author: FORD ELLIOTT, Judge: POPOVICH, Judge,

text:
    601 A.2d 842
    COMMONWEALTH of Pennsylvania v. Lawrence T. THORNHILL a/k/a Lawrence Thornhill, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1991.
    Filed Jan. 10, 1992.

      Robert A. Crisanti, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence entered October 5, 1990, in the Court of Common Pleas, Allegheny County. Appellant was charged initially with criminal attempt to commit burglary, burglary, and receiving stolen property. This first set of charges arose from incidents which occurred on or about March 15, 1988, at two residences in Penn Hills. Prior to the trial date, however, the Commonwealth nolle prossed appellant’s charges for burglary and receiving stolen property. Thereafter, a second information was filed against appellant charging him with burglary and receiving stolen property, in connection with an incident which had transpired on February 9, 1988.

Appellant waived his preliminary hearing on the first set of charges, and failed to appear on September 7, 1988, for the preliminary hearing on the second set of charges. As a result, the Commonwealth proceeded under Pa.R.Crim.P. 231 and held the hearing in appellant’s absence. The charges against appellant were held for court. Subsequently, Judge Dauer issued an arrest warrant for appellant on October 27, 1988.

On August 8,1990, appellant filed a motion to dismiss the charges against him, raising the issue presented herein involving the Interstate Agreement on Detainers Act, 42 Pa.C.S. § 9101 et seq. The motion was denied on August 30, 1990, at the conclusion of a hearing before the Honorable Raymond A. Novak. Appellant chose to proceed immediately to a bench trial on stipulated facts, and Judge Novak found him guilty of burglary and attempted burglary. Timely post-verdict motions for arrest of judgment were filed and denied, following argument. On October 5, 1990, consecutive sentences of two to ten years on the burglary conviction, and ten months to five years on the criminal attempt to commit burglary conviction were imposed on appellant. A motion to modify sentence was filed on October 15, 1990, but was not addressed. This timely appeal followed.

On appeal, appellant questions whether the Commonwealth violated his rights under Article III of the Interstate Agreement on Detainers Act by failing to bring him to trial within one hundred and eighty days of his request for extradition from Delaware. Because our review of the procedural history of this case reveals that the Commonwealth did violate the clear mandates of the Act and, consequently, appellant’s rights insured thereby, we vacate appellant’s judgment of sentence and dismiss the charges against him.

Our disposition of appellant’s case centers on the following pertinent portion of Article III of the Act, which provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he. shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

42 Pa.C.S. § 9101, Article 111(a). Following the guidelines set forth in this portion of the Act, appellant notified the District Attorney’s Office by formal written request on November 21, 1989, of his desire to be transported back to Pennsylvania from Delaware for final disposition of the charges pending against him in the Commonwealth. The Act plainly states that appellant should be brought to trial within one hundred and eighty days after the district attorney’s receipt of his request. Casper v. Ryan, 822 F.2d 1283 (3rd Cir. (Pa.) 1987) cert. denied, 484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988). Applying that time period to the instant case, it is clear that appellant’s trial was scheduled for and subsequently occurred on August 13, 1990, a date well beyond the 180 days allowed by the statute. Trial in the instant case took place well beyond the statutory period.

Appellant contends that since the Act requires the Commonwealth to bring him to trial within one hundred and eighty days of his request for final disposition of the charges pending against him, then the delay suffered in this case entitles him to a dismissal of his charges. Commonwealth v. Fisher, 451 Pa. 102, 301 A.2d 605 (1973), and Commonwealth v. Lloyd, 341 Pa.Super. 107, 491 A.2d 173 (1985).

The Commonwealth responds that appellant was given the first available trial date and as appellant’s counsel sat by silently while this trial date was set by the court, this silence acted as a waiver of any objection under the Act. While it may be true that appellant could not have received a trial date within the specified time even if an objection had been made, due to the crowded court calendar, we cannot find that the silence of appellant’s counsel relieves the Commonwealth of its responsibility under the Act to request an appropriate continuance. To wit, we find controlling the pertinent language of Article III:

Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

42 Pa.C.S. § 9101, Article 111(a). The clear implication of this language is that the court may grant any request for continuance by either party upon a record showing of good cause for a delay. To that end, we recognize that the Commonwealth cites Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983), for the proposition that a court may grant a continuance where the first available court date is beyond the run date. However, in Gonce, the Commonwealth filed a formal petition with the court stating the circumstances which required that the trial date be set beyond the time period mandated by the Act. There is no indication here, and the Commonwealth does not state otherwise, that the trial court granted a continuance upon a record showing that trial could not take place within the run date.

In Commonwealth v. Fisher, supra, the Commonwealth filed a motion for continuance one hundred and eighty-one days past the run date, claiming that the defendant could not be brought to trial within the specified time period due to court calendar reasons. Our Supreme Court held that although the Commonwealth had good cause to request a continuance, the statutory time frame created by Detainers Agreement mandated that such request be made at or prior to the expiration of the one hundred and eighty-day period. Thus, the court found the Commonwealth’s dilatoriness inexcusable, stating that:

We agree with the New Jersey Superior Court that ‘[t]he Legislature adopted the dismissal sanction not because a prisoner would be prejudiced at trial if trial were delayed more than 180 days after demand, but because such a sanction for failure to try defendant within a fixed, reasonable period of time after demand was regarded as essential to produce general compliance with the statutory mandate. The sanction is a prophylactic measure to induce compliance in the generality of cases.’ State v. Lippolis, 107 N.J.Super. 137, 145, 257 A.2d 705, 710 (1969).

Commonwealth v. Fisher, 451 Pa. at 106-107, 301 A.2d at 607.

Consequently, although we might agree that under the circumstances of this case, delaying appellant’s trial beyond the run date was not unreasonable, what we do find unreasonable was the Commonwealth’s failure to petition the court for a continuance based on the circumstances of the unavoidable delay as was required by the Act. The Commonwealth’s failure to follow this basic procedure was inexcusable where to do so would not have been a burdensome task and would have afforded this court with the necessary record to review appellant’s claim. Gonce, supra.

Instantly, we have no record that the Commonwealth advised the trial court that the first available date was beyond the run date and, therefore, a continuance would be necessary. In accord: Commonwealth v. Diggs, 334 Pa.Super. 268, 482 A.2d 1329 (1984) (trial court acted reasonably in granting two continuances upon defense counsel’s request in open court, when counsel needed additional time to prepare a defense); Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977) (charges against appellant dismissed where case was brought to trial beyond one hundred and eighty-day time period, and record was devoid of any request in open court for a continuance by prosecution or appellant).

It is not defendant’s duty to insure that he is being brought to trial within the specified time; that responsibility rests with the Commonwealth. See: Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984); Commonwealth v. Manley, 282 Pa.Super. 376, 383 n. 7, 422 A.2d 1340, 1343 n. 6 (1980); Commonwealth v. Garrison, 277 Pa.Super. 18, 25, 419 A.2d 638, 642 (1980); Commonwealth v. Walter Brown, 242 Pa.Super. 397, 401, 364 A.2d 330, 332 (1976); Commonwealth v. Hagans, 242 Pa.Super. 393, 396-397, 364 A.2d 328, 330 (1976), aff'd, 482 Pa. 572, 574, 394 A.2d 470 (1978).

