author: WIEAND, Judge:

text:
    593 A.2d 860
    COMMONWEALTH of Pennsylvania v. Anthony COZZONE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed June 11, 1991.
    Reargument Denied July 30, 1991.

      Joseph P. Green, Jr., West Chester, for appellant.
    Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   Anthony Cozzone was charged with driving while under the influence of alcohol when, on March 12, 1989, the vehicle which he was driving went out of control and struck two parked cars and a multi-unit mailbox in the parking lot of a residential condominium complex. He was tried by jury and was found guilty on August 18, 1989. Sentencing was deferred pending determination of post-trial motions. The motions were denied on April 25, 1990.

In the meantime, on November 18, 1989, Cozzone was again arrested and charged with driving while under the influence of alcohol. As a condition for being released on bail, he entered an inpatient alcohol treatment center, where he remained for thirty-two (32) days. On June 21, 1990, he entered a plea of guilty to this charge.

On July 30, 1990, Cozzone appeared for sentencing on both convictions. For the first offense, he was sentenced to serve a term of imprisonment for not less than forty-eight (48) hours nor more than twenty-three (23) months. For the second offense, Cozzone was sentenced to serve a consecutive sentence of imprisonment for not less than thirty (30) days nor more than twenty-three (23) months. A motion to modify the sentence was denied, and Cozzone appealed.

In the first case, Cozzone contends that the evidence was insufficient to sustain the jury’s guilty verdict because the Commonwealth failed to prove that he had operated his vehicle on a highway or trafficway. In the second case, he argues that the sentencing court committed error by (1) imposing a mandatory minimum sentence for a second offense when he was being sentenced for both offenses on the same day; and (2) failing to give him credit for time spent in an inpatient, alcohol treatment facility prior to his entering a plea of guilty to the second drunk driving offense.

The First Offense

Section 3731 of the Vehicle Code, which makes it a misdemeanor of the second degree to operate a vehicle while under the influence of alcohol, applies “upon highways and trafficways throughout this Commonwealth.” 75 Pa.C.S. § 3101(b). Therefore, an essential element of the offense is that a vehicle be operated on a highway or trafficway while the operator is under the influence of alcohol. Commonwealth v. Karenbauer, 393 Pa.Super. 491, 494, 574 A.2d 716, 718 (1990); Commonwealth v. McFadden, 377 Pa.Super. 454, 457, 547 A.2d 774, 775 (1988). A highway is defined as follows:

The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.

75 Pa.C.S. § 102. A trafficway is defined as:

The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

Id.

In determining whether the Commonwealth’s evidence was sufficient to prove this element of the offense, we determine, as in all challenges to the sufficiency of the evidence, “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989). “ ‘Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.’ ” Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

The evidence in this case is clear that the parking lot on which appellant had his accident was not a publicly maintained highway. Whether it was a trafficway must be determined according to whether the evidence shows that the parking lot was “open to the public for purposes of vehicular travel as a matter of right or custom.” 75 Pa.C.S. § 102.

Officer Charles E. Althouse, a member of the Willistown Township Police Department, was a resident of the Village Knoll condominium complex in Malvern, Chester County. On March 12, 1989, at or about 3:15 p.m., he was seated in his vehicle in the parking lot of the condominium complex, waiting for his wife. Althouse observed appellant driving a red Dodge truck through the parking lot at a high rate of speed. Appellant’s vehicle struck the vehicle in which Alt-house was seated, then struck another vehicle, and finally collided with a multi-unit mailbox at the entrance to the Knoll Village complex. Althouse described the parking lot and its accessibility to members of the public as follows:

Q. Officer Althouse, is the Village Knoll complex located off a main road?
A. Yes. It is off of King Road, King Street.
Q. And is the lot paved?
A. Yes, it is.
Q. And are there any barriers that prohibit entrance to that lot such as a gate that comes down or any sort of barrier whatsoever?
A. Not at all.
Q. And back on March 12, 1989, were there any no parking signs?
A. None.
Q. And were there any signs that said reserve parking?
A. None whatsoever.
Q. And on the twelfth of March were there any private property signs?
A. No, there was not.
Q. And were there any no trespassing signs?
A. No, there was not.
Q. In order to gain entrance to that lot from King Road or King Street do you need any sort of sticker or a pass?
A. Nothing whatsoever.
Q. And can visitors who are visitors of the condominium residence enter that lot and park there?
A. Yes, they can.
Q. And have they in fact done that?
A. Oh, yes.
Q. Mr. Althouse, could you give the members of the jury and the Court some sense what you have seen this lot used for, the circumstances under which it has been used?
A. Well, I have seen the delivery vehicles in there such as UPS.
THE COURT: ....
Officer Althouse, can you tell us what use was made of this area in terms of vehicular traffic for the two weeks prior to and up to and including March 12, the tijne of the accident? Can you do that for us?
THE WITNESS: Well, it has traffic on it, constant basis, coming and going with the residents that live there, visitors, mail deliveries, service trucks coming in and out, trash trucks on a frequent basis, every other day.
BY MR. SIEGEL [Assistant District Attorney]:
Q. What if any transportations were provided?
A. Cabs enter. There is a disabled gentleman that lives in the complex. Cabs come in there to pick him up on a frequent basis.
Q. And prior to March 12, had you, prior to that time, had people place[d] their condominiums up for sale?
A. There was—at that particular time there was a unit in the complex that was up for rent and there is—
Q. Could you tell the Court what you observed with respect to this use?
A. I have observed cars coming through slowly looking at the different units, check out the complex area.
Q. And within this complex, the Village Knoll complex, is there—could you describe for the members of the jury what if any area there is for driving as opposed to parking?
A. Well, the specific marked places for driving is on the left as you proceed around and on the right is the traffic where traffic can move, the movement for traffic.

A review of the decided cases suggests that this evidence was sufficient to support a determination by the jury that appellant had been driving on a trafficway.

In Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989), a unanimous panel of the Superior Court held that the parking lot of an Elks Club was a trafficway, even though the lot had been posted with a sign declaring it to be private property. The Court reasoned as follows:

It would raise form to towering levels above substance if parking lots, in which vehicular traffic is encouraged and occurs, sometimes at high rates of speed, were to become “DWI-free zones,” in which drunk driving is tolerated from entrance to exit. Such a construction would seriously undermine the effectiveness of any drunk driving prohibitions.
In Wilson’s case, the trial court found the Elks Club parking lot to be open to the public by custom even though the lot was marked private by a sign. This fulfills the prerequisite that a trafficway, by definition, must be open to the public. Even if restricted by signs, if a parking lot is used by members of the public, it is a trafficway for purposes of 75 Pa.C.S.A. § 3101.

Commonwealth v. Wilson, supra, 381 Pa.Superior Ct. at 257, 553 A.2d at 454. The facts of the instant case are stronger, for the parking lot at the Knoll Village condominium complex was not posted with notices declaring it to be private property, and public access thereto was not restricted in any way. As in Wilson, however, the lot was open to and used by the public.

A similar conclusion was reached by the Commonwealth Court in Commonwealth, Department of Transportation v. Bendik, 112 Pa.Commw. 591, 535 A.2d 1249 (1988), where the area under consideration was a motel parking lot. In holding that a motel parking lot came within the Vehicle Code’s definition of a trafficway, the Court said:

It would appear from the use of a motel parking lot that it is customarily open to the public for the purpose of vehicular travel to the extent that members of the general public are welcome to drive onto the lot if they wish to park their car and patronize the motel or, as in this case, a restaurant therein. Appellee argues that a parking lot is not designed for vehicular travel but rather for parking. This ignores the fact that vehicular travel does occur on a parking lot, even though the travel is limited to the movement of cars from a highway to spaces in the lot and vice versa.
The purpose of Section 3101 is to afford protection to the public from serious traffic offenses even though these offenses did not occur on highways. It is this court’s opinion that the legislature was contemplating accidents such as the one which involved appellee when it included the term “trafficways” in the Code and permitted the prosecution of serious traffic offenses, such as drunk driving, committed on them. Therefore, this court concludes that the trial court erred in concluding that the motel parking lot was not a trafficway.

Id., 112 Pa.Commw. at 595, 535 A.2d at 1250-1251. See also: Commonwealth v. Baughman, 357 Pa.Super. 535, 516 A.2d 390 (1986) (one lane, dead end, dirt road located on private property was trafficway where evidence showed it had been used by occasional vehicular traffic). Compare: Commonwealth v. Owen, 397 Pa.Super. 507, 580 A.2d 412 (1990) (charge of driving while under influence of alcohol properly dismissed where Commonwealth failed to offer any evidence to establish that parking lot was highway or trafficway); Commonwealth v. McFadden, 377 Pa.Super. 454, 547 A.2d 774 (1988) (plurality opinion holding that evidence failed to show private, dead end road in trailer court was highway or trafficway); Commonwealth, Department of Transportation v. McLaughlin, 124 Pa. Commw. 496, 556 A.2d 533 (1989) (parking lot of residential condominium complex not trafficway where it was “private lot to be used only by the residents of the complex,” including the defendant, who was also a resident).

