author: BECK, Judge:

text:
    585 A.2d 115
    COMMONWEALTH of Pennsylvania v. Eugene Altman LOSCH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1987.
    Filed Dec. 14, 1987.

      Daniel W. Stern, New Bloomfield, for appellant.
    Gloria J. McPherson, District Attorney, Duncannon, for Com., appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   BECK, Judge:

This is an appeal by Eugene Altman Losch from a judgment of sentence entered on June 20, 1986 by the Court of Common Pleas of Perry County. The primary question presented is whether the court which resentenced appellant after his original judgment of sentence was vacated erred by refusing to consider appellant’s good conduct while in prison. We find that under the circumstances of this case, the court’s failure to consider evidence of good conduct was contrary to the mandate of the Sentencing Code. Accordingly, we must again vacate judgment of sentence and remand for resentencing.

I.

The procedural background of this case must be set forth in detail. Between 1979 and 1981, appellant participated in a series of crimes in order to support his drug habit. The judgment of sentence presently on appeal was imposed as the penalty for two of these criminal acts:

On November 1, 1979, appellant Eugene Altman Losch and Paul Aaron Wolf stole close to one thousand dollars worth of food and equipment from the Perry Valley Grange Hall in Millerstown, Pennsylvania.

On April 16, 1980, appellant and Kler Jones, Jr. stole money, a rifle, and a car from Scott and Karen Wright after gaining entry to the Wrights’ residence in Newport, Pennsylvania.

The following year, appellant was implicated in several unrelated crimes including the murder of one Hank Swartz, and the solicitation of the murder of a police officer. He pleaded guilty to solicitation to commit homicide before the Honorable Keith B. Quigley and was sentenced to five years imprisonment. He began serving this sentence at the Perry County Prison where he soon gained a reputation as a model prisoner. He also testified as a Commonwealth witness — pursuant to a grant of immunity — at the trials of other individuals who were involved in the Swartz murder.

In 1984, appellant and Wolf were charged in connection with the 1979 Millerstown incident, (No. 5 of 1984), and appellant and Jones were charged in connection with the 1980 Newport incident (No. 6 of 1984). Wolf and Jones pleaded guilty to various offenses and were sentenced by the Honorable Keith B. Quigley to relatively short prison terms. Appellant pleaded guilty to committing one count of burglary in 1979 and to committing one count of robbery and one count of burglary in 1980. He was scheduled for sentencing before Judge Quigley on November 15, 1984.

At his November, 1984 hearing, appellant introduced testimony from eight witnesses who described his good behavior at the Perry County Prison and his cooperation with law enforcement authorities. Judge Quigley took note of this evidence, but he also considered the serious nature of appellant’s past crimes. At the conclusion of the hearing, Judge Quigley sentenced appellant to three concurrent terms of ten to twenty years imprisonment. The Judge ignored a defense request that he explain why appellant’s codefendants had received less stringent sentences.

Appellant was transferred from the Perry County Prison to the State Correctional Institutional at Camp Hill, Pennsylvania. Meanwhile, his counsel filed a motion to modify sentence which was denied, and appealed the November 15, 1984 judgment of sentence to Superior Court. Counsel alleged that the lower court erred by failing to state on the record the reason for the substantial disparity between the sentence received by Losch and the sentences received by his codefendants. We agreed. See Commonwealth v. Rig-gins, 474 Pa. 115, 377 A.2d 140 (1977), Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). On March 24, 1986, a panel of this court filed an unpublished memorandum decision, 356 Pa.Super. 588, 512 A.2d 52 which vacated the judgment of sentence and remanded for resentencing.

Appellant’s second sentencing hearing was held before Judge Quigley on June 20, 1986. At this proceeding, counsel introduced new evidence concerning Mr. Losch’s conduct while incarcerated at the State Correctional Institution at Camp Hill, during the eighteen months since the first judgment of sentence had been imposed. Counsel directed the court’s attention to a letter from a sergeant at the institution who indicated that Mr. Losch had adjusted well to prison life, and did not pose any disciplinary problems. Counsel then called five witnesses who testified that Mr. Losch had played an active role in the prison chapters of Alcoholics Anonymous and Narcotics Anonymous, and had provided religious counseling to fellow inmates as a member of the Yoke Fellowship, a Christian ministry. The last witness to testify was Henry G. Baines, pastor of the Messiah Missionary Baptist Church in York, Pennsylvania. Mr. Baines stated:

[0]ver the past thirteen years I have ministered extensively in all of the prisons and correctional institutes [sic] in the State of Pennsylvania ... and I have never seen a change in a person’s life of all the inmates I’ve ministered to like I’ve seen in Gene Losch.

N.T. at 16.

At the conclusion of all the testimony, counsel urged the court to take this new evidence into account when resentencing Mr. Losch. The attorney for the Commonwealth did not oppose this request. The trial judge, however, reluctantly concluded that he could not consider evidence of appellant’s good conduct. He remarked:

Now we have a fundamental issue I think here and that is: what is the Court’s power, and/or what is the' Court’s obligation at this time? Clearly, its obligation is to explain the disparity between the sentences imposed on Mr. Losch as well as on the co-defendants; and [Counsel] suggests the Court has the power to modify the sentence and suggests compelling reasons why that sentence should be modified. I compliment Mr. Losch and those gentlemen who work hard in this very difficult area with some success, and it must shine as a bright light when there is success; and I am sure there is not as much success as you would like. We compliment you fellows for your sincerity and your efforts.
My opinion as a Judge is that if this Court committed error in treating Mr. Losch differently than his co-defendants then he is entitled to a modification of sentence. It pains me somewhat to say this but it’s my opinion that his conduct while a prisoner is irrelevant to this proceeding here today. It’s not irrelevant in any sense other than that. And I mean that sincerely.