To the extent that both appellant and the Commonwealth cite this court to cases concerning Rule 1100, we emphasize that this case is governed solely by the Act. It is to be remembered that Rule 1100 is a procedural rule implemented by our Supreme Court, the interpretation of which is subject to judicial creation. However, here we are dealing with a legislatively enacted statute, the interpretation of which is governed by legislative intent and purpose. Consequently, we recognize the legislative purpose underlying this statute and articulated as follows.

'The policy of the Interstate Agreement on Detainers is “to encourage the expeditious and orderly disposition” of charges and its purpose “is to promote and foster prisoner treatment and rehabilitation programs by eliminating uncertainties which accompany the filing of detainers.” Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973).' Commonwealth v. Wilson, 231 Pa.Super. 451, 454, 331 A.2d 792, 794 (1974) (footnote omitted); see also Commonwealth v. Merlo, 242 Pa.Super. 517, 521, 364 A.2d 391, 394 (1976). Because the legislation is remedial in character, it is to be liberally construed in favor of the prisoner so as to effectuate its purpose. Commonwealth v. Merlo, supra, 242 Pa.Superior Ct. at 522, 364 A.2d at 394.

Commonwealth v. Lloyd, 341 Pa.Superior Ct. at 112, 491 A.2d at 175. Given the facts of the instant case and the decided purpose of the Act, we are constrained to adjudge any violation of the procedural requirements of the Act in favor of appellant. The Commonwealth's disregard for the procedure set forth in the statute controls our conclusion that appellant was entitled to a dismissal of the charges against him.

Judgment of sentence vacated and the charges against appellant are dismissed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I vehemently dissent from the opinion of the majority. The record amply demonstrates that appellant’s trial was set for the earliest possible court date available and that appellant and his counsel sat idly by while his trial date was set. In essence, appellant agreed to be tried after the 180 day Interstate Agreement on Detainers Act period expired. See 42 Pa.C.S.A. § 9101, Article 111(a). Thus, I believe he has waived the present objection.

I also believe the majority’s determination that the Commonwealth is at fault for failing to request a “continuance” is erroneous. I find it ludicrous to place such importance on the magic word of “continuance” when, in fact, all the evidence necessary for proper granting of a continuance was before the court at the time it originally scheduled appellant’s trial. Appellant’s trial date was scheduled past the 180 day run-date based on “good cause”, i.e., the earliest trial date available fell after the run-date. The trial court, in setting the date, considered that same evidence it would have if a “continuance” had been requested. Even the majority seems to agree that under the circumstances of this case, delaying appellant’s trial beyond that run-date was not unreasonable. Majority opinion, p. 387. I can find nothing in the Act which requires the Commonwealth to ask for the “continuance” and precludes the court from acting sua sponte to grant any “necessary or reasonable continuance” for “good cause shown”. 42 Pa.C.S.A. § 9101, Article 111(a). Instantly, the court picked the first available date for trial and, by implication, granted the necessary continuance until that date. Cf., Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983) (court may grant continuance when first available court date is beyond run-date).

In sum, I do not believe appellant should be permitted to escape prosecution merely because the word “continuance” was not used when he did, in fact, receive the benefit of the speedy trial protections embodied in the Interstate Agreement on Detainers Act. Accordingly, I would affirm the decision of the court below.

      . 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 3502; 18 Pa.C.S. § 3925.

      . We note that appellant raises a second issue concerning the sufficiency of the evidence supporting his underlying conviction. Our resolution of appellant’s first claim renders a discussion of his second claim moot.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    601 A.2d 846
    COMMONWEALTH of Pennsylvania v. Charles J. TURIANO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed Jan. 13, 1992.

      Jeffrey W. Stover, State College, for appellant.
    Stewart L. Kurtz, Dist. Atty., Huntingdon, for Com., appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CAVANAUGH, Judge:

Appellant asserts that the trial court erred by denying his request to withdraw his guilty plea because of (1) ineffectiveness of counsel in preparing an insanity defense and (2) alleged interference with his legal mail by prison guards. We are constrained to agree with the tenor of his first argument based on the liberal standard for the withdrawal of guilty pleas before sentencing first articulated in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). We do so with reluctance, however, because we feel the standard adopted in Forbes no longer comports with guilty plea practice in this Commonwealth.

A full recitation of the facts and the procedural history of the case sub judice sets our concerns in a more proper focus. On June 18, 1990, at approximately 9:00 p.m., the appellant shot and killed two persons, Lewis Taylor and Timothy Steele. Appellant’s motivation in committing the crimes is not clear. The shooting occurred in the Taylor household, and Lewis Taylor’s father and the appellant’s niece were present in the house at the time of the murders. They were able to positively identify appellant as the perpetrator. The appellant was arrested the next morning.

Robert Stewart, the County Public Defender, was appointed to handle this case the day after the murders. Appellant soon became dissatisfied with Attorney Stewart’s representation. On July 11, 1990, he wrote a letter to the trial court requesting another attorney. The letter was received by the court on July 14th, and the court had the defendant appear before him on July 19th and interrogated the defendant concerning his request. The defendant felt that it was his attorney’s responsibility to request the trial court to order a mental health examination as soon as possible. Attorney Stewart had mentioned attaining such an exam for him when he was appointed on June 19th. Appellant told the court that he didn’t trust Attorney Stewart because he had made no effort to attain the promised exam, and had done nothing on his case. Attorney Stewart and the trial court informed the appellant that it was unprecedented in the County for a mental health exam to be scheduled in the first month or two after arrest. The appellant requested the trial judge to provide him with another attorney. The trial judge refused, asserting that Attorney Stewart was the best and most experienced person doing criminal defense in the County.

On August 23, 1990, Attorney Stewart on behalf of appellant drafted a request for a psychological examination. On August 24, 1990, Attorney Stewart received an order from the trial court providing the appellant with the psychological examination. Appellant was taken on September 14th from the prison in Huntingdon County and driven to Pittsburgh, whereupon he refused to cooperate with the psychologist because of his dispute with his attorney. Appellant claims that he informed the trial court in a letter that he would refuse to cooperate with the upcoming mental health exam because it was a psychological exam and not a psychiatric exam. Attorney Stewart eventually felt compelled to ask the trial court to allow him to withdraw, and on November 2, 1990, formally made application to withdraw. On November 20, 1990, the trial court issued an order granting his application, and appointing appellant’s present attorney, Jeffrey Stover. The same order also granted new counsel’s request for a psychiatric exam, thus indicating that Attorney Stover was not remiss in arranging for a mental health evaluation himself. On December 17, 1990, the trial court issued an order which arranged for the Huntingdon County Sheriff’s Office to transport appellant to the psychiatric examination.

On December 24, 1991, the appellant underwent the psychiatric exam. The resulting report states that the defendant is an alcoholic who was suffering chronic depression at the time of the murders. On the day of the murders, as was typical, he had been drinking heavily. The psychiatric report expresses regret that the examination was given so far in time from the murder, that it was now impossible for the evaluating psychiatrist to determine what the appellant’s mental state was at the time of the shootings. The report posits that an examination conducted shortly after the murders may have been able to ascertain the appellant’s exact mental state at the time of the murders. The report also opines that at the present time the appellant was competent to stand trial and to cooperate with counsel. The report is dated January 16th, and presumably appellant and his attorney had access to the report before February 4th, the day he pled guilty.

