text:
    481 A.2d 336
    COMMONWEALTH of Pennsylvania v. John A. DOOLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed Aug. 3, 1984.

      Robert W. Suter, Assistant Public Defender, Doylestown, for appellant.

      Butler Buchanan, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

John Dooley waived the right to be represented by an attorney at trial and elected to represent himself. A jury found him guilty on three counts of robbery and on one count of theft. On direct appeal from the judgment of sentence, Dooley argues (1) that the verdicts were against the weight of the evidence; (2) that his waiver of the right to be represented by counsel at trial was not knowingly and intelligently made; (3) that a pre-trial lineup was unfairly prejudicial; (4) that the trial court erred in failing to declare a mistrial (a) when members of the jury observed him in handcuffs and (b) when a question by the prosecuting attorney suggested that he had a prior criminal record. There is no merit in these arguments; and, therefore, we will affirm the judgment of sentence.

“Whether the verdict is contrary to the weight of the evidence, thereby requiring a new trial, is generally a question within the sound discretion of the trial court. If the jury’s findings are supported by the record, the trial court’s denial of a motion for new trial will not be disturbed on appeal absent an abuse of discretion. The test is not whether the reviewing court would have decided the case the same way the fact finder did but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.” Commonwealth v. Sample, 321 Pa.Super. 457, 465, 468 A.2d 799, 803 (1983) (citations omitted) (emphasis deleted). See also: Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984); Commonwealth v. Gonce, 320 Pa.Super. 19, 25, 466 A.2d 1039, 1042 (1983).

The evidence in this case showed that Dooley had gone into a Wa Wa store in Bensalem Township, Bucks County, around midnight on August 18, 1980. After purchasing cigarettes, Dooley ordered Steven Mowrey to give him the money in the register. When Mowrey asked for help from two other employees, Peggy Donahue and Roy Rettig, Dooley told them not to move and threatened to use a partially revealed gun. Mowrey thereupon gave Dooley the money that was in the register, following which Dooley left the store and disappeared. The trial court did not abuse its discretion in finding the verdicts consistent with the weight of the evidence.

Appellant has suggested that the verdicts were against the weight of the evidence because the jury found him guilty of committing three robberies even though he had committed only one theft. This argument is not well made. See: Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). It would more properly be made as part of a contention that the evidence was insufficient to sustain the three separate findings of guilt. At most, such an argument would entitle appellant to an arrest of judgment on two of the three robbery convictions; it would not entitle him to a new trial. In fact, even though three store clerks had been threatened, the trial court treated appellant’s conduct as one criminal act and imposed only one sentence. Cf. Commonwealth v. Phillips, 215 Pa.Super. 5, 257 A.2d 81 (1969); Commonwealth v. Bitler, 133 Pa.Super. 268, 2 A.2d 493 (1938).

The right to be represented by counsel at trial is constitutionally protected. Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973). This right, however, may be waived. In Commonwealth v. Charlett, 282 Pa.Super. 28, 422 A.2d 659 (1980), this Court said:

While this right may be waived, such waiver must be made knowingly, intelligently and voluntarily by the accused. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth v. Hauser, 265 Pa.Super. 135, 401 A.2d 837 (1979). This principle has found expression in Pa.R.Crim.P. 318(c) (effective [January] 1, 1978):
When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.
The judge must conduct a penetrating and comprehensive inquiry of the defendant to ascertain whether he understands the nature of the charges against him, the permissible range of sentences to which he is exposed, the possible defenses to the charges and all the circumstances. Comment to Pa.R.Crim.P. 318; Commonwealth v. Tyler, supra; Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth v. Grant, 229 Pa.Super. 419, 323 A.2d 354 (1974).

Id., 282 Pa.Superior Ct. at 35-36, 422 A.2d at 663. See also: Commonwealth v. Baker, 318 Pa.Super. 19, 464 A.2d 496 (1983); Commonwealth v. Palmer, 315 Pa.Super. 601, 609, 462 A.2d 755, 758 (1983); Commonwealth v. Andrews, 282 Pa.Super. 115, 127, 422 A.2d 855, 861 (1980).

In the instant ease, the following colloquy took place:

“MR. DOOLEY: You have a real way with words, Buck. I am not going to continue to waste any more time. I am going to represent myself and Mr. Suter will advise me. I will appreciate having Mr. Suter as my backup counsel and I thank you very much; also you, Buck.
“THE COURT: Okay, now let’s roll into the formal colloquy.
“Do you understand, John Dooley, that you have the right to be represented by counsel?
“MR. DOOLEY: Yes, Your Honor; I do.
“THE COURT: You,could have free counsel approinted [sic] for you if you are indigent?
“MR. DOOLEY: Yes, Your Honor. I do have counsel appointed to assist.
“THE COURT: Right. You understand the nature of the charges against you and can you tell me what the elements of each of those offenses are?
“MR. DOOLEY: I really don't know what you mean, Your Honor. I am slow and I really don’t know what you mean.
“THE COURT: Can you define the offense of robbery for me?
“MR. DOOLEY: Robbery is to, I imagine, take from someone with the demand of either a threat or bodily harm or inimidate [sic].
“THE COURT: That’s pretty good.
“MR. DOOLEY: Thank you.
“THE COURT: You won’t pass.
“MR. DOOLEY: No?
“THE COURT: Do you understand anything about the permissable [sic] range of sentences and fines that can be imposed for these offenses?
“MR. DOOLEY: Yes, Your Honor.
“THE COURT: What are they?
“MR. DOOLEY: Took that into consideration. Really don’t know what they are, to tell you the truth, really not interested at this time in what the fine and trials and tribulations are. I am interested in getting it over and I imagine there is a large fine if I am found guilty, you know, and I believe there is a 20-year maximum, whatever, maybe, if there is a weapon used.
“THE COURT: Right. A 20-year maximum.
“MR. DOOLEY: Yes.
“THE COURT: You understand that?
“MR. DOOLEY: Yes, Your Honor.
“THE COURT: Now the $64 question, Mr. Dooley, do you understand that if you waive the right to counsel, you will still be bound by all the normal rules of procedure?
“MR. DOOLEY: Yes, Your Honor.
“THE COURT: I will expect you to behave like any other lawyer.
“MR. DOOLEY: Definitely will, as the motion has started, I will.
“THE COURT: All right. No funny stuff.
“MR. DOOLEY: No.
. “THE COURT: Now, do you believe that you can conduct your defense better than Mr. Suter?
“MR. DOOLEY: Well, if I said “yes”, they would have a psychiatric evaluation done to me, but I would have to say I would have more interest in the outcome than Mr. Suter, and I feel justified giving my best to the outcome no matter how it came out.
“THE COURT: All right.
“THE COURT: Do you understand that there are possible defenses to these charges which counsel might be aware
of and that if these defenses are not raised at this trial, that you may have lost them permanently?
“MR. DOOLEY: Yes, Your Honor. I also would like at this particular time, right now, Mr. Suter definitely has been counsel for some 3 months at least and I feel as though he is sitting here and he is aware of this also, and if he brings it to my attention, I will bring it to the Court’s.
“THE COURT: All right. Do you understand that in addition to these defenses, that you have many rights which if not timely asserted by you, you may lose permanently; and if there are errors which occur and are not objected to or otherwise timely raised by you, that these areas may be lost to you permanently; do you understand that?
“MR. DOOLEY: Yes, I do; but also I would say as far as objecting, I will have to — wouldn’t be fair for like, you say, for the both of us to be active, so it won’t be. But as far as any — for post-trial motions, I hate to get there, we’re at pre-trial motions, but I’m saying any timely motions that should be filed for argument or appeal, I believe it should lay on Mr. Suter’s shoulders.
“THE COURT: I’m talking now about objections and the motions.
“MR. DOOLEY: I understand.
“THE COURT: And made at trial. •
“MR. DOOLEY: Right. Made right at the time; in other words, or forever hold your peace.
“THE COURT: Right.
“MR. DOOLEY: Right. There may be quite a few that are going to get way [sic] from me and also, I think Mr. Suter would be able to warn me in enough time, I understand that. If the Assistant District Attorney, Mr. Buchanan here is constantly using tactics, Mr. Suter can bring it to my attention and then I could be aware of those and maybe get one or two; but I believe he is going to help me, Mr. Suter is going to help me.
“THE COURT: I am glad that you feel that way.

“All right, then we will pass then to the appointment of standby counsel. By the way, I do for purposes of this record, accept your waiver of counsel and I appoint Mr. Suter as standby counsel.”

(N.T., March 17, 1981, at 29-33)

This colloquy reflects clearly a knowing decision to waive the right to be represented by counsel for purposes of trial. Appellant expressed a strong desire to represent himself, with the assistance of backup counsel; and the trial court allowed him to do so after making appellant aware of the difficulties inherent in the course he had elected to follow. Appellant is not now entitled to a new trial because the court granted him his wish.

