author: WICKERSHAM, Judge:

text:
    496 A.2d 1177
    COMMONWEALTH of Pennsylvania v. Damon JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed Aug. 2, 1985.

      Daniel P. Alva, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

A single, narrow issue is presented in this appeal which follows Damon Jones’ conviction of murder in the first degree. The case was heard in a bench trial before the Honorable Joseph T. Murphy commencing January 27,1983.

Appellant Jones, in his brief, sets forth the facts as follows:

Appellant, Damon Jones, was arrested on January 3, 1982, and charged with murder in the first degree and possession of the instrument of a crime. At a preliminary hearing on June 3, 1982, appellant was held for court on all charges____
On January 27, 1983, the appellant was brought to trial before the Honorable Joseph T. Murphy sitting without a jury. The court delivered its verdict on January 31, 1983, and found the appellant guilty of ... murder in the first degree and possession of an instrument of crime.
The appellant filed timely post-trial motions on February 1, 1983, challenging, inter alia, the trial court’s ruling that John Williams was unavailable to the Commonwealth as a witness and that that portion of the notes from appellant’s preliminary hearing containing his testimony were, therefore, admissible as substantive evidence against appellant at his trial. On April 19, 1984, the court denied appellant’s post-trial motions. The appellant was sentenced as follows: Bill No. 1197, charging murder in the first degree, life imprisonment; Bill No. 1198, possession of an instrument of a crime, eleven and one-half to twenty-three months consecutive to Bill No. 1197.
The appellant filed a timely notice of appeal on April 19, 1984....
The evidence relevant to the appellant’s current contentions consists of the following: Helen Vaughan testified that on December 23, 1981, she was asleep in the apartment of her boyfriend, the deceased, Darrell “Chubby” Williams. She was awakened by gunshots at which time she ran downstairs and saw a male dressed in a blue hat, beige jacket, and jeans, run from the kitchen and out of the apartment. Ms. Vaughan further testified that later on that same day she observed the appellant on the steps to. the apartment.
She observed that appellant was wearing a blue hat and beige jacket, but different pants. Nonetheless, Helen Vaughan testified that based upon her observations of appellant’s clothing, he was the male who earlier that day she had seen run from the kitchen and out of the apartment.
* * # * Sic S}5
Prior to the luncheon recess, Roger King, the assigned assistant district attorney, informed the court that the Commonwealth’s chief witness, John Williams, ... might refuse to testify and that counsel for the witness might, therefore, be needed____
Upon reconvening, the Commonwealth called John Williams to the witness stand. Mr. King immediately began to attempt to impeach Mr. Williams through the use of a statement allegedly given by him to Detectives Dougherty and Gibson and the notes of testimony from the preliminary hearing of June 3, 1982.
* * * * * *
Subsequent to the Commonwealth’s examination of its witness, but prior to Mr. Williams’ actual recantation at trial, it sought and was granted the admission of the notes of testimony of the June 3rd hearing as substantive evidence against the appellant. The relevant portions of the notes were read into the record by Ms. Anita Brooks, a clerk in the office of the Clerk of Quarter Sesssions [sic].

Brief for Appellant at 1-4 (footnotes omitted).

Appellant frames the issue as follows:
Did not the trial court err by ruling that at the time of appellant’s trial, the main Commonwealth witness, John Williams, was unavailable and, therefore, that testimony given by him at appellant’s preliminary hearing was admissible as substantive evidence?

Brief for Appellant at 1.

At trial, the Commonwealth was permitted to introduce, through the testimony of Anita Brooks, the preliminary hearing notes wherein John Williams testified. The preliminary hearing was held June 3, 1982 before the Honorable Mitchell S. Lipschutz and appellant was represented by counsel. William’s testimony, under oath, included the following:

Q. How long have you known Damon Jones?
A. For about a year, a year and a half.
Q. And, on that date that Chubby was shot, did you have occasion to see Damon Jones?
A. Yes.
Q. And did you have any conversation with Damon Jones?
A. Yes.
Q. Can you tell His Honor what the conversation you had with Damon Jones was?
A. I was walking through the building—
* * * * * *
Q. All right. You were walking through the building, and what happened?
A. Somebody came down and tapped me on my shoulder and told me Damon wanted me.
Q. And did you go see Damon wherever he was?
A. Yes.
Q. Where was he?
A. On the 11th floor of the building.
Q. Was he in an apartment?
A. Yeah.
Q. And did you go to that apartment?
A. Yeah.
Q. What happened when you got there?
A. He told me [he] had shot Chubby.
Q. Who told you that?
A. Damon
Q. And did he tell you why he had shot Chubby?
A. No.
Q. Did you ask him any questions about the shooting of Chubby?
A. No.
Q. Now, did he give you any reason at all for why he had done it?
A. No.
Q. And the person you know as Damon Jones, do you see him in this Courtroom today?
A. Yes.
Q. And would you point him out?
A. (Witness indicates.)
MR. BOLAND: May the record reflect the witness has identified the Defendant.
THE COURT: The record may so reflect.
Q. When he told you that he had shot Chubby, did you say anything to him?
A. I said, ‘no, you didn’t,’ like that.
Q. And did he say anything when you said that? A. Yeah. He showed me some bloody clothes.
Q. What kind of clothes were they?
A. A tan jacket and some tan pants.
THE COURT: A tan jacket and what?
THE WITNESS: and some tan pants.
MR. BOLAND: Cross-examine.

Record at 17-19.

At the bench trial before Judge Murphy, Williams had a partial or near total memory loss. He said, inter alia,

“Q. Directing your attention further, Mr. Williams, to June the 3rd of 1982, the preliminary hearing at City Hall Courtroom 675 before the Honorable Mitchell S. Lipschutz, do you remember appearing at that preliminary hearing?
“A. Yea.
* * sjs * * sic
“Q. What did you testify to at that preliminary hearing?
COM. v. JONES [344 Pa.SuperiorCt. 420, (1985).]
“A. I don’t remember.
“Q. You don’t remember? Do you remember being asked a series of questions as to what you knew about the death of Darrell Chubby Williams?
“A. Yea.
“Q. Are you saying you have no present recollection of what you testified to then?
“A. Yea.
$ Jjc * % sfc *
“Q. Mr. Williams, do you know why you are in Court here today?
“A. Yea.
“Q. Why are you here?
“A. To testify.
“Q. And what are you to testify about?
“A. A murder.
“Q. Whose murder?
“A. I don’t know.
“Q. You don’t know?
“A. No.
* * * * * *
“Q. On June the 3rd of 1982 before the Honorable Mitchell S. Lipschutz in courtroom 675 of City Hall, didn’t you testify that Damon Jones told you that he killed Chubby Williams, and he showed bloody clothing?
“A. I don’t remember.
$ $ ‡ H< * *
“Q. Mr. Williams, do I understand your answer to mean that you remember appearing and testifying at a preliminary hearing; is that correct?
“A. Yea.
“Q. And when you appeared and testified at the preliminary hearing, is it your statement or your testimony that you don’t remember what you testified to?
“A. Yea.
******
“Q. Do you remember giving the answer?
A. He told me he had shot Chubby.
“A. No.
“Q. Do you remember this question?
Q. Who told you that?
“A. No.
“Q. Do you remember giving this answer?
A. Damon.
“A. No.
“Q. Do you remember this question?
Q. When he told you that he had shot Chubby, did you say anything to him?
“A. No.
“Q. You don’t remember that question? Do you remember giving this answer?
A. I said, 'No, you didn’t,’ like that.
Do you remember saying that?
''A. No.
“Q. Do you remember this question?
Q. And did he say anything when you said that? Do you remember that question?
“A. No.
“Q. Do you remember this answer?
A. Yea, he showed me some bloody clothes.
“A. No.
“Q. You don’t remember giving that answer?
“A. No.
“Q. Remember this question?
Q. What kind of clothes were they?
Do you remember that question?
“A. No.
“Q. Do you remember this answer?
A. A tan jacket and some tan pants.
“A. No.
“Q. Are you saying you didn’t say that at the preliminary hearing?
“A. I don’t remember.
“Q. Has anything happened between June the 3rd and today that caused you to forget what happened on June 3rd?
“A. No.
‡ $ 9j( 9{( $ >|C
“Q. Who did you tell the Detectives killed Chubby Williams?
“A. I don’t remember.
“Q. You don’t remember?
“A. No.
“Q. Did you tell them that Damon Jones told you he shot Chubby?
“A. No.
“Q. You never told the detectives that?
“A. I don’t remember telling them that.
“Q. You don’t remember telling them that?
“A. Yea.
* * * * * *
“Q. And you were under oath back at the preliminary hearing on June 3rd when you told the Judge there that Damon Jones told you he shot Chubby Williams, were you not?
“A. Yea.
“Q. You are under oath here today, are you not? “A. Yea.
“Q. Did Damon Jones tell you he shot Chubby Williams?
“A. No.

Record at 75-76, 77-78, 81-82, 90, 91-92, 94-96, 102-103 and 106.

This is not a situation where the witness refused to testify on the basis of the privilege against self-incrimination, U.S. Const. Amend. V; Pa.Const. art. I, § 9. Compare Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). In Rodgers, the preliminary hearing testimony of one Ferguson was read into evidence over objection. Ferguson had asserted his fifth amendment privilege. Justice Roberts, speaking for a unanimous court said:

Appellant asserts that admission of the notes of testimony was improper because the trial court erred in permitting Ferguson to invoke the privilege against self-incrimination. Appellant claims that admission of the notes of testimony came within no recognized exception to the hearsay rule and violated his right to confront witnesses against him. U.S. ConstAmend. VI; Pa.Const. art. I, § 9. We do not agree.
It is well established that the prior testimony from a preliminary hearing of an unavailable witness is admissible at trial, provided that the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding____ A witness who invokes the privilege against self-incrimination is “unavailable” for purposes of the hearsay exception permitting the introduction of the notes of testimony from a prior judicial proceeding.