On February 4, 1991, the appellant pled guilty to the murders as part of a plea agreement arranged by present counsel. In exchange for the Commonwealth’s promise not to seek the death penalty, the appellant pled guilty to one count of 1st degree murder and one count of 3rd degree murder. The trial court gave the appellant an extensive guilty plea colloquy to ascertain whether his plea was knowingly and voluntarily given. The trial court then postponed the sentencing until it could have the benefit of a presentence report. At the subsequent sentencing hearing held on April 18, 1991, the appellant asked to withdraw his plea and the trial court refused. In response to the trial court’s query, appellant gave two reasons why his plea should be withdrawn. He alleged that his defense was prejudiced because his first attorney failed to attain for him a mental^ health” evaluation expediently. Moreover, he claimed that prison guards tampered with his mail, thus effecting his ability to properly communicate with his attorney. The trial court ordered a continuance of eleven days for the appellant to file a written motion to withdraw his guilty plea. Appellant filed the motion and after a hearing on the motion on May 10, 1991, the trial court denied appellant’s motion. In accordance with the plea arrangement, appellant was sentenced to life imprisonment on the first-degree murder charge and to a consecutive 10-20 year term for third-degree murder. In his subsequent opinion on the motion, the trial court emphasized that the appellant’s plea was knowing and voluntary and that fraud would be perpetrated on the court if the appellant was allowed to contradict his guilty plea hearing confession.

The present standard for determining whether a defendant before his sentence can withdraw a guilty plea was first articulated in 1973 in the seminal case Commonwealth v. Forbes, supra. A request to withdraw a guilty plea has to meet both prongs of the following two-part test. First, a withdrawal cannot be granted if to do so would substantially prejudice the prosecution. Commonwealth v. Anthony, 504 Pa. 551, 561, 475 A.2d 1303, 1308-1309 (1984); Forbes, supra, 450 Pa. at 191, 299 A.2d at 271. Second, a withdrawal request made prior to sentencing should be granted for any “fair and just” reason. Anthony, supra, 504 Pa. at 561, 475 A.2d at 1308-1309; Forbes, supra, 450 Pa. at 192, 299 A.2d at 271.

Although there is no absolute right to withdraw a guilty plea, Commonwealth v. Cole, 387 Pa.Super. 328, 331, 564 A.2d 203, 204 (1989) (en banc), requests to withdraw guilty pleas prior to sentencing should be “liberally allowed.” Commonwealth v. Shaffer, 498 Pa. 342, 345, 446 A.2d 591, 593 (1982); quoting Forbes, supra, 450 Pa. at 190, 299 A.2d at 271. Commonwealth v. Jackson, 390 Pa.Super. 639, 646, 569 A.2d 964, 968 (1990). A trial court’s decision as to whether to allow a guilty plea to be withdrawn will not be disturbed absent an abuse of discretion. Commonwealth v. Boatwright, 404 Pa.Super. 75, 82-83, 590 A.2d 15, 19 (1991); Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 894 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990). A trial court must exercise its discretion with a view towards permitting withdrawal for any fair and just reason. Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975); Commonwealth v. Woods, 452 Pa. 546, 550, 307 A.2d 880, 881 (1973).

The existence of substantial prejudice to the Commonwealth has been called the crucial factor in determining whether to allow a presentence withdrawal, (emphasis court’s) Commonwealth v. McLaughlin, 469 Pa. 407, 412, 366 A.2d 238, 241 (1978); Jackson, supra, 390 Pa.Super. at 646, 569 A.2d at 968. Here, the Commonwealth readily concedes that it will not be prejudiced if the guilty plea is withdrawn. The Commonwealth has declared that it will be in the same position presently as it was when the appellant pled guilty in February. Given this admission, it only remains for the appellant to establish the much less burdensome requirement that any “fair and just” reason exists for the defendant to withdraw his plea. We have found that where no prejudice exists to the Commonwealth, a defendant does not have to articulate a very substantial “fair and just” reason for us to find that a trial court erred in failing to grant a defendant’s request to withdraw his plea before sentencing. Commonwealth v. Reider, 255 Pa.Super. 163, 165-166, 386 A.2d 559, 560 (1978).

We now address appellant’s second argument, as we find it presents less difficulty. Appellant claims that the trial court should have allowed his guilty plea to be withdrawn because he claims his mail was interfered with, thus interfering with his communications with his attorney. Appellant argues in his brief that the Commonwealth did not present any testimony directly countering appellant’s testimony. Appellant asserts that one particular communication was interfered with that may have affected his decision to plead guilty.

Although cognizant that a court should ‘liberally allow’ the withdrawal of a guilty plea before sentencing, we declare nevertheless that it was not an abuse of discretion for the trial court to find that the defendant's mere assertions that his mail was interfered with did not constitute a fair and just reason for withdrawing the plea. The Commonwealth presented testimony that describes the normal procedures for delivering and receiving legal mail which belied the appellant’s testimony. As the court is the proper entity to resolve questions of fact, the trial court had discretion to weigh and balance the testimony. Moreover, it was not incumbent on the Commonwealth to prove the negative. The appellant’s conclusory testimony was the only evidence adduced as to the truth of his assertions. The trial court did not give credence to these naked allegations, and we feel that this was not an abuse of discretion. Certainly, if the allegations could be substantiated, we might be constrained to hold otherwise.

We find rather reluctantly, however, merit to the tenor of appellant’s second argument. Appellant asserts that counsel was ineffective for alleged failure to arrange a mental health examination in a timely fashion for the appellant. Appellant claims that his sole defense, given the overwhelming evidence against him, was the absolute defense of insanity. However, he argues, appellant’s first attorney did not arrange a mental health examination until nearly three months after the crimes. This was despite appellant having made forcefully clear to his attorney shortly after the crimes that he thought it was in his best interests to receive a psychiatric examination as soon as possible. He notes that there was no reason to delay such an examination, because if the report had been unfavorable, it simply would not be used. A favorable report, however, may have greatly assisted the appellant in establishing a successful defense. A mental health evaluation attained by the appellant’s second counsel supported an insanity defense, although it stated that it was speculative whether or not it could be conclusively found that appellant had the mens rea for the crime, due to the length of time between the murders and the evaluation. It is important to observe that this report supported appellant’s argument as to the importance of the temporal aspect of his examination.

We believe appellant’s counsel, in light of the lenient standard he has to meet under the second prong of Forbes, argues too much by asserting ineffectiveness of counsel. It is enough that appellant currently believes he has an insanity defense. In Reider, supra, a criminal defendant pled guilty based on a psychiatric exam that concluded he was not insane at the time of the offense. Subsequent to his plea, he received another mental health evaluation. Although the second exam did not conclude the defendant was legally insane, it did state he suffered from paranoia. In a per curiam decision, this court held that the possibility that the defendant had an insanity defense, absent prejudice to the Commonwealth, required that the Court find the lower court abused its discretion in denying the defendant’s request to withdraw his plea. We asserted that when the Commonwealth is not prejudiced, we would accept a reason for withdrawing the plea which appeared not very substantial. As the Forbes standard indicates, “ ‘[a] trial court, [in presentence situations], abuses its discretion by not allowing a guilty plea to be freely withdrawn prior to sentencing when the Commonwealth would not be substantially prejudiced by the plea withdrawal.’ ” McLaughlin, supra, 469 Pa. at 412, 366 A.2d at 241, quoting Commonwealth v. Santos, 450 Pa. 492, 496, 301 A.2d 829, 831 (1973).