We conclude, therefore, that the evidence was sufficient to sustain the jury’s finding that appellant had violated the provisions of 75 Pa.C.S. § 3731(a)(1) and (4) on March 12, 1989. The judgment of sentence for that offense, therefore, will be affirmed.

The Second Offense

Appellant’s remaining arguments pertain to the sentence imposed for the offense which occurred on November 18, 1989. He argues that the sentencing court erred when it held that he had previously been convicted of the same offense for purposes of applying the mandatory minimum sentence established by 75 Pa.C.S. § 3731(e)(1)(h). He contends, more specifically, that inasmuch as he was sentenced for both offenses on the same day there could be no prior conviction. A conviction does not occur, he argues, until after a judgment of sentence has been imposed and has either been reviewed by an appellate court or the time for appeal has passed. We reject this argument.

“A prior conviction means ‘previously convicted’ as defined in 42 Pa.C.S. § 2154(a).” 204 Pa.Code § 303.7(g). There, the legislature defined “previously convicted” to include “any finding of guilt ... whether or not sentence has been imposed ... prior to the commission of the current offense.” 42 Pa.C.S. § 2154(a)(2). This definition was intended to be a repudiation of the notion appearing in a former version of the Sentencing Guidelines and several decisions of the Superior Court which had held that a prior conviction required not only a verdict of guilty but also the imposition of sentence. In Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991), the Superior Court, sitting en banc, observed:

The simplest, most direct interpretation which can be derived from the legislation is elimination from the decision of Mourar, Wolfe and the guideline definition of prior offense, the requirement that a person must have been convicted and sentenced before the commission of the subsequent offense, to qualify the prior offense for the prior record score. The legislative intent is clear: to provide for an enhancement of punishment for those persons who stand convicted but who await sentence and to serve as a deterrent for those persons, particularly when overcrowded jails increasingly require persons to be released pending sentencing. The amendment eliminates the grace period between conviction and sentencing.

Commonwealth v. Eyster, supra, 401 Pa.Superior Ct. at 485, 585 A.2d at 1031.

This interpretation of “previously convicted” is consistent with the manner in which the Supreme Court has interpreted the term “convicted” for purposes of imposing enhanced sentences in other cases. In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984), a case involving imposition of the death penalty, the Court held that a verdict of guilty rendered against the defendant in a prior murder trial could properly be considered as being an aggravating circumstance under and pursuant to 42 Pa.C.S. § 9711(d)(10) in the penalty phase of a murder trial, even though the judgment of sentence had not been entered on the prior conviction. The Court declared that “the legislature evidenced a clear intent that ‘convicted’ mean[s] ‘found guilty of’ and not ‘found guilty and sentenced.’ ” Id. 502 Pa. at 497-498, 467 A.2d at 300 (footnote omitted). See also: Commonwealth v. Morales, 508 Pa. 51, 67-68, 494 A.2d 367, 375-376 (1985); Commonwealth v. Beasley, 505 Pa. 279, 287-288, 479 A.2d 460, 464 (1984). Cf. Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987) (acceptance into ARD program, not acceptance into and completion of program, constitutes prior conviction under 75 Pa.C.S. § 3731(e)).

In short, it is now abundantly clear from legislative enactments and appellate court decisions that when appellant was sentenced for the offense committed on November 18, 1989 he had previously been convicted of driving while under the influence of alcohol. Therefore, the trial court did not err when it imposed upon him a mandatory minimum sentence of imprisonment for thirty (30) days on his second conviction. It mattered not that appellant was sentenced at the same time for both the subsequent offense and the prior offense. See: Commonwealth v. Gretz, 520 Pa. 324, 554 A.2d 19 (1989) (mandatory sentence pursuant to 75 Pa.C.S. § 3731(e)(1)(h) is applicable if, at time of sentencing, defendant has previously been convicted).

Finally, appellant contends that the sentencing court erred when it refused to give him credit for the thirty-two days spent in an inpatient, alcohol treatment facility prior to his plea of guilty to the second offense. After appellant had failed to appear for a preliminary hearing, a warrant was issued for his arrest. Thereafter, appellant was permitted by the District Justice to admit himself to an alcohol treatment facility in lieu of being committed to the county prison. This admission to a treatment facility was made a condition of his being released on bail. Appellant was thereafter in treatment for thirty-two (32) days.

The Sentencing Code provides for the giving of credit for time served as follows:

§ 9760. Credit for time served
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1). This is amplified by Pa.R.Crim.P. 1406(b) as follows:

(b) A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to the imposition of sentence.

Pa.R.Crim.P. 1406(b).

In Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967), the Superior Court held that a defendant who had been charged with arson was entitled to credit for pretrial time spent in a state hospital following commitment for a mental health evaluation. The Court reasoned:

“Custody, in criminal law, is the same thing as detention, in civil law, and is synonymous with imprisonment. Imprisonment is the detention of a person contrary to his will.” Words and Phrases, Yol. 10, page 722. It seems too clear for argument that this appellant has been in custody from the date of the arrest to the present time. He has at all times been under the jurisdiction and subject to the authority of the court; has been restrained of his liberties during the entire time of confinement; and if he had violated this custody by “walking away” he would have been apprehended by the authorities and either returned to the hospital or to the county jail.

Id., 211 Pa.Superior Ct. at 370-371, 236 A.2d at 836. Similarly, in Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979), the Court held that a juvenile probation violator was entitled to credit for time spent during probation at the Abraxas Foundation, a non-profit organization operating a comprehensive residential drug and alcohol treatment program. The Usher Court observed:

From the testimony taken at the hearing, and considering the various rules and regulations of Abraxas, we conclude that the restraint of the appellant during his stay at Abraxas was sufficient to satisfy the requirement of “Custody” set forth in the rule and the statute ... so as to qualify him for credit on his sentence for the time spent there.

Id., 264 Pa.Superior Ct. at 438, 399 A.2d at 1130. Accord: Commonwealth v. Mellon, 267 Pa.Super. 163, 169, 406 A.2d 569, 572 (1979).

The Commonwealth’s argument that an alcohol rehabilitation program lacks traditional aspects of confinement and therefore fails to satisfy the statute’s mandate of imprisonment is lacking in merit and has been rejected by the Supreme Court of Pennsylvania. In Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991), the Court said:

Pursuant to 42 Pa.C.S. § 9760, a defendant may be given a credit for time spent in custody, and we firmly believe that “custody” in this sense includes time spent in institutionalized rehabilitation and treatment programs. However, the Commonwealth argues that the mandatory sentence provided by 75 Pa.C.S. § 3731(e) should be construed as an exception to this general rule because the Legislature intended “imprisonment” to mean jail and not other forms of custody.

We recognize that the term “imprisonment” immediately conjures the image of being involuntarily confined behind bars. However, the dictionary definition and common usage is more encompassing. “Imprisonment” is defined as:

The act of putting or confining a man in prison. The restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an “imprisonment,” whether it be in a prison, or in a private house, or even by forcibly detaining one in the public streets. Any unlawful exercise or show of force by which person is compelled to remain where he does not wish to be. Black’s Law Dictionary (5th ed. 1979).

In Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991), this Court sought to further define “imprisonment” as provided in 75 Pa.C.S. § 3731(e), and through the application of principles of statutory construction, we determined that:

The legislature has expressly removed from consideration sentencing alternatives such as probation and partial confinement in cases, such as the present one, where a mandatory minimum sentence is provided by law. We believe this demonstrates an intent that a mandatory sentence of imprisonment is to be carried out through actual imprisonment in an institutional setting rather than through a lesser means, (pp. 6-7) (Emphasis added).
This conclusion was sufficient to dispose of this issue in that case because it concerned the propriety of a credit awarded for time served in a home monitoring program, which clearly did not involve service in an “institutional setting.”
In Kriston we were concerned with the non-custodial nature of a sentence being served in a personal residence. While it is true that one subject to home monitoring has his liberty restrained and risks being sent to prison if he violates the terms of the program, we could not hold that such a sentence was sufficient to satisfy the goals of the Legislature given the abundant amenities and non-rehabilitative temptations present in the home. However, in the case sub judice our definition of “imprisonment” compels a different result.
Conahan voluntarily committed himself to inpatient custodial alcohol rehabilitation, which he successfully completed after devoting ninety-five continuous days towards overcoming his disease. We find that his successful completion of this custodial inpatient rehabilitation, which took place in three hospitals, falls within the common meaning of “imprisonment” and is a sufficient “institutional setting” as contemplated by this Court in Kriston.

Id., 527 Pa. at 203, 589 A.2d at 1109.

In the instant case, in contrast to Conahan, appellant did not voluntarily admit himself to an alcohol treatment facility. Instead, he entered the rehabilitation facility as a condition of bail in order to avoid pre-trial imprisonment. We conclude, therefore, that the time which appellant spent as a patient in the alcohol treatment facility was “time spent in custody” within the contemplation of 42 Pa.C.S. § 9760(1). As such, he is entitled to credit therefor against the sentence of imprisonment imposed for his second offense.