Id., 472 Pa. at 452-53, 372 A.2d at 779 (footnote and citations omitted).

We are compelled to follow Rodgers logic in that the “true test of unavailability is the unavailability of the witness’ testimony, not his or her person.” Id., 472 Pa. at 453, 372 A.2d at 779. It thus follows that a “partial lack of memory renders [a witness] unavailable for purposes of the common law exception ... [t]his approach ha[ving] the value of fairness to both parties in that necessary testimony is admitted, with the opponent being able to cross-examine the witness both as to his asserted lack of memory as well as to [any] present testimony.” Commonwealth v. Graves, 484 Pa. 29, 38, 398 A.2d 644, 649 (1979). The Graves Court offers additional guidance when it states, “[w]hatever reason is offered for the witness’ failure to recall the events to which he has previously testified can be challenged since the witness is available and subject to inquiry upon the subject.” Id., 484 Pa. at 38, n. 5, 398 A.2d at 649, n. 5 (1979).

This Court has since addressed the issue of memory loss in the wake of the Graves decision. In Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982) (after remand), the court, faced with the total memory loss of two Commonwealth witnesses held: “[c]learly, the Graves decision recognizes complete lack of memory as a ground for determining a witness’ unavailability as well as partial memory loss. Obviously, total lack of recall presents a more compelling instance to find unavailability than does partial memory loss.” Id., 303 Pa.Superior Ct. at 540, 450 A.2d at 58.

In his opinion filed August 14, 1984, Judge Murphy observed:

In the instant case, defendant had counsel and had a full opportunity to cross-examine John Williams at his preliminary hearing (N.T. 1/31/83, pp. 19-35). Therefore, provided only that John Williams was properly declared “unavailable” at trial, his testimony from the preliminary hearing was admissible. Commonwealth v. Rodgers, supra. Thus, the sole remaining question is whether John Williams was properly declared “unavailable” by the trial judge.
A brief review of the testimony given by John Williams at trial indicates that he suffered from at least partial, it not total, memory loss. When asked if he recalled his testimony from the preliminary hearing, he repeatedly said that he did not (N.T. 1/28/83, pp. 79, 90). In fact, at various points the witness indicated that he did not remember some very basic facts about the preliminary hearing (N.T. 1/28/83, pp. 90, 92-96). Finally, even after his memory was partially refreshed, the witness still lacked sufficient recollection to enable him to testify (N.T. 1/28/83, p. 105). Thus, regardless of whether this partial loss of memory indicated a conscious desire to withhold information, it rendered this witness “unavailable” to testify at trial, and the Notes of Testimony from the preliminary hearing were properly admitted.

Lower ct. op. at 6-7.

We conclude, under the facts of this case, that where a witness has previously testified at a preliminary hearing, under oath, and has been cross-examined by defendant’s counsel, such testimony is admissible where the witness claims no memory of such at trial. We find that John Williams was an unavailable witness, under such circumstances, within the common law rule. We believe Von Smith is controlling here and accordingly hold that the lower court properly admitted the prior testimony.

Judgment of sentence affirmed.

      . Jones was also convicted of possessing instruments of crime, generally.

      . See Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977) and compare Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970) (where the witness had died prior to trial) in which the court said:
      While it is true that the focus of a preliminary hearing is narrower than that of a trial, we are not persuaded that the difference requires exclusion of the testimony taken at such a hearing. Our basic concern is for the reliability of the testimony which was elicited in the preliminary hearing, and we do not feel that its reliability is affected by the scope or focus of the proceeding. It would certainly be more desirable to have the witness present at trial, but it would be vastly less desirable to exclude such evidence altogether. Id., 438 Pa. at 525, 265 A.2d at 803 (emphasis added).
      Id., 471 Pa. at 381, 370 A.2d at 354 (emphasis in original).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    496 A.2d 1183
    Naomi A. GRUN v. Bennie E. GRUN, Appellant. Bennie E. GRUN, Appellant, v. Naomi A. GRUN.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed Aug. 2, 1985.
    Petition for Allowance of Appeal Granted Nov. 18, 1985.

      David J. Flower, Assistant District Attorney, Indiana, for appellant.
    Joseph B. Policicchio, Somerset, for appellee.
    Before DEL SOLE, MONTGOMERY and BUCHER , JJ.

       Judge Bucher, Senior Judge, of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   DEL SOLE, Judge:

Appellant, father, appeals from a trial court order which denied his petition for enforcement of a Texas custody decree, and which granted Appellee, mother, a hearing in Pennsylvania on the merits of her petition for custody. Although the issues presented on appeal are phrased by the parties in a variety of ways, each deals with the propriety of the trial court’s refusal to recognize and enforce a Texas custody decree.

The relevant facts are as follows: Early in 1980, the parties established a relationship which resulted in their cohabitation in the state of South Carolina. A short while later, the parties moved to Appellant’s home state, Texas. Appellee established residence in Texas, and in August, she obtained a divorce from a Mr. Hunter. Appellee and Mr. Hunter had a son, and Appellee obtained custody of the child in Texas through a default proceeding. Thereafter, the parties moved to Somerset County, Pennsylvania, with or near Appellee’s parents. While residing in Somerset County, Appellant and Appellee traveled to Cumberland, Maryland and on September 9, 1980 they were married. The parties continued to live in Somerset County until December when they returned to Texas. The subject of this proceeding, the parties’ son, Joshua, was born in Texas on May 27, 1981. Appellant, Appellee and the two children continued to reside in Texas until Appellee returned to Somerset County with her two sons on or about June 20, 1982.

Following the mother’s move in June 1982, a series of legal proceedings were instituted. On July 19, 1982, the father filed an action in Texas seeking a divorce and custody of Joshua. Appellee, mother, filed a complaint in divorce including a count for custody on August 9,1982 in Somerset County. The next day the Texas complaint was served by the sheriff of Somerset County on the mother. On August 12, 1982, the Court of Common Pleas, Somerset County made an ex parte order which confirmed custody of Joshua in the mother pending a custody hearing. Subsequently, on September 21, 1982, a Texas default decree was entered divorcing the parties and awarding primary custody of Joshua to the father. The decree stated that the mother “was served, failed to answer, did not appear, and wholly made default”. In October, the mother petitioned the Pennsylvania court to forbid the father from taking physical custody of Joshua. A hearing date was set for December 6, 1982. On that date, the father also filed preliminary objections on jurisdictional grounds. The Somerset County Court issued an order on May 4, 1983, staying all proceedings on the condition that (a) the Texas court, “after fully hearing both parties”, make a determination of a more appropriate forum, and (b) if it is determined that Texas is the more appropriate forum, the Texas court should set aside, vacate, or open its custody decree to a full hearing on the merits of the parties respective claims for custody.

Following the father’s motion in Aid and Clarification of Judgment, the Texas court found that proper jurisdiction and venue for this matter existed in the state of Texas, and that Texas, not Pennsylvania, would be the proper forum for further actions in the matter. The court also found that its previous custody decree was a valid and final judgment. Further, the Texas court stated that it had no authority to sua sponte order a trial de novo, as requested by the Pennsylvania Court, absent filing of a motion in the nature of a Modification or Bill of Review. The father filed this order with the Pennsylvania Court, along with a petition for enforcement of the order.

Somerset County’s most recent action in this matter came on May 29, 1984, when it issued an Opinion and accompanying Order. The order decreed that: (1) since the “Texas court has failed to undertake any judicial inquiry into the custody of the child according to the child’s best interest, this Court, having concurrent jurisdiction, is the more appropriate forum for doing so.” (2) the “portion of our Order of May 4, 1983, staying all proceedings in this Court concerning custody of the child is vacated, and leave is granted for either party to file a scheduling praecipe for hearing on the merits of the mother’s petition for custody sec reg.”, and (3) “the father’s petition for enforcement of the Texas default custody decree is denied.” The father, thereafter, timely filed this appeal.

Before discussing the merits of Appellant’s claim, we must first determine whether the Order from which Appellant appeals, is a final order. This Court has jurisdiction only over final orders, and our lack of appellate jurisdiction can and should be raised sua sponte. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

Upon initial examination, it appears that the trial court in points one and two of the Order merely recognized Pennsylvania’s subject matter jurisdiction over the matter, and therefore, lifted a stay so that proceedings could continue in Pennsylvania. However, points one and two are actually a subpart of point three. In the third part of the Order, the trial court declined to enforce the Texas custody decree. The court’s refusal to recognize and enforce the decree was based on its finding that the Texas court did not correctly dispose of the case. This action by the trial court was final, and precluded the father from any further attempt to gain custody of his son by enforcement of the Texas decree. The court’s further statements in points one and two, which permit the case to continue in Pennsylvania, are based upon the court’s finding that the Texas decree was unenforceable in Pennsylvania. We conclude that the Order in this case must be read in its entirety and not point by point. When so read, it is clear that the Order is in effect final, and therefore, this appeal has been properly taken.

The facts of this case indicate that the initial petition for custody was filed by the father in Texas. Shortly thereafter, the mother filed a petition for custody in Pennsylvania. The Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. 5341 et seq. provides for the situation in which two states are conducting simultaneous proceedings. 42 Pa.C.S.A. § 5347 (a) states:

(a) General rule. — A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because the Commonwealth is a more appropriate forum or for other reasons.

