that a divorce decree should be granted because appellee was an innocent and injured spouse who had been deserted. Exceptions were filed on July 10, 1980. However, on September 2, 1980, appellant filed a “PETITION TO PROCEED UNDER THE DIVORCE CODE OF 1980 AND TO FILE AMENDED PLEADINGS”. On this same date, the trial court granted appellant’s petition ex parte. On September 12, 1980, appellee filed a petition asking the court to rescind its transfer order and also stating that he “would oppose the application” if given the opportunity. “PETITION”, Record No. 38-39. A hearing was held, and the trial court, sitting en banc, vacated the transfer order on February 23, 1981, thereby giving appellee an opportunity to oppose the transfer. Appeal No. 624 was then filed on March 23, 1981.

In a neighboring county, Delaware County, appellant filed a partition action in the Court of Common Pleas because real estate, which the parties owned as tenants by the entireties, located in that county on February 9, 1979. Additionally, appellant requested equitable relief on her contention that appellee withdrew monies from their joint savings and checking accounts without appellant’s knowledge. The trial court then entered judgment in favor of appellant in the amount of $920.27. Appellant was directed also to deliver the appropriate deed and documents to appellee in order to effectuate a transfer of her interest in the jointly owned real estate. Exceptions were filed and dismissed by the court sitting en banc, and the decree entered was affirmed. Appeal No. 723 was filed from the trial court’s decree on March 23, 1981.

In this appeal, appellant raises one issue. Appellant argues that the court sitting en banc abused its discretion when it vacated the order of the trial court which granted appellant leave to proceed under the Divorce Code of 1980. We cannot reach the merits of appellant’s argument because her appeal is premature.

To begin with, at the time appellant had presented her application to transfer the divorce proceedings under the Divorce Code of 1980, she already had filed a notice of appeal, dated July 11, 1980, with our Court from the trial court’s order granting her petition in part for counsel fees and costs while dismissing her petition for alimony pendente lite.

On this subject, we have said that “after an appeal is taken..., the lower court may no longer proceed further in the matter.” Pa.R.A.P. 1701(a).

The case of Wilson v. Wilson, 297 Pa.Super. 14, 442 A.2d 1189 (1981) sheds some insight into the subject. In Wilson, a husband appealed an order of the trial court which denied his petition to reduce an alimony pendente lite award to the wife. Another order entered at the same time allowed additional counsel fees and expenses to wife’s counsel. A final decree in divorce was entered after the appeal was taken from the alimony order. This Court stated that “all proceedings in the lower court after February 26, 1980, when the record was lodged in the Superior Court, are null and void for lack of jurisdiction in the lower court to proceed with this matter after that date.” Id,., 297 Pa.Superior at 23, 442 A.2d at 1194. Accord Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981).

Similarly, in the instant case, the trial court was without jurisdiction when it acted on appellant’s petition to proceed under the Divorce Code of 1980.

In this respect, we note that Rule 1701, the pertinent rule, of the Rules of Appellate Procedure provides as follows:

“Rule 1701. Effect of Appeal Generally
(a) General Rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
(b) Authority of lower court or agency after appeal.
After an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may:
(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceedings.
(2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.
(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
(i) an application for reconsideration of the order is filed in the lower court or other government unit within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order is filed in the lower court or other government unit within the time prescribed by these rules for the filing of a notice of appeal, petition for allowance of appeal or petition for review of a quasijudicial order with respect to such prior order, or within any shorter time provided or prescribed by law for the granting of reconsideration.
A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for allowance of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order, and the clerk of any court in which such inoperative notice or petition is filed or docketed shall upon praecipe of any party note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for allowance of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the lower court or other government unit.
(4) Authorize the taking of depositions or the preservation of testimony where required in the interest of justice.
(5) Take any action directed or authorized on application by the appellate court.
(c) Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasi-judicial order, the appeal or petition for review proceeding shall operate to prevent the lower court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the lower court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.” (Emphasis added)

Because we have said that Section c of Rule 1701 is inapposite to an alimony award, see Wilson v. Wilson, supra, the “on-appeal, no lower court jurisdiction rule” applies.

Additionally, this appeal is premature because, aside from the fact that appellant raises no issues concerning the adequacy of the order which dismissed appellant’s petition for alimony pendente lite, we have said that “an order refusing [alimony pendente lite,] additional fees and expenses is interlocutory, from which an appeal does not lie Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943); Boerio v. Boerio, 134 Pa.Super. 501, 4 A.2d 614 (1938); Murray v. Murray, 78 Pa.Super. 443 (1922).” Paul v. Paul, 281 Pa.Super. 202, 207, 421 A.2d 1219, 1222 (1980).

Moreover, we have recognized that
“In such cases [where counsel fees and expenses are denied] an exception to the order should be noted and it should be raised as error in the appeal from the final decree in the divorce proceedings when it will be considered together with the appeal on the merits.”
Id.

Thus, Appeal No. 1599 is interlocutory, and the court was without jurisdiction to entertain appellant’s petition to proceed under the Divorce Code of 1980. For this reason, Appeal No. 624 also must be quashed.

With respect to the final decree of the Court of Common Pleas of Delaware County which was entered in a partition action, appellant raises no issues regarding this appeal. As a result, there is no need to address the validity of this appeal since appellant has waived her opportunity to raise any issues. See Penn Clair Construction Company v. Eden Roc Country Club, 294 Pa.Super. 377, 379 n. 2, 440 A.2d 514, 515 n. 2 (1981) (“Neither the lower court nor this court is required to investigate the record in search of claims not raised by the parties. On the contrary, the courts have jurisdiction only to determine the matters validly presented to them.”)

Appeal No. 1599 is quashed.

Appeal No. 624 is quashed without prejudice to the appellant to renew her transfer petition.

Appeal No. 723 is affirmed.

      . The Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq.

      . The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed).

      . Appellee also filed a petition for alimony pendente lite, counsel fees and expenses on January 15, 1980; however, the trial court has yet to rule on the merits of this petition.

      . Although appellee has not challenged that portion of the order which grants appellant counsel fees and expenses in the amount of $500.00, we note that the “allowance of fees and expenses is a final appealable order ... and a party who chooses to pay the fees and expenses awarded by the court rather than to appeal the court’s order may not recover his payments.” Paul v. Paul, Id., 281 Pa.Superior at 210, 421 A.2d at 1223. (Citations omitted).