author: ROWLEY, Judge: BROSKY, Judge, WIEAND, Judge, McEWEN, Judge,

text:
    504 A.2d 1264
    COMMONWEALTH of Pennsylvania v. Barry ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1985.
    Filed Jan. 31, 1986.

      Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILIA, JJ.
   OPINION ANNOUNCING JUDGMENT OF THE COURT

ROWLEY, Judge:

This is an appeal from a judgment of sentence of ten to twenty years imprisonment imposed following revocation of a prior sentence of ten years probation for robbery. Appellant argues that the trial court improperly corrected a clerical error it had committed in recording the sentence of probation on the wrong bill of indictment. He also argues that his original sentences for aggravated assault and robbery, imposed in 1975, merged and that, since he had already served the aggravated assault sentence, the trial court was precluded, in 1982, from revoking his probation and imposing a prison sentence on the robbery charge. Argument before an en banc panel of this Court was granted to consider these issues as well as the Commonwealth’s claim that appellant has waived the second argument. We find that the judgment of sentence of ten to twenty years was properly imposed and accordingly we affirm.

Following entry of pleas of guilty, appellant was sentenced, on March 4, 1975, as follows:

Bill of Indictment 1792 Feb. 1974: aggravated assault: 11½ to 23 months imprisonment, credit for time served since January 15, 1974;
Bill of Indictment 1793 Feb. 1974: robbery: 5 years probation to run concurrently with Bill # 1792.

On February 17, 1978, following a revocation of probation hearing, the trial court made an order revoking appellant’s sentence of five years probation for robbery and imposing a sentence of ten years probation. The order, however, was not recorded on Bill 1793, the robbery bill, but instead was contained on a form signed by the trial court entitled “Supplement to Indictment No. 74 Feb. 1792,” which was the aggravated assault bill. Appellant’s sentence on Bill 1792, however, had expired at least a year earlier. Also on February 17, 1978, however, a second document entitled “Certification of Probation” was executed stating that the probation imposed on Bill 1793 (the robbery bill) was revoked and a new ten year sentence of probation was imposed. Thus, there were two conflicting records of the trial court’s order. No one questioned the Order, and appellant was again released on probation.

On June 10, 1982, appellant appeared before the trial court at a second probation violation hearing. This time the trial court entered an order revoking the ten year probation. At the same time, the court imposed a sentence of ten to twenty years in prison. This order and sentence were recorded on a form signed by the trial court entitled “Supplement to Indictment No. 74 Feb. 1793”, the Robbery bill. It is this order from which appellant has appealed.

Appellant argues that the trial court had no power, to revoke his probation in 1982 and sentence him to prison; His first argument is based solely upon an examination of the bills of indictment as they appear in the record, and may be stated as follows:

The trial court purported to sentence him to prison on Bill 1793 (Robbery). However, by the time the court did so, on June 10, 1982, the sentence on Bill 1793 had expired; as appears on the face of Bill 1793, the sentence was five years probation, imposed March 4, 1975. It is true that the trial court was under the impression that the sentence on Bill 1793 had not expired; it thought that by its order of February 17, 1978, appellant had been sentenced to ten years probation on Bill 1793, and that he was still serving that probation. However, as has been noted, the order of February 17, 1978, had been entered not on Bill 1793 but on a supplement to Bill 1792, and when it was entered, the sentence on Bill 1792 had expjred. The order of February 17, 1978, could therefore have no effect on the sentence of five years probation imposed on Bill 1793. Appellant concluded that because the sentence on Bill 1793, as imposed March 4, 1975, had expired by the time of the probation revocation hearing on June 10, 1982, and because the sentence on Bill 1792 had also expired, the court had no authority to sentence him on June 10, 1982 and he should be discharged.

The trial court rejected appellant’s argument. The court found that the entry of the order of February 17, 1978, on Bill 1792 was a clerical error. The court identified several factors in support of this finding. First, the court noted that it could not have meant to revoke probation on Bill 1792 because appellant had completed his sentence on that bill; hence it could only have meant to revoke probation on Bill 1793. Second, the court stated that the court stenographer had correctly reported the sentence. Finally, the court noted that at the same time that the sentence was erroneously recorded on Bill 1792, the clerk filled out a certificate of probation certifying that the court had revoked probation on Bill 1793. Having found a clerical error, the court concluded that “[c]lerical errors may be corrected at any time by the trial court to conform to the facts.” Slip op. of trial court at 5.

I.

a.

There are indeed cases permitting correction of a clerical error regarding a sentence. Commonwealth v. Liscinsky, 195 Pa.Super. 183, 171 A.2d 560 (1961); Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951). However, this Court has held that where a discrepancy exists between the sentence as recorded on the bill of indictment and the sentence as pronounced orally by the court, the sentence as recorded controls. See, e.g., Commonwealth ex rel. Middleton v. Banmiller, 195 Pa.Super. 45, 169 A.2d 343 (1961). In Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971) and Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971), the Pennsylvania Supreme Court and this Court applied this principle in cases similar to the present case.

In both Allen and Thomas, the sentencing court erroneously transposed two sentences on the bills of indictments. However, the Supreme Court in Allen and the Superior Court in Thomas, following Allen, refused to allow the trial courts, more than a year after the original sentence was imposed, to correct the errors. The decisions in these two cases rested, in part, on an interpretation of the United States Supreme Court’s decision in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873) that once a defendant had commenced serving the sentence, the trial court could not increase the sentence without violating the Double Jeopardy Clause.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court rejected such a broad interpretation of the Double Jeopardy Clause.' In DiFrancesco, the Court held that a statute that permitted the government, after the defendant had been sentenced as a “dangerous special offender”, to seek an increase in sentence on appeal did not violate the Double Jeopardy Clause. The Court discussed Lange and said that Lange does not hold that a trial court may not increase sentence if the defendant has begun to serve his sentence. Rather, Lange is limited to its facts and holds only that where a statute authorizes a sentence of fine or imprisonment, and one of these two alternatives has been imposed, the court cannot then resentence the defendant to the other alternative.

Although our Supreme Court has not had an occasion to re-evaluate its decision in Allen in light of DiFrancesco, this Court in Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983), has accepted a less expansive interpretation of the Double Jeopardy Clause. In Ford, the defendant was convicted and sentenced on charges of, inter alia, attempted murder, criminal conspiracy, and possession of an instrument of crime. The defendant also was convicted of aggravated assault and recklessly endangering another person, but he was not sentenced on those offenses because the trial court found that they merged with the offense of attempted murder. On appeal, this Court held that in sentencing the defendant for attempted murder, criminal conspiracy, and possession of an instrument of crime, the trial court had violated 18 Pa.C.S. § 906, because it had sentenced appellant to three inchoate offenses arising out of the commission of one ultimate crime. On remand, the trial court was instructed to sentence the defendant only on one of the three offenses. The Court also instructed the trial court that, if it chose not to sentence the defendant for attempted murder, it could resentence him for aggravated assault and recklessly endangering another person, even though it originally had not imposed sentences on those two offenses. Id., 315 Pa.Superior Ct. at 300, 461 A.2d at 1290. The Court reasoned that as long as the new aggregate sentence was not longer than the original sentence, the Double Jeopardy Clause would not be violated and the trial court would merely be substituting new sentences for the vacated sentence for attempted murder. Id., 315 Pa.Superior Ct. at 301, 461 A.2d at 1290.

Even prior to DiFrancesco, this Court had interpreted the Double Jeopardy Clause as we did in Ford. In Commonwealth v. Baily, 250 Pa.Super. 402, 378 A.2d 998 (1977), the trial court found the defendant guilty of two counts of theft by unlawful disposition and two counts of theft by receiving stolen property. It sentenced the defendant only on the former two counts, however, because it concluded that the offenses merged. On appeal, this Court held that there was no merger. It was also determined that the evidence was insufficient to support the convictions for unlawful disposition, but sufficient for receiving stolen property, and remanded for resentencing on the latter offense. The Court reasoned that by permitting the trial court to correct its previous mistake of law regarding merger, it would not increase the punishment but merely modify the sentence so as to base it on a valid conviction, and that as long as the aggregate sentence did not exceed that initially imposed, there was no violation of the Double Jeopardy Clause.

Because the interpretation of Lange upon which Allen and Thomas rely has been rejected by the United States. Supreme Court in DiFrancesco, we rely on Ford and Baily rather than Allen and Thomas. The same may be said here as was said of the appellant in Baily: he would receive an undeserved windfall if the court could not correct its sentence. It would be undeserved because it would be based on a clerical error — the trial court’s mistake in recording its order of February 17, 1978, on the aggravated assault bill of indictment instead of the robbery bill — the correction of which entailed no increase in aggregate sentence. Because no increase resulted from the court’s correction in the case before us — the correction only stating that appellant’s sentence of ten years probation was not, as recorded, for aggravated assault but for robbery — the trial court had the power under Ford and Baily to correct its clerical error without violating the Double Jeopardy Clause and record the sentence to conform to its intention when it imposed the sentence.

b.