The judgment of sentence imposed at No. 1402-89, Chester County, is affirmed. The judgment of sentence at No. 1261-90, Chester County, is also affirmed, but appellant is given credit on account thereof for thirty-two (32) days spent in an inpatient, alcohol treatment program prior to the entry of his plea of guilty.

      . The practice of using a single appeal to obtain appellate review of separate convictions is not to be encouraged. See: Commonwealth v. Bunch, 466 Pa. 22, 26 n. 1, 351 A.2d 284, 285 n. 1 (1976); Commonwealth v. Cronin, 464 Pa. 138, 139-140 n. 1, 346 A.2d 59, 60 n. 1 (1975); Commonwealth ex rel. Jackson v. Maroney, 196 Pa.Super. 539, 542, 176 A.2d 178, 180 (1961), cert. denied, 371 U.S. 893, 83 S.Ct. 193, 9 L.Ed.2d 126 (1962); Commonwealth v. Taylor, 193 Pa.Super. 386, 389 n. 1, 165 A.2d 134, 136 n. 1 (1960).

      . McLaughlin was overruled by the Commonwealth Court, sitting en banc, in Commonwealth, Department of Transportation v. Bird, 134 Pa.Commw. 305, 578 A.2d 1345 (1990).

      . This provision of the statute is as follows:
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

      . These decisions include: Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987); Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), allocatur granted, 522 Pa. 574, 559 A.2d 36 (1989); Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986), appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1988).

      . 42 Pa.C.S. § 9711(d)(10) provides as follows:
      (d) Aggravating circumstances.—Aggravating circumstances shall be limited to the following:
      (10) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.

      . Appellant also attempts to argue that any interpretation of the term "previously convicted" contrary to the one which he advances in this appeal would contravene his constitutional right to direct appellate review. This argument, however, was not raised in his motion to modify sentence and, therefore, must be deemed waived. See: Commonwealth v. Schueg, 400 Pa.Super. 52, 54, 582 A.2d 1339, 1340 (1990); Commonwealth v. Rogers, 386 Pa.Super. 476, 479, 563 A.2d 165, 166-167 (1989); Commonwealth v. Pyett, 372 Pa.Super. 291, 295, 539 A.2d 444, 446 (1988).

      . See: 75 Pa.C.S. § 3731(e).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    593 A.2d 868
    COMMONWEALTH of Pennsylvania v. Wesley BARNES, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed June 24, 1991.

      James R. Wilson, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for robbery. Appellant contends that trial counsel was ineffective for failing to object to (1) the court’s jury instruction on flight or concealment; and (2) the court’s reliance on miscalculated guideline sentencing ranges. For the reasons set forth below, we vacate the judgment of sentence, and we remand for the appointment of new counsel and for proceedings consistent with this Opinion.

Appellant was arrested and charged in connection with the gun-point robbery of a fruit market in Pittsburgh. On September 29, 1989, after a jury trial, he was found guilty. Appellant was represented at trial by the Allegheny County Public Defender’s Office. Post-trial motions were timely filed and denied, and, on November 28, 1989, appellant was sentenced to a seven-and-one-half-to-fifteen year term of imprisonment. This timely appeal followed. Appellant is presently represented by another member of the Allegheny County Public Defender’s Office.

Appellant’s two principal claims on appeal concern the effectiveness of trial counsel. Because present counsel is raising claims challenging the effectiveness of another attorney from the same office, we should remand the case for appointment of new counsel unless (1) it is clear from the record that counsel was ineffective, or (2) it is clear from the record that the ineffectiveness claim is meritless. Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986) . Our standard for review of claims of ineffective assistance is well-settled: to prevail, the petitioner must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. See, e.g., Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989); Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987).

Appellant’s first contention involves the court’s jury instruction on flight or concealment. The facts relating to this claim are as follows. During the Commonwealth’s case-in-chief, Detective Thomas G. Hart, Jr., testified that a preliminary hearing was scheduled for October 3, 1988, and that appellant failed to appear. See N.T. September 29, 1989 at 46. Based on this evidence, the court included in its charge an instruction that consciousness of guilt may be inferred from a defendant’s flight or concealment. See id. at 63-64. Appellant’s trial counsel did not object to either the Detective’s testimony or to the charge, and appellant alleges that this inaction rendered counsel’s assistance ineffective.

The Commonwealth concedes, and we agree, that appellant’s claim that counsel should have objected to the instruction possesses arguable merit. Our Supreme Court has noted that “[w]hen a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred.” Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964); Commonwealth v. Babbs, 346 Pa.Super. 498, 502, 499 A.2d 1111, 1113 (1985); see also L. Packel & A. Poulin, Pennsylvania Evidence, § 423, at 277-78 (1987 & Supp.1990) (hereinafter “Packel & Poulin”). The rationale for admitting this class of evidence has been explained as follows:

The theory for admitting evidence of flight is “based upon a premise that the person who flees does so in recognition of his wrongdoing and is seeking to avoid punishment for that conduct.” “[E]vidence of the misconduct of a party in connection with the trial is admissible as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause, or is conscious that it is an unjust one.”

Packel & Poulin, supra, § 423, at 277 (footnotes and citations omitted). However, the mere failure to appear by the defendant, standing alone, does not justify an inference of flight or concealment. As Judge Wieand noted in Commonwealth v. Babbs, supra:

This rule [i.e., allowing the inference] has not heretofore been expanded to permit an inference of guilt merely because a defendant has failed to appear for trial. A failure to appear on the day set for trial does not have the same connotation as pre-arrest flight or concealment and cannot be said to point unerringly to consciousness of guilt.

346 Pa.Super. at 502, 499 A.2d at 1113. In the case at bar, it is undisputed that there is no indication that appellant’s post-arrest failure to appear at his preliminary hearing resulted from flight or concealment. Thus, it was improper to instruct the jury that it could infer a consciousness of guilt from the failure to appear, and an objection to the charge, if made, should have been sustained.

We next must determine if the failure to object prejudiced appellant. This was essentially a one witness trial, as the victim, Yeon Huiyang, was the only witness to testify concerning the factual circumstances of the robbery. The Commonwealth properly notes that, although the armed man who robbed Huiyang was wearing a stocking over his face, she had no difficulty in recognizing appellant because the stocking was loose-fitting, and appellant was a regular customer in her store. N.T. September 29, 1989 at 17-19. She also selected appellant’s picture from a photographic array, and, at trial, she again positively identified appellant as the gunman. Id. at 19-20. In light of the victim’s “positive and unqualified” identification of appellant, the Commonwealth argues that, when viewed in the context of the trial as a whole, the erroneous instruction did not prejudice appellant. We cannot agree.

There is no question that the victim’s testimony was positive and unshaken on cross-examination, and that it was sufficient to convict appellant. Nevertheless, the testimony was uncorroborated by other testimonial or physical evidence, and thus the case turned on the jury’s evaluation of the victim’s credibility. The instruction on flight or concealment improperly allowed the jury to find, if it so decided, confirmation for the victim’s version of events in appellant’s own guilty conduct. And, of course, when the corroborating evidence derives from the words or conduct of the accused himself, the error is particularly harmful. On this record, we cannot say with any reasonable certainty that the jury would have returned the same verdict if the jury had been properly instructed. Accordingly, we must conclude that appellant was prejudiced by counsel’s inaction.

The remaining question is whether trial counsel had a reasonable basis for her failure to object to the court’s instruction. On this point, the Commonwealth suggests that it is not possible to determine conclusively whether such a basis existed, and thus we should remand for an evidentiary hearing to afford trial counsel an opportunity to explain her inaction. We agree. Because there has been no hearing on appellant’s claims of ineffectiveness, counsel has not had an opportunity to explain whether her decision not to object to the instruction had a reasonable basis designed to effectuate her client’s interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967). In such circumstances, the “better course” is to remand the case for an evidentiary hearing. See, e.g., Commonwealth v. Spotts, 341 Pa.Super. 31, 36, 491 A.2d 132, 135 (1985); see also Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976); Commonwealth v. Pursell, Pa.Super. (1991), J. A14012/1990, No. 1811 PHL 88 (plurality opinion per WIEAND, J.) (filed February 21, 1991); Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). The trial court should appoint new counsel, not associated with the Public Defender’s Office, to represent appellant at this hearing. See Commonwealth v. McBee, supra.

Appellant next contends, and the Commonwealth concedes, that trial counsel was ineffective for failing to object to the court’s reliance on miscalculated guideline sentencing ranges. The court calculated the sentencing guideline ranges based upon a prior record score of six (6) and an offense gravity score of nine (9). See N.T. November 28, 1989 at 12; Guideline Sentence Form at 1. These factors resulted in the following minimum sentence ranges:

Standard Range 78-to-102 months
Aggravated Range 102-to-120 months
Mitigated Range 58-to-78 months.