Appellant contends next that pre-trial identification proceedings were so suggestive that in-court identification testimony from the three store clerks should not have been permitted. Peggy Donahue did not participate in any pretrial confrontation or lineup. There was no reason, therefore, to exclude her in-court identification. Roy Rettig and Steven Mowrey were shown a photographic display on September 16, 1980, but neither eyewitness made a positive identification at that time. At a lineup held in Philadelphia on November 6, 1980, only Mowrey was able to be present. He observed six white males of similar height, weight, complexion and hair color, all of whom were dressed the same. At that time, appellant was represented by a member of the Philadelphia Public Defender’s office, who participated by offering both objections and suggestions. The attorney also instructed appellant how to act and how to stand during the lineup. Mowrey, nevertheless, picked appellant from the lineup as the robber. The suppression hearing court found that there had been no inherent suggestiveness in the photographic display or in the lineup. These findings are fully supported by the evidence. All eyewitnesses, moreover, had observed the robber at close range and in good light. Thus, there was a basis for identification separate and independent from the pre-trial proceedings. See: Commonwealth v. Ferguson, 327 Pa. Super. 305, 313, 475 A.2d 810, 814-815 (1984); Commonwealth v. Leatherbury, 326 Pa.Super. 179, 191, 473 A.2d 1040, 1046 (1984); Commonwealth v. Laurenson, 323 Pa. Super. 46, 59-60, 470 A.2d 122, 128-129 (1983); Commonwealth v. Green, 321 Pa.Super. 246, 253, 467 A.2d 1346, 1349-1350 (1983). Their in-court identifications were properly received.

The Commonwealth was also permitted to introduce evidence of Mowrey’s identification of appellant at the lineup in Philadelphia. Contrary to appellant’s contention, the lineup was not defective because he was represented by an attorney who was a member of the Philadelphia Public Defender’s staff. Appellant had not then been arrested for offenses in Bucks County. As such, he was not entitled to representation by an attorney appointed by the court in Bucks County. See: Commonwealth v. Ferguson, supra 327 Pa.Super. at 313 n.4, 475 A.2d at 814 n.4; Commonwealth v. Zabala, 310 Pa.Super. 301, 312-316, 456 A.2d 622, 628-629 (1983). Moreover, the record does not disclose any reason for holding ineffective the assistance rendered to appellant by Philadelphia counsel. The Commonwealth’s evidence of the lineup was properly received. It did not prejudice appellant unfairly.

The law is clear “that a brief, accidental sighting of a defendant in custodial trappings, without more is not so inherently prejudicial as to significantly impair the presumption of innocence to which a defendant is entitled.” Commonwealth v. Miller, 247 Pa.Super. 132, 138, 371 A.2d 1362, 1365 (1977). See also: Commonwealth v. Evans, 465 Pa. 12, 15-16, 348 A.2d 92, 94 (1975); Commonwealth v. McGonigle, 228 Pa.Super. 345, 352, 323 A.2d 733, 736 (1974). Therefore, the trial court did not err when it denied appellant’s motion for mistrial on the basis of his unsworn statement, made immediately prior to the court’s charge to the jury, that three jurors had inadvertently seen him in restraints. This is particularly so where, as here, appellant had previously told the jury during his opening statement that he was in custody.

During examination of Detective Dunner by the prosecuting attorney, the following exchange took place:

Q. You did some investigation on this case then?
A. Yes, I did.
Q. Directing your attention to September of 1980, did you have any contact with the Philadelphia Police Department concerning this case and concerning this defendant?
A. Yes.

(N.T. at 45). The trial court interrupted the examination and cautioned the prosecutor that “under no circumstances are you going to elicit from him [the detective], nor are you going to put him in a position, where he may blurt out or volunteer his contact with the Philadelphia Police Department in relation to this particular suspect.” (N.T. at 46). No such further references were made on direct examination.

Appellant contends that he was deprived of a fair trial by the prosecutor’s questions and that the trial court should have declared a mistrial. The question asked by the District Attorney, he contends, suggested his involvement in prior criminal offenses. His argument lacks merit.

In the first place, appellant did not request a mistrial. Secondly, he, himself, told the jury, during direct testimony, of his criminal record. Even if the question can be construed as a reference to prior criminal activity, therefore, it was harmless. Most significantly, however, the question was not calculated to reveal appellant’s prior criminal record and did not in fact imply the existence of such a record. Indeed, the question referred specifically to a contact with Philadelphia police “concerning this case and this defendant.” A reference such as this can be found prejudicial “only if [it] conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Penn, 497 Pa. 232, 243, 439 A.2d 1154, 1160, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), quoting Commonwealth v. Povish, 479 Pa. 179, 188, 387 A.2d 1282, 1287 (1978). The prosecutor's question in this case did not imply a prior criminal offense.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921(a).

      . This precise issue has not previously been before the appellate courts of this state. Compare: Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972) (separate robbery occurs each time another person is put in fear and from whom goods or money is taken). Compare also: Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980). Other jurisdictions have generally held that under circumstances similar to those of the instant case only one conviction for robbery can be had. See, e.g., State v. Faatea, 65 Hawaii 156, 157-158, 648 P.2d 197, 198-199 (1982); People v. Nicks, 23 Ill.App.3d 435, 442, 319 N.E.2d 531, 536 (1974), modified on other grounds, 62 Ill.2d 350, 342 N.E.2d 360 (1976); Williams v. State, 271 Ind. 656, 664-670, 395 N.E.2d 239, 246-249 (1979); State v. Potter, 285 N.C. 238, 253, 204 S.E.2d 649, 659 (1974). But see: Commonwealth v. Levia, 385 Mass. 345, 350-351, 431 N.E.2d 928, 931 (1982).

      . This contention has not been made. Appellant has stated the question as follows: "Were the verdicts of guilty as to robbery of Peggy Donahue and Roy Rettig (two of the store clerks) against the weight of the evidence?”

      . Although a cautionary instruction to the jury would have been appropriate if appellant had requested one, the record discloses that no such request was made.

      . His apparent purpose was to show the jury that he was not a robber.


source: Caselaw Access Project

author:
TAMILIA, Judge:
      SPAETH, President Judge,

license: Public Domain

text:
    481 A.2d 342
    COMMONWEALTH of Pennsylvania v. James Michael BUTTON, Appellant. COMMONWEALTH of Pennsylvania v. Roger F. BUTTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1984.
    Filed Aug. 3, 1984.

      Robert E. Dalton, Public Defender, Wellsboro, for appellant.
    James E. Carlson, District Attorney, Wellsboro, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   TAMILIA, Judge:

This consolidated appeal arises out of one incident involving two defendants and a double homicide. Appellants, James Michael Button and Roger Button, entered pleas of guilty to two counts each of murder generally. The degree of guilt was set by the court at first degree in both instances and each appellant was sentenced to two consecutive life terms. Sentences on appellants’ pleas of guilty to robbery and conspiracy charges were suspended pending the outcome of the appeals on the homicide convictions. Appellants now challenge all aspects of the ordered disposition and in so doing raise two issues of first impression in this Commonwealth.

On the evening of February 11, 1982 appellants perpetrated the bludgeoning deaths of Ross Cummings and Robert Southard, both disabled, and aged 74 and 59 respectively. The main purpose of the act was to obtain money, but the deaths of the victims were anticipated and in fact planned to prevent identification, as evidenced by Roger Button’s prior statement of intent made to an acquaintance. Appellants had in the past performed day labor for the victims, knew their habits and lay in wait for them to arrive at the barn where they were to be killed.

Appellants’ initial attack upon the sentences imposed is mounted against the extent to which the court may interpret sentencing law in fashioning an appropriate penalty.

Abuse of discretion in sentencing is defined in terms of either a manifestly excessive sentence or one which exceeds the prescribed statutory limit. Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983). Appellants contend that in both of these respects their consecutive life sentences constitute abuse of discretion. Specifically it is alleged that because 42 Pa.C.S.A. § 9711, which governs procedure in cases of first degree murder, does not expressly provide for the imposition of consecutive life terms, such sentences are illegal. However, 42 Pa.C.S.A. § 9757 does address the issue of consecutive sentences for multiple offenses. The question then becomes one of statutory interpretation and is governed by the Pennsylvania Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.

Section 1932 of the Act speaks directly to the point at issue:

(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things, (b) Statutes in pari materia shall be construed together, if possible, as one statute.

It does not require a quantum leap in logic to find that § 9711 and § 9757 of the Sentencing Act are in pari materia, and we do so find. See generally Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983); Commonwealth v. Johnson, 368 Pa. 139, 81 A.2d 569 (1951).

This result finds an analogue in cases where a (mandatory) consecutive life sentence is imposed upon a person already serving a life term who is convicted of assault by a life prisoner, Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976), or where definite terms consecutive to a life sentence are imposed for offenses other than murder, Commonwealth v. Burgess, 500 Pa. 224, 455 A.2d 631 (1983) (possession of an instrument of crime); Commonwealth v. Boyd, 271 Pa.Super. 88, 412 A.2d 588 (1979) (prohibited offensive weapons, criminal conspiracy and robbery); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982) (burglary). If, as appellants assert, consecutive life sentences are not implicated much less mandated by the sentencing statute, then the discretion of the trial court is necessarily the controlling factor. See Commonwealth v. Burtner, 307 Pa.Super. 230, 453 A.2d 10 (1982).