Approximately two months prior to oral argument in this case, the Pennsylvania Supreme Court filed its decision in Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985). There the Court held that, following the vacation of several of defendant’s convictions, his case could not be remanded for resentencing on related charges of which he had been convicted but had received only suspended sentences. It was held that the imposition of new sentences on the related charges would violate the Double Jeopardy Clause. Appellant also argues, on the authority of Goldhammer, that the trial court’s imposition of the sentence of imprisonment on June 10, 1982, likewise violates the Double Jeopardy Clause. However, on November 12, 1985, the United States Supreme Court, in a per curiam opinion, summarily reversed the decision in Goldhammer and remanded the case to the Pennsylvania Supreme Court for further consideration in light of United States v. DiFrancesco. Pennsylvania v. Goldhammer, — U.S. —, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).

However, even if the Pennsylvania Supreme Court reaffirms its prior decision in Goldhammer, on the basis of state law, Goldhammer is distinguishable from the instant case. In Goldhammer, the defendant was convicted on 56 counts each of theft by unlawful taking and forgery. He was sentenced to a two to five year prison term for one theft count and a five year period of probation on one forgery count. Sentence was suspended on all other counts. On appeal, the Superior Court vacated 34 of the 56 theft convictions because they were barred by the statute of limitations. Included among the convictions vacated was the one and only count on which defendant had been sentenced to prison. The Commonwealth sought to remand the case for resentencing on the remaining 22 convictions. The Court held that to do so would offend the constitutional protection against double jeopardy.

In the instant case, appellant’s original sentence of five years probation was increased to ten years probation which was increased to five to ten years imprisonment following violations of sentences of probation. Thus, the case before us does not involve resentencing on charges for which a suspended sentence was imposed, as in Goldhammer, but resentencing following violation of probation. As noted in Goldhammer, Id., 507 Pa. at 248, n. 5, 489 A.2d at 1313, n. 5, a sentence of probation may be followed by a subsequent prison sentence if the terms of the probation are violated. Appellant initially received a probationary sentence for robbery. When his probation was violated before it was satisfactorily completed, the court resentenced him to a lengthier period of probation. This period of probation in turn was violated, and the court sentenced appellant to ten to twenty years imprisonment. This the court had authority to do. Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); 42 Pa.C.S. § 9771(b).

II.

Appellant’s final argument is that the sentence imposed following the June 10, 1982 revocation of probation hearing was invalid because his original sentences for aggravated assault and robbery, imposed in 1975, were illegal. Specifically, he argues that the charges of aggravated assault and robbery arose out of one criminal act, and that they therefore merged for sentencing purposes and only one sentence should have been imposed. He further argues that, since he has already served the aggravated assault sentence, the sentence for robbery merged into it and any sentence thereafter imposed for Robbery was illegal.

The Commonwealth argues that appellant has waived the merger claim because he did not present it despite several opportunities to do so: on direct appeal from his sentence in 1975, when his probation was revoked in 1978, and on appeal from revocation of probation in 1978. In Commonwealth v. Campbell, — Pa.Super. —, 505 A.2d 262 (1986), we held that a claim of illegal sentence based on the merger of the underlying convictions cannot be waived. Therefore, appellant’s failure to raise the merger issue, despite numerous opportunities to do so does not bar our consideration of the issue.

In Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985), an en banc panel of this Court reconsidered the common law doctrine of merger. The court stated that to determine whether merger has occurred the court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. If not, there is no merger. But even if the criminal conduct consisted of only a single physical act, the separate statutory offenses do not merge if the Commonwealth has substantially different interests at stake and each is injured by the defendant’s single act. Therefore, if the court determines that only one criminal act occurred which gives rise to the multiple statutory offenses, the court must then decide whether the statutes defining the crimes charged were directed to substantially the same harm. The latter part of the merger test requires an inquiry into the legislative intent in enacting the different statutory crimes as well as a consideration of the essential elements of the crimes.

In the case before us, the certified record is meager. Nevertheless, from the facts recited in the Complaint and the factual averments contained in the Bills of Indictment, we have determined that the crimes of aggravated assault and robbery merged. The Complaint recites that appellant took part in a robbery at a bar in which the bartender, Eugene Anderson, was shot. The third count of the robbery indictment recites that “in the course of committing a theft, [appellant] feloniously did commit or threaten to commit a felony of the first or second degree.” The felony which was threatened or committed is identified as aggravated assault and murder, and the victim as Eugene Anderson. Appellant was also indicted for aggravated assault, and that indictment lists Eugene Anderson as the victim. Both the indictment for robbery and the indictment for aggravated assault list the same date of occurrence. Based on these facts, it appears that only one physical act was committed: appellant shot the bartender while trying to rob the bar. In Commonwealth v. Ayala, 492 Pa. 418, 421, 424 A.2d 1260, 1262 (1981), the Supreme Court stated that “a conviction for aggravated assault where only one victim is involved ... will merge with a conviction for criminal attempt to commit robbery for purposes of sentencing.” Similarly, the aggravated assault would also merge with the completed crime of robbery where there is only one victim. See, Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984).

It is also clear from the statutory language and the necessary elements of the aggravated assault and robbery offenses that the harm against which the legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect: the infliction of bodily injury. See 18 Pa.C.S. §§ 2702(a)(1) and 3701(a)(1)(i)-(v). Although the elements of the crime of robbery and aggravated assault are not identical, those for the crime of robbery suggest that the purpose of the robbery statute is not only to protect private property interests, but also to protect against the infliction of bodily injury when one’s property interest is being jeopardized. Because the only harm against which the crime of aggravated assault protects is actual or threatened physical bodily injury, and because this is one of the harms against which the robbery statute protects, the aggravated assault statute protects against the same harm as the robbery statute. Appellant’s commission of both an aggravated assault and a robbery caused only one harm to the Commonwealth in this case and therefore the two crimes merged. Thus, appellant correctly argues that the two crimes merged for purposes of sentencing. That, however, is not dispositive of his claim for relief.

When two crimes merge for sentencing purposes, the crime to which the legislature has attached the lesser possible maximum penalty merges into the crime to which the legislature has attached the greater possible maximum penalty. Commonwealth v. Kozrad, 346 Pa.Superior Ct. 470, 499 A.2d 1096 (1985); Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Therefore, although we agree with appellant that his crimes merged, we disagree with his conclusion that the crime of robbery merged into the crime of aggravated assault. Because a greater sentence could have been imposed for the robbery conviction than for the aggravated assault conviction, the aggravated assault crime merged into the robbery. Thus, only the aggravated assault sentence was illegal. The sentence for robbery, the one appealed from, is legal and will be affirmed.

Even though the sentence for aggravated assault expired approximately nine years ago, the illegality of the sentence is not moot. In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Pennsylvania Supreme Court held that when a criminal sentence has been fully satisfied, a collateral attack upon the underlying conviction is not moot and can be considered if it is shown that the criminal sentence may directly affect any subsequent criminal prosecution or conviction. In Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976), this rule was expanded to apply even if one could not show any criminal consequences but could show actual civil consequences. In Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979), the Supreme Court again expanded the rule to include those cases in which the appellant could show only the possibility of civil consequences. In each of these cases, the issue which was held not to be moot was the validity of the conviction.

In Commonwealth v. Kelly, 274 Pa.Super. 242, 418 A.2d 387 (1980), after being sentenced to a three year prison term which was to run consecutively to a Florida prison sentence and concurrent with a different Pennsylvania sentence, appellant attempted to challenge the court’s interpretation of his sentence, i.e., when it was to be served. The court held that when a defendant appeals the trial court’s interpretation of his sentence and does not challenge the legality of either the sentence or the underlying conviction and the sentence is completed before the appeal is decided, the case is moot unless there is a possibility of collateral consequences which arise from the interpretation of the sentence. We specifically expressed no view as to whether the case would be moot if the appellant had attacked the legality of the sentence.

This issue which we did not address in Kelly is now squarely before us. There can be no doubt that the legality of appellant’s sentence which has already expired has direct criminal consequences. Appellant may be entitled to credit for the time served on his illegal sentence. Therefore, following the rationale of Sheehan, Doria, Rohde, and Kelly, even though the sentence which was illegal has been fully served, the issue of the legality of the sentence is not moot in this case.

Although the prison sentence for aggravated assault which appellant has fully served was illegal, the longer sentence for appellant’s robbery conviction stemming from the same criminal act giving rise to the aggravated assault conviction was legal and has not yet been fully served. Because the two sentences — one for aggravated assault and one for robbery — were imposed for the same criminal act, only one of them, the robbery sentence, can legally be imposed. Because appellant has been required to serve an illegal sentence for the one act which gave rise to both the aggravated assault and robbery convictions, and because the legal sentence for the one criminal act has not yet expired, appellant should receive credit on the legal sentence for the time served on the illegal sentence.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2656 (1969), the United States Supreme Court said:

We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned — by subtracting them from whatever new sentence is imposed.

Although the instant case does not involve a subsequent conviction for the same offense as in Pearce, it does involve the same question of double punishment for a single crime. Just as in Pearce, the years of imprisonment appellant was required to serve under the illegal aggravated assault sentence cannot be given back to him. But because he still must serve a term of imprisonment under the lawful sentence resulting from the same criminal act, those years can and must be given back to him as credit for time served.