See 204 Pa.Code § 303.9, reprinted following 42 Pa.C.S.A. § 9721. The minimum sentence actually imposed by the court—seven and one-half years, or ninety months—fell within the standard range of the guidelines as calculated. Appellant rightly notes, however, that because the robbery involved threatening serious bodily injury, see 18 Pa.C.S.A. § 3701(a)(l)(ii), and not actually inflicting serious bodily injury, see id. § 3701(a)(l)(i), the offense gravity score should have been seven (7). See 204 Pa.Code §§ 303.7-303.9. Application of the proper offense gravity score results in the following, substantially lower, minimum sentence ranges:

Standard Range 43-to-64 months
Aggravated Range 64-to-80 months
Mitigated Range 32-to-43 months.

See 204 Pa.Code § 303.9. In light of this erroneous computation, and because the court relied on the guidelines in formulating the sentence, it is clear that this ineffectiveness claim possesses merit and that appellant was prejudiced by counsel’s failure to object. In addition, we agree with appellant and the Commonwealth that counsel could not have had a reasonable basis for failing to inform the court of its reliance on erroneously calculated guidelines. Thus, we vacate the judgment of sentence and remand the case for resentencing. See Commonwealth v. McMullen, 365 Pa.Super. 556, 530 A.2d 450 (1987). At resentencing, appellant, of course, must be represented by new counsel not associated with the Public Defender’s Office.

For the foregoing reasons, we vacate the judgment of sentence and we remand for the appointment of new counsel not associated with the Public Defender’s Office. The court below shall conduct an evidentiary hearing on the question whether trial counsel had a reasonable basis for failing to object to the court’s jury charge on flight as consciousness of guilt. If counsel is found to have had no reasonable basis for the failure to object, a new trial must be granted. If counsel is determined to have acted reasonably, however, the court shall hold another sentencing hearing in accordance with this Opinion.

Judgment of sentence vacated, and case remanded for appointment of new counsel and for proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . Appellant also contends that the trial court erred in denying his request to poll the jury. As this claim was raised in timely post-verdict motions, appellant does not couple it with an allegation of ineffectiveness. We agree with the trial court that appellant’s request, which was not made until after the verdict had been recorded and the jury had been excused, was untimely. Thus, appellant is not entitled to relief on this ground.

      . Detective Hart was the only other witness to testify; his testimony concerned the victim’s identification of appellant from a photographic array.

      . The Commonwealth candidly notes that the erroneously computed guidelines apparently were prepared by the Assistant District Attorney who represented the Commonwealth at sentencing.


author: OLSZEWSKI, Judge: BECK, Judge,

text:
    593 A.2d 872
    COMMONWEALTH of Pennsylvania, Appellant, v. Dominick Mario MOLINO.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1991.
    Filed June 26, 1991.
    Petition for Allowance of Appeal Granted Nov. 22, 1991.
    Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellant.
    Anthony D. Miele, Williamsport, for appellee.

      Before OLSZEWSKI, BECK and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal by the Commonwealth from an order entered in the Court of Common Pleas of Lycoming County suppressing evidence, in the nature of a blood test result, obtained from appellee following his arrest for driving under the influence. Appellee was subsequently charged under 75 Pa.C.S.A. § 3731(a)(1) (driving under the influence); 75 Pa.C.S.A. § 3714 (reckless driving); 18 Pa.C.S.A. § 5104 (resisting arrest), § 5503 (disorderly conduct), and § 5505 (public drunkenness). The question before us is whether the results of a blood alcohol test are admissible into evidence, where the blood test is administered after the driver exercises his statutory right to refuse chemical testing under 75 Pa.C.S.A. § 1547(b)(1). For the reasons below, we hold that the trial court erred in suppressing the test results and accordingly reverse the suppression order.

The trial court adequately summarized the facts of this case as follows:

The defendant was arrested by an officer of the Montoursville Police Department on the early morning of January 25, 1990. He was allegedly unruly and resisted arrest. Following the arrest he was taken to the DUI Processing Center operated at the Divine Providence Hospital under the general supervision of the County District Attorney’s Office and Chief County Detective.
The only evidence presented at the suppression hearing was a video tape of the events which transpired at the DUI Processing Center. The actors on the video tape were the defendant, two off duty police officers from the Williamsport Bureau of Police who were manning the DUI Processing Center at the time and a nurse from the Hospital who had been called for the purpose of drawing blood. The defendant was seated and was passive in his demeanor. Officer Foust advised the defendant of the provisions of the Implied Consent Law, i.e., that he was being requested to submit to a blood test to determine the presence of alcohol in his blood; that if he refused, his motor vehicle operator’s license would be suspended for a period of one year; that any refusal would be admitted into evidence against him in a trial; and that he would be charged with driving under the influence whether he submitted to the test or not. The defendant initially did not respond to the request but after it had been repeated he eventually indicated that he would not submit to the test. The officer asked him to sign a form indicating that he was not consenting to the test and the defendant signed that form. At one point, the defendant stood up, not in an aggressive way, and was told summarily to “sit down” by the officer.
After the defendant had signed the form indicating that he was not going to consent to the test, Officer Foust and the other officer, Officer Lawrence Kuhns, then advised him that he should put his arm out. The defendant asked why and the officers said that they were going to take the blood from him. The defendant protested; the officers insisted that they had a right to take the blood; the defendant at no time was aggressive, but he was insistent that he did not want the blood drawn from him. He expressed concern about the needles. The officers insisted that they were going to take the blood from him whether he wanted it drawn or not. Officer Kuhns stated “we can do this the easy way or we can do it the hard way.” With one officer holding his arm down, the nurse placed a needle in his arm. The defendant jerked away; the needle had to be changed. The second time the attempt was made, the defendant’s shoulder and arm were held and the blood sample was involuntarily obtained from the defendant.

(Trial court opinion at 1-3.)

After determining that this above scenario was in violation of appellee’s statutory right under 75 Pa.C.S.A. § 1547(b)(1) to refuse the blood test, the trial court granted appellee’s motion to suppress the test results. In an appeal from the denial of a motion to suppress, our role is to determine:

... whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042.

Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990).

In Pennsylvania, “Any person who drives ... a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood ... if a police officer has reasonable grounds to believe the person to have been driving ... a motor vehicle ... while under the influence of alcohol____” 75 Pa.C„S.A. § 1547(a)(1). Under, § 1547(b)(1), however, a person may refuse to submit to such testing, thereby withdrawing his or her implied consent under § 1547(a). While we agree with the trial court’s finding that a violation of 75 Pa.C.S.A. § 1547(b)(1) did in fact occur, we believe that such statutory violation does not warrant the suppression of evidence obtained in the process. 75 Pa.C.S.A. § 1547(b)(1) provides:

(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

(Emphasis added.)

In the case sub judice, it is clear that a violation of § 1547(b)(1) in fact occurred under the trial court’s findings of fact. The testing should not have been conducted once appellee expressed his refusal to submit to the blood test. Therefore, the persistence of the police in verbally pressuring appellee to submit to the blood test violated appellee’s statutory right to refuse. The only issue before us is whether the violation of appellee’s rights under § 1547(b)(1) should be remedied by suppression of the blood test results from the evidence.

It is undisputed that appellee did not have a constitutional right to refuse the blood alcohol test. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, supra, the defendant was involved in an automobile accident and received treatment at a hospital for his injuries. A blood sample was withdrawn at the direction of a police officer, despite the defendant’s refusal to consent to the test. At trial, over the defendant’s objection, the blood test results were admitted into evidence. With respect to whether the defendant’s Fourth Amendment right against unreasonable searches and seizures was violated, the United States Supreme Court held that the administration of a non-consensual blood alcohol test was a reasonable search incident to the arrest of the defendant, where there was probable cause to believe the defendant had been operating a motor vehicle while under the influence of alcohol. The Court went on to state that the non-consensual blood test, while implicating the human dignity and privacy rights protected by the Fourth Amendment, was a reasonable search under the circumstances. Schmerber, supra, 384 U.S. at 770, 771, 86 S.Ct. at 1835, 1836.

In Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), an en banc panel of this Court, following Schmerber, supra, held that there is no constitutional right to refuse to submit to a chemical test for blood alcohol content, but only a limited statutory right by virtue of 75 Pa.C.S.A. § 1547(b)(1). Specifically, we stated:

While the legislature has provided by statute that a driver, whom the police have probable cause to believe has been operating a vehicle while under the influence of alcohol, may refuse to submit to a chemical test for blood alcohol content, this right of refusal is not a constitutional right but rather is created solely by operation of the statute. “ ‘Neither the Fourth Amendment bar against unreasonable searches and seizures nor Fifth Amendment privilege against self-incrimination prevents the Commonwealth from requiring that a driver submit to a breathalyzer test. A driver therefore does not have a constitutional right to refuse. He has no right to refuse other than as provided in the implied consent law. Neither the Fourth nor Fifth Amendments prevents the admission into evidence of test results or of refusal____ A driver has no constitutional right to refuse and no right to have evidence either of the test results or of the refusal excluded____

Id., 380 Pa.Superior Ct. at 359, 551 A.2d at 1092-1093, citing, Commonwealth v. Funk, 254 Pa.Super. 233 at 241-242, 385 A.2d 995 at 999-1000 [1978], quoting Commonwealth v. Rutan, 229 Pa.Super. 400, 404, 323 A.2d 730, 732 (1974) (citations omitted).