We may derive some guidance too from the fact that in at least seven other jurisdictions consecutive life sentences have been imposed without challenge, and that in two other jurisdictions such sentences have withstood constitutional attack. Crawford v. State, 236 Ga. 491, 224 S.E.2d 365 (1976); Chavigny v. State, 163 So.2d 47 (1964) Fla.App.

Further, despite the obvious limitations dictated by human mortality, there is no statutory provision restricting the length of possible sentences. As the ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968) observes:

It is very rare for there to be a legislative ceiling on the sentences which may be piled on top of each other. It is the rule rather than the exception that there is literally no limit to the term which can be imposed on the multiple offender. Id. at 174.

In short, the uniqueness of the statutory homicide provisions, which in appellants’ view limits the flexibility of the court in pronouncing sentence, refers only to the type of penalty deemed appropriate by the legislature. Beyond this the court’s discretion is subject to no limitation other than that inherent in the term “manifestly excessive” which is inapplicable here. In fact,

where the statute provides that the punishment for murder may be death, life imprisonment or imprisonment for a term not less than a specified number of years, a sentence for a definite term may be fixed without reference to the expectancy of life of the accused, and may be for a period not only in excess of his life expectancy but even beyond the extent of the human span of life; and this is true not withstanding the sentence has the affect of depriving the accused of the benefits of laws relative to probation and parole and not withstanding the objection that it cannot be served within the accused’s life time. 41 C.J.S. Homicide § 433.

The actuarial tables of life expectancy have no application in the determination of a mandatory life sentence, as the ultimate crime, according to the legislative scheme, demands punishment stripped of all rehabilitative beneficence. The sentence, then, cannot be said to go beyond the bounds of legislative intent or judicial prerogative. Nor is it, as appellants further argue, excessive vis-a-vis the offenses for which, and the offenders on whom, it was imposed.

Appellants’ further argument that the court took insufficient notice of their disadvantaged backgrounds, ages, etc., in fashioning the penalties is somewhat facticious considering the available alternative. It is precisely because the court imposed life sentences rather than ordering the death penalty that due consideration of mitigating factors is quite adequately demonstrated by the trial court. Having found first degree murder to have been committed not once but twice, the trial judge was compelled to sentence on each conviction and to choose one of only two options. By indirect but pointed reference the trial judge indicated his familiarity with and adherence to the provisions of the statutes applicable in the case before him, and the evidence of individualization which led him to choose life over death as appropriate for appellants’ sentence. Commonwealth v. McCall, 320 Pa.Super. 473, 467 A.2d 631 (1983). Had the homicides occurred under different circumstances, e.g. with some intervening temporal hiatus, or had appellants been tried separately, the objection to the cumulative nature of the sentences would not now be at issue. We cannot hold that an approximation of temporal simultaneity vitiates the fact that murders are separately punishable regardless of the context in which they occurred. Two violations of the homicide statute occurred and although there has in fact been no express allegation that homicides somehow merge, the implication of appellants’ argument as to the excessive nature of the sentence leads inexorably to the conclusion that this is indeed the crux of their claim. Since, as has been shown above, sentences for offenses other than murder may without violation of either law or principle be pronounced consecutive to a life term, to deny to the court this disposition in murder cases would serve no purpose but to encourage the commission of successive homicidal acts.

Appellants claim too that the sentence is unenforcible because indefinite, vague, and therefore constitutionally unsound. This exception seems to be based on the language in which the sentencing order is couched, to wit, “the minimum sentence to be served for the total of all offenses with respect to this sentence to be for and during the term of the natural life of the defendant.” The Opinion of the trial court in its reference to some difficulty in the interpretation of the Order is used to buttress appellants’ position. However, a life sentence is precisely that, for life, and the difficulty in predicting duration has always been, and will no doubt continue to be, a question central to the human condition. Life sentences, whether imposed singly or in multiples, have no minimum, so that the impact of this part of the order is solely in reference to appellants’ possible future release. Once sentence is pronounced, the length of the sentence effectively passes from the ambit of judicial consideration to that of the executive department, regardless of the wording of the sentence order. Parole, or more properly commutation, is neither a right of the prisoner nor a prerogative of the court, but is a matter within the administrative purview of the Board of Parole. Commonwealth v. Gooslin, 280 Pa.Super. 384, 421 A.2d 775 (1980). In this respect consecutive life sentences have the objective effect of providing the Board with the results of multiple convictions in computing a prisoner’s eligibility for release, and operate subjectively to express the court’s conclusion as to the severity of penalty merited. The sole inhibiting power they would have on the Board, would be to prevent it from construing the sentences to be concurrent. From this point on decisions made ex cathedra by the Board are unaffected by the court’s intentions.

For the foregoing reasons we hold the imposition of these consecutive life sentences to be compatible with the intent of the legislature and within the sound discretion of the sentencing court.

Appellants next advance the proposition that the trial court’s suspension of sentence in the robbery and conspiracy charges was improper and that any subsequent imposition of sentence on these charges is barred by double jeopardy. The instant case presents the situation anticipated in dicta by this Court in Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981), in which the trial court suspends sentence on lesser charges pending appellate review of the sentence imposed for more serious offenses. The suspension acts, under these limited circumstances, in our view, as a procedural stay rather than a final disposition, which in any event was neither intended nor possible. Such a stay represents an attempt to reconcile the various policy considerations involved, since the trial court must “take into consideration that its judgment (on the more serious count) might be reversed on appeal” which an appellate court may do to preclude the possibility that dual judgments might disadvantage the defendants. Further, if the underlying conviction rather than the sentence only is dismissed on appeal, then the trial court’s reserved jurisdiction ensures that the defendant will not emerge unpenalized, and avoids imposing on the appellate court the unnecessary burden of remand. People v. Spaniel, 262 Cal. App.2d 878, 894 n. 3, 69 Cal.Rptr. 202, 212 n. 3 (1968). While the above cited case provides no absolute authority, being foreign and in fact based upon a statutory provision, its amplification of the issues involved is relevant here.

As appellants point out, however, the suspension also implicates constitutional issues in the form of both double jeopardy and due process, and, as the analogous case law demonstrates, the question of speedy trial rights as well.

The double jeopardy protection afforded by the fifth amendment is threefold. It protects against a second prosecution for the same offense after acquittal. Green v. United States, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199] (1957). It protects against a second prosecution for the same offenses after conviction. In Re Nielsen, 131 U.S. 176 [9 S.Ct. 672, 33 L.Ed. 118] (1889). And it protects against multiple punishment for the same offense. United States v. Benz, 282 U.S. 304 [51 S.Ct. 113, 75 L.Ed. 354] (1931).

Commonwealth v. Henderson, 482 Pa. 359, 368, 393 A.2d 1146, 1151 (1978). Of these three concepts the first and third are clearly inapposite since appellants entered a guilty plea and there has been no persuasive argument advanced that robbery and homicide somehow comprise the same offense. The question which remains is whether judicial delay in sentencing constitutes double prosecution. We conclude that it does not. In his concurrence to Commonwealth v. Love, 295 Pa.Super. 276, 441 A.2d 1230 (1982) Judge Hoffman points out that,

One is placed in double jeopardy if he has received an acquittal or its equivalent, or a sentence which is no longer subject to attack. Until such legal sentence is imposed, the jeopardy in which he was placed, when first tried, must be deemed to continue until the time of imposition of legal sentence at the subsequent trial. ‘Until a convicted prisoner receives the sentence which can withstand attack, it may be conceived that his original jeopardy continues without interruption and that he is, therefore, not put in jeopardy a second time when he receives his first valid sentence^]’

Id,., 295 Pa.Superior Ct. at 286, 441 A.2d at 1235 (citations omitted). As there will be no subsequent trial of appellants, they will not be twice jeopardized. But see Commonwealth v. Fels, 286 Pa.Super. 232, 428 A.2d 657 (1981).

We next address the due process argument raised by appellant which bears within it the issues relating to speedy trial rights since the concerns with respect to procedural delay are the same. In Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958) we held that a sentence may be suspended or deferred for a period of time equal to the maximum term for which the defendant might have been sentenced provided proper reasons are present to justify the delay. Id. Although admittedly this decision conforms to a statutory provision no longer in force, our Supreme Court has applied the same rationale in recognizing the harmlessness of pre-sentence delay in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), holding that the constitutionality or otherwise of intervals between conviction and sentence depends upon circumstance. The court, assuming arguendo that speedy trial rights subsume the sentencing procedure stated:

The principle factors to be considered in determining whether a delay in sentencing has deprived a defendant of his right to a speedy trial, are length of delay, reason for the delay, assertion of the right, and resulting prejudice to interests protected by the right to a speedy trial.