Although not argued by the appellant, we find quite significant that the record displayed a total lack of cooperation between the appellant and his first attorney. We have found that this, alone, can constitute a “fair and just reason” to withdraw a plea before sentencing. McLaughlin, supra, 469 Pa. at 413, 366 A.2d at 241. The record indicates that the appellant instructed his attorney to seek for him a psychiatric examination immediately. The attorney did not act to obtain an exam for him until nearly three months from the crime, and the exam he attained was a psychological exam, not a psychiatric exam. Upon finding out that the exam scheduled was a psychological exam rather than a psychiatric exam, appellant refused to participate with it or his attorney henceforth. It was not until late November that a new counsel was assigned to the appellant, who, although promptly arranging for a new psychiatric examination, could not arrange one until the end of December. This examination provided results of limited value, it being given six months after the crime. Defendant’s contentious history with his first attorney resulted in a six-month delay in the attainment of a crucial piece of evidence. When he received that evidence, it was quite debatable to what extent it could successfully support a potential insanity defense. We must conclude that given the history, the Forbes standard fully supports appellant’s quest to withdraw his plea.

Admittedly, we are reluctant to reverse the trial court because we agree that appellant must have known of the alleged defense before he pled guilty on February 4, 1991. Nevertheless, Forbes illustrated the adoption of an almost paternalistic concern for the rights of a pleading defendant. However, it appears to us that the concerns for the rights of a defendant, which in 1973 led to the adoption of the relaxed Forbes pre-sentence withdrawal standard, should now militate in favor of a heightened standard of entitlement to withdrawal in light of the very substantial changes in the submission of guilty pleas since 1973. In Forbes, a criminal defendant, after initially pleading guilty, expressed before sentencing his innocence. The court then deferred the matter until a hearing could be held on appellant’s request to withdraw a plea. At the hearing, the appellant claimed no longer to desire the plea to be withdrawn, but after questioning by the court it was revealed that defendant only pled guilty because of his counsel’s threat to withdraw from the case if he didn’t. Notwithstanding, the lower court proceeded to accept the plea and sentence him. On appeal to the Supreme Court, it was held that henceforth the above mentioned two prong test would be used to evaluate the withdrawal of a plea before sentencing. The Court, quoting from a recent federal opinion, provided the following reasons why the new standard was efficacious:

The liberal rule for withdrawal of a guilty plea is consistent with the efficient administration of criminal justice. It reduces the number of appeals contesting the ‘knowing and voluntariness’ of a guilty plea, and avoids the difficulties of disentangling such claims. It also ensures that a defendant is not denied a right by trial unless he clearly waives it.

Forbes, supra, 450 Pa. at 191, 299 A.2d at 271, quoting United States v. Young, 424 F.2d 1276, 1279 (3rd Cir.1970). The Forbes Court then found that an assertion of innocence constituted a fair and just reason for withdrawing the plea.

We submit that, given the developments in the thoroughness of the guilty plea colloquy, the efficient administration of justice is no longer served by the Forbes standard. Although as early as 1963 there existed a lenient rudimentary requirement in our Commonwealth that pleas be taken in open court and that a judge ascertain whether the plea was knowingly and understandably tendered, see 42 R.Crim.P. 319(a) (effective Jan. 1, 1965), the essential elements of the colloquy as we know it were not molded by our Supreme Court until the mid-seventies. See Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). At that time, the Court declared that at a minimum, a judge should ask questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has a right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until proven guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of the plea agreement unless the judge accepts such agreement?

Willis, supra, 471 Pa. at 51-52, 369 A.2d at 1189-1190; Dilbeck, supra, 466 Pa. at 547, 353 A.2d at 826-827. As of 1977, it was possible for at least some commentators to assert:

Because of close judicial scrutiny, however, guilty plea colloquies may no longer be treated lightly. Rather, they must be approached both by court and counsel with at least the care and precision required in any other criminal proceeding.

Gafni and Shellenberger, The Changing Criminal Law: Guilty Plea Colloquy in Pennsylvania, 48 Pa.B.A.Q. 259 (1977) (discussing the recent developments of guilty plea colloquies).

We submit that the developments in the guilty plea colloquy have so successfully fulfilled the policy concerns underlying Forbes that the standard itself is obsolete. An extensive guilty plea colloquy undoubtedly is more effective in conserving judicial resources than the Forbes standard. Rather, it seems the post sentence standard of manifest injustice should be the appropriate standard in all cases. The guilty plea colloquy should reduce the numbers of appeals contesting the ‘knowing and voluntariness’ of a guilty plea much more effectively than the Forbes standard. It ascertains from the defendant’s mouth, on-the-record and in all particulars, that the defendant understands the nature of his rights, of the alleged crime, and of the potential punishment. Moreover, once a defendant is aware of the utmost seriousness of the colloquy, he is less likely to be able to believe he can withdraw the plea. Judicial resources, additionally, are expended every time a defendant is given a colloquy, which can be quite extensive. The Forbes standard thus results in the expenditure of precious time on a procedure that is not, for all intents and purposes, final. Finally, and most importantly, a guilty plea colloquy ensures that a criminal defendant clearly understands the significance of the constitutional rights he is waiving. The Forbes standard accordingly undermines the guilty plea colloquy by giving the impression that a pre-sentence plea can be liberally withdrawn.

We must recognize the seeming incongruity of our recent decisions which appear to belie the directive that a court should liberally allow guilty pleas to be withdrawn before sentencing. At one time, it was readily apparent that “the mere assertion of innocence is a ‘fair and just reason’ for permitting the withdrawal of a guilty plea prior to sentencing.” Commonwealth v. McCall, 320 Pa.Super. 473, 480, 467 A.2d 631, 634 (1983); Accord Commonwealth v. Woods, 452 Pa. 546, 551, 307 A.2d 880, 882 (1973); Commonwealth v. Ortiz, 334 Pa.Super. 117, 120, 482 A.2d 1110, 1111 (1984); Commonwealth v. Kay, 330 Pa.Super. 89, 94, 478 A.2d 1366, 1368 (1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 2009, 85 L.Ed.2d 293 (1985); Commonwealth v. Whittall, 304 Pa.Super. 258, 264, 450 A.2d 669, 673 (1982). Commonwealth v. Boofer, 248 Pa.Super. 431, 433, 375 A.2d 173, 174 (1977). These cases notwithstanding, opinions in our Commonwealth have recently expressed reluctance to accept assertions of innocence. Boatwright, supra, 404 Pa.Super. at 84, 590 A.2d at 20 (belated assertion of innocence does not constitute a fair and just reason for pre-sentence withdrawal of plea); Cole, supra, 387 Pa.Super. at 335, 564 A.2d at 206 (en banc) (bald assertion of innocence does not constitute fair and just reason for pre-sentence withdrawal of plea); see also, Commonwealth v. Kerbacher, 527 Pa. 545, 548, 594 A.2d 655, 656 (1991) (“In analyzing what is fair and just ... a knowing and intelligent guilty plea will not be abrogated by a subsequent assertion of a speculative right where such purported right does not call into question the factual basis for the plea and/or the voluntariness of the plea.”) Moreover, decisions in this Commonwealth have recently emphasized the importance of a ‘knowing and voluntary’ plea as evidenced by a thorough guilty plea colloquy. See, e.g., Kerbacher, supra, 527 Pa. at 548, 594 A.2d 655, 656-657 (Court references colloquy in pertinent part); Commonwealth v. Anthony, 504 Pa. 551, 561-562, 475 A.2d 1303, 1309 (1984) (no fair and just reason exists where defendant, after asserting at his sentencing hearing that he “didn’t fully understand it [the guilty plea],” reaffirmed his earlier plea); Cole, supra, 387 Pa.Super. at 335, 564 A.2d at 206 (court en banc emphasizes importance of colloquy); Ortiz, supra, 334 Pa.Super. at 121-123, 482 A.2d at 1111-1113 (Dissenting Opinion by McEwen, J.) (noting that guilty plea colloquy displayed voluntariness of plea).