Therefore, as there is no constitutional right to refuse the blood alcohol test, but only a statutory right, we must now decide whether the suppression of the test results is appropriate where the police ignore a driver’s refusal to consent to such testing. The Hipp case is instructive on this point. In Hipp, appellant was involved in a two-car collision and transported to a hospital, wherein blood was withdrawn from appellant by hospital personnel for medical purposes and tested for alcohol content, pursuant to hospital procedure. A police officer investigating the accident spoke with and observed appellant in the emergency room. Having determined that appellant had been drinking alcohol, the officer requested hospital personnel to take a blood sample from appellant to be tested for alcohol content. A member of the emergency room staff advised the officer that a blood test had already been performed and offered the test results to the officer. After placing appellant under arrest, the officer requested appellant to submit to a blood alcohol test, which appellant refused and the officer left the hospital. Therefore, under these facts, there was no actual violation of appellant’s right to refuse chemical testing under § 1547(b)(1), as no blood was taken once appellant refused.

In arguing that the results of the initial blood test should be suppressed, appellant contended, inter alia, that the fact that he refused the officer’s request to submit to a second blood test precluded the officer from gaining access to the results of the earlier blood test conducted by the hospital. This Court stated:

However, Section 1547(b) does not require the affirmative consent of the driver prior to the administration of a blood alcohol test as appellant would have us find. See: Commonwealth v. Haynos [363 Pa.Super. 1, 525 A.2d 394 (1987)], supra; Commonwealth v. Funk, supra. See also: State v. Baker, 502 A.2d 489 (Me.1985); People v. Fite, 267 Cal.App.2d 685, 73 Cal.Rptr. 666 (1968). Cf. State v. Loscomb, 291 Md. 424, 437-38, 435 A.2d 764, 771 (1981). Nor does it create an exclusionary rule where (1) the suspect did not affirmatively consent to the test, or (2) where such a test was administered before or even after the suspect refused to consent to the test. All the statute provides is a limited, statutory privilege to refuse to submit to a chemical test. “Where the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Zimmerman v. O’Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982). Thus, we find that the refusal to submit to the blood alcohol test as requested by the officer has no bearing upon the admissibility of the results of the medical purposes blood alcohol test.

Id., 380 Pa.Superior Ct. at 360, 551 A.2d at 1093 (emphasis added).

While the Hipp case is factually dissimilar to the case sub judice in that appellant’s (Hipp’s) statutory right to refuse was not violated, we are constrained to abide by the above decisive language used by an en banc panel of this Court regarding the exclusionary effect on evidence ascertained through a violation of appellee’s (Molino’s) rights under § 1547(b)(1). Therefore, even though appellee’s statutory right to refuse testing was violated, we must, in accordance with the Hipp case, rule that suppression of the blood test results is not warranted under the circumstances.

The trial court, in determining that the test results should be suppressed in the present case, stated that admitting the test results into evidence would be contrary to the legislative intent of § 1547(b)(1) and would sabotage the execution of that section. We disagree. Subsection 1547(b)(1) grants the driver arrested under section 3731 the right to refuse the blood test, but no where does § 1547(b) require that the test results be excluded if his refusal is ignored. Contrary to the trial court’s holding, we believe that excluding the blood test results in the present case would be to render subsection (a) of § 1547 meaningless. Section 1547(a) is an implied consent provision that encompasses every driver in the Commonwealth either suspected by the police of violating § 3731 or involved in an accident in which someone requires treatment at a hospital or is killed. While § 1547(b) allows one arrested under § 3731 to revoke that consent, it does not preclude the admission into evidence of the blood test results obtained following police disregard of a driver’s wishes not to have his or her blood tested. It is true that the legislature has created an anomalous situation by enacting both the implied consent provision of § 1547(a) and the contradictory provision of § 1547(b), which, as stated, allows a person arrested under § 3731 to revoke his or her implied consent. We view these two provisions as irreconcilable. How can a person who drives a motor vehicle be deemed to have given consent to a chemical blood test, where police have probable cause to believe the person was driving under the influence of alcohol, and yet, at the same time, have the right to refuse such blood testing? Enforcement of a defendant’s statutory right to refuse, through the suppression of evidence obtained in contravention of this right, would be to render the implied consent provision meaningless.

We must stress that according to Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), there is no constitutional right to refuse a blood alcohol test where the police have probable cause to believe the person was driving a motor vehicle while under the influence of alcohol. Additionally, we fully acknowledge the state’s right to provide broader protections from searches and seizures based on state constitutional grounds than those provided by the Federal Constitution. Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), cert. granted in part, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989). Under the present version of § 1547, however, the legislature has failed to make clear whether subsection (b)(1) of the statute was intended to have the effect of broadening the constitutional rights of drivers suspected of driving while under the influence of alcohol. We will not construe § 1547(b)(1) as broadening a driver’s Federal Constitutional rights, given the inherent contradiction existing between § 1547(a) and 1547(b)(1), and the legislature’s failure to specify the remedy for police violation of a defendant’s rights under § 1547(b)(1). We believe that it is for the legislature to correct the inconsistency that permeates § 1547, which has been a source of confusion for the judiciary and the legal community.

We do not intend our decision today to be a sanction of the police conduct in the present case. In no way should our holding be interpreted as an abrogation of a defendant’s rights under § 1547(b), or as a license to police to disregard a defendant’s refusal under this section. Our holding is limited to the determination that suppression is not the proper remedy where the police do violate a defendant’s statutory right to refuse blood testing in contravention of § 1547(b).

For the foregoing reasons, we reverse the trial court’s suppression order. Jurisdiction relinquished.

BECK, Judge,

dissenting:

I respectfully dissent. I agree with the majority that the forced extraction of blood from appellee was a clear violation of the provisions of Pennsylvania’s Implied Consent Law, 75 Pa.C.S.A. § 1547 (1984) (ICL). However, unlike the majority, I find that the police conduct was undertaken in bad faith and intentionally violated the ICL. Where the police undertake conduct in bad faith and deliberately disregard an individual’s exercise of a statutory right, I conclude the law supports the suppression of the illegally obtained evidence. I would therefore affirm the suppression court’s order excluding appellee’s blood test results from subsequent criminal proceedings.

I stress at the outset that this court’s review of a suppression court’s order is limited. On appeal,

we must consider only the evidence of the defendant’s [appellee’s] witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988), appeal denied, 520 Pa. 588, 551 A.2d 215 (1988); see also Interest of Jermaine, 399 Pa.Super. 503, 504, 582 A.2d 1058, 1059 (1990). The majority’s statement that “we may consider only the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole remains uncontradicted,” majority opinion, at 69 (quoting Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990)), is only appropriate where the defendant is appealing the suppression order, not where, as in this case, the Commonwealth is appealing. See Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983). In my view, therefore, we may reverse the suppression court only where there has been an error in the application of law.

I begin my analysis by reviewing the relevant language of the Implied Consent Law. The legislature provides in pertinent part within section 1547 that

(a) [a]ny person who drives, ... a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood ... if a police officer has reasonable grounds to believe the person to have been driving ... a motor vehicle ... while under the influence of alcohol;
(b) [i]f any person placed under arrest for [driving under the influence of alcohol or a controlled substance, 75 Pa.C.S.A. § 1547] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

75 Pa.C.S.A. § 1547 (emphasis added). Therefore, section 1547(b) expressly provides that a suspected intoxicated driver who is under arrest for driving under the influence is granted the right to refuse to submit to a chemical test. The law also provides that if the suspect refuses to submit to the requested test, the police shall not conduct the test. See Commonwealth v. DeFaveri, 352 Pa.Super. 96, 103, 507 A.2d 398, 401 (1986), appeal denied (Oct. 14, 1986).

As acknowledged by the majority, the forced extraction of blood from appellee Molino was a clear violation of section 1547(b). The majority notes, and I completely agree, that “[t]he testing should not have been conducted once [Molino] expressed his refusal to submit to the blood test.” However, the majority finds that the intentional violation of this legislative mandate does not require the suppression of the test results at appellee’s criminal trial. I disagree with the majority’s reasoning and conclusion.

The majority concludes that a violation of the Implied Consent Law does not warrant exclusion of the blood test results based on dicta presented in a prior inapposite decision of this court: Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988) (en banc). Specifically the majority relies on the Hipp court’s dicta that the ICL does not “create an exclusionary rule where (1) the suspect did not affirmatively consent to the test, or (2) where such a test was administered before or even after the suspect refused to consent to the test.” 380 Pa.Super. at 360, 551 A.2d at 1093. Hipp is simply inapposite to the instant matter. Neither the facts nor issues addressed by the Hipp court are analogous to the facts or issue before this panel. The majority in fact acknowledges that Hipp “is factually dissimilar to the case sub judice.” Majority Opinion, at 72-73. In Hipp, “[t]he officer complied with the provisions of the [Implied Consent Law] in that after appellant’s refusal, no test was performed. Thus there was no violation of the terms of the [Implied Consent Law].” Hipp, 380 Pa.Super. at 359, 551 A.2d at 1093 (emphasis added). Moreover, the blood test in question in Hipp was taken for normal emergency room medical purposes, and not forced by the police. It is clear therefore that neither the facts nor issue before the Hipp court are apposite to our analysis and disposition of the instant matter.