Id., 490 Pa. at 627, 417 A.2d at 599. The interests referred to, prevention of oppressive pre-trial incarceration, minimization of an accused’s anxiety and concern, and limitation of the possibility that the defense will be impaired, Commonwealth v. Glover, 303 Pa.Super. 229, 449 A.2d 662 (1982), aff’d 500 Pa. 524, 458 A.2d 935 (1983), carry no particular weight in the context of the instant case. Since, like the appellant in Pounds, supra, appellants herein are subject to life imprisonment, neither pre-trial incarceration nor anxiety and concern are relevant. And since the basis for conviction is a guilty plea, the effect of delay on possible defenses is likewise immaterial. With respect to the other (cognate) aspects of due process, appellants without further elaboration as to the nature of the violation cite Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), as controlling and dispositive in that it requires that the delay be neither intentional nor oppressive. Appellants further contend that the appropriate remedy is dismissal of the charges. It is within this context that the circumstances of the delay and its possible ramifications must be examined. In Glover, supra, a 49-month delay, occasioned by no fault of the appellant’s, was found not to be violative of the appellant’s rights because during that period he was free on bail. Here, where a life sentence is the maximum against which the postponement is measured, delay during the pendency of the appeal is hardly oppressive. With respect to the requirement that the right to a speedy sentence be asserted, although objection to the suspension was made on appeal, appellants’ Motions to Modify Sentence contain no such exception.

Suspension of sentence has its roots in the common law as a procedure in the nature of a reprieve allowing the prisoner to seek pardon. We find that analogy to the instant appeal too compelling under the narrow circumstances of this case for dismissal of charges to be warranted. In fact suspension pending appeal does find some precedential authority in other jurisdictions. In this Commonwealth there is “at this time no definitive rule limiting the length of time which may elapse between an adjudication or plea of guilty and the sentencing of the defendant.” Pa.R.Crim.P. 1405 permits delay until post trial motions, presentence psychiatric and diagnostic reports have been submitted to the court and examined by counsel, but no specific directive that sentence be imposed immediately thereafter now exists.

Although we do not applaud the trial court’s novel method of assuring that appellants will not go unpunished, we similarly do not feel that the intentional nature of the delay warrants dismissal of the charges in view of its negligible adverse affect upon appellant life prisoners. We therefore remand to the trial court for immediate sentencing on the robbery and conspiracy charges.

We affirm the judgment of sentence to consecutive life sentences and remand the proceedings to the trial court for sentencing on the robbery and conspiracy charges as to each appellant.

Jurisdiction is relinquished.

SPAETH, President Judge, files a concurring opinion.

SPAETH, President Judge,

concurring:

I concur in the judgment of the majority affirming the judgments of sentence. I write separately because my reasoning differs somewhat from that of the majority in three areas: (1) the validity and effect of the minimum life sentence; (2) the adequacy of the court’s statement of reasons for the sentences imposed; and (3) the validity of the trial court’s action suspending sentencing on some charges pending disposition of these appeals.

-1-

I agree with the majority that the trial court had the authority to impose consecutive life sentences. Appellants also object to the court’s imposition of a minimum sentence of life imprisonment. Section 9757 of the Sentencing Code, 42 Pa.C.S. § 9757, provides that whenever imposing consecutive sentences, the court shall indicate the minimum sentence to be served for the total of all the offenses. Appellants argue that Section 9757 does not apply to cases, such as these, involving two convictions for first degree murder. I should hold that appellants have no basis for objecting to the court’s imposition of a minimum life sentence because the minimum sentence has no binding effect and serves as no more than a recommendation to the Board of Pardons and the Governor that appellants never be released from prison.

The purpose of imposing a minimum sentence is to determine when the prisoner becomes eligible for parole. The power to parole may not be exercised before expiration of the minimum term of imprisonment imposed by the court. 61 P.S. § 331.21. Prisoners such as appellants who are serving sentences of life imprisonment are not subject to parole in any event. Id. The minimum sentence, therefore, in no way alters appellants’ eligibility for parole.

The only way appellants can be released from prison is if they receive a pardon or commutation of sentence from the Governor, see Pa. Const.Art. 4, § 9; 71 P.S. § 299, and the courts have no power or authority to impinge on the Governor’s exercise of that power. See Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 194 A.2d 185 (1963), cert. denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964); Commonwealth v. Gaito, 277 Pa.Super. 404, 419 A.2d 1208 (1980). If the Governor, on recommendation of the Board of Pardons, should decide to commute appellants’ sentences, then the court’s imposition of a minimum life sentence will be of no effect. It is therefore apparent, and the trial court recognized as much in its opinion at pages 8-9, that the only-effect of the court’s imposition of a minimum sentence of life imprisonment is to recommend to the Board of Pardons and the Governor that appellants never be released from prison.

-2-

Appellants argue that the trial court failed to adequately state on the record the reasons for the sentences imposed. The majority rejects this argument, reasoning that the trial court’s imposition of life sentences rather than death sentences demonstrates that the court adequately considered the mitigating factors. Majority Opinion at 5-6. If the trial court had imposed concurrent rather than consecutive life sentences, I should agree with this reasoning. The Sentencing Code mandates a minimum sentence of life imprisonment upon conviction of first degree murder. 42 Pa.C.S. § 9711. Therefore, if appellants had received concurrent sentences of life imprisonment, they would have received the minimum sentence possible under the statute and would have had no basis for complaint. See Commonwealth v. Robinson, 496 Pa, 421, 437 A.2d 945 (1981) (appellant’s contention that trial counsel was ineffective for failing to adequately prepare for sentencing proceedings cannot succeed because appellant received a life sentence, the most relief that he could obtain even if his claim were meritorious).

Appellants, however, received consecutive life sentences. It therefore is not sufficient merely to note that they received life sentences rather than death sentences. Section 9721(b) of the Sentencing Code, 42 Pa.C.S. § 9721(b), provides in relevant part: “In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” See also Pa.R.C.P. 1405(b) (“At the time of sentencing, the judge shall: ... (b) state on the record the reasons for the sentence imposed ____”). Since the trial court did have discretion in determining whether to sentence appellants to consecutive or to concurrent life sentences, the court was required to state on the record at the time of sentencing the reasons for imposing consecutive sentences.

Having said this, however, I nevertheless concur in the majority’s rejection of appellants’ argument, for I believe that appellants have waived it for purposes of appellate review. At the sentencing hearing the judge expressly stated that he did not feel that he was required to state the reasons for the sentences imposed, beyond noting the mitigating circumstances, because life sentences were mandatory. N.T. 49. Appellants raised no objection to the court’s failure to state its reasons. Moreover, appellants did not raise this objection in their motions to modify sentence. Having failed to raise their objection before the trial court, appellants may not raise it before us. See Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980) (appellant waived objection to court’s failure to state reasons for sentence imposed when he did not raise it at time of sentencing or in motion to modify sentence).

-3-

The trial court suspended sentencing on the robbery and conspiracy convictions pending disposition of these appeals. Appellants argue that they are entitled to have these charges dismissed because of the resulting delay between the time of conviction and sentencing. I agree with the majority that in this case consideration of the factors set forth in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), leads to the conclusion that appellants are not entitled to have the charges dismissed. Nevertheless, I cannot agree with the majority’s suggestion, as I understand it to be, that the practice of suspending sentencing on some charges pending disposition of an appeal involving other charges may have some valid purpose. Rather, I believe that the practice serves no valid purpose and I should make it clear that it is not to be followed or repeated in the future.

The majority suggests that the practice ensures that the defendant will not emerge unpenalized if his underlying conviction on a charge on which he was sentenced is reversed on appeal. Majority Opinion at 249. The trial court here suspended sentencing because it thought that on the facts of this case the lesser offenses might merge with murder, but it wanted to be able to sentence appellants on the lesser offenses if the murder convictions were reversed on appeal. While suspending sentencing pending disposition of the appeal does indeed serve this purpose, I do not believe that it is necessary to achieve this purpose. Rather, this purpose can and should be achieved by properly sentencing a defendant at one time on all charges for which he was convicted.

Although the majority does not appear to limit its suggestion that the practice of suspending sentencing on some charges may serve a legitimate purpose to cases involving the possibility of merger of offenses, it seems to me that it is only in such cases that the practice could serve any arguably legitimate purpose. In cases involving the possible merger of offenses, the court, as in this case, would not wish to sentence on lesser offenses if the sentences would be illegal and would have to be vacated on appeal. See Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981) (court raises possibility that practice of suspending sentencing may have some validity in this situation). But neither would the court wish the defendant to go unsentenced if the conviction for the offense on which he was sentenced were overturned on appeal. The dilemma arises because of the doctrine of merger.

When the doctrine of merger is not implicated, I can see no arguably legitimate reason for the practice. If the defendant has been convicted of two separate offenses, the court must decide what sentence is appropriate for each conviction, considering the gravity and circumstances of the offense, the protection of the public, and the character and rehabilitative needs of the defendant. See 42 Pa.C.S. § 9721(b). None of these considerations is altered when one of the sentences is overturned on appeal. Any accommodations that the court may believe should be made between the sentences can be accomplished by making them either concurrent or consecutive. The court’s discretion is not limited by the doctrine of merger.