Upon learning that a custody action was proceeding in Texas prior to the mother’s filing of her petition for custody, the trial court had a duty to vacate its award of temporary custody and stay the proceedings before it. Although the Somerset County court was unaware of the Texas proceedings when the mother first filed her petition, the mother was served with notice of the Texas action on August 10, 1982, before the Court issued an ex parte temporary custody award. 42 Pa.C.S.A. § 5347(c) provides:

(c) Stay; communication with other court. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 5360 (relating to hearings and studies in another state; orders to appear) through 5363 (relating to request for court records of another state). If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.

See also: Carpenter v. Carpenter, 326 Pa.Super. 570, 474 A.2d 1124 (1984). The trial court did comply with the above provision of the Act when it informed the Texas court of the status of the case, and stayed its proceedings on May 4, 1983. The order of May 4th requested that the Texas court determine which state was the more appropriate forum, vacate its custody decree and grant the parties a full hearing on the merits.

The Texas court responded stating that it had no power to vacate its decree without a motion in the nature of Modification or Bill of Review. The matter then returned to Pennsylvania, where the trial court issued the Order from which this appeal has been taken. That Order refused to recognize and enforce the Texas decree.

We find that the trial court had no authority to order the Texas court to vacate its decree, and grant the parties a new hearing as a condition to Pennsylvania’s recognition and enforcement of the Texas decree. Rather, the Pennsylvania court should have followed the provisions outlined in the UCCJA regarding recognition of an out-of-state custody decree. These provisions are found in 42 Pa.C.S.A. § 5354.

§ 5354. Recognition of out-of-state custody decrees
The courts of this Commonwealth shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this sub-chapter or which was made under factual circumstances meeting the jurisdictional standards of this subchapter, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of this subchapter.

The mother erroneously argues that these provisions should not apply because Texas did not have proper jurisdiction over this matter. She bases this argument on the fact that the Texas decree was a default decree, and therefore, the Texas court never determined the “factual circumstances” of the case as required by § 5354. She also notes that in Pennsylvania a judgment for custody may not be entered by default. See: Pa.R.C.P., Rule 1915.9, 42 Pa.C.S.A. The mother then reasons that since the Texas decree was a default decree it was not based on “statutory provisions substantially in accordance” with Pennsylvania law.

While it is true that a custody determination in Pennsylvania can not be entered by default, § 5354 only requires that the other state assume jurisdiction under statutory provisions substantially in accordance with this subchapter, or under factual circumstances which meet with the jurisdictional standards of this subchapter. The subchapter to which § 5354 refers is Subchapter C, also known as the UCCJA. 42 Pa.C.S.A. § 5341. The statutory provisions which outline the jurisdiction standards of the UCCJA are found in 42 Pa.C.S.A. § 5344(a)(1), which states:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
1. this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
2. it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;

The term “home state” is defined by the Act as the state in which the child lived with his parents for at least six months immediately preceding the custody action 42 Pa.C.S.A. § 5343.

The factual circumstances of this case clearly provided Texas with jurisdiction under the standards outlined in § 5344(a)(1)(h), 42 Pa.C.S.A. The child lived from birth with his parents in Texas until he was taken to Pennsylvania by his mother approximately one year and one month later. The child was absent from Texas only one month before the father instituted custody proceedings. Thus, Texas was the “home state” of the child within six months before the custody proceedings were commenced, and the child was absent from Texas because he was removed by his mother who was claiming custody.

The mother also cites 42 Pa.C.S.A. § 5356(a) to support her argument that Pennsylvania must refuse to recognize a default decree entered by another state. That section provides:

(a) General rule. — A certified copy of a custody decree of another state whose decrees are recognized under section 5354 (relating to recognition of out-of-state custody decrees) may be filed in any office of the clerk of the court of common pleas of this Commonwealth. A custody decree so filed has the same effect and shall be enforced in like a manner as a custody decree rendered by a court of this Commonwealth.

The mother maintains that this section requires a Pennsylvania court to treat a Texas default decree in the same manner it would treat a Pennsylvania default decree, i.e. as a nullity. We find this argument to be without merit. This section deals with decrees that are already recognized under § 5354, 42 Pa.C.S.A. As stated above, this Texas decree must be recognized by the Pennsylvania courts because it was entered by a state which assumed jurisdiction under factual circumstances which met the jurisdictional standards of the Act. Therefore, the Texas decree must be given the same effect, and enforced in the same manner, as a custody decree rendered by a Pennsylvania court.

Although we believe it is an unwise practice to enter default judgments in a matter so fundamental as a custody determination, nevertheless, we are bound to recognize and enforce the decrees of sister states if they meet the Act’s requirements. To find otherwise would enable one to choose to ignore proceedings in another state because Pennsylvania will not honor a default decree. A person could permit a default decree to be entered, realizing that Pennsylvania will refuse to enforce it, and later institute a petition in Pennsylvania for custody. Such action was certainly not contemplated by the Act, and it is in direct contradiction to the stated purposes of the Act. See: 42 Pa.C.S.A., § 5342.

The mother in this case does not claim that she failed to receive notice of the Texas proceedings, or that Texas denied her the opportunity to be heard. In fact the mother was aware of the Texas policy of entering default decrees since she obtained custody of her eldest son in a Texas default proceeding.when her ex-husband, Mr. Hunter, failed to appear. Nevertheless, the mother in this proceeding chose not to avail herself of the opportunity to be present and argue the merits of her claim to the Texas court. Instead, the mother elected to file a separate proceeding in this Commonwealth. If the mother wishes to present any further challenge to the merits of the Texas custody determination, or the manner in which it was entered, she must do so by means of petition or appeal to the Texas courts.

Order reversed. Case remanded to trial court for further proceedings consistent with this opinion.

Jurisdiction relinquished.


author: HOFFMAN, Judge:

text:
    496 A.2d 1188
    Frank J. POTIS and Angela Potis, husband and wife, Appellants, v. Paul COON and Beverly Coon, husband and wife, and Ransom Township.
    Superior Court of Pennsylvania.
    Argued April 3, 1985.
    Filed Aug. 2, 1985.

      John A. Mihalik, Bloomsburg, for appellants.
    Joseph P. Lenahan, Scranton, for appellees.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

      . Ransom Township apparently did not file an appellate brief.

   HOFFMAN, Judge:

The sole issue on appeal is whether lot owners in a subdivision acquired a private easement over an unopened road because their deeds referred to a map of the subdivision showing such road where the map was unrecorded and the lots in question did not abut on the road. We find that appellants acquired an easement over the unopened road and, accordingly, reverse.

In 1968, Samuel J. Coon and Mary N. Coon (Samuel and Mary) owned a piece of property in Ransom Township which they decided to develop into a residential subdivision. On September 5 of that year, upon Samuel’s request, Kenneth C. Seamans, a professional surveyor and engineer, prepared a map (1968 Map) showing a subdivision composed of various lots and two parallel “40-foot” roads. See Diagram A. On July 9, 1969, appellants, James P. Whitman and Judith Whitman, (the Whitmans) purchased Lot No. 1 in the subdivision from Samuel and Mary and received a deed which referred to the 1968 Map. (N.T. December 13, 1983 at 14-15). On October 26, 1970, Seamans prepared a second map (1970 Map) which added a plan for lots to be sold on the northwest side of the upper 40-foot road. See Diagram B. On April 5, 1972, Samuel and Mary conveyed Lot No. 2 to Edward H. Coon and Anna Coon (Edward and Anna). On May 21, 1972, Seamans prepared a third map (1972 Map) which reflected the same area as that shown on the 1968 Map and merely extended the southeastern portion. See Diagram C. None of the three maps was ever recorded. (N.T. December 13, 1983 at 4). Both the 1970 May and the 1972 Map show a “U”-shaped 40-foot road encircling the portion of the subdivision containing the lots in question, and both open ends of this “U” are anchored on Ransom Road.

On June 29, 1973, appellants, Fred Vrabel and Mary Ann Coury, purchased Lot No. 2 from Edward and Anna and received a deed which referred to a map based on the 1972 Map. (N.T. December 13,1983 at 15). After these purchasers were married, they conveyed the lot to themselves as Fred Vrabel and Mary Anne Vrabel (the Vrabels) on May 28, 1974. In October or November of 1974, appellants, Frank J. Potis and Angela Potis, (the Potises) entered into a purchase agreement with Mary Coon for Lot No. 4. The Potises made monthly payments until December 8, 1976, when Mary delivered the deed to Lot No. 4 to the Potises. This deed referred to the 1972 Map. (N.T. December 13, 1983 at 17-18).

Meanwhile, on July 16, 1975, appellees, Paul Coon and Beverly Coon, acquired by deed ownership of the lands surrounding the subdivision in question from Mary Coon. In 1976 or 1977, Mary transferred the remainder of her property to appellees. Appellees then decided to resubdivide the acquired lands. This resubdivision would effectively eliminate the upper leg of the 40-foot road by changing it into a cul-de-sac. See Diagram D. This upper leg is an unopened road (i.e., a road not opened or used as a public street). On June 4, 1979, appellee Ransom Township approved of the proposed resubdivision plan.