We find additional support for this conclusion in Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984). In Sayko, appellant pled guilty to indecent assault, indecent exposure, and corruption of minors. He was sentenced to consecutive sentences of one to two years for indecent assault, one to two years for indecent exposure, and five years probation for corruption of minors. Three and one half years after being sentenced (i.e.) after 1¾ of his two prison sentences were satisfied, appellant questioned the legality of his sentences based on the merger doctrine. The Court agreed that either indecent assault or indecent exposure merged with corruption of minors and therefore remanded for resentencing on all counts. The Court also stated that appellant was to be given credit for time served.

Sayko is not directly on point with the case before us because in Sayko, the merger did not apply to all the crimes charged but only to two of the three and because not all of the prison sentences had expired. Therefore, at least part of the new sentence to be imposed would be for a separately punishable crime. Nevertheless, we believe Sayko’s rule of credit for time served applies in the instant situation in which the sentence still to be served to which the credit for time served is to be applied is for the same criminal act as the illegal sentence that was imposed. Therefore, we conclude that appellant is entitled to credit for time served on the illegal aggravated assault sentence.

Judgment of sentence for robbery affirmed.

BROSKY, J., filed a concurring opinion.

WIEAND, J., filed a concurring opinion in which CAVA-NAUGH, J., joins.

McEWEN, J., filed a concurring opinion.

SPAETH, Former President Judge, did not participate in the final decision of this case.

BROSKY, Judge,

concurring:

I join in the well-reasoned opinion of the majority except as to the issue of whether the crimes of aggravated assault and robbery merged for sentencing purposes in this case. Although I agree with the majority that they did merge, my analysis differs somewhat from that of the majority.

I disagree with the majority’s conclusion that this case is one in which the crimes (i.e., robbery and aggravated assault) grew out of the same physical act, therefore necessitating an analysis of how many injuries the Commonwealth has suffered. Rather, I believe this case involves two physical acts: (1) the shooting of the bartender and (2) the taking of property from the bar. In a case where crimes arise out of the same criminal transaction or episode, but not the same physical act, the relevant inquiry is whether the two crimes necessarily involve one another such that proof of the same facts will prove both crimes. Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981); Commonwealth ex rel. Moszczynski v. Ashe, 348 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (en banc).

In Williams, this Court described this analysis for precisely the two crimes which we have before us. We stated:

Suppose a defendant robs his victim, and wantonly injures or tries to kill him as well; such a case raises a legitimate question whether the defendant has actually done two substantially different injuries to the peace and dignity of the Commonwealth. Sometimes to prove that a theft was robbery it is necessary to prove an aggravated assault; if so the same facts will prove both robbery and assault and they will merge. See Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984). The legislative intention to punish the defendant only once for the robbery would be apparent in such a case since the robbery statute has a built-in prohibition against inflicting serious bodily injury in the course of stealing property. See 18 Pa.C.S. § 370(a)(i). On the other hand, if an aggravated assault were not “necessarily involved” in the robbery and the prosecutor could prove each without proving the other, then maybe two separate offenses in fact were committed. See, e.g., Commonwealth v. Thompson, 343 Pa.Super. 468, 495 A.2d 560 (1985). A robbery can be carried out by the infliction of serious injury, but it can also be accomplished by mere threats of force (“terroristic threats”) or simple assault; the commission of robbery by these or any means does not give the robbery carte blanche to engage in as many repeated attempts on the life or well-being of the victim as the circumstances allow.

Id., 344 Pa.Superior Ct. at 135, 496 A.2d at 45.

In the instant case, the record indicates that in order to prove that the theft of the bar was robbery, it was necessary to prove that appellant inflicted serious bodily injury upon the bartender, i.e., committed an aggravated assault upon him. Once the robbery was proven, the aggravated assault was proven and, thus, it must be concluded that those crimes merge. It is not necessary before reaching this conclusion to first analyze the harms against which the legislature intended the robbery and aggravated assault statutes to protect because “[t]he legislative intention to punish the defendant only once for the robbery would be apparent in such a case since the robbery statute has a built in prohibition against inflicting serious bodily injury in the course of stealing property.” Id. For these reasons, I agree with the majority’s conclusion that the crimes of aggravated assault and robbery must be deemed to have merged for sentencing purposes.

WIEAND, Judge,

concurring:

I agree with the majority that a trial court may correct a clerical error, and I join that portion of the majority’s opinion.

For reasons stated in my Concurring Opinion in Commonwealth v. Campbell, — Pa.Super. —, 505 A.2d 262 (1986), I would hold that the merger of offenses for sentencing purposes was waived by appellant’s failure to raise it when he was previously sentenced to probation for robbery.

Moreover, I am unable to agree that where, as here, the robber shot and injured another during the course of a robbery, the offenses should merge for the purpose of imposing sentence. The robbery was complete when, in order to commit a theft, appellant used a gun to put his victim in fear of immediate serious bodily injury. When he thereafter shot his victim he committed a separate offense of aggravated assault for which he could properly be sentenced separately.

I concur that the judgment of sentence for robbery should be affirmed.

CAVANAUGH, J., joins.

McEWEN, Judge,

concurring:

The esteemed author of the majority view has, in his usual fashion, very thoroughly analyzed the assertions of appellant and quite persuasively expressed the reasons why this appeal must be rejected. I join in the rulings of the majority in every respect save one, namely, I share the concurring thought of our learned colleague, Judge Donald E. Wieand, that the offense of aggravated assault followed and was thereby separate and distinct from the crime of robbery. Thus, I too conclude the offenses do not merge for sentence.

      . Although the aggravated assault bill contained four counts, it appears that the plea was entered to count one, 18 Pa.C.S. § 2702(a)(1), a felony of the second degree. The robbery bill contains three counts based on 18 Pa.C.S. § 3701(a)(1)(i), (ii), and (iii). Although the record is not clear which count the plea was entered to, it appears, from the meager facts available to us, that the first count, 18 Pa.C.S. § 3701(a)(1)(i) is not appropriate. However, since each count charges a felony of the first degree, the uncertainty in this regard does not affect our decision.

      . We note, however, that we have never received a transcript of the February 17, 1978 hearing, and there is no indication in the record that such a transcript exists. Appellant asserts in his brief that he attempted to get a copy of the transcript but was informed that it could not be found. Brief for Appellant, at 12.

      . Appellant does not assert that the separate sentences violate the Double Jeopardy Clause of the Pennsylvania or United States Constitution.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    504 A.2d 1273
    NATIONAL LIBERTY LIFE INSURANCE COMPANY, Appellee, v. The KLING PARTNERSHIP, Bethlehem Steel Corporation, L.F. Driscoll Company, George H. Dross Company, Inc., the Belmont Iron Works, R.H. Johnson Company, Keystone Wire and Iron Works, Inc., P.P.G. Industries, Inc., Murphy, Inc., H.F. Ortlip Company of Penna. and Wm. Anderson Company, A & R Engineering Company, Inc. Appeal of BETHLEHEM STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Argued Oct. 9, 1984.
    Filed Feb. 6, 1986.

      John H. McKeon, Jr., Philadelphia, for appellant.
    Jane L. Foster, Philadelphia, for National Liberty, appellee.
    Lawrence L. Robinson, Philadelphia, for Driscoll, appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.

      . If the $1,508,000 paid by the settling defendants is less than their share of liability, then Bethlehem’s obligation would be reduced by their pro-rata share. If the $1,508,000 is more than the settling defendants pro-rata share, then Bethlehem is entitled to have its obligation reduced by the total amount paid by the settling defendants. See Charles v. Giant Eagle Markets, 330 Pa.Super. 76, 80, 478 A.2d 1359, 1361 (1984); Mong v. Hershberger, 200 Pa.Super. 68, 69, 186 A.2d 427, 428 (1962); 42 Pa.C.S. § 8326.

   McEWEN, Judge:

This appeal has been taken from two orders entered by the distinguished Judge William M. Marutani which (1) denied the motion of appellant, Bethlehem Steel Corporation, for leave to amend its answer and (2) denied the petition of appellant, defendant Bethlehem Steel Corporation, for leave to join an additional defendant.

The litigation which gave rise to the instant appeal was commenced by National Liberty Life Insurance Company in an effort to recover damages which National Liberty allegedly sustained as a result of the design and construction of its Phase I headquarters building in Frazer, Pennsylvania. The building was designed by the Kling Partnership, which specified for use in the building a weathering steel product manufactured by Bethlehem Steel and marketed under the trademark of “Mayari R.” The window walls in which “Mayari R” was employed were fabricated and erected by Keystone Wire and Iron Works, Inc. (hereinafter “Keystone”), a subcontractor of the project’s general contractor, the L.F. Driscoll Company (hereinafter “Driscoll”). National Liberty alleged that Kling had (a) failed to properly design the building; (b) failed to properly inspect and supervise the construction; (c) failed to specify proper methods of welding or joining the mullions and members of the window wall; and (d) breached its contractual agreement with National Liberty. National Liberty alleged that Driscoll was liable by reason of its alleged (1) failure to properly install the window walls and sunscreens; (2) failure to properly treat and handle the weathering steel; (3) failure to perform the work in a careful and workmanlike fashion; and (4) failure to properly adhere to the specifications in the contract documents. As to Bethlehem Steel, National Liberty asserted that Bethlehem Steel was likewise responsible for the damages sustained by National Liberty by reason of its (1) failure to warn of extraordinary precautions required in the use and joining of “Mayari R” members; (2) failure to adequately test and research architectural uses of “Mayari R” before promoting it for such use; and (3) failure to warn that “Mayari R” was an inappropriate material for use in the headquarters building. National Liberty also contended that “Mayari R” was unfit for the ordinary purposes for which weathering steel is used and that Bethlehem Steel had breached its express warranties as to “Mayari R.”