The Forbes standard, as perhaps this case indicates, is a trap for lawyers not thoroughly acquainted with our reluctance to adhere to it. The Siren song of the Forbes standard lures criminal defense attorneys into the false hope that the guilty plea colloquy does not for all practical purposes finalize the proceedings, only to dash these hopes on the rocks of our reluctance to follow it. As our case law illustrates, “fair and just” is too nebulous a guide for practitioners, and reasoned disposition mandates that Pennsylvania promulgate a rule that accurately reflects the state of the law. This supposedly liberal standard for the withdrawal of guilty pleas is currently neither liberal nor much of a standard. The deceptive standard gives a criminal defendant whose plea is not permitted to be withdrawn a prime opportunity to raise an ineffectiveness of counsel claim. Namely, counsel was ineffective for advising that a plea could be liberally withdrawn pre-sentencing.

Although under the Forbes standard the mere assertion of innocence or a possible insanity defense constitutes a “fair and just reason” for withdrawing a plea, the facts of this case militate in favor of a change in the standard. Appellant has expressed no changed circumstance that would constitute a “fair and just” reason for the appellant to withdraw his plea. Appellant had possession of the above psychological evaluation on the day he entered his plea of guilty. The same counsel represented the appellant when he entered the plea and also when he wished to withdraw it. Moreover, the appellant has not asserted his guilty plea colloquy was defective, nor that his plea was the result of coercion or confusion. The appellant has not provided the trial court with any reason for allowing the plea to be withdrawn that was not available to him before the colloquy. Notwithstanding the foregoing reasons for which we granted appellant’s request, finding in favor of the appellant means that the simple fact that appellant seems to have changed his mind constitutes a “fair and just” reason for allowing him to withdraw his guilty plea. While allowing a defendant to reconsider may have served important policy concerns at one time, the same concerns are better served today by holding defendants to their pleas made “knowingly and voluntarily” at the guilty plea colloquy. The entrance of a guilty plea we submit is no longer a perfunctory hearing, or even of only penultimate significance. Rather, the guilty plea hearing has become the significant procedure for those defendants who choose to plead guilty. We should recognize this fact. We should also recognize that the Forbes standard, if anything, emasculates the significance of a guilty plea colloquy and encourages defendants dissatisfied with their plea to contradict their confession of guilt sworn to under oath.

In conclusion, we find that following, as we must, the dictates of Forbes and a long line of Pennsylvania precedents relating to the standard to be applied for withdrawal of a guilty plea prior to sentencing mandate, that in this case we must reverse and vacate the judgment of sentence of the trial court, direct that the guilty plea be withdrawn and remand for further proceedings. At the same time, we urge that our Supreme Court reverse the standard set forth in Forbes and subsequent cases and mandate that in all cases following the entry of a proper guilty plea, the standard for withdrawing a guilty plea be that such should be permitted only to avoid a manifest injustice, whether the request is made before or after sentencing.

Judgment of sentence reversed, remanded with directive that the guilty plea be withdrawn.

      . The record indicates that appellant had fought with his brother earlier that evening and he left his house with a gun asserting that he was going to shoot his brother. It is unknown why appellant shot the victims. The record suggests appellant was romantically fixated with his niece, whom Lewis Taylor was dating.

      . See Transcript of Proceedings, September 28, 1990, p. 17. The record does not reflect the existence of such a letter. However, the trial court declined to refute the existence of such a letter when appellant explained that he had given notice to the court he would refuse a psychological examination. See Id.

      . The report notes that appellant claimed to have consumed over twelve bottles of beer daily for twenty years before the murder. He also was a drug user, marijuana and psychedelic mushrooms being his drugs of choice.

      . The report notes that appellant’s brother, Jim Turiano, estimated the appellant’s intake of beer on the afternoon of the murder to be a case of beer in six hours.

      . See 18 Pa.C.S.A. § 315.

      . In any event, because of the conclusions we reach in the opinion, we would find merit in appellant’s ineffectiveness claim. Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989) (reciting three-part test to determine ineffectiveness of counsel).

      . The Court adopted this standard from the then current standard in federal courts. See Forbes, supra; see also, United States ex rel.

        Culbreath v. Rundle, 466 F.2d 730 (3rd Cir.1972); Note, Pre-Sentence Withdrawal of Guilty Pleas in Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). The Court noted that the standard was in complete harmony with ABA standards. See Forbes, supra; see also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968).

      . This concern has been articulated by several courts as a similar worry that defendants are making bald assertions of innocence as grounds to withdraw a guilty plea prior to sentencing. Defendants should not be "permitted to make a mockery of the guilty plea process in which the appellant, after a full and complete colloquy, admitted his guilt and his role [in the pertinent crimes].” Commonwealth v. Jones, 389 Pa.Super. 159, 164, 566 A.2d 893, 895 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926, quoting Cole, supra, 387 Pa.Super. at 335, 564 A.2d at 206 (en banc ); Accord, Cole, supra, 387 Pa.Superior Ct. at 339, 564 A.2d at 208 (Concurring Opinion by Kelly, J.); Commonwealth v. Ortiz, 334 Pa.Super. 117, 121-123, 482 A.2d 1110, 1111-1113 (1984) (Dissenting Opinion by McEwen, J.)

      . It is pertinent to note that in the author of the January 16, 1991 psychiatric report’s opinion, appellant was competent to stand trial. Thus, we submit he was competent to 'knowingly and voluntarily’ enter a plea of guilty on February 4,1991. Appellant, in fact, does not challenge that he was competent to enter the plea.

      . We note that where a defendant wishes to withdraw his plea after sentencing and alleges ineffectiveness of counsel, there must exist a nexus between the counsel’s actions and the involuntary or unknowing plea. Commonwealth v. Terreforte, 387 Pa.Super. 453, 459-460, 564 A.2d 479, 482 (1989); Commonwealth v. Vance, 376 Pa.Super. 493, 498, 546 A.2d 632, 635 (1988); Commonwealth v. West, 336 Pa.Super. 180, 185-186, 485 A.2d 490, 493 (1984). We have found no case that has extended this rule to situations where a defendant requests his plea be withdrawn pre-sentencing.


author: TAMILIA, Judge.

text:
    601 A.2d 854
    Suzanne H. WOODINGS v. Robert T. WOODINGS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1991.
    Decided Jan. 7, 1992.

      James V. Voss, Pittsburgh, for appellant.
    David B. Buerger, Pittsburgh, for appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge.

This is an appeal from an Order of the trial court granting appellee’s motion for summary judgment and dismissing appellant’s petition to terminate alimony.

The parties were divorced on May 5, 1989. Prior to that date, on April 6, 1989, they reached an agreement for the equitable distribution of the marital estate and the payment of alimony to wife. The trial court entered a consent Order, incorporating the agreement, which provided in separate sections for yearly equitable distribution payments from 1989-1993 and alimony payments of $3,800 per month beginning in April of 1989 and ending in December, 1993. The final sentence of the agreement stated “the payments shall be non-modifiable and shall terminate on the death of the wife.” In March of 1990, husband filed a petition to terminate alimony on the basis that wife was cohabitating with a person of the opposite sex not a member of her family. The trial court denied husband relief since the parties’ agreement expressly disallows modification of alimony and conditions its termination prior to December 1993 only upon wife’s death.