Even when the doctrine of merger limits the sentencing court’s discretion, I believe that the practice of suspending sentencing on the lesser offenses is not necessary and should not be resorted to. The proper procedure is to impose no sentence on the lesser offenses. Then, if the conviction on the greater charge is reversed on appeal, the appellate court can remand for resentencing on the lesser offenses. Cf. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (sentences for attempted murder, criminal conspiracy and possession of an instrument of crime were vacated because appellant was improperly convicted of three inchoate offenses; on remand court may impose sentence for either aggravated assault or recklessly endangering another person, for which the court had previously imposed no sentence because of merger with attempted murder, if the court decides to sentence for criminal conspiracy as opposed to attempted murder). If the conviction on the greater offenses is upheld, no remand is necessary.

In sum, suspending sentencing on some offenses pending disposition of the appeal involving other offenses is not necessary to fulfill any legitimate purpose and the practice should be discontinued.

      . Arkansas:

        Graham v. State, 254 Ark. 741, 495 S.W.2d 864 (1973).
      Missouri:

        Wright v. State, Mo.App., 614 S.W.2d 325 (1981).
      New Jersey:

        State v. Carter, 85 N.J. 300, 426 A.2d 501 (1981).
      New Mexico:

        State v. Martinez, 92 N.M. 256, 586 P.2d 1085 (1978).
      North Carolina:

        State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979); State v.

        Williams, 295 N.C. 655, 249 S.E.2d 709 (1978).
      Ohio:

        State v. Gregory, 8 Ohio App.3d 184, 456 N.E.2d 839 (1982).
      Washington:

        State v. Smith, 34 Wash.App. 405, 661 P.2d 1001 (1983).

      . Appellants do not dispute the findings of the court as to degree of guilt.

      . Orders of July 20, 1982.

      . Slip Opinion at 11.

      . 42 Pa.C.S.A. § 9721 lists as sentencing alternatives: (1) an order of probation, (2) a determination of guilt without further penalty, (3) partial confinement, (4) total confinement, (5) a fine. See also Commonwealth v. Balles, 163 Pa.Super. 467, 62 A.2d 91 (1948).

      . Appellants reliance on Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981) in support of the merger of the robbery into the homicide is misplaced. In that case, our Supreme Court citing Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) found that aggravated assault would merge with criminal attempt to commit robbery because the latter necessarily involved the former as successive steps in one crime. Such is not the case here under scrutiny. See Maddox, supra; Commonwealth v. McGavin, 305 Pa.Super. 528, 531 n. 4, 451 A.2d 773, 775 n. 4 (1982).

      . We concede that the sentencing element of the bifurcated proceeding required in capital cases may in some contexts be viewed as a trial in and of itself. Here, the offenses at issue are robbery and conspiracy.

      . Under ordinary circumstances issues not raised in the lower court are waived and may not be raised for the first time on appeal. Pa.R.App.P. 302. Questions concerning the legality of sentence imposed form a notable exception to the rule, however. Commonwealth

        v. Wilson, 312 Pa.Super. 77, 458 A.2d 244 (1983). Even were this not the case, the unusual nature of the sentence at issue would dictate our examination of its propriety.

      . Sol Rubin, Law of Criminal Correction 1983.

      . State v. Motley, 546 S.W.2d 435 (1976) Mo.App.; Donaldson v. State, 93 Wis.2d 306, 286 N.W.2d 817 (1980).

      . Burton R. Laub, Pennsylvania Manual of Civil and Criminal Penalties and Sentences, 44-45 (1982 Revision).

      . I note that while the trial court did not at the time of sentencing state its reasons for imposing consecutive life sentences, it did do so in its opinion. While this statement does not fulfill the requirement that the statement be made on the record at the time of sentencing, it does at least reveal to appellants the court’s reasons for imposing consecutive life sentences.

      . The majority also suggests that the practice avoids the unnecessary burden of remand. Majority Opinion at 249. It seems to me, however, that to the contrary, remand will be necessary more often so that, as in this case, the trial court may impose sentence on the remaining charges. Remand would not be necessary only in those cases where this court dismissed the remaining charges due to the undue delay between conviction and sentencing on the charges.


author: SPAETH, President Judge:

text:
    481 A.2d 352
    COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey L. MOURAR.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1984.
    Filed Aug. 24, 1984.
    Petition for Allowance of Appeal Denied Nov. 27, 1984.

      Sandra L. Elias, Deputy District Attorney, Media, for Com., appellant.

      Nicholas J. Caniglia, Wayne, for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   SPAETH, President Judge:

This appeal is from an order suppressing evidence. The trial court ordered the evidence suppressed because it found that the search warrant was executed after 10 p.m. although the Commonwealth in the affidavit in support of the warrant did not request authority for a nighttime search, as required by Rule 2003(c) of the Pennsylvania Rules of Criminal Procedure. We hold that despite the Commonwealth’s violation of Rule 2003(c), the evidence should not have been suppressed. The trial court’s order will therefore be reversed and the case remanded for further proceedings.

We must first decide whether the order suppressing evidence is appealable. (Appellee has filed a motion to quash the appeal, but even without such a motion, we should have to decide appealability.) In Commonwealth v. Lapia, 311 Pa.Super. 264, 270, 457 A.2d 877, 880 (1983), we held that “an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution.” Here, appellee was charged with possession of, and possession with intent to deliver, controlled substances. In executing the warrant, the police found marijuana, cocaine and drug paraphernalia. Without this evidence the prosecution of appellee would have to be terminated. As we said in Lapia, “[T]he Commonwealth cannot prove a defendant’s possession of a controlled substance unless it can prove that it took the substance from the defendant.” 311 Pa.Super. at 282-283, 457 A.2d at 885. The order suppressing the evidence is therefore appealable, and appellee’s motion to quash will be denied.

Rule 2003(c) of the Pennsylvania Rules of Criminal Procedure provides that “[n]o search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.” “Nighttime” is between the hours of 10 p.m. and 6 a.m. See Pa.R.Crim.P. 2005(e) (“daytime” is between the hours of 6 a.m. and 10 p.m.). “Reasonable cause” for a nighttime search, as distinguished from probable cause to search, means reasons why the search cannot wait until morning. Commonwealth v. Baldwin, 253 Pa.Super. 1, 4, 384 A.2d 945, 947 (1978).

In ordering the evidence suppressed, the trial court recognized our decision in Commonwealth v. Johnson, 315 Pa. Super. 579, 462 A. 2d 743 (1983), but found it “factually and legally distinguishable.” Slip op. at 13. We have concluded, however, that Johnson is controlling.

In Johnson, the police, on the basis of an informant’s tip, applied for a search warrant sometime after 10 p.m. The affidavit requested a nighttime search warrant, and the warrant was executed at about 10:55 p.m. Here, a police informant purchased marijuana from appellee at about 8:30 p.m. Shortly thereafter, the police obtained the search warrant. The affidavit in support of the warrant did not request authority for a nighttime search. The trial court, after hearing conflicting testimony, found that the warrant was nevertheless executed after 10 p.m. Thus, there are differences between Johnson and this case: in Johnson the police applied for the warrant after 10 p.m. (here, they applied before 10 p.m.), and in Johnson the affidavit requested authority for a nighttime search (here, there was no such request). These differences, however, are factual only, and do not support a legal distinction.

In Johnson, the Commonwealth failed to show reasonable cause for the nighttime search, that is, its affidavit did not state why the search could not wait until morning. Similarly, here the affidavit did not state why the search could not be conducted either before 10 p.m. or wait until morning. Thus, in both Johnson and this case the affidavit in support of the search warrant did not conform to the requirements of Rule 2003(c). In Johnson we held that despite this failure to conform to Rule 2003(c), the evidence should not be suppressed. In reaching this conclusion, we relied on cases holding that suppression is not warranted when the rule that has been violated establishes standards stricter than are required by either the United States or Pennsylvania Constitution. For example, the Commonwealth’s failure to comply with the verification of inventory requirements of Rule 2009(a) does not warrant suppression. Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977). In contrast, failure to comply with the knock-and-announce requirement of Rule 2007 requires suppression, for “Rule 2007 represents a codification of the announcement rule required by the Fourth Amendment to the United States Constitution.” Commonwealth v. Golden, 277 Pa. Super. 180, 184, 419 A.2d 721, 723 (1980) (collecting cases). Accord, Commonwealth v. Wallace, 293 Pa.Super. 73, 437 A.2d 996 (1981). As we explained in Commonwealth v. Jones, supra, the Supreme Court may in the exercise of its rulemaking power provide that suppression is the sanction for violation of a rule that establishes stricter than constitutional requirements, but this court, lacking such rulemaking power, may not. When these principles are applied here, it is apparent that suppression is not warranted. The rule violated, Rule 2003(c), establishes stricter than constitutional requirements, and the Supreme Court has not provided that suppression is the sanction for violation of the rule.

The trial court states that in contrast to Johnson, the search here violated appellee’s constitutional rights. The court does not, however, explain how it is a violation of one’s constitutional rights to fail to request a nighttime search warrant when, assuming probable cause to make the search, it is not a violation of one’s constitutional rights to request a nighttime search warrant but to fail to state why the search could not wait until morning, which was the case in Johnson. Nor are we able to suggest an explanation; we believe that the two situations are legally indistinguishable.