Consequently, on March 24, 1980, appellants (the Whit-mans, Vrabels, and Potises) filed a complaint against appellees (Paul and Beverly Coon, and Ransom Township), seeking an injunction against the transfer of any lots or the issuance of any permits in connection with the proposed resubdivision which would interfere with their rights to ingress and egress through the unopened road (i.e., the upper leg of the 40-foot road). Appellants’ lots front on the bottom leg of the 40-foot road, and it is undisputed that appellants have never used the upper leg of the road. See Lots 1, 2, and 4 in Diagrams A and C. After appellees filed their answers, the lower court held a hearing on December 13, 1983 for the presentation of evidence. Subsequently, on February 28, 1984, the lower court filed an opinion and order denying appellants’ request for injunctive relief. The court held that appellants had failed to establish the existence of an easement by implication over the unopened road. Appellants then filed a motion for post-trial relief on March 8,1984, requesting modification of the February 28 order so as to grant the injunctive relief sought. Finally, on September 28, 1984, the lower court filed an opinion and order dismissing the motion for post-trial relief. This September 28 order was reduced to judgment and entered upon the docket on October 26, 1984, thereby prompting the instant appeal.

Appellants contend that, by reference to the 1968 and 1972 Maps in their deeds, an express easement by reference to map or plate was created in them over the top leg of the “U”-shaped road, and that such easement cannot be extinguished by appellees’ resubdivision of the northwestern portion of the property. Appellees assert, however, that the lower court correctly ruled that appellants failed to meet the criteria for an implied easement as stated in Thomas v. Deliere, 241 Pa.Superior Ct. 1, 359 A.2d 398 (1976).

We find that neither position is entirely correct. An easement by reference to a map or plate is not an express easement but, rather, an easement by implication. See McAndrews v. Spencer, 447 Pa. 268, 290 A.2d 258 (1972); Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954). However, the criteria enumerated in Thomas v. Deliere do not apply to an easement by reference to a map or plate, which is a particular type of implied easement controlled by its own principles. Instead, we look to the following well established principles concerning an easement by reference to a map or plate:

It is well settled that the grantee of a lot, which is sold according to a plan of lots on which streets or alleys not previously opened or projected as a public street are plotted out by the grantor, acquires an easement over those streets and alleys as a private right of property arising out of the grant, of which he cannot be deprived without compensation[.]

Cox’s Inc. v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541 (1952). Accord In re Penn Avenue (Whittaker Appeal), 386 Pa. 403, 407-08, 126 A.2d 715, 717-18 (1956); Cohen v. Simpson Real Estate Corp., 385 Pa. 352, 355, 123 A.2d 715, 716 (1956); Peterson v. Pittsburgh Public Parking Authority, 383 Pa. 383, 387, 119 A.2d 79, 81 (1955); Dillon v. Klamut, 278 Pa.Superior Ct. 125, 132, 420 A.2d 462, 464 (1980); Travaglia v. Weinel, 191 Pa.Superior Ct. 323, 327, 156 A.2d 597, 599 (1959); Oxford Falls Industrial Park, Inc. v. Evans, 59 D. & C.2d 783, 788-89 (Bucks Co. 1972). References to a plan contained in deeds make the plan a part of the deed or conveyance and constitute a dedication of the streets, alleys and ways shown on the plan, to the use of the purchasers as public ways[.] ... “Where a street called for a boundary in a deed is not a highway nor dedicated to public use, the grantee does not take title in fee to the center of it, but by implication acquires an easement, or right of way, over the lands. There is in such a case, an implied covenant that there is a way corresponding with the one described in the deed, that so far as the grantor is concerned it shall be continued and

that the grantee, his heirs and assigns, shall have the benefit of it.” ...

Vinso v. Mingo, 162 Pa.Superior Ct. 285, 287-88, 57 A.2d 583, 584-85 (1948) (citations omitted) (emphasis added). See also Hunsicker v. Katz, 310 Pa.Superior Ct. 213, 456 A.2d 576 (1983). Additionally,

The rights of a non-abutting property owner within the plan are no less than those of a property owner abutting upon the street in question[.] ... The non-abutting property owner’s rights in the street grid of the plan are not limited to those streets which are necessary to the enjoyment of his property or which materially benefit or add to its value[.]

Drusedum v. Guernaccini, 251 Pa.Superior Ct. 504, 508-09. 380 A.2d 894, 895-96 (1977) (citations omitted). Accord Cohen v. Simpson Real Estate Corp., supra 385 Pa. at 355-56, 123 A.2d at 716-17; Grimes v. Schmidt, 184 Pa.Superior Ct. 159, 162-63, 132 A.2d 406, 407-08 (1957); Oxford Falls Industrial Park, Inc. v. Evans, supra at 789-91.

Moreover,

[A] sale of land and a conveyance by deed making reference to an unrecorded plan which plan includes streets or parks is sufficient to create an enforceable interest, or private right of use, mainly an easement, in the buyer and will normally create an irrevocable offer to dedicate such streets and parks.

Reed v. Reese, 473 Pa. 321, 329, 374 A.2d 665, 669 (1976) (emphasis added); accord Jones v. Sedwick, 383 Pa. 120, 117 A.2d 709 (1955) (fact that plan of subdivision marking location of each lot and the drive had not been recorded was immaterial); see also Ott v. Reager, 313 Pa.Superior Ct. 365, 370, 459 A.2d 1272, 1275 (1983) (“Incorporation of streets and alleys into a plan, recorded or unrecorded, constitutes an offer to dedicate the streets and alleys for use by the public (as well as owners of land within the plan)”).

In the instant case, we must examine appellants’ respective deeds and the maps referred to therein in order to determine whether appellants acquired an easement over the unopened road by reference to such maps. The Whit-mans’ deed, dated July 9, 1969, contains the following description of Lot No. 1:

BEGINNING at a point in the center line of Ransom Road, said point is located 365 feet North 50° 20' West from a bolt at the intersection of the center line of said Ransom Road with the center line of Red Oak Drive, also being southeasterly corner of a proposed 40 foot wide road and running thence from said point of beginning along the center line of said Ransom Road North 50° 20' West, 125 feet to a point, being the southeasterly corner of a parcel of land conveyed by the Grantors herein to Andrew G. Hitzel, et ux; thence along the lands of Hitzel North 49° 40' East, 200 feet to a point; thence along the proposed 40 foot wide road South 49° 40' West, 200 feet to the point and place of beginning. Containing 0.5739 of an acre and being Lot 1, Block B, as shown on Map #3, made by Kenneth C. Seamans, Registered Survey- or, dated September 5, 1968. A copy of said map is attached hereto and made a part hereof.

(Emphasis added). The Vrabels’ deed, dated May 28,1974, describes their lot, as follows:

BEGINNING at an iron pin corner on the northwest side of a proposed forty (40) foot road leading from Ransom Road to said lot, this corner also being the southeast corner of Lot # 1, Block B Map #3; thence along the right of way of proposed forty (40) foot road North thirty-nine (39) degrees forty (40) minutes East two hundred (200) feet to an iron pin corner of Lot # 3, Block B; thence along line of Lot #3 North fifty (50) degrees twenty (20) minutes West one hundred twenty-five (125) feet to an iron pin corner of Lot #2A, Block B; thence along line of Lot #2A South thirty-nine (39) degrees forty (40) minutes West two hundred (200) feet to an iron pin corner of Lot # 1, Block B; thence along line of Lot # 1, South fifty (50) degrees twenty (20) minutes East one hundred twenty-five (125) feet to iron pin corner in right of way of road place of beginning. Containing 25,000 square feet of land be the same more or less.
BEING the same premises which were conveyed from Samuel J. Coon, et ux, to Edward H. Coon, et ux., recorded in Deed Book 774, page 228. The above mentioned Map #3 is a map of lands of Samuel J. Coon, et ux, in Ransom Township as surveyed by Kenneth C. Seamans, Registered Surveyor, which map is dated April 5,1972, and is recorded in Deed Book 774, o>t page 228.
ALSO BEING the same premises conveyed by deed of Edward H. Coon, et ux. to Fred Vrabel and Mary Anne Coury, now by marriage Mary Anne Vrabel, Grantors herein, which deed is dated June 29, 1973, and is recorded in Lackawanna County in Deed Book 802, at page 736, et seq.

(Emphasis added). The Potises’ deed, dated December 8, 1976, describes their lot, in part, as follows:

BEGINNING at a corner on the west side of a 40 ft. road leading from said lot to Ransom state road, this corner also being the southeast corner of lot #3 owned now or formerly by George A. Ross; thence along right-of-way of said road North thirty-nine (39) degrees forty (40) minutes East two hundred (200) feet to corner of lot #5; thence along line of lot #5 North fifty (50) degrees twenty (20) minutes West one hundred twenty-five (125) feet to corner of lot # 4A; thence along line of lot # 4A South thirty-nine (39) degrees forty (40) minutes West two hundred (200) feet to corner of lot # 3 owned now or formerly by George A. Ross; thence along line of____
Surveyed August 17, 1974 by Kenneth C. Seamans, Factoryville, Pennsylvania, and being known as Lot #4, Block B, on Map #3 of Mary N. Coon, widow. The said map is recorded in the Office of the Recorder of Deeds in and for Lackawanna County in Deed Book Volume 836 at page 362.

(Emphasis added).

As we have previously stated, the Whitmans’ deed refers to the 1968 Map whereas the Vrabels’ and Potises’ deeds refer to the 1972 Map. These (unrecorded) maps show a subdivision plan bounded on two sides by two legs of a 40-foot road. See Diagrams A and C. This 40-foot road (as well as other lots in the subdivision) is expressly referred to in the deed descriptions of appellants’ lots. Moreover, the Whitmans’ deed specifically states that the 1968 Map is to be made a part of the deed. Under the above-cited caselaw, then, we are compelled to conclude that appellants, as grantees of lots in the subdivision, acquired an easement over the unopened road in question (i.e., top leg of the “U”) because their lots were sold according to a plan of lots on which the road was plotted out by the grantor. Additionally, under the principles we have cited above, the fact that the maps were unrecorded and the fact that appellants’ lots do not abut on the road in question do not affect appellants’ contractual rights to the easement; nor do the requirements of prior use or necessity apply to an easement created by reference to a map or plate.