Furthermore our supreme court has established that suppression is a proper remedy where the police obtain evidence by bad faith or by illegal conduct. See Commonwealth v. Mason, 507 Pa. 396, 406, 490 A.2d 421, 426 (1985); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987). The supreme court has noted that suppression may be a drastic remedy where the police have failed to adhere to the technicalities of a rule of court. Mason, 507 Pa. at 405, 490 A.2d at 425. More importantly, however, our supreme court has held that where illegal police conduct “implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant [then] exclusion [of evidence] may be an appropriate remedy.” Mason, 507 Pa. at 406, 490 A.2d at 426 (1985) (emphasis in the original). The events leading to the extraction of blood from appellee plainly demonstrate police conduct taken in bad faith and deliberately disregarding the provisions of the ICL.

The trial court summarized the events following appellee’s arrest as they were recorded on video tape. After being advised of the provisions of the ICL, the police requested appellee to submit to a blood test. Appellee at first did not respond. The police repeated the request for appellee to submit to the test, to which appellee clearly indicated he would not submit to the test. The police then requested that appellee sign a form stating that he knowingly refused to submit to the blood test. Appellee signed the form.

A short time afterward the police told appellee to put his arm out. When appellee asked why, the police told him they were going to administer a blood test. Appellee protested to any administration of a blood test. The police response to appellee’s refusal was that “they were going to take the blood from him whether he wanted it drawn or not.” Trial Court Opinion, at 3. One officer informed appellee that “we can do this the easy way or we can do it the hard way.” Id. At this point, one police officer forcibly held appellee’s arm down and a nurse attempted to put the needle into appellee’s arm. Appellee pulled away requiring that the nurse change the needle. For the second attempt, appellee’s arm and shoulder were forcibly restrained, and the nurse was able to extract a blood sample from appellee. Trial Court Opinion, at 3.

This conduct plainly establishes the police acted in bad faith, intentionally violating the provisions of the Implied Consent Law. The video tape recording shows that the police were knowledgeable of and understood the provisions of the ICL. In fact, the police explained the various provisions of the ICL to appellee, including appellee’s right to refuse to submit to a chemical test and the evidentiary effect of such a refusal. The police had appellee sign a form evidencing appellee’s unambiguous and knowing refusal to consent to the blood test. Nevertheless, in response to appellee’s explicit refusal to submit to a blood test, the police ignored appellee’s exercise of his right to refuse, and forced the extraction of blood from appellee. The conduct of the police at bar was egregious and the appropriate remedy for such conduct undertaken in bad faith, intentionally violating the Implied Consent Law is the suppression of the evidence. Mason, 507 Pa. at 406, 490 A.2d at 426.

As additional support for concluding that suppression is the proper remedy in this case, I find our supreme court’s decision in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), to be instructive. In Tarbert, the court found that police conduct which violated a statute could result in suppression. Tarbert did not involve bad faith on the part of the police; at issue was a misapplication of a statute on the part of the police. The rationale for suppression is stronger in the instant case than in Tarbert.

The Tarbert court confronted the issue “whether the police may set up systematic roadblocks for the purpose of stopping and observing drivers to determine whether they are operating a motor vehicle under the influence of alcohol.” 517 Pa. at 278, 535 A.2d at 1036. The court analyzed the challenged police conduct of setting up systematic roadblocks and requiring suspected drivers to submit to breathalyzer tests in light of the statutory authority which limited the power of the police to stop motor vehicles. Id., 517 Pa. at 294, 535 A.2d at 1043.

Pursuant to the language provided in 75 Pa.C.S.A. § 6308(b), the Tarbert court concluded that the legislature had expressly provided the criteria by which the police could stop motor vehicles, and systematic roadblocks did not come within the established criteria. Tarbert, 517 Pa. at 295, 535 A.2d at 1044. Stating that “[i]t is certainly within the legislature’s province to restrict the authority of police officers, even if such a restriction shows a more scrupulous regard for private rights than constitutional principles demand,” the court held the roadblock stops in question were in violation of section 6308(b). Tarbert, 517 Pa. at 295, 535 A.2d at 1045.

Of significance to the instant matter, the court held that because the roadblock stops were in violation of the state statute, the breathalyzer tests obtained during the stops were also unlawful. Therefore, the court held “the results of the [chemical] tests were properly suppressed in the ensuing criminal proceeding.” Id. Moreover, I note that the court held suppression was a proper remedy in Tarbert even though there was no indication that the police acted in bad faith.

The majority also states that suppression is not an appropriate remedy because appellee’s right to refuse to submit to the blood test is “only a statutory right.” For support of this proposition, the majority refers to a recent decision of this court, Commonwealth v. Loop, 400 Pa.Super. 597, 584 A.2d 343 (1990). In Loop, the panel held the superior court could not require the suppression of evidence for an alleged violation of a state law enforcement records statute. 400 Pa.Super. at 600, 584 A.2d at 346. In reaching this conclusion, the Loop court stated that it found the asserted statutory violation to be, at best, “problematic.” The court therefore, did not find a clear violation of the statute. Moreover, in Loop there was no allegation or indication of bad faith police conduct. The panel in fact limited its holding to the matter before it, stating that “under the facts of this case” suppression was improper. Loop, 400 Pa.Super. at 600, 584 A.2d at 346.

Unlike Loop, in the case at bar there was an egregious and deliberate violation of the Implied Consent Law. Moreover, as previously discussed, the police undertook this seizure in bad faith. As such I find the instant case to be completely distinguishable from Loop, and conclude that suppression is the appropriate remedy. I find Tarbert and not Loop to be appropriate precedent. I conclude nothing in the law precludes suppression where police conduct is shown to be in direct violation of a legislative enactment. Suppression as a remedy is completely warranted especially here, where police conduct was taken in bad faith, intentionally disregarding legislative enactments.

As a final point, I find the majority’s analysis of the instant suppression motion to be contrary to the language and intentions of the Implied Consent Law. The language of the Implied Consent Law is a careful and clear presentation of the legislature’s intent. The provisions of the statute demonstrate the General Assembly’s specific balancing of the privacy interests of motor vehicle operators within Pennsylvania against the equally important state interest to protect its citizens from the tragic harm caused by drunk drivers.

This court has previously recognized the important countervailing interests carefully considered by the legislature when enacting the Implied Consent Law. As explained by Judge Hoffman,

[o]ur Court has identified [the] competing interests which are involved when the state orders a chemical test to determine a person’s sobriety. On the one hand, the Commonwealth has an interest in attempting to secure evanescent and probative evidence of intoxication; on the other hand, an individual has an abiding interest in the integrity and sanctity of his person.

Commonwealth v. Funk, 254 Pa.Super. 233, 245, 385 A.2d 995, 1001 (Hoffman, J., concurring).

With today’s decision, the majority is rearranging the balance of interests carefully weighed by our legislature. As originally enacted and intended, the Implied Consent Law permitted a prosecutor to use as evidence either the blood test results obtained after a driver consented to the test, or use the fact that the driver refused to take the test. 75 Pa.C.S.A. § 1547(e); Funk, 254 Pa.Super. at 240, 385 A.2d at 999. Today’s decision now permits the prosecution to use blood test results whether or not the suspect refuses to submit to the test. According to the majority, if an arrested suspect consents to a chemical test, the test result is admissible as evidence; and if, as permitted by statute, the suspected driver refuses to submit to a chemical test, results from a blood test that is forced upon the suspect in violation of the Implied Consent Law are also admissible as evidence. I find no support for holding that section 1547 provides that the state can use as evidence either the results from a consented to blood test, or the results from a refused blood test.

In summary, I find no error of law in the suppression court’s order excluding appellee’s blood test results, where appellee’s blood was extracted by the police in bad faith, and in direct violation of the Implied Consent Law. I would affirm the suppression court’s order. Any other result is unjust, condones police conduct taken in bad faith, and is contrary to legislative intent.

      . The suppression order entered below is appealable as the Commonwealth has certified, pursuant to Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), that the present appeal is taken in good faith and that the suppression order has substantially handicapped the Commonwealth in its prosecution of its case.

      . See, Commonwealth v. Loop, 400 Pa.Super. 597, 584 A.2d 343 (1990), holding suppression remedy is inappropriate for violation of statute, where specific authority for such an order is not found in a rule of court or as a result of a constitutional violation. Citing, Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977) (en banc ).

      . The exclusionary rule is designed to remedy violations of the defendant’s constitutional rights. No constitutional right of appellee is at issue in the present case. Therefore, we will not apply the exclusionary rule to the evidence acquired, even though we do not condone the conduct of the police in the present case.

      . Appellee was arrested for driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. Therefore, appellee’s refusal to submit to the blood alcohol test clearly falls within the provisions of section 1547(b).