Husband argues wife’s entitlement to receive alimony must be terminated as a result of her admission of cohabitation within the meaning of section 507 of the Divorce Code, which provides as follows:

§ 507. Bar to any alimony
No petitioner shall be entitled to receive any award of alimony where such petitioner has entered into cohabitation with a person of the opposite sex who is not a member of the petitioner’s immediate family within the degrees of consanguinity subsequent to the divorce pursuant to which alimony is being sought.

23 Pa.C.S. § 3706. He also contends section 401.1 only precludes modification, not termination, of the disposition of property rights between the parties. That section provides, in pertinent part:

§ 401.1 Effect of agreement between parties
(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.[]

The trial court found and wife agrees payment of alimony to a spouse who engages in cohabitation is to be terminated under section 507 only if the payments are made as a result of an award by the court. Alimony due under an agreement of the parties, even if incorporated in a court Order, is paid as a result of the agreement and not of an award. Section 401.1(c) forbids modification of an agreement for alimony, and by implication an attempt to terminate a provision of the agreement would be beyond the powers of the court unless expressly provided in the agreement. The reason for this interpretation is that section 401.1 (now section 3105) is a legislative expression limiting the jurisdiction of the court as expressed in sections 301, Jurisdiction, and 302, Residence and domicile of parties (now section 3104), in modification of agreements, while permitting civil enforcement procedures pursuant to section 501, Alimony, subsection (f) (now section 3701(f)). Whenever the court approves an agreement for payment of alimony voluntarily entered into between the parties, the agreement shall constitute the Order of the court and may be enforced as provided in section 503, Enforcement of arrearages (now section 3703).

Summary judgment should not be entered by the trial court unless the case is clear and free from doubt. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631 (1990); Pa.R.C.P. 1035. We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Bushless v. GAF Corporation, 401 Pa.Super. 351, 585 A.2d 496 (1990). After carefully reviewing the trial court Opinion, the agreement between the parties as incorporated in the consent Order, and the relevant case and statutory law, we find the trial court’s Order granting wife’s motion for summary judgment was not in error.

Husband’s argument that section 507 bars wife from receiving alimony payments is misguided because this statutory provision applies only to alimony which is the result of a court ordered award, and not to alimony payments which are made pursuant to a property settlement agreement between parties.

VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984), is directly on point. In VanKirk, the parties reached an agreement which was incorporated into the consent Order. The agreement stated “the within alimony award is not subject to modification.” Id., 336 Pa.Superior Ct. at 504, 485 A.2d at 1195. Husband argued his obligation to make alimony payments under the agreement ended pursuant to section 507. This Court held as follows:

The alimony payments in this case, while enforceable as a court order ... are not the result of an “award” of alimony by the court, but rather are the result of an agreement between the parties. The court did not enter an alimony award pursuant to the terms of Section 501 of the Act; it merely agreed to the entry of an order that reflects the agreement of the parties as to their respective property rights.

Id., 336 Pa.Superior Ct. at 505, 485 A.2d at 1196. The court then stated any conflict with property settlement agreements must be resolved under any general contract principles. With this in mind, the court analyzed the agreement.

The agreement in this case made no provision for the cessation of payments in the event appellee cohabited with a man. In fact, the agreement does not call for the termination of payments in the event of her remarriage. Instead, it clearly provides for payments for eighteen months in exchange for Mrs. VanKirk’s promise not to pursue her claim for equitable distribution. There is no suggestion that appellee did not meet her end of the bargain and we will not permit appellant, who benefited from her promise, to renege on his.

Id., 336 Pa.Superior Ct. at 506, 485 A.2d at 1196. The court concluded if the parties had intended the payments to cease upon cohabitation, they could have so provided.

The agreement in this case clearly states husband is to pay $3,800 per month alimony to wife through 1993. As in VanKirk, the agreement also states the alimony provision is “non-modifiable” and does not provide for termination upon either wife’s remarriage or cohabitation. Therefore, under general contract law husband is not entitled to cease making the payments.

Husband sets forth a detailed legislative history analysis of section 507 in arguing it applies to the present factual scenario. He points out the intent of section 507 was to cut off the right of alimony to an economically dependent spouse who subsequently cohabitates with a member of the opposite sex because most likely the economic need is cured and the new economic interdependence or dependent relationship should free the previous individual who is under alimony obligation. A recipient spouse, even if not receiving economic benefits from the person with whom he or she is cohabitating, voluntarily chooses to incur additional expenses which arise as a result of an additional person living in the household. Husband contends it is not equitable to force the payor spouse, in effect, to assist in the support of the cohabitating partner. He concludes a document providing for alimony, whether characterized by the courts as an agreement or an award, is not required to incorporate language regarding the effect of cohabitation in the document because the Divorce Code expressly provides for the termination of the entitlement to alimony upon the occurrence of this event.

We agree with the trial court “[h]usband’s argument that the legislative history of Section 507 mandates relief in this case ignores the ability of parties to a divorce proceeding to alter their rights through agreement.” (Slip Op., Kaplan, J., 3/7/91, p. 4.) Wife’s right to payments is not based on an award but is instead based on the signature of husband to a contract. Therefore, section 507 does not come into play. The rationale for not modifying an alimony agreement even after cohabitation by a party was explained in Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985):

The [trial] Court recognized that bargaining takes place during the process of reaching a consent order which integrates alimony and equitable distribution and found that a quid pro quo existed for the integrated agreement.

Id., 339 Pa.Superior Ct. at 122, 488 A.2d at 340. The Court also stated:

‘We would be naive to think that tradeoffs do not occur between equitable distribution and alimony.’ ... [Attempting to modify an alimony/property distribution order would be ‘most inequitable’ and would wreck [sic] havoc upon the parties to an equitable distribution pro

Id., 339 Pa.Superior Ct. at 121-122, 488 A.2d at 339, 340 (citation omitted).

We agree with the trial court’s analysis of the law in conjunction with the facts of this case.

The parties’ agreement reflects the “trade-offs” between alimony and equitable distribution. In exchange for a right to alimony, Wife agreed to a smaller share of the parties’ marital estate. Husband, in turn, agreed to pay this alimony in exchange for a greater share of the marital estate than he otherwise would have received without the alimony provision. To terminate the alimony for reasons not set forth in the agreement, therefore, clearly would produce the “havoc” envisioned in [Stanley] by destroying Wife’s bargained-for rights while allowing Husband to retain the benefits of his bargain.

(Slip Op. at 6.)

More recently, in DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990), we again held a property settlement agreement embodied in the court Order is non-modifiable:

A divorce agreement is not incorporated into the parties’ divorce decree so as to permit revision of a provision in the agreement if the parties did not intend such effect in their agreement. This is so despite a statement in the agreement that it was to be incorporated into the divorce decree. Under such circumstances, the agreement remains an enforceable contract not subject to unilateral modification as a court order.

Id., 399 Pa.Superior Ct. at 431-432, 582 A.2d at 671 (citations omitted).

Appellant next contends the trial court erred in relying on section 401.1(c) of the Divorce Code because the section addresses modification and not termination of agreements providing for the disposition of alimony. Section 401.1(c) states a property settlement agreement between the parties is not subject to modification by the court unless there is a specific provision in the agreement to the contrary. Husband argues modification and termination are two separate legal concepts and if the legislature had intended section 401.1 to preclude termination as well as modification of alimony it would have incorporated the word “termination” into the section.