The general contractor, Driscoll, joined a number of its subcontractors as additional defendants, including Keystone, the subcontractor responsible for the fabrication and erection of the window walls. Driscoll and Kling filed cross claims against each other and against Bethlehem Steel. Bethlehem Steel, however, filed no claims against any other defendant or additional defendant.

National Liberty learned during the course of pre-trial discovery that a substantial number of welds in the “Mayari R” window wall and sunscreen assembly had broken or cracked and that joints had failed, all of which resulted in serious structural damage to the assemblies. National Liberty commenced a separate action against the structural engineer, A & R Engineering Co., Inc. (formerly Allabach and Rennis, Inc.), on October 8, 1982, as a result of the structural damage. However, no motion to consolidate the action against A & R Engineering with the present action was made by any of the parties.

Fourteen days before trial was scheduled to commence, National Liberty entered into a settlement agreement with Kling, Driscoll, Keystone, A & R Engineering and H.F. Ortlip Company. National Liberty received $1,508,000 from the settling defendants in exchange for a joint tortfeasors’ release which provided, inter alia:

Should it appear that persons or entities not released by the terms of this instrument are jointly or severally liable with the Releasees, in tort of otherwise, for all or portions of damages alleged by the Releasors, the damages recoverable from such other persons or entities shall be reduced in accordance with 42 Pa.C.S. § 8327 to the extent of the pro-rata share, if any, of such damages which the parties released hereby, except for this release, would be liable to pay.

Bethlehem sought leave of court to amend its answer as well as leave to join A & R Engineering as an additional defendant immediately upon learning of the settlement agreement. The distinguished Judge William M. Marutani denied both motions, noting that after four years of pretrial pleadings and discovery, the court was “not disposed to turn back the clock at this late stage by reopening pleadings, inviting additional motions, and new discovery, etc. involving numerous defendants with inevitable ensuing delay.”

Initially, Bethlehem contends that the trial court erred in denying it leave to amend its answer in orden 'to add cross-claims for contribution and/or indemnity against Kling, Driscoll & Keystone, the settling defendants. Bethlehem argues, inter alia, that cross-claims against the settling defendants are essential in order to retain those parties as defendants in the action in order to effectuate Bethlehem’s right to a pro-rata reduction in damages among those parties which may be found to be joint tortfeasors with Bethlehem.

The joint tortfeasor release given to the settling defendants by National Liberty provided for pro-rata reduction of any damages recoverable from any non-settling joint tortfeasors. Thus, if Bethlehem is found to be jointly liable to National Liberty with the settling defendants, Bethlehem would be entitled to have any judgment rendered against it reduced in accordance with the payments and terms of the joint tortfeasor release. Thus, Bethlehem “does have an extremely valuable right in retaining [the settling defendants] in the case, because if the jury should find [them] to be joint tortfeasor[s], [Bethlehem’s] liability to [National Liberty] would be [reduced proportionately].” Davis v. Miller, 385 Pa. 348, 352, 123 A.2d 422, 424 (1956). “Pennsylvania cases hold that even though he has settled with the plaintiff and obtained a pro-rata release, a defendant must nevertheless participate in the trial so that the jury may determine the issues of joint or sole liability. See Davis v, Miller, 385 Pa. 348, 123 A.2d 422 (1956).” Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639, 643-644 (3rd Cir.1981). Accord Voyles v. Corwin, 295 Pa.Super. 126, 128, 441 A.2d 381, 382 (1982); Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 49 (3rd Cir.1982); 7 Goodrich Amram 2d § 2232(f):3. See also Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 468, 437 A.2d 1134, 1136 (1981); Charles v. Giant Eagle Markets, 330 Pa.Super. 76, 78, 478 A.2d 1359, 1360 (1984).

Cross-claims for contribution are thus unnecessary in order to retain the settling defendants as parties to the litigation for the sole purpose of determining the extent, if any, of Bethlehem’s right, pursuant to the joint tortfeasor release, to a reduction in any verdict rendered against it after trial, and we perceive no abuse of discretion by the trial court in refusing Bethlehem leave to amend its answer to assert such claims.

Nor did the trial court err in refusing Bethlehem Steel leave to amend its answer on the eve of trial to include claims for indemnification. Section 8323 of the Judicial Code provides: “This subchapter does not impair any right of indemnity under existing law.” 42 Pa.C.S. § 8323. It is well settled that “before any right of indemnification arises, the indemnitor must in fact pay damages to a third party.” F.J. Schindler Equipment Company v. The Raymond Company, 274 Pa.Super. 530, 532, 418 A.2d 533, 534 (1980). See also Burbage v. Boiler Eng. & Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969); Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 456, 467 A.2d 615, 622 (1983). Thus, any right of indemnification that Bethlehem Steel may have against the settling defendants will in no way be prejudiced by the refusal of the court to allow Bethlehem to amend its answer to include claims for indemnity.

Thus, we find no merit in the argument posed by Bethlehem Steel that the trial court erred in refusing it leave to amend its answer to include cross-claims for contribution and indemnity.

Bethlehem next argues that the trial court erred in denying its petition for leave to join A & R Engineering as an additional defendant nunc pro tunc.

As heretofore observed, National Liberty commenced a separate action against A & R Engineering on October 8, 1982, after it learned during pre-trial discovery of structural damage sustained by the building. Neither Bethlehem nor any other party to the instant action sought consolidation of the separate action against A & R Engineering until Bethlehem, on the eve of trial, filed the petition here reviewed.

Pa.R.Civ.P. 2253 requires that leave of court be sought, upon cause shown, to secure joinder of an additional defendant after the expiration of the sixty-day period. See Zaki an v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970). “Whether there is 'cause shown’ for the allowance of an extension of time for the joinder of an additional defendant is a matter within the discretion of the lower court, and its decision will not be reversed absent an abuse of discretion.” Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 104, 497 A.2d 661, 665 (1985). Accord Zakian v. Liljestrand, supra, 438 Pa. at 255, 264 A.2d at 641; Farmer v. General Refractories Co., 271 Pa.Super. 349, 351, 413 A.2d 701, 702 (1979); Welch Foods Inc. v. Bishopric Products Co., 254 Pa.Super. 256, 258, 385 A.2d 1007, 1008 (1978).

Bethlehem Steel argues that the trial court committed an abuse of discretion when it denied its petition for leave to join A & R Engineering as an additional defendant nunc pro tunc because joinder is essential in order for Bethlehem to realize its right to a pro-rata reduction in any judgment rendered against Bethlehem. Bethlehem argues that if joinder is not permitted, it will be substantially prejudiced because, as a result of the joint tortfeasor’s release given to A & R Engineering, Bethlehem has lost its right to seek contribution from A & R Engineering. See 42 Pa.C.S. § 8327.

We sympathize with the position of the distinguished trial judge in the instant case but believe that joinder nunc pro tunc of A & R Engineering as an additional defendant for the sole purpose of determining whether Bethlehem is entitled to a pro-rata reduction in any judgment against it will best serve the interests of justice under the particular circumstances of the instant case. See and compare Matthews v. Johns-Manville Corp., 307 Pa.Super. 300, 304-06, 453 A.2d 362, 364-365 (1982); Peabody v. Republic Steel Corp., 69 D & C2d 50 (Allegheny County, 1974); 8 Goodrich Amram 2d § 2253:3. We reach this conclusion not unmindful of the failure of Bethlehem to timely move for joinder of A & R Engineering as an additional defendant. However, Bethlehem did seek leave to join A & R Engineering immediately upon learning of the settlement which destroyed its right to institute a separate action for contribution against A & R Engineering. See and compare Lamoree v. Penn Central Transportation Co., 238 Pa.Super. 380, 357 A.2d 595 (1976).

The rules pertaining to joinder of additional defendants “were an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.” Kovalesky v. Esther Williams Swim Pools, supra, 345 Pa.Super. at 105, 497 A.2d at 666. Thus, we share the court’s concern that any additional discovery necessitated by the late joinder of A & R Engineering would unfairly prejudice National Liberty in the prosecution of its case. We believe, however, that the trial court will exercise its discretion in order to prevent any such delay and inconvenience to the plaintiff and the settling defendants.

We, therefore, affirm the order which denied Bethlehem Steel’s petition for leave to amend its answer but reverse the order of the court which denied Bethlehem leave to join A & R Engineering as an additional defendant nunc pro tunc.

Case remanded. Jurisdiction relinquished.

      . An order denying a petition for nunc pro tunc joinder of an additional party is a final order and appealable. See Hoare v. The Bell Telephone Company of Pennsylvania, 509 Pa. —, 500 A.2d 1112 (1985); Koralesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 98 n. 1, 497 A.2d 661, 662 n. 1 (July 5, 1985).