Some confusion may have been caused by a footnote in Commonwealth v. Baldwin, supra. The footnote, cited by the trial court and referred to in Johnson, is:

In Commonwealth v. Doe, 1 Pa.D. & C.3d 44 (C.P.Cumberland) and Commonwealth v. Doe, 1 Pa.D. & C.3d 312 (C.P.Cumberland 1977), the suppression court properly perceived the probable cause reasonable cause distinction in Rule 2003(c), and suppressed evidence seized pursuant to warrants authorizing nighttime searches. However, the basis for the court’s holding that no reasonable cause existed was the fact that the warrants had been issued in the daytime and not executed until nighttime, an element absent from the present case. Commonwealth v. Baldwin, supra, [253 Pa.Super.] at 5 n. 3, 384 A.2d at 947 n. 3.

Admittedly, the last sentence of this footnote suggests that it makes a difference whether the warrant is issued in the daytime or not until the nighttime when the affidavit fails to state why the search could not wait until morning. The suggestion, however, is unsupportable; there is no reason why it should make a difference. Moreover, the suggestion was unnecessary to the decision: in Baldwin the warrant was issued in the nighttime so that there was no occasion to consider whether our decision would have been different had it been issued in the daytime. Finally, in Baldwin we held that the failure of the affidavit to state why the search could not wait until morning, i.e., the violation of Rule 2003(c), did not justify suppression. That is what we hold here.

This conclusion, however, is not dispositive. The evidence still must be suppressed if in fact the Commonwealth did violate appellee’s constitutional rights — as distinguished from its violation of Rule 2003(c). In his motion to suppress appellee alleged a violation of his constitutional rights, claiming that the Commonwealth failed to establish probable cause for the search and that the police failed to knock and announce their identity when they arrived to conduct the search. Because it relied solely upon the Commonwealth’s violation of Rule 2003(c), the trial court did not consider these claims. We shall therefore remand so that the court may consider them.

Appellee’s motion to quash is denied; the trial court’s suppression order is reversed; and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The Commonwealth argues that the trial court’s finding that the search was after 10 p.m. is not supported by the record. It relies on the fact that the inventory receipt states that the search began at 9:45 p.m. That was the time the police officer recalled commencing the search. Two witnesses testified for appellee, however, that the police arrived after 10 p.m. They stated that they were with appellee in his room watching “Hill Street Blues” when the search commenced. Since the trial court’s finding that the search began after 10 p.m. therefore is supported by the record, we are bound by it. Commonwealth v. Lapia, 311 Pa.Super. 264, 282-283, 457 A.2d 877, 885-86 (1983).

      . In support of its statemer . that the search violated appellee’s constitutional rights, the trial court cites United States ex rel. Boyance v. Myers, 398 F.2d 896 (3d Cir.1968). There, in reversing a denial of habeas corpus relief, the Court of Appeals held a search conducted during the early morning hours to be constitutionally infirm. The search warrant had been obtained at 1 a.m. and was limited to “search in the daytime.” However, the officers arrived at the house to be searched at 2:30 a.m. and entered the house by force. The question was the reasonableness of the search for constitutional purposes. While the court emphasized the time of the search, it is evident that the fact that the search occurred after the occupants had retired and after forcible entry by the police contributed to the court’s conclusion that the search was unreasonable.


author: HOFFMAN, Judge:

text:
    481 A.2d 355
    In re Petition of Thomas W. POPE and Elizabeth L. Pope, his wife, For the Opening of A Private Road in Lykens Township, Dauphin County, Pennsylvania v. Charles E. MUTH and Alda E. Muth, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Aug. 31, 1984.
    Petition for Allowance of Appeal Denied Feb. 19, 1985.

      W.H. Clay Keen, Harrisburg, for appellants.
    Paul E. Baker, Harrisburg, for appellees.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants challenge the lower court’s order authorizing appellees’ placement of utilities within a private road to be constructed on appellants’ property. We agree with the lower court’s determination and, accordingly, affirm.

In late 1980, appellees petitioned for the right to construct a private road from their property through appellants’ property, in order to gain access to a main road. A Board of View, appointed pursuant to 36 P.S. § 2731 recommended that appellees be permitted to build a 25'-wide road and to place utilities therein. The lower court, upon review, determined that a 15'-wide road would suffice and upheld the authorization for utilities.

In the instant appeal, appellants do not challenge appellees’ right to construct the road. Rather, they assert that 36 P.S. § 2731, which authorizes private roads, does not discuss utilities. Hence, they argue that the lower court acted contrary to the statute in allowing appellees to place utilities in the road. We disagree. Those petitioning for permission to construct a private road must first successfully meet the requirements necessary for the appointment of a Board of View. See In re Private Road in Nescopeck Township, 281 Pa.Superior Ct. 341, 422 A.2d 199 (1980). Furthermore, because “the determination of necessity is a factual matter to be [made] by the Board, ... the trial court[’s] ... review is limited to a confirmation or a rejection of the Board’s report.” Mattei v. Huray, 54 Pa. Commonwealth Ct. 561, 566, 422 A.2d 899, 901 (1980). Here, the Board of View concluded that the placement of utilities was necessary to appellees’ use of the road. The lower court, finding that the necessity of the private road had been established, accepted the conclusion that the placement of utilities constituted a reasonable use of the road. We agree with the lower court that the necessity of personal and vehicular access to appellees’ property reasonably includes access to modern conveniences. As the lower court states: “To grant the petitioners the right-of-way partially, on the basis of their future intended use of building a home, and then to bar them from installing utility lines, would be unreasonable. It would defeat the entire purpose of granting the right-of-way.” (Lower Court Opinion at 4).

Dowgiel v. Reid, 359 Pa. 448, 59 A.2d 115 (1948), upon which the lower court relies, is analogous to the instant case. In Dowgiel, the petitioners had an easement in the form of a contract over the private road. Thereafter, they dug holes in the road for the purpose of installing poles for the transmission of electricity. The court queried whether “the right to use a road to and from one’s habitation includ[ed] the right to erect poles ... for the transmission of electricity to and from that habitation” id., 359 Pa. at 451, 59 A.2d at 117, and determined that a reasonable use of the road included the ability “to obtain something which is essential to the liveableness of the home, to wit, electricity .Id., 359 Pa. at 460, 59 A.2d at 121. Although a contract does not exist between the parties to the instant case, it would be entirely unreasonable to grant appellees permission to construct a road to connect their future home with a main road and then to deny them the ability to live in the home in a manner consistent with accepted, modern standards. Accordingly, we agree with the lower court that the Dowgiel reasoning is equally applicable to the case at hand.

Appellants place great reliance on Little Appeal, 180 Pa.Superior Ct. 555, 119 A.2d 587 (1966), arguing that according to Little, appellees must demonstrate a “present necessity” for the placement of utilities on the road. Appellants, however, fail to distinguish fully the facts in Little from the present facts. In Little, the petitioner had access from her house to a main road by virtue of an existing private road. She petitioned for an additional road over the respondents’ property so “that the 25-acre portion [of her land] adjoining [respondents’] land [could] suitably be developed into building lots____” Id., 180 Pa.Superior Ct. at 557, 119 A.2d at 588. The Board of View in Little found “that the existing road of appellant [was] sufficient and convenient for the present use of her land ... but concluded as a matter of law that it would not appropriate [respondents’] land for the contemplated subdivision and commercial enhancement of the 25-acre portion.” Id., 180 Pa.Superior Ct. at 558, 119 A.2d at 589. The court concluded that, in admitting that she did not want to invest funds into the subdivision until assured of the road, the petitioner did not “supply the strict necessity required by the Act and would not justify the viewers in ordering the [respondents] to give up their land now to provide access for a contemplated use of the land by [the petitioner]. Id., 180 Pa.Superior Ct. at 559, 119 A.2d at 589. In the instant case, there is no doubt that appellees have demonstrated the strict necessity required by the statute because there is, at present, no access to the main road from their property. Therefore, Little is distinguishable because the petitioner in that case already enjoyed access from her property at the time she requested the view. Hence, the present necessity” test discussed by appellants relates to a petitioner’s basic need for a private road, and not to the many purposes such a road may serve.

Finding no merit in appellants’ contention, we affirm the order entered below.

Affirmed.

      . 36 P.S. § 2731 provides:
      The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty-six. 1836, June 13, P.L. 551, § 11; 1901, April 4, P.L. 65, No. 32, § 1; 1927, April 28, P.L. 485, § 1.
      (footnote omitted).

      . Appellants mistakenly stretch the application of the "eminent domain" concept to the case at hand. See Mattel v. Huray, 54 Pa. Commonwealth Ct. 561, 566, 422 A.2d 899, 901 (1980) ("Although the proceedings to take land for a private road are clearly in the nature of eminent domain, Little Appeal, 180 Pa.Super. 555, 119 A.2d 587 (1956), the legislature has provided a statute governing public and private roads that is wholly independent of the Eminent Domain Code.”).


author: DEL SOLE, Judge: POPOVICH, J., concurring statement.

text:
    481 A.2d 357
    COMMONWEALTH of Pennsylvania v. James HAIGHT, Appellant.
    Superior Court of Pennsylvania
    Submitted June 22, 1984.
    Filed Sept. 7, 1984.
    Petition for Allowance of Appeal Denied Mar. 25, 1985.