Therefore, we hold that appellants have a private easement over the unopened road plotted on the subdivision plans referred to in their deeds which has not been surrendered and therefore cannot be extinguished without their consent. Accordingly, we reverse the order and judgment below denying appellants’ motion for post-trial relief and remand the case for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction is not retained.

      . Seamans had numbered both the 1968 Map and the 1972 Map as "Map No. 3” whereas he had numbered the 1970 Map as “Map No. 4". (N.T. December 13, 1983 at 19-20). The subdivision labeled “Block B” on the 1968 and 1972 Maps is labeled “Block A” on the 1970 Map.

      . Samuel Coon had died on May 4, 1974.

      . Mary Coon died on July 25, 1980.

      . Robert L. Colville and Margaret W. Colville also joined in the complaint but are not involved in the instant appeal because the matter was discontinued with respect to them on March 4, 1981.

      . In Thomas v. Deliere, supra, which involved an easement by implication based on prior use, this Court stated:
      In determining whether the circumstances under which a conveyance of land is made create an implied easement, § 476 of the Restatement [of Property (1944) ] suggests that the following factors are important: "(a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of the necessity to the claimant, (f) whether reciprocal benefits result to the conveyor or conveyee, (g) the manner in which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties.” As the comments to § 476 clearly demonstrate, no single factor is dispositive and no purely mathematical weighing of factors is possible. Comment g., however, states: "In the greater number of cases, its necessity to the use of land of the claimant is the circumstance that contributes most to the implication of an easement. If no use can be made of the land conveyed or retained without the benefit of an easement, it is assumed that the parties intend the easement to be created.” Conversely, as the degree of necessity decreases, the need to refer to other factors suggestive of an intent to create an easement increases substantially.
      241 Pa.Superior Ct. at 4-5, 359 A.2d at 400.

      . An express easement may be created by an express grant or reservation in the deed or instrument. See Brady v. Yodanza, 493 Pa. 186, 425 A.2d 726 (1981); Merrill v. Manufacturers Light and Heat Co., 409 Pa. 68, 185 A.2d 573 (1962); Nallin-Jennings Park Co. v. Sterling, 364 Pa. 611, 73 A.2d 390 (1950); Duncan v. Gheen, 185 Pa.Superior Ct. 328, 138 A.2d 168 (1958).

      . Yet another type of implied easement is an easement created upon the severance of the unity of ownership in an estate. See DePietro v. Triano, 167 Pa.Superior Ct. 29, 31-32, 74 A.2d 710, 711 (1950) (four criteria: “(1) a separation of the title, (2) such continuous and obvious user before the separation as to show an intention to make the alleged easement permanent, (3) the easement must be necessary to the beneficial enjoyment of the land granted or retained; and (4) the servitude should be continuous and self-acting”).

      . The corollary principle is that:

        Where there has been a prior opening or projection by a municipality or a dedication by a private owner and acceptance by a municipality of streets and alleys appearing on a plan of lots, a subsequent purchaser of a lot which is part of the plan of lots obtains no private right to an easement over those streets. The right of the public is paramount ... and the right of the grantee of the lot is limited to an easement by necessity.

        Cox’s Inc. v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541 (1952) (emphasis omitted).
      By way of general explanation, we note that where an owner of land subdivides it into lots and streets on a plan and sells his lots accordingly, there is an implied grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of them to public use. The right passing to the purchaser is not the mere right that he may use the street, but that all persons may use [it.]

        Rahn v. Hess, 378 Pa. 264, 268, 106 A.2d 461, 463 (1954). If the public has not accepted the offer to dedicate the street to public use within 21 years after the dedication, then the public’s right to accept the offer is foreclosed under the Act of 1889, see 36 P.S. § 1961. 378 Pa. at 268-69, 106 A.2d at 463-64. However, the individual’s property right in the dedicated street is a private contractual right resulting as a legal consequence from the implied covenant under which the grantee purchased, and, as such, is not affected by the failure of the municipality to act upon the dedication; therefore, even though public rights in the street are lost, private easements are left unaffected unless surrendered. 378 Pa. at 271, 106 A.2d at 464. Accord In re Penn Avenue (Whittaker Appeal), 386 Pa. 403, 407-08, 126 A.2d 715, 717-18 (1956); Drusedum v. Guernaccini, 251 Pa.Superior Ct. 504, 508-09, 380 A.2d 894, 895-96 (1977); McLaughlin v. Cybulski, 192 Pa.Superior Ct. 7, 10, 159 A.2d 14, 16 (1960).
      In the instant case, Ransom Township’s approval of the proposed resubdivision plan arguably constituted a rejection of the implied offer to dedicate the unopened leg of the 40-foot road to public use. In any case, appellants’ private easement rights in the road would remain unaffected by the township’s actions.

      . “The majority of jurisdictions, including Pennsylvania, adhere to the ‘broad’ view that the [subdivision] owner’s right accrues as to all of [the] streets within a subdivision where a conveyance is made-with reference to a plan." Oxford Falls Industrial Park, Inc. v. Evans, 59 D. & C.2d 783, 789 n.4 (Bucks Co.1971).

      . In Reed, our Supreme Court further stated:
      Thus, even though the plan was unrecorded, since the recorded deed made reference to the plan which, in turn, designated an area as a part, the sale of the lot and deed to Reed [purchaser-grantee] was in itself sufficient to establish in Reed, as a matter of law, a private right of use or easement in the designated park area.
      473 Pa. at 332, 374 A.2d at 670. We note that, in that case, Reed’s lot did not abut on the park area in question.

      . Nord v. DeVault Contracting Co., Inc. 460 Pa. 647, 334 A.2d 276 (1975), relied upon the lower court and appellees, is distinguishable from the instant case. In Nord, the Supreme Court held that no easement by implication was granted to lot owners where, although the lots abutted land described in the first subdivision plan as a street, the owners purchased by reference to a later subdivision plan which made no reference to the street. Here, however, appellants purchased their lots by reference to subdivision plans (i.e., the 1968 and 1972 Maps) which showed the unopened road over which the easement is claimed.

      . This deed was the one from Fred Vrabel and Mary Anne Coury to Fred Vrabel and Mary Anne Vrabel. The deed from Edward Coon and Anna Coon to Fred Vrabel and Mary Anne Coury is not a part of the record. We note, however, that the 1974 deed states that the premises conveyed are the same as those conveyed by the 1973 deed.

      . Although the Vrabels’ deed and the Potises’ deed both state that the 1972 Map was recorded, it is undisputed by the parties that this map is unrecorded.

      . At the hearing in the lower court, appellants presented testimony to the effect that Samuel and Mary Coon had informed them, before they purchased their lots, that there would be a "U”-shaped or horseshoe-shaped road, with an entrance and exit, around the development. (N.T. December 13, 1983 at 25-27, 31-35, 38-39). Mrs. Whitman and Mrs. Potis also testified that they were shown the 1968 Map and 1972 Map, respectively. (Id. at 27, 38). This testimony reinforces our conclusion that the lots were sold by reference to a subdivision plan showing the unopened road over which appellants claim an easement.


author: HESTER, Judge:

text:
    496 A.2d 1196
    COMMONWEALTH of Pennsylvania, Appellant, v. Angel R. MOLINA a/k/a Angel Ramos Molina.
    Superior Court of Pennsylvania.
    Submitted May 22, 1985.
    Filed Aug. 2, 1985.

      Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Adam O. Renfroe, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

The Commonwealth of Pennsylvania appeals the trial court’s determination that section 9712 of the Mandatory Sentencing Act, 42 Pa.C.S.A. § 9712 (hereinafter “Act”), is unconstitutional. We conclude the trial court erred and vacate and remand for resentencing.

Defendant/appellee, Angel R. Molina, was convicted of possessing an instrument of crime, 18 Pa.C.S.A. § 907, and aggravated assault, 18 Pa.C.S.A. § 2702(a)(1). After the jury returned its verdict and before sentencing, the Commonwealth notified Mr. Molina of its intent to invoke 42 Pa.C.S.A. § 9712. The Commonwealth also established that Molina possessed a firearm during the aggravated assault.

Following the denial of appellee’s post-trial motions, the trial court refused to apply the mandatory minimum sentencing statute. Instead, the court imposed a sentence of 5 years probation for possessing an instrument of crime, and a concurrent term of 7 years probation for aggravated assault. The Commonwealth filed a motion for reconsideration of the sentence which the trial court denied. This appeal followed pursuant to 42 Pa.C.S.A. § 9712(d).

The facts of the crime, viewed in the light favorable to the Commonwealth, Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983), may be summarized as follows.

On the evening of June 18, 1982, appellee visited his neighbors, Monserate Quiles and Olga Cuevas, husband and wife, in their home. Angered by appellee’s flirtation with his wife, Quiles followed appellee to his home upon Molina’s departure, and knocked on the door. Quiles had a knife in his back pocket, which he used at his place of employment to open boxes, and a wrench in his hand. Quiles testified that he would have used the wrench to defend himself if attacked, but he did not threaten appellee with the wrench. Mr. Molina emerged from his home with a gun and fired two shots, one of which struck Quiles in the face. The victim underwent three operations as a result of this gunshot wound.