      . Kling contributed $975,000; Driscoll contributed $350,000; Keystone contributed $150,000; A & R Engineering contributed $25,000, and H.F. Ortlip Co. contributed $8,000.

      . Bethlehem argues in its brief that such pro-rata shares would be calculated solely upon the number of defendants in the action. This argument ignores the principles of primary and secondary liability applicable to joint tortfeasor releases and pro-rata shares. See Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 478-80, 437 A.2d 1134, 1141-1142 (1981); Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3rd Cir.1982).

      . The release provided as follows:
      JOINT TORTFEASOR RELEASE AND AGREEMENT
      KNOW ALL MEN BY THESE PRESENTS, that National Liberty Life Insurance Company, National Liberty Corporation, National Liberty Marketing, Inc., National Home Life Assurance Company, Valley Forge Associates Inc., and each company affiliated with or having any interest whatsoever in said companies, (hereinafter referred to as the Releasors) by Donald D. Kennedy, Jr., Esquire, their authorized representative, for the consideration of One Million Five Hundred Eight Thousand ($1,508,000.00) Dollars, paid in hand as follows:

        The Kling Partnership $975,000
      L.F. Driscoll Company 350,000
      Keystone Wire and Iron Works, Inc. 150,000
      Allabach & Rennis, Inc. (now known as A & R Engineering Co., Inc. 25,000
      H.F. Ortlip Company of Pennsylvania 8,000
      the receipt of which is hereby acknowledged, do hereby release, acquit and forever discharge, The Kling Partnership, L.F. Driscoll Company, Keystone Wire and Iron Works, Inc., Allabach & Rennis, Inc. (now known as A & R Engineering Co., Inc.) and H.F. Ortlip Company of Pennsylvania, (hereinafter referred to as the Releasees), their respective officers, directors, agents, employees, insurers, predecessors in interest, successors and assigns, and their successors and assigns, of and from any and all actions, causes of action, suits, claims, demands, claims for loss of production and expenses whatsoever on account of or in any way growing out of the design and/or construction of Phase I and Phase II buildings and facilities located at Liberty Park in Frazer, Pennsylvania, including but not limited to any and all claims which were asserted or could have been asserted in the lawsuits now pending in the Court of Common Pleas of Philadelphia County, entitled National Liberty Life Insurance Company v. The Kling Partnership, et ah, March Term 1983 No. 830; National Liberty Life Insurance v. L.F. Driscoll Company, et al., January Term, 1983 No. 6579; National Liberty Life Insurance Company v. Allabach & Rennis, Inc. and A. & R. Engineering Co., Inc., October Term, 1982 No. 1124, and, in addition, without limiting the foregoing, all other claims of whatever nature arising out of or related in any way to the aforesaid design and construction.
      Should it appear that persons or entities not released by the terms of this instrument are jointly or severally liable with the Releasees, in tort or otherwise, for all or portions of damages alleged by the Releasors, the damages recoverable from such other persons or entities shall be reduced in accordance with 42 Pa.C.S.A. § 8327 to the extent of the pro-rata share, if any, of such damages which the parties released hereby, except for this release, would be liable to pay. It is further agreed that the Releasors will satisfy or cause to be satisfied any decree, judgment or award involving the liability of or the assessment of damages against the Releasees, their officers, directors, agents, employees, successors and assigns, and their successors and assigns, and the said satisfaction shall be for the benefit of the parties herein released and to the extent of their entire liability to the Releasors or to any other party claiming contribution or indemnity from the Releasees, their officers, directors, agents, employees insurers, predecessors in interest, successors and assigns, and their successors and assigns.
      The Releasors agree to indemnify and hold harmless the Releasees, their officers, directors, agents, employees, insurers, predecessors in interest, successors and assigns, and their successors and assigns, of and from any claim for amounts sought as money damages by any other person, corporation or like entity by way of contribution, indemnification or otherwise from the Releasees arising from the design and construction of the Phase I and Phase II buildings and facilities located at Liberty Park in Frazer, Pennsylvania, and from the negotiation and execution of this receipt and release, including without limiting the generality of the foregoing, all claims for contribution or indemnification which could have been asserted or may be asserted in the cases now pending in the Court of Common Pleas of Philadelphia County, specifically: National Liberty Life Insurance Company v. The Kling Partnership, et al., June Term, 1979 No. 4644; National Liberty Life Insurance Company, et al v. The Kling Partnership, et al., March Term 1983, No. 830; National Liberty Life Insurance Company v. L.F. Driscoll Company, et al., January Term 1983 No. 6579; National Liberty Life Insurance Company v. Allabach & Rennis, Inc. and A & R Engineering Co., Inc., October Term, 1982 No. 1124.
      In the event the Releasors enter into any agreement of settlement with any other persons or entities, including other parties in the aforesaid lawsuits, the agreement of settlement with any other persons, entities and/or parties will contain the following language:
      It is hereby understood and agreed that the releasees will not institute any legal proceeding against The Kling Partnership, L.F. Driscoll Company, Keystone Wire and Iron Works, Inc., Allabach & Rennis, Inc. (now known as A & R Engineering Co., Inc.) and H.F. Ortlip Company of Pennsylvania, their successors and assigns, or any losses, expenses and/or damages which in any way arise out of the design or construction of the Phase I and Phase II buildings and facilities located at Liberty Park in Frazer, Pennsylvania.
      It is understood and agreed that this Release is a compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the Releasees, by whom liability is expressly denied. This Release and accompanying Settlement Agreement contain the entire agreement between the parties hereto and the terms of this Release are contractural and not a mere recital. This Release shall not be subject to any claim of mistake of fact, and expresses a full and complete settlement of any liability claimed and denied, and regardless of the adequacy or inadequacy of the amount paid, it is intended to avoid litigation and to be final and complete.
      The Releasors further agree that their authorized representative has read this Release and that no agreement, reservation, promise or inducement which is not expressed in this Release and accompanying Settlement Agreement has been made, and that in executing this Release they do not rely upon any statement or representation not made in this Release and accompanying Settlement Agreement. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 14 day of April, 1983.

      . Bethlehem argues, in the alternative, that the release given to the settling defendants is a Griffin release which obviates the necessity to retain the settling defendants as parties to the action but requires a pro-rata reduction in any verdict rendered against Bethlehem Steel. This argument is meritless. The release given by National Liberty to the settling defendants is clearly not a Griffin release as liability on the part of the settling defendants was not conceded. Rather, the release provides: “It is understood and agreed that this Release is a compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the Releasees, by whom liability is expressly denied.” See and compare Castillo v. Roger Construction Company, 560 F.2d 1146, 1152 (3rd Cir.1977); Griffin v. United States, 500 F.2d 1059 (3rd Cir.1974).

      . Section 8327 of the Judicial Code provides:
      § 8327. Liability to make contribution as affected by release
      A release by the insured person of one joint tort-feasor does not relieve him from liability to make contribution to another tort-feasor, unless the release is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued and provides for a reduction to the extent of the pro rata share of the released tort-feasor of the injured person’s damages recoverable against all the other tort-feasors.
      42 Pa.C.S. § 8327 (emphasis supplied).


author: WICKERSHAM, Judge:

text:
    504 A.2d 1279
    Sidney M. DeANGELIS, Appellant, v. Sandra Schultz NEWMAN, Receiver of the Foerderer Tract Committee, Inc.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Feb. 10, 1986.

      Sidney M. DeAngelis, Norristown, appellant, in pro. per.
    Marvin L. Wilenzik, Norristown, for appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

This is an appeal from the orders of the Court of Common Pleas of Montgomery County which sustained preliminary objections to appellant’s complaint in equity, dismissed two motions to amend the complaint, and denied appellant’s petition for taxable costs.

This case has a long and complicated history. Numerous suits, most of which include the same parties, have been spawned by the underlying facts. The instant suit has already once been before both our court and the supreme court and now returns to us from the trial court. Our sincere hope, albeit a futile one, is that its current appearance before this court is its last.

The parties agree on many of the underlying facts. On February 4, 1974, appellant Sidney DeAngelis, an attorney, entered into a written agreement to purchase approximately thirty-six acres of land from a non-profit corporation known as the Foerderer Tract Committee (hereinafter “Committee”). For this land, located in Lower Merion Township, Montgomery County, appellant made a down payment of $65,000.00. The agreement was duly recorded by the Recorder of Deeds. The Foerderer Tract consisted of some 150 acres in total, and was being sold by the Committee to purchasers for home sites. The Tract was encumbered by a first mortgage recorded on November 6, 1972, in favor of First Pennsylvania Bank N.A. (hereinafter “Bank”).

Subsequently, the Committee defaulted, the Bank commenced foreclosure proceedings, and a sale of the entire Tract was scheduled for November 27, 1974. Several creditors of the. Committee successfully petitioned the court to stay the foreclosure proceedings and to appoint a temporary Receiver for the Committee. On November 22, 1974, appellee Sandra Newman, also an attorney, was appointed temporary Receiver. Both sides filed further petitions, which culminated in an order on July 28, 1977, continuing the stay of the foreclosure proceedings and appointing appellee as the Liquidating Receiver of the assets of the Committee, including the real estate in question. ' As Receiver, appellee was to dispose of the Tract and accumulate from its sale a fund to be used to pay the creditors of the Committee.