In Jackson v. Culp, 400 Pa.Super. 519, 583 A.2d 1236 (1990), this Court, with regard to an incorporated but un-merged property settlement agreement, stated the 1988 amendment to the Divorce Code functions only as a procedural mechanism for enforcement of that agreement through a civil contempt action. Section 401.1(c) does not allow for modification of an unmerged marital settlement agreement.

We find husband’s contention that section 401.1(c) speaks only to modification and not termination to be unpersuasive. Pursuant to the 1988 amendments to the Divorce Code, the legislature felt it imperative to deal separately with the effect of agreements between the parties. In section 401.-1(a) (now section 3105(a)), it provided that whether or not an agreement has been merged or incorporated into the decree, the provisions of the Divorce Code provide for enforcement to the same extent as if the agreement was an Order of court, except as provided to the contrary in the agreement.

To retain the sanctity of contract, which may not be changed or modified by court Orders, absent an ambiguity or fraud, section 401.1(c) (now section 3105(c)) provides that in the absence of specific provisions appearing in the agreement, disposition of property rights and interests between the parties, alimony, alimony pendente lite, counsel fees and expenses shall not be subject to modification by the court. (Subsection (b) in both 401.1 and 3105 reserves the right of the court to modify support, custody and visitation rights as to children upon a showing of changed circumstances. Rights of children may not be bargained away by parents).

We have interpreted these provisions to 1) protect the agreement of the parties from subsequent modification by the court, unless modification is provided for in the agreement and 2) to permit the use of remedies and sanctions contained in the Divorce Code to enforce the agreements, in addition to the rights available at law for the enforcement of contracts by actions in assumpsit. The problems relating to incorporation and merger are, therefore, eliminated as to any agreements entered after 1988. The 1988 amendments as a matter of law provide for enforcement but not modification of agreements. See Jackson, supra.

The next step in our analysis requires us to consider whether modification includes termination. Currently, the Divorce Code, section 3701, Alimony, provides:

(a) General a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.
(f) Status of agreement to pay the court approves an agreement for the payment of alimony voluntarily entered into between the parties, the agreement shall constitute the order of the court and may be enforced as provided in section 3703 (relating to enforcement of arrearages).

It is to be noted that the treatment of Orders approving agreements is treated separately from Orders directly entered by the court and the jurisdiction of the court is limited to enforcement only unless the agreement provides otherwise. Thus section 3105(c), Certain provisions not subject to modification, must be read in conjunction with section 3701(f) and such an Order cannot be modified unless specifically provided in the agreement. Section 3701(e), Modification and termination, does not apply to such Orders or agreements as this is a permissible exercise of jurisdiction only when an award is made directly by the court as a result of an alimony action or the agreement so provides.

Following this rationale and applying it to termination, whether termination is inclusive in the term modification or not is irrelevant. The intent of the inclusion of alimony agreements only in the enforcement process of the Divorce Code did not extend application of other Code provisions relating to alimony to agreements. Alimony awards are governed by statute and provisions such as the bars relating to cohabitation and termination upon remarriage take effect by operation of law because the award is governed by the statute. Even those provisions may be altered by court Order. Alimony agreements are not governed by the statute but express the mutual agreement of the parties. Unless the parties so specify, the agreement may not be modified, extended or terminated. There are a number of examples of how alimony agreements continue to be effective despite cohabitation or remarriage because the agreement could not have been reasonably interpreted otherwise. See Zullo v. Zullo, 395 Pa.Super. 113, 576 A.2d 1070 (1990); D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990); Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). Even death may not terminate alimony where the agreement or court Order specifically provides otherwise. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985). When an agreement is entered for a specific amount for a stated period of time, without conditions for modifications or termination, it cannot be presumed that the parties intended the statutory bar or termination sections to apply. As stated by the trial court, agreements embody many considerations by the parties, and the quid pro quo represented by the agreement often may not be apparent on its face. To incorporate extraneous statutory provisions to modify or terminate the agreement when not provided in the agreement may seriously impair the rights of the contracting parties.

The trial court found the agreement in this case represented a compromise between the amount to be divided in equitable distribution and the amount to be received as alimony. Change in the contract implementation would violate the terms of the agreement. For these reasons the Order of the trial court in granting summary judgment to the wife is affirmed.

Order affirmed.

      . Section 507 was amended on December 19, 1990 by P.L. 1240, No. 206, § 2, and is now codified at 23 Pa.C.S. § 3706, which changed only the wording but not the substance of the section. The purpose of the amendment was the recodification of the Domestic Relations Code which does not effect the substance of the section.
      § 3706. Bar to alimony
      No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.

      . The contents of section 401.1(c) can now be found at 23 Pa.C.S. § 3105(c). The only difference between the two sections is section 3105(c) has the following subheading: Certain provisions not subject to modification.

      . This position was recently reiterated in Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991).

      . It is clear the legislature understood what it was doing in protecting the sanctity of contracts between consenting adults as in section 401(b) it provided for modifiability of child support and custody agreements as the court is not bound by agreements as to those issues due to public policy considerations.


author: WIEAND, Judge:

text:
    601 A.2d 1237
    NERNBERG & LAFFEY, Appellee, v. Alan PATTERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 20, 1991.
    Filed Dec. 31, 1991.
    Reargument Denied March 4, 1992.

      James A. Ashton, Pittsburgh, for appellant.
    James R. Cooney, Pittsburgh, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

In this action between a lawyer and his client for legal fees, a jury returned a verdict in favor of the lawyer for twenty thousand ($20,000) dollars. In response to post-trial motions, however, the trial court entered judgment n.o.v. in favor of the lawyer for forty-six thousand, four hundred forty-seven and 42/100 ($46,447.42) dollars, plus interest from January 1, 1985. The client has appealed.

In May, 1981, Alan Patterson retained his friend, Maurice Nernberg, to represent him in various legal matters involving, inter alia, Patterson’s real estate investments. Nern-berg, in response to Patterson’s urgent plea for help, was instrumental in averting a threatened discontinuance of electrical service to an apartment building owned by Patterson. Before undertaking further representation, Nernberg required Patterson to execute a fee agreement which provided, inter alia, as follows:

You will be billed once per month by this office and unless a written objection is received respecting such statement within ten days of your receipt of it, then it will be assumed that the fees set forth therein are agreed upon and deemed to be reasonable by you and our continuing to perform work on your behalf will be in reliance upon your agreement that each bill is reasonable.

Thereafter, Nernberg and members of his firm, Nemberg & Laffey, P.C., provided legal services to Patterson until November, 1984. As of November 1, 1984, by Nernberg’s account, Patterson owed the firm a total of $50,587.42. Patterson made occasional payments thereafter, usually in amounts of $125 to $250, which Nernberg applied to the account.

On May 14, 1987, Nernberg filed an action to recover unpaid legal fees in the amount of $47,947.42. In the complaint it was alleged that Patterson had been billed monthly and had not objected to the reasonableness of the fees charged. In his answer and at trial, Patterson contended that he and Nernberg, in numerous personal meetings and by correspondence, had discussed Patterson’s objections to the amounts of Nernberg’s charges, Patterson’s inability to pay the same, and their mutual expectation that the debt would be satisfied by the payment of an unspecified amount after Patterson had disposed of some of his real estate. Finally, Patterson contended that there had been an accord and satisfaction. Nernberg had agreed, Patterson alleged and testified at trial, to accept in full satisfaction of his claim the sum of fifteen thousand ($15,-000) dollars and two building lots having a total value of five thousand ($5,000) dollars ($2,500 each) and located in Laurel Mountain Village, a tract which Patterson was then developing.