As noted, supra, the trial judge refused to apply section 9712 as he was required to do, even though “the jury correctly found that the Commonwealth had proven beyond a reasonable doubt that defendant did not act in self defense, and that the shooting was not legally justified.” Trial court opinion at 6 (emphasis added). Although the trial judge purported to find that section 9712 works an unconstitutional imposition of cruel and unusual punishment, the judge’s opinion clearly establishes, instead, that the court believed the circumstances of this case simply warrant an exercise of discretion for the imposition of a lesser punishment. This the court may not lawfully do. The lower court cites no cases in support of a constitutional underpinning to its decision. Rather, the cases cited deal with the discretion accorded to a sentencing court in the absence of the applicability of section 9712.

Section 9712 provides, in pertinent part,

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of ... aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on the offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
(d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
(e) Definition of firearm. — As used in this section “firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

The Supreme Court of Pennsylvania recently upheld section 9712 of the Act in Commonwealth v. Wright, — Pa. —, 494 A.2d 354 (1985). Although the opinion chiefly dealt with the propriety of the “preponderance of the evidence” standard applicable to whether the defendant visibly possesses a firearm, the seven justices of our highest court, in dictum, emphatically upheld the legislature’s removal of the sentencing court’s discretion under the statute.

The section in question removes from the sentencing court the discretion to decide whether total confinement is appropriate and whether to set a minimum sentence of less than five years. Visible possession of a firearm during the commission of the crime is a sentencing factor which, if found, is dispositive of those issues. The legislature has thus foreclosed the possibility of leniency to such gun-users.

Id., — Pa. at —, 494 A.2d at 357-358 (emphasis added). The Court noted that it is the province of the legislature to determine the punishment imposable for criminal conduct, and rejected out of hand any argument that section 9712 violates the separation of powers principle by depriving the sentencing court of discretion. Id., — Pa. at —, 494 A.2d at 361 n. 4.

Finally, further commenting on the legislature’s removal of discretion from the sentencing court, the Wright Court stated,

The effect of section 9712 is merely to limit the discretion of the sentencing court in the selection of a minimum sentence where it is determined that the defendant visibly possessed a firearm during the commission of the crime. The maximum permissible term of imprisonment remains unaffected. The defendant has no cognizable right to leniency.

Id., — Pa. at —, 494 A.2d at 362 (emphasis added). The Court emphasized that a defendant has no right to avoid punishment and no right to a particular punishment within the relevant statutory range. Justice Larsen, in his concurring opinion in which all other justices joined, noted that when section 9712 is applicable, the sentencing court’s discretion to be lenient is restricted, and the court actually lacks authority to place a convicted offender on probation. Id. (Larsen, J., concurring), — Pa. at —, 494 A.2d at 356 n. 2.

A panel of this court, in Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985), considered and rejected the argument that section 9712 violates the right to due process because the legislature removed the sentencing judge’s discretion to impose a lesser term. We noted therein that the individualized consideration required to be given by the sentencing court, pursuant to the Sentencing Guidelines, does not supercede the mandatory provision of section 9712. We stated, “[T]he mandatory five year minimum sentence for the commission of certain serious crimes with a visible firearm is designed to protect human life and is reasonably related to accomplishing that goal. We therefore find that the mandatory sentencing provision in 42 Pa.C.S.A. § 9712 does not violate due process of law.” Id., 342 Pa.Superior Ct. 70, 492 A.2d at 70.

It is clear that the trial judge was without authority to sentence Mr. Molina to a term of probation for the conviction of aggravated assault. It is irrelevant that the trial judge believed this to be a “stupid” crime, that appellee had no prior record and that Molina is a “good, hardworking man, a homeowner, a family man, and a faithful churchgoer.” Trial court opinion at 6. It is obvious, notwithstanding the directive of section 9712(c), the trial judge refused to abide by the Act simply because he found it distasteful to impose the required sentence.

Accordingly, 42 Pa.C.S.A. § 9712(d) requires us to vacate the sentence imposed for aggravated assault and remand for resentencing.

Jurisdiction relinquished.

      . Although not required to do so by statute, the assistant district attorney also provided written notice to the defendant, shortly after filing the information, of his intent to invoke § 9712.


text:
    496 A.2d 1199
    Robert J. SZAKMEISTER, Appellant, v. Geraldine A. SZAKMEISTER.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Aug. 2, 1985.

      James R. Fiorentino, Bethlehem, for appellant.
    William F. Moran, Jr., Easton, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order entered by the Court of Common Pleas of Northampton County, Pennsylvania. On June 13, 1984, the Honorable Michael Franciosa directed appellant, Robert J. Szakmeister, to pay alimony pendente lite and counsel fees to appellee, Geraldine A. Szakmeister.

Appellant had instituted an action in divorce pursuant to the Divorce Code of 1980 on June 7, 1982. Appellee then sought alimony pendente lite, counsel fees and costs. Depositions of the parties were taken on November 29, 1983, and were submitted to the court in lieu of a hearing. Following consideration of the notes of testimony, exhibits and arguments of counsel, Judge Franciosa entered a thoughtful opinion and order on June 13, 1984, in which he denied appellee’s request for costs, but directed appellant to pay appellee/wife alimony pendente lite in the amount of $230.00 per month, and counsel fees, accrued through February 22, 1984, in the amount of $1,102.50. This appeal followed.

This appeal is faulty for two reasons. First, Mr. Szakmeister failed to file a motion for post-trial relief pursuant to Pa.R.C.P. 227.1. The failure to do so precludes consideration of the merits, constitutes a waiver of appellant’s objections and requires affirmance of the lower court order. However, when a final order is not entered on the docket following the failure to file such a motion, Beasley v. Beasley, 334 Pa.Super. 510, 483 A.2d 853 (1984), requires that the appeal be quashed.

The record reveals in this case that a final order was not entered. Thus, this appeal will be quashed pursuant to the mandate of Beasley. However, we write initially concerning appellant’s failure to file a motion for post-trial relief. We do so in order to dispel any confusion that may exist among members of the bar regarding the present reference of Pa.R.C.P. 1920.52 to Pa.R.C.P. 227.1-227.4, although the relevant case law was decided pursuant to Pa.R.C.P. 1920.52 and the now rescinded Pa.R.C.P. 1038(d) and (e).

In Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983), we held that the failure to file exceptions in the trial court to a final order which denies alimony pendente lite and counsel fees after the entry of a divorce decree, constitutes a waiver of the issues. That holding resulted from analysis of Pa.R.C.P. 1920.52(a) and (b). The Carangelo court noted that although Pa.R.C.P. 1920.52(a) requires adherence to the exceptions procedure of Pa.R.C.P. 1038(d) and (e) (rescinded December 16, 1983, and replaced by Pa.R.C.P. 227.1 and 227.4), the same requirement applies to Pa.R.C.P. 1920.52(b) claims. This is so because “[subsections (a) and (b) appear ... to have been separated only for the purposes of requiring a statement of reasons for decisions under (a) and allowing only general findings for decisions under (b).” Carangelo v. Carangelo, supra, 321 Pa.Superior Ct. at 225-26, 467 A.2d at 1335. See also Com. ex rel. DeWalt v. DeWalt, 309 Pa.Super. 275, 455 A.2d 156 (1983) (Although Pa.R.C.P. 1920.52(b) does not specify whether exceptions to an order awarding alimony pendente lite must be filed, Pa.R.C.P. 1038 does so require, and is applicable to all such orders.)

In Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984), this court en banc reaffirmed the validity of the cases holding that an order granting alimony pendente lite, counsel fees and expenses in a divorce action is an appealable order, and further determined that an order denying such interim relief is also final and appealable. See also Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127 (1984) (Order granting or denying interim counsel fees and expenses is final, appealable order.) However, the Sutliff court, like the court in Carangelo, could not reach the merits because the appellant failed to file exceptions to the order of the lower court. See also Rosen v. Rosen, 328 Pa.Super. 93, 476 A.2d 470 (1984) (Appellant’s failure to file exceptions to the lower court’s order granting fees and costs to appellee in a divorce action rendered the issues waived.)

It matters not that Pa.R.C.P. 1920.52 was amended to reflect reference to Pa.R.C.P. 227.1-227.4, the replacements to Pa.R.C.P. 1038(d) and (e). The relevance of this amendment simply alters the title of the motion required to have been filed in order to preserve the issues for appeal. See generally Carangelo v. Carangelo, supra, 321 Pa.Super. at 224 n. 3, 467 A.2d at 1335 n. 3. Under Pa.R.C.P. 1038, exceptions were required to have been filed; pursuant to Pa.R.C.P. 227.1, the aggrieved party must file a motion for post-trial relief. In both instances, “appellate review is more meaningful when the trial court has first had an opportunity to review its decision and to address the specific allegations of error____” Com. ex rel. Waltman v. Graczyk, 501 Pa. 244, 460 A.2d 1098 (1983), quoting, Jones v. State Auto. Ins. Ass’n, 309 Pa.Super. 477, 455 A.2d 710 (1983).

However, as noted supra, the record in the instant case reveals that a final order was not entered on the docket following Mr. Szakmeister’s failure to file a motion for posttrial relief, as required by Beasley v. Beasley, supra. Thus, this appeal must be quashed. As appellant further failed to preserve the issues for appellate review, Sutliff v. Sutliff, supra, and Carangelo v. Carangelo, supra, it would be futile for us to exercise our option to notify counsel that final judgment was not entered pursuant to Pa.R.A.P. 905(a), and upon its entry, treat the appeal as if taken from a final order. Beasley v. Beasley, supra, 334 Pa.Superior Ct. at 512 n. 3, 483 A.2d at 855 n. 3.