Attempts to sell the Tract from 1975 to 1978 proved unsuccessful, and while our court affirmed the order appointing appellee as receiver on February 16, 1979, we granted appellee a period of one year from the date of publication of our opinion in which to sell the Tract. Should appellee have failed to find a purchaser, her receivership would have terminated and the sheriffs sale promoted by the Bank would have taken place. Bogosian v. Foerderer Tract Committee, 264 Pa.Super. 84, 399 A.2d 408 (1979). Shortly thereafter, appellee located a buyer and in May of 1979, she requested permission of the lower court to sell the entire Tract to Realty Engineering Co. (hereinafter “Realty”). This agreement of sale included the parcel of land which was the subject of appellant’s agreement of sale.

Following a hearing, the lower court gave its permission to sell and appellee entered into negotiations with the Bank, whereby she secured from them an assignment of their 1972 mortgage on the Tract in exchange for a promise to pay them a set sum out of the proceeds of the sale to Realty. Then, in order to convey clear and marketable title to Realty, appellee, as mortgagee/owner, commenced a foreclosure proceeding. Accordingly, appellee scheduled a sheriff’s and receiver’s sale on the entire Tract. After being postponed twice, the sale was held in September of 1979, at which time appellant appeared and made an oral motion to stay the sale. The court dismissed the motion, the sale continued, and appellee was the successful bidder. Following the expiration of the time to file a petition to set aside the sale, the sheriff prepared a proposed schedule of distribution. Appellant filed exceptions to the proposed schedule. After a hearing, the lower court dismissed the exceptions on November 23, 1979. Our court dismissed his subsequent appeal on the grounds that appellant lacked standing to except to the sheriff’s schedule of distribution because he was not a lienholder. See First Pennsylvania Bank v. Weber, 283 Pa.Super. 614, 427 A.2d 1195 (1980) (per curiam). After the supreme court refused his petition for allowance of appeal, the sale to Realty was scheduled for settlement on April 30, 1980. The Tract was sold at that time or shortly thereafter.

On April 24, 1980, appellant filed a complaint in equity seeking specific performance of his 1974 agreement of sale. On May 6, 1980, appellee filed preliminary objections to the complaint, raising questions of jurisdiction, demurrer/adequacy, laches, and lack of capacity to sue. Appellant filed an answer to the preliminary objections, but his failure to file a responsive brief within 30 days, as required by former Montgomery County Rule of Civil Procedure 302(d), resulted in a sua sponte dismissal of his complaint. On appeal, our court affirmed the dismissal of the complaint. DeAngelis v. Newman, 296 Pa.Super. 642, 440 A.2d 1261 (1981) (per curiam). The supreme court granted allocatur and on May 27, 1983, reversed our court and remanded the case to the lower court. 501 Pa. 144, 460 A.2d 730 (1983).

Pursuant to the supreme court’s remand on September 29, 1983, the lower court held argument on appellee’s preliminary objections, sustained those objections, and once again dismissed the complaint. Four days later, appellant filed a motion to amend the complaint to a breach of contract action, requesting compensatory and punitive damages. Preliminary objections to the motion to amend were filed by appellee, but argument on the motion could not be entertained by the lower court because on October 26,1983, appellant filed the instant appeal from the court’s order dismissing the original complaint. On February 2, 1984, appellant filed in our court a petition to remand for consideration of the motion to amend the complaint, which was granted on February 28, 1984. We retained jurisdiction, pending resolution of the motion to amend. Following a hearing, the lower court, on June 21, 1984, denied appellant’s motion to amend his complaint, sustained appellee’s preliminary objections thereto, and dismissed the motion to amend, and the case is once again before us.

On this appeal, appellant raises the following eight issues:

A. Where an Agreement of Sale to purchase land contains a condition to be satisfied by the Seller, is the Statute of Limitations governing real estate agreements tolled until the satisfaction of the condition?
B. Where a Receiver is appointed to manage some 150 acres of land subject to a first mortgage, then takes an assignment of the first mortgage, then in default, and proceeds to execute upon said mortgage in order to clear title, does the Sheriffs Sale invalidate an Agreement of Sale entered into by the debtor corporation with a purchaser prior to the appointment of the Receiver?
C. Where a purchaser enters into an Agreement of Sale, records it, and notifies the Seller/Receiver that he is ready, willing and able to conclude settlement, but the Receiver sells the identical land to a third party, was it an abuse of discretion for the lower court to dismiss the purchaser’s Complaint in Equity seeking specific performance?
D. Where a purchaser enters into an Agreement of Sale, records it, and notifies the Seller/Receiver that he is ready, willing and able to conclude settlement, and tenders the full consideration, was it an abuse of discretion for the lower court to dismiss the Plaintiff’s Complaint for lack of capacity to sue, where it appeared that the Seller/Receiver had taken an assignment of a first mortgage and foreclosed thereon in order to clear title for the Purchaser and others?
E. Where a purchaser files a Complaint in Equity seeking specific performance then learns that the Seller/Receiver had sold his land to a third party, and then seeks to amend his Complaint to seek damages, was it an abuse of discretion for the lower court to deny his Motion to Amend?
F. Was it an abuse of discretion for the lower court to dismiss a second Motion to Amend when the Seller showed no prejudice?
G. Was it an abuse of discretion for the lower court to refuse the taking of depositions pursuant to Pa.R.C.P. 1028(c) despite the fact that the Appellee’s Preliminary Objections raised questions of fact which were then contradicted by Appellant’s Answer to Preliminary Objections?
H. Was it an abuse of discretion for the court below to deny Appellant’s Petition for Payment of Taxable Costs pursuant to R.A.P. 2741, and the Act of July 9, 1976, P.L. 586, Section C(3)?

Brief for Appellant at 4.

Upon careful consideration, we find that the answer to the first issue is the key to the following six issues, because if appellant’s suit was barred by the statute of limitations, further attempts to amend that complaint, or take depositions concerning that complaint, are irrelevant.

The agreement of sale upon which appellant sued was dated February 4, 1974. The appropriate statute of limitations can be found at 42 Pa.C.S. § 5526:

§ 5526. Five year limitation
The following actions and proceedings must be commenced within five years:
(1) An action for revival of a judgment lien on real property.
(2) An action for specific performance of a contract for sale of real property or for damages for noncompliance therewith.
(3) An action to enforce any equity of redemption or any implied or resulting trust as to real property.

Appellant’s action for specific performance was filed on April 24, 1980, more than six years from the date of the agreement of sale. Appellant’s motion to amend the complaint was not filed until October of 1983, more than nine years after the signing of the agreement of sale, and four days after the dismissal of the original complaint. Appellant obviously had knowledge of the intention of the Receiver dating from 1975, to sell the real estate in question, as witnessed by his knowledge of and/or participation in other lawsuits concerning the Foerderer Tract. Our court’s directive in Bogosian, supra, to appellee to sell the land within one year, appellee’s agreement of sale to Realty, and her attempts to finally dispose of the Tract in accordance with our directive all antedate the filing of appellant’s complaint. Clearly, appellant’s suit appears to be time-barred.

Appellant concedes that the five-year statute applies, but argues that the statute did not begin to run on February 4, 1974 because the agreement contained a condition that had not been met. This condition concerned sewerage arrangements for the thirty-six acres contained in the agreement, and appellant asserts that the condition was not met until sometime in 1980. We are not persuaded by this argument. The five-year statute began to run on the date that the agreement of sale was made, not at’ the date of completion of a condition. See Lamb v. Allegheny County Institution District, 363 Pa. 66, 69 A.2d 117 (1949). It is axiomatic that the statute of limitations does not begin to run until the cause of action accrues. Eagan v. U.S. Expansion Bolt Co., 322 Pa.Super. 396, 469 A.2d 680 (1983). Such an action accrues only when a party has the right to institute a suit. Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943). While we note caselaw that states that the statute does not begin to run against enforcement of a contract depending upon a condition precedent until that condition has been performed, where there is no definite time for doing the act necessarily precedent, the law allows only a reasonable time and the statute begins to run from the expiration of such reasonable time. Chittenholm v. Giffin, 357 Pa. 616, 55 A.2d 324 (1947). It is obvious to us that the more than six-year lag between the agreement and the complaint, and the nine-year lag before the amended complaint, especially in view of appellant’s awareness of the receivership and the attempts to sell all the Tract, including “his” thirty-six acres, represent the kind of unreasonable delay in bringing suit referred to above.

Even if we did not find appellant’s suit to be time-barred, we agree with appellee and the lower court that appellant lacked the capacity to bring this action at the time he did, because the sheriff’s and receiver’s sale in September of 1979 extinguished any rights appellant had in the real estate. Appellant’s agreement of sale of February 4, 1974 was subject to a prior mortgage lien of the Bank arising out of a mortgage recorded on November 6, 1972. It is clear that this mortgage lien clearly antedated both the date of appellant’s agreement of sale and the date of its recording.