      Paul W. Brann, Lewisburg, for appellant.
    Graham C. Showalter, District Attorney, Lewisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

Appellant was convicted, after a jury trial, of burglary and criminal trespass. Post-trial motions were filed and denied. Appellant was sentenced to four to eight years imprisonment. This appeal followed.

Five issues are raised on appeal: 1) Is the verdict contrary to the weight of the evidence?; 2) Did the court err in permitting the testimony of a Commonwealth witness not previously disclosed to Appellant?; 3) Did the court err in permitting testimony that a co-defendant had previously been in jail?; 4) Were the prosecutor’s attacks on the veracity of a co-defendant prejudicial to Appellant?; and 5) Did testimony as to Appellant’s income, employment and receipt of welfare benefits deny him a fair trial?

Appellant first argues that the verdict is contrary to the weight of the evidence. A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982) . This is not such a case. Co-conspirator Joseph Ruskuski testified that Appellant was an active participant in the burglary of the SEDA-COG office building. Ruskuski stated that Appellant entered the building and helped remove some equipment. Eva Ruskuski testified that her husband, Joseph, Jeffrey Yuhas, Daniel Derek and Appellant returned to Derek’s apartment at about 3:00 a.m. Derek stated that they’d “tried to rob some electrical equipment from this place” and that they “got busted”. Appellant kept saying, “I knew we’d get busted”. Appellant testified that he was not involved in the burglary. The trial court did not abuse its discretion in refusing to grant a new trial on the ground that the verdict was against the weight of the evidence.

During cross-examination of Appellant’s wife, the prosecution was permitted to bring out, over defense counsel’s objection, the fact that Appellant was unemployed and on welfare at the time of the crime. The Commonwealth argues that this evidence was relevant to show a motive for burglary: a desire for money. We disagree.

Evidence is relevant if it logically or reasonably tends to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it affords the basis for a logical or reasonable inference or presumption as the existence of a material fact in issue. Commonwealth v. Potts, 314 Pa.Super. 256, 276, 460 A.2d 1127, 1137 (1983) . The issue in this case was whether Appellant participated in the burglary of SEDA-COG. It is not logical or reasonable to infer a person is guilty of burglary from the mere fact that he is poor. We do not consider poverty in general to be a “motive” to commit a crime. The evidence of Appellant’s unemployment and receipt of welfare benefits was irrelevant and inadmissible.

Since we have concluded that the court erred in admitting this evidence, we must now determine if that error was harmless. The burden of establishing if an error is harmless falls on the Commonwealth, since it is the beneficiary of the court’s rulings. Commonwealth v. Farrior, 312 Pa.Super. 408, 458 A.2d 1356 (1983). We hold that the Commonwealth has failed to meet that burden in this case.

Harmless error is one which could not have contributed to the verdict and error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. Whenever there is a “reasonable possibility” that an error might have contributed to the conviction, the error is not harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1973). The information concerning Appellant’s income was clearly prejudicial. It is quite possible that this evidence discredited Appellant and influenced the jury in reaching its verdict. Therefore, the error was not harmless.

In view of our disposition of this issue, we do not need to address the remaining questions raised in this appeal.

Judgment of Sentence vacated and case remanded for a new trial.

Jurisdiction relinquished.

POPOVICH, J., concurring statement.

I join in the result reached by the majority because I do not believe the Commonwealth’s case was so overwhelming as to render the inadmissible statement harmless error. See Commonwealth v. Story, 476 Pa. 391, 415-416, 383 A.2d 155, 166 (1978).


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    481 A.2d 610
    COMMONWEALTH of Pennsylvania, Appellee, v. Nicholas RHODES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 14, 1984.
    Filed July 13, 1984.
    Reargument Denied Sept. 26, 1984.

      Alexander Hemphill, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and CHULLO, JJ.
   WIEAND, Judge:

Nicholas Rhodes was tried non-jury and was found guilty of corrupting a minor, indecent exposure, indecent assault, involuntary deviate sexual intercourse, statutory rape, and forcible rape as a result of sexual acts committed with an eight year old, female child. Post-trial motions were denied, and Rhodes was sentenced on the rape and ■ involuntary deviate sexual intercourse convictions to concurrent terms of imprisonment for not less than six (6) nor more than twenty (20) years. He was also sentenced to probation for five years on the conviction for corrupting the morals of a child. Sentence was suspended on the conviction for statutory rape, and no sentences were imposed on the remaining convictions. On direct appeal, Rhodes contends that the evidence was insufficient to sustain the convictions and that the sentences were excessive. We agree that the evidence was insufficient to prove a forcible rape. There is no merit in any other of appellant’s contentions.

An examination of the sufficiency of the evidence in this case can best begin by examining and comparing the statutory definitions of the offenses commonly known as rape, statutory rape and involuntary deviate sexual intercourse. Rape is defined at 18 Pa.C.S. § 3121 as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.

Statutory rape is defined at 18 Pa.C.S. § 3122 as follows:

A person who is 13 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age.

Forcible rape, it will be observed, is a felony of the first degree; whereas, statutory rape has been made only a felony of the second degree.

Compare these sections of the Crimes Code, then, with the definition of involuntary deviate sexual intercourse which appears at 18 Pa.C.S. § 3123.

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious;
(4) who is so mentally deranged or deficient that such person is incapable of consent; or
(5) who is less than 16 years of age.

Specifically, it should be observed that it is a felony of the first degree to engage in deviate sexual intercourse with another person, with or without force, who is less than 16 years of age.

The testimony of the child in the instant case was as follows:

Q. What did you do when you went into the room? What happened?
A. He told me to lay down.
Q. Now Tanya, when you lay down, did you lay down? A. Yes.
Q. When you lay down, did you lay down on your stomach or lay down on your back?
A. On my back.
Q. Now Tanya, when you laid down what happened? A. He told me to pull my leg up.
Q. Did you put your legs up?
A. Yes.
Q. What happened after you put your legs up? What did Nicky do?
A. (There is no response.)
Q. Tanya, what did Nicky do after you put your legs up? A. (There is no response.)
Q. Was Nicky standing, was he sitting, was he kneeling, was he laying down, do you remember?
A. He was standing.
Q. And did he stand the whole time you were in the room or did he do something else?
A. He did something else.
Q. What else did he do?
A. He laid down.
Q. Now, when he laid down, did he lay down on the floor or did he lay on top of some one or some thing? A. Yes.
Q. What did he do?
A. He laid down.
Q. What did he lay down on?
A. Me.
Q. Now, what did Nicky do when he laid down on you?
A. (There is no response.)
Q. Tanya, did Nicky touch you any where?
A. Yes.
Q. Where did he touch you?
A. On my butt.
Q. When you say your butt, why don’t you stand up for the Judge, and show him where you mean. Okay?
A. (Indicates) right here.
Q. Go ahead, you can sit down. Now Tanya, with what did Nicky touch you on your butt? Did he touch you with something?
A. Yes.
Q. What did he touch you with, what do you call it, what did he touch you with9
A. (There is no response.)
Q. Did he touch you with his hand?
A. No.
Q. Would you point for the Judge where it is, what thing, that is, he touched you with, where it is on Nicky. Stand up.
A. Right here.
Q. I can’t see you.
A. Right here.
MRS. TUCKER: Turn around, the Judge has to see you, Honey.
Indicating, for the record, the pubic area.
Q. Now, Tanya, did you see Nicky, did you see the thing
that Nicky touched you with, did you see it?
A. Yes.
Q: Now, what did you do or what did you say when
Nicky touched you there?
A. I told him to stop.
Q. And what did Nicky say to you?
A. Nothing.
Q. And how long did you stay in the room, a long time
or a short time?
A. A short time.

A medical examination of the child was positive for rectal and vulvular sperm and disclosed a recto-vaginal fissure about IV2 centimeters in length. Her panties contained blood and seminal stains.

When this evidence is viewed in the light most favorable to the Commonwealth, which won the verdict, its sufficiency to show that appellant engaged in natural and unnatural sexual intercourse with the child in violation of Sections 3122 and 3123 of the Crimes Code is readily apparent. The weight and credibility of the child’s testimony, of course, were for the trier of the facts. The credibility of her testimony was not destroyed and her testimony was not rendered incompetent merely because she initially told police that the sex act had taken place in an alley. See: Commonwealth v. Whack, 482 Pa. 137, 140, 393 A.2d 417, 418-419 (1978); Commonwealth v. Williams, 290 Pa.Super. 209, 214, 434 A.2d 717, 719 (1981). This is particularly so where, as here, the child’s testimony regarding sexual contact has been corroborated in large part by medical evidence.