Accordingly, this appeal is quashed.

      . There was no prior referral of the instant claims to a master. The record reveals that the court appointed a master on June 5, 1984, for the consideration of other claims.

      . Pa.R.C.P. 1920.52(a) provides,
      (a) In claims involving
      (1) marital property,
      (2) enforcement of marital agreements,
      (3) custody,
      (4) alimony,
      (5) paternity,
      (6) a contested action of divorce, or
      (7) a contested action for annulment,
      the trial judge shall enter a decision which shall state the reasons therefore. The practice and procedure thereafter shall be in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive.

      . Pa.R.C.P. 1920.52(b) provides,
      (b) In claims involving
      (1) child support,
      (2) alimony pendente lite,
      (3) counsel fees, costs and expenses,
      (4) an uncontested action of divorce, or
      (5) an uncontested action for annulment,
      the decision of the trial judge may consist only of general findings.


author: HANDLER, Judge:

text:
    496 A.2d 1201
    COMMONWEALTH of Pennsylvania v. Keith D. HADFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Aug. 2, 1985.
    Petition for Allowance of Appeal Denied Jan. 16, 1986.

      Charles J. Duke, Bradford, for appellant.
    Robert L. Saunders, Assistant District Attorney, Bradford, for Commonwealth, appellee.
    Before BECK, POPOVICH and HANDLER, JJ.

       Judge Earl R. Handler, Senior Judge, Court of Common Pleas of Indiana County Pennsylvania is sitting by designation.

   HANDLER, Judge:

This is an appeal from judgment of sentence of five to ten years imprisonment plus restitution of $391 for aggravated assault. Appellant contends that the Lower Court erred in failing to dismiss the charges against him pursuant to Pa.R.Crim.P. 1100. We agree.

The complaint was filed on July 11, 1982, charging appellant with aggravated assault arising out of a fight between the appellant and his girl friend, Betty Walker, during which appellant slashed Walker with a razor blade. The run date for Rule 1100 purposes was therefore January 7, 1983. Appellant was arraigned and entered a plea of not guilty on July 30,1982. Subsequently, on August 19,1982, appellant filed an application for an incompetency examination under par. 402(c) of the “Mental Health Procedures Act.” 50 P.S. § 7402(c). The Court, made an order committing the appellant to the State Correctional Diagnostic and Classification Center in the Pennsylvania State Correctional Facility at Pittsburgh, Pennsylvania for a period not exceeding sixty (60) days for diagnostic observation and examination pursuant to Pa.R.Crim.P. 1403 B. This order noted that the appellant had been committed under the foregoing Rule and also that notice of the order had been given to counsel for the Commonwealth and the defendant. It is significant that authority to commit under the Rule is for the purpose of aiding the Court in imposing sentence and a defendant may only be directed to submit after a finding of guilt and before the imposition of sentence. Appellant was sentenced on October 21, 1982, to five to ten years imprisonment.

On November 9, 1982, appellant filed a petition to vacate the sentence alleging that the sentence was invalid because it had been imposed prior to- a plea of guilty or a finding of guilt after a trial. A hearing was then held and on November 18, 1982, the sentence was vacated.

On November 19, 1982, the Commonwealth filed a petition for extension of time pursuant to Rule 1100(c). The petition alleged that: (1) The appellant was unavailable while being examined at the State Correctional Diagnostic and Classification Center, (2) The appellant through his counsel acknowledged that he had pleaded guilty at the sentencing proceeding, and that the Commonwealth was ready to proceed to trial on the day of sentence, and continued to remain ready to proceed, and (3) That January 31, 1983, a date beyond the prescribed period under Rule 1100, was the next date when a jury panel would be available. The appellant’s answer averred that he was available while being examined at the Diagnostic and Classification Center and denied that he had ever entered a plea of guilty. In addition, appellant alleged, by way of new matter to his answer that since the date the complaint was filed, there had been two dates, September 13, 1982, and November 8, 1982, on which a jury panel was available. The Commonwealth’s petition was granted after a hearing. Appellant then filed a petition to dismiss pursuant to Rule 1100(f). Appellant’s application was denied and trial commenced on January 31, 1983, the date the jury was selected and sworn. After a trial the jury returned a verdict of guilty and after post-trial motions were denied he was sentenced. In response to the appellant’s contention in his motion for post-trial relief that he had been denied his rights under Rule 1100, the Court in it’s opinion made these two relevant findings, (1) That the elapsed time from the filing of the complaint to the commencement of the trial was 204 days and (2) That failure of the Commonwealth to bring the defendant to trial in 180 days was excused by a “mutual mistake” of the defense, the prosecution and the Court as to the fact that the defendant had entered a guilty plea to the charge.

The Commonwealth’s problem in this case is that its basic duty under Rule 1100 is to bring the accused to trial; it cannot place that burden on him, Com. v. Roundtree, 469 Pa. 241, 253, 364 A.2d 1359, 1365 (1976). In losing sight of this responsibility, the Commonwealth permitted two timely dates for jury trials to pass and then upon discovering that the sentence had been vacated at a time when the next date for jury trials was beyond the time fixed by Rule 1100, petitioned to extend the time of trial.

The applicable law is clear. In Com. v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976), the Supreme Court stated the basic rule to be:

The trial court may grant an extension under Rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reason why the delay cannot be avoided.

In Com. v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982), this Court held that proof of due diligence must appear in the record and failure to adhere to this requirement will justify dismissal with prejudice. In Com. v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366, (1978), this Court held that the mere assertion of due diligence on the face of the petition without further proof is insufficient on which to ground a finding of due diligence. Furthermore, it is axiomatic that the Commonwealth has the burden of showing that it has met the requirements of Rule 1100(c) by a preponderance of the evidence, Com. v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). In order to meet this burden, the Commonwealth must establish that it has done everything reasonably within its power to bring the case to trial on time, Com. v. Dixon, 295 Pa.Super. 425, 441 A.2d 1305 (1982).

The petition for extension did not aver that despite the exercise of due diligence by the Commonwealth it was unable to bring the appellant to trial at times available within the limits fixed by Rule 1100. It did aver that at the appellant’s request he had himself transferred to the State Diagnostic and Classification Center where he remained for sixty (60) days thereby making himself unavailable of his own volition. Although the assertion is meager, it did raise the issue of the Commonwealth’s due diligence for this reason. If the appellant had been committed to the State Correctional Diagnostic and Classification Center for the purpose of a competency examination, the time spent there for that purpose would have been excludable under Rule 1100(d)(3)(i), Com. v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980). If, however, the appellant was committed for an examination in aid of sentencing as occurred in this case, though on the erroneous belief that he had already pleaded guilty, he was available for trial and the rule of due diligence required the Commonwealth to take whatever steps are necessary to bring him to trial.

The record clearly indicates a lack of due diligence on the part of the Commonwealth in that:

1. It failed to comprehend that the order committing the appellant to the State Diagnostic and Classification Center was in and of sentencing and not for an incompetency examination.
2. It failed to determine whether the appellant had pleaded guilty prior to the order.
3. It permitted the appellant to be sentenced without having pleaded guilty at a time when a timely jury trial date was still available.

Two important constituents of our rationale are that the Lower Court neither found the appellant to be unavailable for trial so that the time did not run against the Commonwealth nor that the Commonwealth had met the required standard of due diligence. Instead it improvised a new reason excusing delay, that of “mutual mistake” which does not excuse under Rule 1100 or any of the cases interpreting it. And though superficially anomolous, the failure of the appellant’s counsel to inform the Court at the time of the first sentencing proceedings that no plea of guilt had been entered, does not shift the burden of bringing the accused to trial within the period fixed by Rule 1100. Accordingly, we find that the Lower Court erred in granting the Commonwealth an extension of time and in denying the appellant’s motion to dismiss.

Judgment of sentence vacated and appellant discharged.

BECK, J., joins in this opinion.

POPOVICH, J., concurs in the result.

      . Because of our disposition of the case, we need not address the other issues raised by appellant.

      . The record contains no indication that the case was ever listed for trial.

      . There is no record relevant to the order except the order itself which appears verbatim in the Continuance Docket.

      . No transcript of this hearing is provided in the record.

      . No transcript of this hearing is provided in the record.


author: PER CURIAM:

text:
    496 A.2d 1205
    In re ESTATE OF George T. LOUTSION, Deceased. Appeal of PITTSBURGH NATIONAL BANK, Executor.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed July 19, 1985.

      James C. McCreight, Washington, for appellant.
    Before CIRILLO, MONTGOMERY and BUCHER , JJ.

       Honorable Wilson Bucher, Senior Judge of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   PER CURIAM:

This appeal was taken by the corporate executor of an estate from the decree of the Orphans’ Court awarding compensation substantially below that requested by the executor, in accordance with a provision of testator’s will that compensation should be in accordance with the fee schedule then in use by the corporate executor, in its First and Final Accounting. We hold that the compensation was improperly reduced below that provided for in testator’s will, and therefore reverse.