After a jury returned a verdict for Nemberg in the amount of twenty thousand ($20,000) dollars, the trial court concluded that there was insufficient evidence that Patterson had objected in writing to Nernberg’s charges. Therefore, the court entered judgment n.o.v. in favor of Nernberg for the full amount of his claim.

A judgment n.o.v. may properly be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper. Mitzelfelt v. Kamrin, 526 Pa. 54, 61, 584 A.2d 888, 891 (1990); Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987); Northwest Savings Ass’n v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986). In deciding a motion for judgment n.o.v., a court is required to consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the party which has won the verdict. Mitzelfelt v. Kamrin, supra; Atkins v. Urban Redevelopment Authority of Pittsburgh, supra; Vernon v. Stash, 367 Pa.Super. 36, 45-46, 532 A.2d 441, 445-446 (1987), quoting Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986) and Kearns v. Clark, 343 Pa.Super. 30, 34-35, 493 A.2d 1358, 1360 (1985). In determining whether the evidence is sufficient to support the verdict, a reviewing court must consider all the evidence received, whether the trial court’s evidentiary rulings thereon were correct or incorrect. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989), citing Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 265, 545 A.2d 926, 929 (1988); Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 565, 534 A.2d 798, 802 (1987), allocatur denied, 518 Pa. 656, 544 A.2d 1342 (1988). If a trial court has erred in the receipt of evidence, the remedy is to grant a new trial. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Niles v. Fall Creek Hunting Club, Inc., supra 376 Pa.Super. at 265, 545 A.2d at 929.

Because Patterson never performed his asserted agreement to pay fifteen thousand ($15,000) dollars and convey two building lots to Nernberg, it is incorrect to refer to his defense as an accord and satisfaction. The alleged agreement would more accurately be characterized as an executory accord, which conditionally suspends but does not discharge the original duty, or a substituted contract, which has the effect of discharging the original obligation. The difference was recognized and explained in Nowicki Construction Co. v. Panar Corp., N.V., 342 Pa.Super. 8, 492 A.2d 36 (1985), as follows:

Whether an agreement constitutes a substitute contract or an accord is a matter of interpretation. Hydro-Flex, Inc. v. Alter Bolt Co., 223 Pa.Super. 228, 296 A.2d 874 (1972); Restatement (Second) of Contracts § 279 comment c (1979). Substituted contracts and accords share many traits since both rest upon the elements of a valid contract. Hydro-Flex, Inc.; Gordon Brothers, Inc. v. Kelley, 92 Pa.Super. 485 (1927); Restatement (Second) of Contracts § 279 comment c (1979). Their differentiation lies chiefly in the parties’ intent concerning their respective effect on any prior agreement of the parties. A substituted contract
is a mode of extinguishing one obligation by another, that is, the acceptance of a new promise in satisfaction of a previously existing claim while in the case of an accord and satisfaction it is not the new promise itself but the performance of the new promise that is accepted as a satisfaction.
Gordon Brothers, Inc., 92 Pa.Super. at 491 (citation omitted); Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984) (a substituted contract displaces and extinguishes an extant valid contract); Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983) (an accord requires actual payment or performance and is not satisfied by a “mere promise of future performance”). Since a substituted contract is accepted as “satisfaction of a pre-existing duty, [it] thus bar[s] the revival of the pre-existing duty following a breach of the [substituted] contract....” Hydro-Flex, Inc., 223 Pa.Super. at 234, 296 A.2d at 878. However, where the terms of an accord are breached, the non-defaulting party “may enforce the accord, or, ... at his option, enforce the underlying [i.e., previous] agreement.” Zager v. Gubernick, 205 Pa.Super. 168, 173-74, 208 A.2d 45, 49 (1965); Restatement (Second) of Contracts § 281 (1979).

Id., 342 Pa.Superior Ct. at 15-16, 492 A.2d at 39-40. In the instant case, it was Patterson’s contention that the parties had reached a substitute agreement regarding the amount of legal fees to be paid to Nernberg.

The burden of proving a substituted agreement was on Patterson. Duryea v. Long, 191 Pa.Super. 511, 159 A.2d 259 (1960). He was required to prove the existence of a new contract. Brunswick Corp. v. Levin, 442 Pa. 488, 491, 276 A.2d 532, 534 (1971); Hayden v. Coddington, 169 Pa.Super. 174, 177, 82 A.2d 285, 286-287 (1951). Thus, he had to prove a “meeting of the minds.” Brunswick Corp. v. Levin, supra; Suits To Use v. Aetna Casualty & Surety Co., 106 Pa.Super. 231, 161 A. 592 (1932). It was also necessary that he show the existence of consideration which, in this case, meant the existence of a bona fide dispute between the parties. Brunswick Corp. v. Levin, supra; Law v. Mackie, 373 Pa. 212, 221, 95 A.2d 656, 660 (1953), citing Lucacher v. Kerson, 355 Pa. 79, 48 A.2d 857 (1946); Nowicki Construction Co. v. Panar Corp., N.V., supra 342 Pa.Super. at 16, 492 A.2d at 40; Lazzarotti v. Juliano, 322 Pa.Super. 129, 138, 469 A.2d 216, 220 (1983); Hagerty Oil Co. v. Chester County Security Fund, Inc., 248 Pa.Super. 456, 457-458, 375 A.2d 186, 187 (1977).

Patterson introduced evidence at trial which, if believed, showed that neither he nor Nernberg had complied fully with the formalities of the written fee agreement. There was testimony, by Patterson and by Janet Welsh, his secretary, that Patterson had not received bills from Nern-berg on a monthly basis. On one occasion, after more than a full year had passed, a packet of monthly bills totalling approximately $40,000 was received. Patterson testified that when the amount of the legal fees became known to him he verbally objected because he deemed the charges excessive. He said that Nernberg, on several occasions, had indicated a willingness to settle the account for an unspecified amount in the future when Patterson liquidated a portion of his real estate holdings. Finally, Patterson testified that on November 11,1986, after a buyer had been obtained for Patterson’s Laurel Mountain Village property, Nernberg verbally agreed to settle the account in exchange for $15,000 in cash and two building lots at Laurel Mountain Village.

This evidence was sufficient to permit a jury to find that the amount of the charges made by Nernberg for services rendered was the subject of a bona fide dispute and that Nernberg had entered into an agreement to resolve the dispute in exchange for $15,000 in cash and the deeds to two building lots having a value of two thousand, five hundred dollars each. If the jury believed this evidence, it could, as it did, find that the amount owed by Patterson for legal fees was twenty thousand ($20,000) dollars.

Because there was evidence to support the jury’s verdict, the trial court erred when it interfered with the jury’s findings and entered judgment n.o.v. in favor of the appel-lee-plaintiff for the full amount of legal fees claimed.

Having entered a judgment n.o.v., the trial court did not decide Nernberg’s motion for new trial. Therefore, we will remand for a determination of the issues raised in appellee’s motion for new trial.

Reversed and remanded for a determination of appellee’s motion for new trial. Jurisdiction is not retained meanwhile.

      . Prior to trial, Nernberg moved for judgment on the pleadings, but his motion was denied. A subsequent partial judgment on the pleadings for $15,000 was reversed by the Superior Court. Nernberg v. Patterson, 388 Pa.Super. 672, 560 A.2d 245 (1989).