It is equally apparent, however, that the Commonwealth failed to prove a forcible rape. There is not one iota of evidence that sexual intercourse was accomplished by forcible compulsion or by threat of forcible compulsion. Similarly, there was no evidence that the child was unconscious or mentally deficient. Although we do not minimize the heinous nature of appellant’s act, it seems clear that the act of vaginal intercourse was criminal because of the provisions of 18 Pa.C.S. § 3122 defining statutory rape and not because it was a forcible rape as defined in 18 Pa.C.S. § 3121.

The conviction and sentence for rape, therefore, will be reversed and set aside. We have also reviewed the sentences imposed for involuntary deviate sexual intercourse and corrupting the morals of a minor, as well as the court’s reasons for these sentences. Contrary to appellant’s contention, we perceive no abuse of discretion. The sentence was warranted by the nature of the crimes committed, appellant’s prior criminal and psychiatric record, and the potential threat which he presented to the community if he were not confined. However, we cannot be certain that the trial court’s sentences for such offenses would have been the same if it had known that the conviction for forcible rape would be set aside. Therefore, we will vacate all judgments of sentence and remand for resentencing. See: Commonwealth v. Conrad, 285 Pa.Super. 571, 578, 428 A.2d 192, 196 (1981); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 480, 400 A.2d 184, 186 (1979).

The conviction for forcible rape and the judgment of sentence imposed therefor are reversed and set aside. The judgments of sentence for the remaining convictions are vacated, and such cases are remanded for resentencing.

Jurisdiction relinquished.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

Despite the fact that appellant has not argued at trial, in his post-trial motions, or on appeal, that the rape of this eight year old victim was consensual, the majority has concluded that the act was not a forcible rape and has overturned the trial court’s conviction.

The evidence was that appellant, age twenty, was a neighbor of the victim, that he encountered her in a playground and led her to an “old house”, then to a room upstairs and there “told” her what to do. Her description is set forth in the excerpt of the testimony in the majority opinion. We note that when appellant “touched” the victim, she related “I told him to stop.”

The necessary implication of the majority’s decision is that this eight year old child engaged in an act of consensual intercourse with appellant. I cannot agree. There is a serious question that an eight year old child is capable of consenting to sexual intercourse. Common sense and human experience compel us to the conclusion that a child of such tender years should not be expected to know the nature and implications of human sexual intercourse. Since the statute excludes from the consensual defense a victim who is “so mentally deranged or deficient that such person is incapable of consent” , how much more so should it be interpreted to protect a child who by reason of her infancy may not be said to have developed a cognition of the nature of an act of adult sexuality.

Likewise, viewing this episode from the standpoint of forcible compulsion or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, it is equally clear that the rape conviction should stand. The force or threat of force necessary to support a rape conviction need only be such as to establish a lack of consent, and it is a relative concept depending upon the particular circumstances. Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1979); Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978).

In Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981), we recognized that what could be read as consent on the part of a twenty nine year old rape victim was more properly seen as a recount of the desperate stratagems of a lone female in peril. How much less should we, on appellate review, be willing to set aside the factfinder’s resolution and find that the illicit commands of this twenty year old appellant in an isolated and abandoned room were anything less than an imperative which gave the child victim no alternative but submission to appellant’s corrupt scheme.

In Commonwealth v. Cyaus, 88 Pa.Super. 227 (1926), the court reviewed the conviction of appellant on charges of assault and battery with intent to ravish. The court stated:

The first contention, as we understand it, is that the evidence does not establish that the assault and battery-charged was committed upon the girl “with intent, forcibly and against her will, to have unlawful carnal knowledge” of her, as provided in section 93 of the Crimes Act of 1860, under which the indictment was drawn and which reads as follows: “Section 93. If any person shall be guilty of committing an assault and battery upon a female, with intent, forcibly and against her will, to have unlawful carnal knowledge of such female, every such person shall be guilty of a misdemeanor, and on conviction, be sentenced, etc.” It seems clear that the offense denounced by this section of the Act is assault and battery committed with the specific intent to accomplish the purpose forcibly and against the victim’s will; and that consensual sexual intercourse with a female of any age is not within its terms (Commonwealth v. Miller, 80 Pa.Superior Ct. 309). The uncontradicted evidence in the case is that the victim of the alleged assault was a female child under five years of age at the time of its commission. In view of the extreme youth of the child alone the jury was warranted in finding that she was incapable of consenting to sexual intercourse and that the touching of her body by the defendant with intent to carnally know her was against her will. The child testified that the defendant “laid me on the floor and he done dirty things to me”; that he hurt her between her legs; “with between his legs.” This testimony was sufficient, if credited by the jury, to establish not only that the defendant committed an assault and battery on the child but also that his intention was to have unlawful carnal knowledge of her by force. Where, as here, the female is not only so young that she is incapable of consenting to sexual intercourse, but cannot even entertain a thought upon that subject, a jury is warranted in finding an intent to have carnal knowledge of the child forcibly whenever the evidence warrants a finding that the defendant laid his hands upon her with an intent to carnally know her. It follows that the evidence was sufficient, if believed, to establish all the elements of the offense charged.

In Commonwealth v. Stephens, 143 Pa.Super. 394, 17 A.2d 919 (1941), the court recounted the historical development of the law on rape, especially the element of force.

[I]n Reg. v. Dee, supra, 15 Cox C.C. 579, at page 585, the court said: “Rape may be defined as sexual connection with a woman forcibly and without her will: (Reg. v. Fletcher, 8 Cox C.C. 134.) It is plain, however, ‘forcibly’ does not mean violently, but with that description of force which must be exercised in order to accomplish the act for there is no doubt that unlawful connéction with a woman in a state of unconsciousness, produced by profound sleep, stupor, or otherwise, if the man knows that the woman is in such a state, amounts to rape.” “It is settled by a chain of adjudication, too long and unbroken to be now shaken, that force is a necessary ingredient in the crime of rape. — Bishop on Crim.Law, § 411. The only relaxation of this rule is, that this force may be constructive. Under this relaxation, it has been held that where the female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force. — Rex [Reg.] v. Ryan, 2 Cox’s C.C. 115; Commonwealth v. Fields, 4 Leigh, Va., 648; State v. Shepard, 7 Conn. 54; Regina v. Camplin, 1 Car. & Kir. 746; Bishop’s Cr.Law, § 343”. Lewis v. State, 30 Ala. 54, at page 56, 68 Am. D .c. 113.

Commonwealth v. Stephens, supra, 143 Pa.Superior Ct. at 349, 17 A.2d at 921. (Emphasis added).

In the case at bar, the victim clearly did not consent to have sexual relations with the appellant. In addition, it is my belief that although the victim here was eight and the victim in Commonwealth v. Cyaus, 88 Pa.Super. 227 (1926), was five at the time of the offense, Cyaus is apposite to this case. Where the victim is so young as to be incapable of consenting to an act of sexual intercourse, and particularly here, where the twenty year old appellant is a neighbor whom the eight year old victim knows by name, force may be imputed to his acts.

Finding no merit to appellant’s contentions on appeal, I would affirm the judgment of sentence.

      . 18 Pa.C.S. § 6301.

      . 18 Pa.C.S. § 3127.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 3122.

      . 18 Pa.C.S. § 3121.

      . If we were being asked to define the common law crime of rape, our inclination would be to agree with the author of the dissent and infer necessary force from a young child’s lack of capacity to give consent. However, we are required in this case to construe the provisions of the Crimes Code which, it will be recalled, abolished all common law crimes. 18 Pa.C.S. § 107(b). When we examine the provisions of Sections 3121 and 3122 of the Code “according to the fair import of their terms,” as we are required to do by 18 Pa.C.S. § 105, we conclude that appellant’s conduct violated Section 3122, not Section 3121. We cannot expand the offense of forcible rape, as defined in 18 Pa.C.S. § 3121, to include any and all sexual intercourse with an eight year old child without rewriting the clearly expressed intent of the legislature.

      . The credibility argument made by appellant’s counsel dealt only with the child victim’s description of the precise location of the rape and the defendant’s denial and the absence of dirt on his clothes.

      . At Common Law, a child under the age of seven was conclusively presumed to have no capacity to commit a crime, and, therefore, cannot be either a principal or accomplice or an accessory thereto. A child under seven lacked the capacity to commit an assault and battery and likewise lacked the capacity to consent to its commission upon her. Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950).

      . 18 Pa.C.S. § 3121(4).

      . 18 Pa.C.S. § 3121(1) (2).

      . "[C]onsent is an act of free will. It is not the absence of resistance in the face of actual or threatened force inducing a woman to submit to a carnal act”; active opposition is not a prerequisite to finding lack of consent. Commonwealth v. Hayden, 224 Pa.Super. 354, 356-57, 307 A.2d 389, 390 (1973). See Commonwealth v. Moskorison, 170 Pa.Super. 332, 85 A.2d 644 (1952). Commonwealth v. Rough, 275 Pa.Super. 50, 56, 418 A.2d 605, 608 (1979). See also Commonwealth v. Claypool, 317 Pa.Super. 320, 327 n. 7, 464 A.2d 341, 344 n. 7 (1983), Commonwealth v. Fortune, 305 Pa.Super. 441, 447, 451 A.2d 729, 730 (1982).