Testator died in 1980, leaving a will which appointed appellant as executor of the estate and stated that this corporate fiduciary would “be entitled to deduct as compensation for its services ... a fee which shall be in accordance with its schedule of charges then in effect.” Appellant completed its administration of the estate and filed its First and Final Account, which came on for audit in January, 1983, arid which claimed executor’s fees totalling $19,079.06 based on a percentage of principal and interest and a charge for special services. At the audit, no challenge was raised by any of the will’s beneficiaries to the amount of compensation claimed by appellant. The auditing judge, however, felt that the fees charged might have been excessive, and entered a sua sponte order for a hearing on the reasonableness of the compensation claimed by the executor. At that hearing, the beneficiaries of the estate took no position as to the reasonableness of the fees charged by appellant in its role as executor. The trial court, however, relying on In Re Reed Estate, 462 Pa. 336, 341 A.2d 108 (1975), for the proposition that as a rule of thumb executor’s commissions of 3% of the estate are reasonable, held that the fees requested by appellants exceeded both the Reed rule of thumb and the reasonable value of the services actually performed. The court therefore allowed a lesser amount of compensation to appellant and, in footnote 3 of its opinion, set forth a graduated schedule of fees based on a percentage of estates of varying sizes which it stated it would use as a guideline in assessing the reasonableness of executor’s fees in the future.

Appellant argues that the trial court erred in sua sponte raising the issue of the reasonableness of the executor’s commissions requested by appellant and in sua sponte reducing the commissions where the request was in accordance with the provision of the testator’s will. We agree. Although, as the trial court correctly points out, the Orphans’ Court has broad discretion to review the reasonableness of a fiduciary’s request for compensation, and may raise the issue of reasonableness sua sponte in appropriate cases, see Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967), the issue of reasonableness does not arise unless the will is silent as to the amount of compensation to be paid the executor. Where the testator has made an express provision for the amount of the executor’s compensation and the executor accepts his appointment under the will, that provision is binding on all parties, both the executors themselves and the estate, see Allen’s Estate, 125 Pa. 544, 17 A. 453 (1889); J. Aker, The Law of Wills in Pennsylva nia, § 10.23E (1983); 5A Remick’s Pennsylvania Orphans’ Court Practice, § 39.11(a)(1); Hunter’s Pennsylvania Orphans’ Court Commonplace Book, Commissions § 8(a), unless some misconduct or mismanagement of the estate by the executor warrants reduction of the commission by surcharge. Lohm Estate, 440 Pa. 268, 269 A.2d 451 (1970). This is in accord with the fundamental principle of the law of wills that where a court can with reasonable certainty ascertain the intent of a testator through examination of the will itself, resort to consideration of matters external to that document is improper, see, e.g., Estate of Schwenk, 507 Pa. 409, 490 A.2d 428 (1985), and the principle of the law of trusts, applicable by analogy in the present situation, that if a trust document is silent as to compensation, a trustee is entitled to receive a reasonable allowance, but if the trust instrument provides the amount of compensation for the trustee, that provision should be enforced by the courts without an independent determination of its reasonableness, see Duncan Trust, 480 Pa. 608, 391 A.2d 1051 (1978); In Re Account of Reed, 467 Pa. 371, 357 A.2d 138 (1976). See also Hays’ Estate, 183 Pa. 296, 38 A. 622 (1897) (case law dealing with binding nature of testamentary provisions on trustee compensation equally applicable where executor compensation at issue).

Here, the will clearly and unambiguously stated that compensation to the corporate executor was to be in accordance with its fee schedule and there has been no suggestion of any conduct on the part of appellant which might warrant the imposition of a surcharge. Thus, particularly in the absence of any challenge by the estate’s beneficiaries to appellant’s entitlement to the requested commissions, payment of executor’s fees should have been made in accordance with the fee schedule without any inquiry by the trial court into the reasonableness of that schedule. Accordingly, we conclude that the trial court abused its discretion by sua sponte reducing the executor’s fees in this case, and we vacate its final decree and remand for entry of a decree compensating appellants in accordance with the provisions of the testator’s will.

Decree vacated; case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.


author: BROSKY, Judge:

text:
    496 A.2d 1207
    COMMONWEALTH of Pennsylvania v. Randall COLEMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1984.
    Filed Aug. 9, 1985.

      Carmela R. M. Presogna, Assistant Public Defender, Erie, for appellant.

      Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence imposed after a jury found appellant guilty of simple assault. Appellant contends that: (1) the court below erred in refusing his requested jury instruction; and (2) the lower court did not adequately set forth, on the record, its reasons for the sentence. We agree with appellant’s first contention and, accordingly, vacate the judgment of sentence and remand for a new trial.

On May 29, 1982, appellant was involved in a car accident. Both drivers left their vehicles. At trial, conflicting testimony was presented as to the events occurring after the drivers emerged from the cars.

The victim, Douglas Snyder, testified that he got out on the passenger’s side of his car and saw appellant coming out of his car yelling that Snyder had hit his car. He also stated that appellant had then punched him in the head and kicked him after he had fallen to the ground. He further testified that he had remained calm and had not hit or threatened appellant by word or gesture.

Appellant testified that Snyder had come out of his vehicle with his hands up, ready to fight. He stated that a fight then ensued and that he left the scene after apparently winning the fight.

A disinterested bystander, Donald Glover, testified that he had observed the accident and that he had seen Snyder come out of his car and charge at appellant. He also stated that a fight had then ensued, but that he had not seen who had thrown the first punch.

The jury found appellant guilty of simple assault on November 16, 1982. Post verdict motions were timely filed and denied and, on December 20, 1982, appellant was sen-fenced to one to twenty-three months imprisonment. This appeal timely followed.

Appellant argues that the trial court erred in failing to grant his request to charge the jury as to the grade of simple assault as a third degree misdemeanor in addition to the instruction on the crime as a second degree misdemean- or. We agree.

Simple assault is defined under 18 Pa.C.S. § 2701 as follows:

2701. Simple Assault
(a) Offense defined — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
(b) Grading — Simple assault is a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree. (Emphasis supplied).

In its charge, the trial court instructed the jury as to § 2701(a). The court also charged the jury as to appellant’s claim of self-defense, including the fact that in order to qualify for a claim of self-defense an actor confronted by nondeadly force must not use excessive force in retaliation, see Commonwealth v. Jones, 231 Pa.Super. 300, 332 A.2d 464 (1974). However, when, at the close of the instructions, appellant requested the trial court to also charge the jury as to § 2701(b), the court refused to do so.

We find, and the lower court treated, appellant’s request as analogous to a request for an instruction on a lesser included offense. As with an instruction on a lesser included offense, appellant’s requested instruction would have given him the benefit not of the possibility that the jury would find him not guilty, but rather of the possibility that it would find him guilty of an offense carrying a less severe sentence.

A trial court, however, has no obligation to charge upon law which has no application to the evidence presented at trial. Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976). It must only charge on a lesser included offense if there is some disputed evidence concerning an element of the greater charge or if the undisputed evidence is capable of more than one rational inference. See Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984).

In the instant case, the trial court concluded that it would not charge on § 2701(b) because there was no evidence presented to the jury that the fight was entered into by mutual consent. We find that conclusion to be erroneous.

First, we believe the testimony of the bystander, Donald Glover, would have supported an inference that the fight was entered into by mutual consent. Even had there not been this testimony, we believe appellant would have been entitled to the desired instruction. The jury also could have found that the victim was the initial aggressor and that appellant had begun to act in self-defense, but had used excessive force in doing so. Under that version of the events, we believe that the fight must be considered as one which was entered into by mutual consent.

Certainly, accepting appellant’s story, the victim consented to enter into the fight. While appellant, according to his own testimony, cannot be said to have initially consented to the fight in the sense that he began acting in order to protect himself, if he is to be deprived of a claim of self-defense because of use of excessive force, the fight should be considered as one which was entered into by mutual consent. To hold otherwise would unfairly place a defendant who began to act in self-defense, but who forfeits that defense because of use of excessive force, in a worse position than a defendant who uses exactly the same force but who had initially consented to the fight. We believe actors in both situations are equally culpable and, therefore, hold that the trial court should have instructed the jury that, if it found that appellant had initially acted in order to protect himself, but had used excessive force in doing so, it should find him guilty of simple assault as a third degree misdemeanor.

Accordingly, the judgment of sentence is vacated and the case is remanded for a new trial consistent with our opinion. Jurisdiction relinquished.

      . The relevant portion of the trial court’s charge was as follows: The victim’s story, if you believe his story, you have a reasonable doubt, I think you would obviously have to find the defendant guilty because as I recall the victim, Mr. Snyder from what he says he didn’t do anything. He got out of the car and got hit a couple of times, fell down, got up, and got hit again, got kicked again. If you find that to be what actually did happen, your verdict would be guilty against this defendant. But if you consider the testimony of the defendant and his witnesses and all the testimony together and come to a different conclusion, if you come to the conclusion that the defendant is telling the truth, that he didn’t start anything, that he walked out there and he was hit, so to try and protect himself he hit the victim and kicked him because if they’re on the ground they’re more dangerous, he didn’t explain that, but he said something about martial arts which I know nothing about, maybe you do. He then said the victim got up and he hit him again and kicked him and then realized he could get away so he got away. If you believe that story, of course, the defendant would be not guilty, you would be justified that he did not over do [sic] it. The person is attacked, he has a right to defend himself, but he can only use such powers as necessary to defend himself. He can’t try to kill somebody because he comes up and hits you, but your [sic] are allowed, if they don’t run away, you are allowed to use enough force to protect your own skin and perhaps — But as I understood it, he was explaining how he was protecting himself. So you determine what actually did happen and determine whether or not the Commonwealth has met its burden.

      . Under 18 Pa.C.S. § 1104, a misdemeanor of the second degree is punishable by a maximum sentence of two years imprisonment, while a third degree misdemeanor is punishable by a maximum of one year’s imprisonment.

      . In light of our holding, we need not consider appellant’s second contention.