Section 7985 of the Non-Profit Corporation Law, 15 Pa.C.S. § 7985, provides for appointment of a receiver. In addition to the specific power given to the receiver by section 7985 to sell or dispose of the assets of the corporation in receivership, there is also a broad equitable power in the court to assist the receiver in carrying out a sale. Bogosian v. Foerderer Tract Committee, supra. By approving the sale of the Foerderer Tract to Realty, the lower court expected a surplus of funds and therefore had the authority to order the sale free of other incumbrances. Id.

The sheriff’s and receiver’s sale which occurred on September 28, 1979, being pursuant to an order of court and subject to court approval, must be considered a judicial sale. See In re Petition of Acchione, 425 Pa. 23, 227 A.2d 816 (1967). The general rule in Pennsylvania is that judicial sales divest all prior and subsequent liens on the property sold unless such liens are preserved by statute. Liss v. Medary Homes, Inc., 388 Pa. 139, 130 A.2d 137 (1957); Bogosian v. Foerderer Tract Committee, supra (a receiver’s sale is a judicial sale that divests all prior liens on a property absent the statutory preservation of the lien). Therefore, as a result of the sheriff’s and receiver’s sale, appellee became the purchaser and title holder of the entire Tract, and any interest which appellant may have had in the property was extinguished. Having no interest whatsoever in the property, after the date of the sheriff’s and receiver’s sale, appellant lacked standing to bring an action for specific performance in April of 1980, let alone an amended action for damages in October of 1983.

Because we find that appellant’s suit was barred by both the statute of limitations and a lack of standing, we need consider only the last of appellant’s remaining issues.

After the supreme court reversed our court and remanded this case back to the lower court in May of 1983, appellant filed a bill of costs and later, an amended bill of costs, with the prothonotary. After two letters to appellee seeking payment of these costs went unanswered, appellant filed a petition to order their payment, plus a penalty for their non-payment. Appellee filed an answer thereto, and argument was held on the petition. On March 6, 1984, the lower court denied the petition, which appellant has also appealed. The Judicial Code, at 42 Pa.C.S. § 1726, provides for the establishment of taxable costs. In its exercise of the statutory power granted by section 1726, our supreme court adopted Pa.R.A.P. 2741, which provides in pertinent part:

Rule 2741. Parties Entitled to Costs
Except as otherwise provided by law:
* * * * * *
(3) If an order is reversed, modified or vacated with a direction for a new trial, costs shall be taxed against the appellee, unless otherwise ordered, or unless the appellee causes the matter to be retried below within one year after the remand of the record, in which event the liability for costs shall follow the final judgment on such retrial unless otherwise ordered.
(4) If an order is reversed, without a direction for a new trial, costs shall be taxed against the appellee unless otherwise ordered, or unless the lower court shall determine that the matter is not finally closed between the parties, and the appellee shall bring a new action against the appellant within 30 days after such determination, in which event the liability for costs shall follow the final judgment in such second or other matter relating to the same cause of action.

In his petition for costs, appellant argued that section 3 of the above rule applied, whereas on appeal, he appears to advance section 4 as the more applicable section. Appellee addresses both sections. The lower court’s opinion of March 6, 1984 does not reveal why the court denied and dismissed appellant’s petition for taxable costs, leaving us in the dark as to what section it considered controlling. Under the facts of this case, however, we find it difficult to hold that either section is controlling.

The order precipitating the petition stated: “The order of the Superior Court is reversed and the case remanded to the lower court for proceedings consistent with this opinion.” DeAngelis v. Newman, supra, 501 Pa. at 147, 460 A.2d at 731. Clearly there was a reversal. It seems equally clear that there was no direction for a new trial, as described in section 3. It also seems clear, however, that appellee was not in the position upon remand to bring a new action against appellant within 30 days, as described in section 4. Rather, the reversal by the supreme court was not on the merits, but merely stated that the trial court had erred in automatically dismissing appellant’s original complaint on the ground that appellant had failed to file a responsive brief within the time prescribed by local rule. A reversal of that order and subsequent remand meant that the case would be in the same position it was before the lower court’s dismissal, i.e., that the complaint was reinstated and that the court would hear argument on appellee’s preliminary objections. Certainly appellee was not in a position to bring a “new” action, because the old action, brought by appellant, was still alive. If anything, the remand for “further proceedings” in this case seems to be more closely aligned to a remand for a new trial, than to a close of the action between the parties.

Regardless of the section into which appellant’s case more appropriately falls, we cannot say that the lower court abused its discretion in denying payment of costs to appellant. See Gold & Co., Inc. v. Northeast Theater Corp., 281 Pa.Super. 69, 421 A.2d 1151 (1980) (allowance of costs in equity is within the court’s sound discretion). 42 Pa.C.S. § 1726 states that the prevailing party shall not recover his costs from the unsuccessful litigant where a substantial injustice would result. Costs are meant to follow the final judgment in a case, as a careful reading of Pa.R.A.P. 2741 reveals. Costs relate to the final judgment on the substantive issues, not to unusual procedural questions which are not dispositive of the litigable issues. Furthermore, we note that appellee did not “cause” the appeal resulting in the reversal. Instead, it was a combination of appellant’s negligence in failing to file a timely brief and the lower court’s sua sponte action in dismissing the complaint due to that failure which led to that result. Appellee neither moved for dismissal of the complaint under local rule, nor sought to have the same invoked; the rule was automatically invoked by the court. Because appellee took no action which caused or necessitated the appeal, and then had to expend time and money defending the court’s action on appeal, we cannot find an abuse of discretion in the court’s refusal to award costs against appellee at that stage of the litigation.

Order affirmed.

      . See, e.g., In Matter of Foerderer Tract Committee, 335 Pa.Super. 638, 484 A.2d 815 (1984); Biezup v. Weber, 297 Pa.Super. 575, 443 A.2d 368 (1982); DeAngelis v. Newman, 296 Pa.Super. 642, 440 A.2d 1261 (1981), rev’d, 501 Pa. 144, 460 A.2d 730 (1983); First Pennsylvania Bank v. Weber, 283 Pa.Super. 614, 427 A.2d 1195 (1980); Bogosian v. Foerderer Tract Committee, 264 Pa.Super. 84, 399 A.2d 408 (1979); First Pennsylvania Bank N.A. v. Weber, 240 Pa.Super. 593, 360 A.2d 715 (1976) (en banc).

      . Appellee asserts in her brief that on October 1, 1974, appellant obtained a money judgment against Edwin K. Daly, Jr., the president of the Committee, for the amount of his downpayment. Brief for Appellee at 28. Thus, appellee argues that by obtaining this money judgment, appellant was precluded from obtaining specific performance of the contract. While this argument may contain some merit, we cannot consider it because we are bound by the record, and our review of the record does not reveal the entry of that judgment. It is black letter law that an appellate court cannot consider anything which is not part of the record in the case; this includes information located only in a party’s brief. McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982).

      . Appellant also filed a bill of costs pursuant to Pa.R.A.P. 2741(3) with the prothonotary after the supreme court remanded this case to the lower court in May of 1983. An amended bill of costs was filed in October of 1983, as was a petition to order payment of taxable costs against appellee. Following argument, the lower court denied the petition on March 6, 1984. Appellant has appealed this order, which is currently pending before our court at No. 982 Philadelphia 1984. Since the record in No. 982 Philadelphia 1984 is also before us at this time, and the parties have already briefed the issue involved in that appeal, for the sake of judicial economy, our court has consolidated both appeals by order dated December 6, 1985, and we will address the issues involved in both appeals at this time.

      . This is the amended, and current, version of the statute in effect at the time of appellant’s agreement of sale. The previous statute that was in existence in February of 1974 (12 P.S. § 83) also allowed five years to bring an action for specific performance of the sale of real property. See Lamb v. Allegheny County Institution District, 363 Pa. 66, 69 A.2d 117 (1949).

      . We draw appellant’s attention to the fact that he cannot assert new and different grounds for relief on appeal that were not raised in the lower court. See, e.g., Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984); Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982). It is unclear from the record that both sections were not argued below, however, and since appellee has addressed both sections, and because what section applies is not determinative of the issue, we will address appellant’s argument.


author: CAVANAUGH, Judge:

text:
    504 A.2d 1286
    COMMONWEALTH of Pennsylvania, Appellee, v. Charles COLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 21, 1985.
    Filed Feb. 11, 1986.

      William P. James, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CAVANAUGH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County, dismissing appellant’s petition for PCHA relief without a hearing. We affirm the lower court’s order.

Appellant was convicted of first degree murder, attempted robbery and criminal conspiracy on August 29, 1974. Testimony elicited by the Commonwealth established that a hotel clerk, William Caldwell, was fatally shot on October 20, 1973, while at work. Although there were no eyewitnesses to the actual shooting, two witnesses testified that two black males entered a lobby, one of them, carrying a gun. He threatened and then kicked one of the witnesses. A gunshot was heard and the victim was seen lying on the floor, mortally wounded by a shot in the face. One witness saw that one of the perpetrators had a chrome gun. Additional testimony connected appellant to the crime by virtue of the chrome revolver which he disposed of, and which was determined to be the murder weapon. Appellant, having waived his Miranda rights, gave a signed confession which was introduced at trial. His pre-trial motion to suppress the statement was denied.