      . It is worthy to note that in Mason, the court positively quoted the Ninth Circuit Court of Appeals, which held "suppression is required only where ... there is evidence of intentional and deliberate disregard of a provision of the Rule.” Mason, 507 Pa. at 406, 490 A.2d at 426 (quoting United States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982)).

      . Because I find the instant police conduct to be a bad faith violation of the ICL, requiring the suppression of the blood test results, I do not address any constitutional issues of due process. I note however, that although the United States Supreme Court has explained there is no violation of the federal constitution where a blood test is “performed in a reasonable manner,” Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966), the Court also emphasized that
      we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions ... in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

        Id. at 772, 86 S.Ct. at 1836. I find the instant police conduct to be closer in relation to the forced stomach pumping of a suspect in Rochin v. California, 342 U.S. 165, 166, 72 S.Ct. 205, 206, 96 L.Ed. 183 (1952), than to the reasonably administered blood test in Schmerber. Police actions involving the forced restraint of a suspect while a nurse attempts on two occasions to put a needle into a suspect’s arm “do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience." Rochin, 342 U.S. at 172, 72 S.Ct. at 209.

      . Compare Commonwealth v. Balliet, 374 Pa.Super. 235, 542 A.2d 1000 (1988), appeal denied, 520 Pa. 613, 554 A.2d 505 (1989). In Balliet, this court addressed an alleged violation of the “knock and announce” rule, and held there was no bad faith evidenced by the police conduct because the police "did make an effort to comply with the spirit [of the rule] by knocking, identifying themselves and waiting a reasonable period of time.” Id., 374 Pa.Superior Ct. at 238, 542 A.2d at 1003. Unlike the police in Balliet, the police at bar did not "make an effort to comply with the spirit" of the statute; they deliberately disregarded the Implied Consent Law.

      . The Tarbert court noted that the version of § 6308(b) under review had been amended subsequent to the initiation of the case. Tarbert, 517 Pa. at 294, 535 A.2d at 1044.

      . I note that other jurisdictions have interpreted implied consent statutes substantially similar to our Implied Consent Law, and have held that suppression of chemical test results obtained in violation of the statute was proper. See, e.g., Pena v. State, 684 P.2d 864, 867 (Alas. 1984) (holding that under an implied consent statute essentially equivalent to Pennsylvania’s Implied Consent Law blood test results obtained against the wishes of the suspect should be suppressed from evidence); People v. Wade, 118 Misc.2d 330, 337, 460 N.Y.S.2d 870, 875 (1983) (noting that if a suspect refuses to permit the administration of a blood test, any test results would be excluded from evidence in a subsequent proceeding); State v. Steele, 93 N.M. 470, 477, 601 P.2d 440, 441 (Ct.App.1979) (holding that refusal of a suspect to submit to a chemical test precludes the introduction of any test results obtained over that refusal).


author: McEWEN, Judge:

text:
    593 A.2d 881
    Mark BAITH and Cindy Baith, Appellees, v. CNA INSURANCE COMPANIES (NATIONAL FIRE INSURANCE CO. OF HARTFORD), Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1990.
    Filed June 28, 1991.

      Robert M. Ruzzi, Philadelphia, for appellant.
    John A. Rothschild, Philadelphia, for appellees.
    Leonard A. Sloane, Media and James R. Ronca, Harrisburg as amicus curiae for the Pennsylvania Trial Lawyers Association.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   McEWEN, Judge:

This appeal presents the question of whether an insurance company may withhold consent to a tortfeasor’s offer to settle for “full policy limits”, refuse a request of the insured to tender the amount of the settlement offer in order to protect its subrogation rights, and then defend against the claim of the insured for underinsured motorist benefits on the ground that breach, of a consent to settle clause precludes recovery of underinsured motorist benefits. We conclude that, contrary to the arguments of appellant, the trial court properly determined that appellant’s conduct, under the circumstances here presented, violated the public policy of this Commonwealth as expressed in the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701-1798, (hereafter MVFRL). We, therefore, affirm the order of the distinguished Judge Robert A. Wright which vacated the award of the arbitrators.

Mark Baith, (hereinafter appellee), while riding a bicycle on October 17, 1985, was struck by an automobile owned and operated by Gavin Stief. Stief was the named insured on a policy of motor vehicle insurance issued by John Hancock Property & Casualty Company which provided $50,000 in liability coverage. Appellee was the named insured on a policy of motor vehicle insurance issued by National Fire Insurance Company of Hartford, a subsidiary of appellant, CNA Insurance Companies which provided $15,000 in underinsured motorist benefits in conformity with the MVFRL.

Appellee instituted suit against Stief seeking damages for the injuries he had sustained in the accident which included a separation and dislocation of his right shoulder that resulted in an open reduction and internal fixation. Stief’s insurance carrier, on June 27, 1988, offered the full limit of liability coverage in exchange for a general release. Counsel for appellee, on June 28, 1988, advised appellant of the offer to settle and requested that appellant consent to the settlement. Appellant, by letter dated July 29,1988, denied appellee’s request for its consent to the proposed settlement on the grounds that the value of appellee’s personal injury claim did not exceed the tortfeasor’s policy limits of $50,-000. Several weeks thereafter, on September 15, 1988, appellant reiterated its refusal to consent, this time on the basis of a company investigation of the assets of the tortfeasor. Appellee, by letter dated September 29, 1988, advised appellant that its refusal to consent to the settlement was unreasonable and in violation of the provisions of the MVFRL. Appellee further advised appellant:

“Nevertheless, if you insist upon your present position then we demand that you resolve this matter by paying the full settlement of this claim. This would include the $50,000 which has been tendered to us by Stief’s insurance carrier as well as the underinsured benefits. In return, my client will assign his rights to CNA who can proceed directly against Stief and his insurance carrier. If we do not hear from you within 45 days of the date of this letter, it is our intention to have Mr. Baith convey a signed general release to Stief s insurance carrier releasing Mr. Stief and to then proceed against CNA for the underinsured motorist benefits____”

Appellant, approximately one month later, on October 24, 1988, responded to this demand by offering its consent to settle only if Stief accepted a partial release which would preserve all subrogation rights of appellant against Stief. The following day, appellee’s offer of a partial release was rejected by Stief’s carrier, which advised appellee that if it did not receive a general release within ten days, it would “file a petition with the court to interplead Mr. Stief’s policy, and thereafter we will continue to defend this matter.”

The forty-five day period extended to appellant by appellee having expired, appellee, on November 15, 1988, more than three years after the accident, forwarded a general release to Stief’s insurance carrier in exchange for a draft in the amount of $50,000.

Appellee then proceeded to arbitration of his underinsured motorist claim against appellant CNA. The arbitrators found that appellee Mark Baith had suffered $100,000 in damages as a result of the accident and that he had been 30% causally negligent. The arbitrators further concluded that appellant was entitled to set off the $50,000 paid by John Hancock, and that, as a result, appellee was underinsured by $20,000. The arbitrators did not award appellee the $15,000 in underinsured benefits provided for in his policy, however, since two members of the panel found that appellee’s violation of the consent to settle clause had resulted in a forfeiture of his right to recover.

Appellees filed a petition to vacate the arbitrators’ award in the Court of Common Pleas of Delaware County. Appellee acknowledged the trial court's limited scope of review in appeals from statutory arbitration but argued that the operation of the consent to settle clause composed a violation of both public policy and the MVFRL. The eminent trial judge agreed, observing:

The Daley-Sand v. West American Insurance Co., 387 Pa.Super. 630, 564 A.2d 965 (1989) decision was not a decision, as we see it, that merely upheld the right of the victim of an underinsured motorist to compel the substitution of its own underinsured motorist (UIM) carrier’s check for that of the tort-feasor’s carrier’s check if the underinsured motorist carrier did not want to allow the tort-feasor to settle. It held that the UIM carrier could not frustrate the purpose of the Act, to provide full and adequate recovery to the victims of tort-feasors by withholding their consent. They have a choice to consent or to substitute their check. Unless they pick one choice or the other, they frustrate our public policy. To the extent CNA has a contractual clause which frustrates public policy, it is unenforceable.
The plaintiff in Daley-Sand, of course, sought equitable and declaratory relief before settlement. That is unquestionably a safer and more prudent course, but it does not seem to us that it is a mandatory course. Equity actions are, in large measure, to force persons to act as they are obligated to act. Every UIM claim should not result in a separate equity action, prior to the UIM arbitration, to litigate the reasonableness of the consent to settle or the issue of enforceability of a consent to settle clause. From the standpoint of both judicial economy in avoiding equity actions and fairness in effectuating the public policy of this Commonwealth, there should be no prior determination necessary.
Subrogation is, in most circumstances, an equitable remedy. Cf Winfree v. Philadelphia Electric Company, 520 Pa. 392, 554 A.2d 485 (1989). CNA’s position would have required the Baiths to pursue a tort suit against Mr. Stief. They would have to retain counsel, go through the expense of trial, and endure months or possibly years of delay before the underlying dispute came to an end. Moreover, no matter how strongly Mr. Stief s insurance carrier felt he was going to be found liable in an amount at least equivalent to his policy limits, there has never been a case which cannot be lost, and the Baiths would have had to take that risk. Against this, CNA can only claim that Mr. Stief might have some assets now, which does not guarantee that he would have assets at the time the litigation against him was completed, a judgment was entered, and CNA moved to enforce its subrogated interest in any excess.
By asking us not to set aside the arbitration award, CNA asks us to do equity when it has unclean hands. We are not actually enforcing an equitable remedy, but we are not allowing CNA to rely upon an equitable doctrine which it asserts unfairly and in violation of public policy. Appellant continues in this appeal to argue that the trial

court was without jurisdiction to vacate the award of the arbitrators. We disagree. The insurance policy issued to the Baiths by appellant provided that any dispute concerning entitlement or the amount of damages would be arbitrated in accordance with the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. §§ 7301 et seq. Section 7314 of the Act sets forth the authority of a court to vacate an award entered in accordance with the Act:

7314. Vacating award by court
(a) General rule.—
(1) On application of a party, the court shall vacate an award where:
(i) the court would vacate the award under section 7341 (relating to common law arbitration) if this subchapter were not applicable;
(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or
(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.