Following argument on post-verdict motions, the trial court granted a new trial ruling that appellant’s inculpatory statement was elicited in violation of his constitutional rights. The Commonwealth appealed and the Pennsylvania Supreme Court reversed and remanded for imposition of sentence in 1976. Appellant did not appeal from the judgment of sentence. However, on July 2,1982, appellant filed a pro se petition for post conviction relief.

PCHA counsel was appointed to represent appellant on July 7, 1983. Counsel reviewed the case and decided not to file an amended PCHA petition, as he felt that no issues of arguable merit existed. He wrote a detailed letter to Judge Blake setting forth the reasons for his conclusion. Judge Blake, after reviewing the record, agreed with counsel’s opinion that appellant’s petition was totally lacking in merit, and dismissed the petition, thereby, denying PCHA relief without a hearing.

PCHA counsel filed the present appeal, then was dismissed as appellant’s counsel by Judge Blake, pursuant to appellant’s request. New counsel was appointed to represent appellant on appeal. Present counsel initially contends that appellant was deprived of effective assistance of counsel when his petition was denied solély on the basis of PCHA counsel’s no-merit letter. He relies on Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984) in claiming that the standards of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) are applicable to his representation by PCHA counsel. Anders set forth the standards for withdrawal by court appointed counsel when he feels the client’s appeal is frivolous. Although in the present case PCHA counsel did not technically request to withdraw from representation of appellant, the Anders standard, as interpreted by our courts, is applicable.

Anders recognized that even diligent counsel may justifiably believe an appeal to be wholly frivolous. Therefore, appointed counsel wishing to withdraw may request permission to do so if certain requirements are complied with, including the filing of a brief “:.. referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Appellant in this case argues that PCHA counsel was ineffective in failing to recognize that the issues appellant raises are meritorious, and consequently, in failing to brief these issues.

We have recently addressed the allegation of ineffective assistance of counsel in terms of failure to comply with the Anders requirement in Commonwealth v. McGeth, 347 Pa.Super. 333, 500 A.2d 860 (1985). There, we recognized that the ineffectiveness standard requires a showing by the claimant that he has been prejudiced by counsel’s actions or inaction. See, Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, counsel will not be found ineffective for failing to pursue a meritless claim. McGeth, 500 A.2d at 864. Here, as in McGeth, the ineffectiveness analysis must be applied in conjunction with the Anders requirement that counsel refer to any issues of arguable merit. Therefore, a claimant must demonstrate that his counsel failed to brief an issue which would “arguably support the appeal” to show ineffectiveness. McGeth, 347 Pa.Superior Ct. at 341, 500 A.2d at 864. Implicit in appellant’s argument is the assertion that PCHA counsel’s failure to brief the issues raised herein was prejudicial to him because the PCHA court could not make a full and informed examination of the record and, therefore, was unable to find in appellant’s favor.

Present counsel raises three ineffectiveness claims which, purportedly, would support the grant of relief: 1) failure of trial counsel to investigate or present a known defense of alibi; 2) failure of trial counsel to object to the court’s allegedly defective first degree murder instruction; and 3) failure of trial counsel to object to the trial court’s allegedly defective corpus delicti instruction. PCHA counsel addressed the first and third points in his letter to Judge Blake, finding them to be meritless. Following a thorough review of all three claims, we find no merit.

Initially, we agree with PCHA counsel and the Commonwealth that trial counsel was not ineffective for failure to present an alibi defense. Appellant originally claimed that he was at the home of Lorraine Jackson at the time of the crime for which he was convicted. However, this alibi defense was not pursued by trial counsel, presumably because appellant himself abandoned this story in his signed confession. Moreover, appellant admits , in his brief that counsel may well have had a strategic basis for not investigating or presenting the alibi defense. It is well recognized that counsel cannot be found ineffective if the course he chose had some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Since this claim is meritless, PCHA counsel was not ineffective for failing to raise the issue in an amended PCHA petition.

Secondly, appellant claims that the court’s first degree murder instruction was defective. Under the statute applicable at the time of the crime and appellant’s trial, first degree murder included both a felony murder and a premeditated one, i.e. in which defendant had a specific intent to kill. Appellant claimed that since there was no evidence that he was the actual shooter, it was improper to instruct that the specific intent of either appellant or his accomplice would satisfy this element of the crime. In other words, if the jury found that the accomplice had a specific intent to kill, this intent could not be transferred to the appellant.

As the Commonwealth notes, whether or not appellant was the actual shooter is irrelevant, as appellant’s shared criminal intent to kill can be inferred from the circumstances of the killing itself. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982) cert. denied 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983). The circumstances proved at trial were that appellant provided the gun which was used to kill the victim, appellant was present at the time of the killing, and also took part in attempting to dispose of the weapon. These circumstances clearly show a shared criminal intent. Therefore, the first degree murder instruction was not defective, and both trial and PCHA were not ineffective in failing to pursue this claim.

Similarly, we find no error in the trial court’s corpus delicti instruction to the jury. Appellant claims that the court should have charged that the jury must be convinced beyond a reasonable doubt of the corpus delicti of both murder and robbery, the underlying felony, before considering appellant’s inculpatory statement. It is beyond dispute that before the Commonwealth may introduce a confession or admission made by an accused, it must first be established by independent evidence that a crime has in fact been committed. However, it is also clear in the instant case that the corpus delicti of murder was established at trial. The corpus delicti of murder consists of evidence that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act. It was obviously proved at trial that the victim was dead and that his death took place by criminal means, i.e. he was shot in the face by two intruders who entered the hotel.

Moreover, it was not necessary, contrary to appellant’s assertion, that the corpus delicti of the underlying felony, robbery, be established before appellant’s inculpatory statement was introduced. Appellant’s claim is based on an incorrect interpretation of the law. “The corpus delicti of felony murder is established in the same way that the corpus delicti for any homicide case is established. It is not necessary to prove, independent of the confession, that the death occurred during a felony.” Commonwealth v. Weeden, 457 Pa. 436, 444, 322 A.2d 343, 348 (1974), cert. denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975). See also, Commonwealth v. Leamer, 449 Pa. 76, 295 A.2d 272 (1972).

In light of the above, it is clear that PCHA counsel was not ineffective in failing to raise this claim in a PCHA petition.

After analysis of the above issues, and in light of the standard articulated in Commonwealth v. McGeth, supra, PCHA counsel was not ineffective in that he did not fail to brief an issue which would arguably support the appeal. However, it is necessary to address appellant’s argument that a brief complying with Anders was not prepared by counsel. Appellant relies on a recent decision by a panel of our court, Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984). We turn to a recent decision dealing with the Anders brief by the supreme court of Pennsylvania, Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). There, the court took a practical approach to the Anders brief requirement in stating:

Once we are satisfied with the accuracy of counsel’s assessment of the appeal as being wholly frivolous, counsel has fully discharged his responsibility. The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more. We reject the view that his explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned as a reason for concluding that the client did not receive this constitutionally protected right of representation. McClendon, Id., 495 Pa. at 473-474, 434 A.2d at 1188.

In McClendon, the court found that, although the brief filed by counsel requesting permission to withdraw did not appear to meet the standards set by Anders and later Pennsylvania decision, the real rationale behind the requirements was met.

The major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and by also placing the responsibility on the reviewing court to make an independent determination of the merit of the appeal. These requirements were clearly satisfied here. McClendon, Id., 495 Pa. at 474, 434 A.2d at 1188.

In the matter before us, as in McClendon, we feel that these requirements were met. PCHA counsel states that he made a thorough review of the record, as did the lower court, as noted in its opinion. Along with these two opinions, we have separately determined that appellant’s contentions are meritless. Furthermore, we find the decision in Commonwealth v. Finley, supra, distinguishable from the present case, as there was no allegation of an exhaustive review of the record in Finley, and more importantly, appellate counsel listed several issues of arguable merit, unlike in this case.

Lastly, aside from the Anders — McClendon requirements, we find that it was not error for the lower court to dismiss appellant’s first PCHA petition without an evidentiary hearing. As stated in Commonwealth v. Moyer, 329 Pa.Super. 282, 478 A.2d 469, 471 (1984), if the court is certain of the total lack of merit of an issue raised in a petition for a post-conviction hearing, a hearing need not be held. Here, contrary to appellant’s assertion, Judge Blake states that he conducted a careful consideration of the record in coming to his decision of no merit. Therefore, we do not find reversible error, and we affirm the dismissal of appellant’s PCHA petition.

Order affirméd.

      . Commonwealth v. Coley, 466 Pa. 53, 351 A.2d 617 (1976).

      . In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), in which our supreme court adopted the Anders requirement, counsel did not request to withdraw, but filed a brief similar to PCHA counsel’s letter in the instant case. The court concluded that, as mandated by Anders, counsel representing an indigent client has two choices. He may file a brief and be an advocate, or he may choose to withdraw. Since the brief filed was not one of an advocate, but instead concluded there was no merit to the appeal, counsel would have to comply with the second choice of withdrawal.

      . See, Commonwealth v. Collier, 489 Pa. 26, 413 A.2d 680 (1980), Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975).