42 Pa.C.S. § 7314.

“In addition to the reasons set forth in § 7314, § 7314(a)(l)(i) authorizes the court to vacate an arbitration award for reasons permitted under common law arbitration. Under common law arbitration a court may not vacate an arbiters award ‘unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award’.” 42 Pa.C.S. § 7341.

Azpell v. Old Republic Insurance Co., 526 Pa. 179, 182-183, 584 A.2d 950, 951-52 (1991). See also: Bateman v. Motorists Mutual Insurance Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991).

Moreover, “ ‘[t]he law is clear that, although a case turning on the application or construction of an uninsured [or underinsured] motorist clause is within the exclusive jurisdiction of the arbitration system, when the issue is whether a particular provision of the contract is contrary to a constitutional, legislative or administrative mandate, the courts properly exercise their jurisdiction over the entire matter.’ ” Kester v. Erie Insurance Exchange, 399 Pa.Super. 206, 209, 582 A.2d 17, 19 (1990), quoting Daley-Sand v. West American Insurance Co., supra 387 Pa.Super. at 637, 564 A.2d at 969. Accord: Azpell v. Old Republic Insurance Co., supra 526 Pa. at 183, 584 A.2d at 952; Davis v. Government Employees Insurance Co., 500 Pa. 84, 88, n. 5, 454 A.2d 973, 975 n. 5 (1982); Sands v. Andino, 404 Pa.Super. 238, 243, 590 A.2d 761, 763-64 (1991); Caputo v. Allstate Ins. Co., 344 Pa.Super. 1, 2-4, 495 A.2d 959, 960 (1985); Webb v. United Services Automobile Association, 227 Pa.Super. 508, 515-17, 323 A.2d 737, 741 (1978).

As we have previously stated, for purposes of appellate review, there is no distinction between a claim that a clause per se violates public policy and a claim that the operation of the clause within the contract violates public policy:

The Motor Vehicle Financial Responsibility Law requires that uninsured and underinsured motorist coverage must be part of every automobile insurance contract. We do not speculate upon general public interest but rather conclude from a clear and unambiguous statute that insurers who do business in this Commonwealth must provide UIM coverage. A court of this Commonwealth may decide that a challenged contractual clause is void as contrary to law. Insurance Company of North America v. Hippert, 354 Pa.Super. 333, 511 A.2d 1365 (1986). We may also decide that a clause as applied executes an injustice. See Wilbert v. Harleysville Mutual Insurance Co., [254 Pa.Super. 217, 385 A.2d 987 (1978)], supra. West American justifies withholding consent to settle by elevating its future subrogation rights to primary importance, suggesting that it may take as long as it chooses to research its subrogation opportunities and thus to indefinitely postpone payment of UIM benefits. In so arguing, West American essentially proffers that its subrogation rights are primary over all other rights at issue. We cannot seriously entertain this proposition.
The principle underlying an insurance contract is that the insurer assumes the risk of possible non-recovery from the tortfeasor in return for paid premiums for insurance coverage. When an insurer pays a claim under a policy, it is actually paying the debt of the tortfeasor. The insurer is only secondarily liable; it is the tortfeasor who is primarily liable. Once the insurer has paid a claim to the insured, it may then stand in the shoes of the insured and assert the insured’s rights against the tortfeasor.
The right to stand in the insured’s shoes and to collect from the tortfeasor once it has paid the insured an amount representing the tortfeasor’s debt is called the insurer’s right to subrogation.

Daley-Sand v. West American Insurance Co., supra 387 Pa.Super. at 636-38, 564 A.2d at 969.

The trial court in the instant case properly entertained the petition to vacate since the issue presented was whether enforcement of a consent to settle clause, where the insured had been offered policy limits and the insurer had refused an opportunity to protect its subrogation rights, violated the public policy of this Commonwealth. See, e.g.: Kester v. Erie Insurance Exchange, supra 399 Pa.Super. at 212-13, 582 A.2d at 21. Nor are we persuaded by appellant’s argument that appellee was required, under Daley-Sand, to institute a separate equity action prior to accepting the offer of settlement of policy limits from the tortfeasor, where appellant had refused an opportunity to protect any right of subrogation it might acquire by payment of underinsured motorists benefits.

The MVFRL expressly provides for subrogation for all payments made by the Assigned Claims Plan or its assignee, 75 Pa.C.S. § 1756, while the Uninsured Motorists Act provided for subrogation for all payments made pursuant to the Uninsured Motorist Act, Act of December 19,1968, Act. No. 397, § 1, P.L. 1254, 40 P.S. §§ 2000 et seq., repealed in part by the Act of February 12, 1984, P.L. 26, No. 11 § 8(a), insofar as inconsistent with the MVFRL. See: Davis v. Government Employees Insurance Co., supra 500 Pa. at 96-97, 454 A.2d at 979. The MVFRL does not, however, expressly provide for the subrogation of an insurer for amounts paid pursuant to the underinsured coverages of a policy. Thus, the right of subrogation claimed by appellant is an equitable right which, as recognized by the trial court, is based upon considerations of equity and good conscience. “The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles____[and] ... equity will not allow the subrogee’s claim to be placed ahead of the subrogor’s.” Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 201-02, 527 A.2d 1021, 1024 (1987).

As a result of our review of the MVFRL and the decisions of the appellate courts of this Commonwealth, we have no hesitation in concluding that appellant’s conduct composed a violation of sound public policy as well as the express provisions and purposes of the MVFRL. We conclude, as well, that appellant’s argument, that appellee was required to institute a separate declaratory judgment action prior to insisting upon a Daley-Sand compromise with his own insurer, disregards the duty of an insurer to its insured and would impose as well an unreasonable and unnecessary burden on the courts of this Commonwealth.

Order affirmed.

      . This Court, in Daley-Sand v. West American Insurance Co., 387 Pa.Super. 630, 564 A.2d 965 (1989), held that the trial court had properly fashioned an equitable remedy which authorized "Daley-Sand to accept the settlement offer without waiving her UIM coverage ... only if West American refuses to both consent to the settlement or to tender its own draft to Daley-Sand in the amount of the settlement, $50,000 [within thirty days of the order]." Id., 387 Pa.Superior Ct. at 642, 564 A.2d at 972. The insured in the instant case, however, unlike the insured in Daley-Sand, did not institute a separate equity action prior to serving notice upon appellant of his intent to accept the tortfeasor’s offer of settlement within forty-five days if appellant did not tender its own draft in the amount of the settlement offer in order to protect its subrogation rights.

      . The MVFRL was amended, effective July 1, 1990, to provide for underinsured motorist coverages to be optional rather than mandatory. See Act of February 7, 1990, P.L. 11, No. 6 § 9; 75 Pa.C.S. § 1731.

      . The letter of July 29, 1988 provided:
      "This will acknowledge receipt of your letter dated July 22, 1988 in which you requested our written consent to settle the above captioned loss.
      We have evaluated your client’s claim and regret to advise you that we do not feel its value exceeds the policy limit of $50,000 with John Hancock Insurance Company. Due to this, we must deny your client’s underinsured motorists claim.
      Please be advised that your client cannot execute a release that would prejudice our subrogation rights.
      Please contact me if you have any questions.”

      . The letter of September 15, 1988, provided:
      “This will confirm our conversation of September 13, 1988 in which I advised you we would not waive our subrogation rights in reference to the above-captioned loss. We have completed our assets check regarding Gavin Stief, and we have discovered that he purchased a home in September, 1987 for a price of $145,000. Mr. Stief also has a 1987 Sterling, which is a leased vehicle. He is actively employed and has been so for the last six years. Please contact me if you wish to further discuss this case.”

      . The two arbitrators rejected appellee’s argument that the operation of the consent to settle clause violated public policy, an argument based upon the opinion of Judge Samuel M. Lehrer of the Court of Common Pleas of Philadelphia County in Daley-Sand v. West American Insurance Co. The two arbitrators reasoned that Judge Lehrer's decision had not yet been affirmed by the Superior Court.