N.T. at 19-20.

The court then proceeded with what it viewed as the sole business at hand — explaining why appellant had been punished more severely than his codefendants. The court noted that codefendants Wolf and Jones had entered into a plea bargain with the Commonwealth; they pleaded guilty in return for a promise that the District Attorney would recommend a relatively lenient sentence. The court had accepted this recommendation. On the other hand, Mr. Losch had pleaded guilty without first securing a promise of cooperation from the District Attorney’s Office. After stating these facts for the record, the court again imposed a sentence of three concurrent terms of ten to twenty years imprisonment.

Counsel filed a motion to modify sentence which was denied, and appealed the new judgment of sentence to this court. In this appeal, he argues that the trial court erred: 1) by disregarding relevant evidence of appellant’s good conduct; and 2) by again failing to provide an adequate statement of reasons for the discrepancy between appellant’s sentence and his codefendants’ sentences.

II.

Before addressing the merits of appellant’s claims, we must decide whether the issues which he raises are properly before us. The right to appeal from a discretionary aspect of sentence is not absolute. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Pennsylvania Supreme Court held that such an appeal should comply with the requirements of both Pa.R.App.P. 2119(f) and section 9781(b) of the Sentencing Code.

Rule 2119(f) provides that the appellant “shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence.” In the case sub judice, appellant’s brief does not contain this statement of reasons and is therefore defective. The appellee, however, has never objected to this defect.

Several panels of the Superior Court which have considered the same fact pattern have reached inconsistent results. Some panels have held that any breach of Rule 2119(f) precludes review of a discretionary sentencing issue. See, e.g., Commonwealth v. Rivera, 365 Pa.Super. 361, 529 A.2d 1099 (1987); Commonwealth v. Hawthorne, 364 Pa. Super. 125, 527 A.2d 559 (1987). Other panels have held that a Rule 2119(f) violation will be overlooked unless appellee specifically directs the court’s attention to this deficiency. See, e.g., Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987); Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112 (1987). See also Commonwealth v. Hartz, 367 Pa.Super. 267, 272 n. 2, 532 A.2d 1139, 1141 n. 2 (1987) (en banc). This conflict was recently resolved by the court en banc in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987); the majority in Krum adopted the view that unless the appellee objects, appellant’s failure to supply a statement of reasons is not fatal to his appeal. Id., 367 Pa.Superior Ct. at 519-520, 533 A.2d at 138. Accordingly, since the Commonwealth’s brief is silent as to the Rule 2119(f) defect, we will not dismiss Losch’s appeal on this basis.

Since appellant’s brief is not fatally defective, we must decide whether the issues presented are amenable to appellate review. Section 9781(b) of the Sentencing Code provides in part that:

Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.Cons.Stat.Ann. § 9781(b) (Purdon 1982). The words “this chapter” refer to the Sentencing Code as a whole. Tuladziecki, 513 Pa. at 513, 522 A.2d at 20. We conclude that each of appellant’s properly preserved allegations of error presents a substantial question as to whether the trial judge compromised the scheme of sentencing established by the Sentencing Code. We therefore allow the appeal.

III.

Appellant contends that the trial court wrongfully disregarded the evidence of good conduct introduced at the second sentencing hearing. We agree. We begin our analysis of this claim by reviewing some basic principles of the law of sentencing.

The Pennsylvania judiciary is firmly committed to the “prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079-80, 23- L.Ed.2d 656 (1969). In Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976), the Pennsylvania Supreme Court held that a judgment of sentence must be vacated unless the trial judge considers both the particular circumstances of the offense and the character of the defendant. This concern with the defendant as a unique individual is also reflected in the text of the Sentencing Code.

Section 9725 of the Code provides:

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will deprecate the seriousness of the crime of the defendant.

42 Pa.Cons.Stat.Ann. § 9725 (Purdon 1982) (emphasis added).

Section 9722 provides:

The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of an order of probation:
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.

Section 9721(b) provides that when selecting from among alternative penalties:

[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.

Thus, the character of the defendant in general and his need for rehabilitation in particular are matters at the very heart of the sentencing process.

A key function of the sentencing hearing is to allow an opportunity for the defense and the prosecution to supply a wide range of information concerning the person who is to be punished. It is the role of trial judge to weigh all mitigating and aggravating factors and arrive at an appropriate sentence. See Commonwealth v. Tuladziecki, 513 Pa. at 514, 522 A.2d at 20. The final decision as to what sentence should be imposed is entrusted to the broad discretion of the sentencing authority. However, the court must reach its decision by following certain mandatory procedures. These procedures include the consideration of sufficient and accurate information. Commonwealth v. Knighton, 490 Pa. 16, 21-22, 415 A.2d 9, 12 (1980); Commonwealth v. Martin, 466 Pa. at 131, 351 A.2d at 657; Commonwealth v. Ruffo, 360 Pa.Super. 180, 185, 520 A.2d 43, 46 (1987); Commonwealth v. Stafford, 313 Pa.Super. 231, 234-35, 459 A.2d 824, 826 (1983).

In Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978), the Pennsylvania Supreme Court described the trial judge’s responsibilities in thé following terms:

Imposition of a proper sentence under the Sentencing Code is a matter vested in the sound discretion of the trial court whose determination must be respected unless it is a manifest abuse of discretion. The constraints placed upon the trial court in the exercise of its discretion are that it must not overlook pertinent facts, disregard the force of the evidence, commit an error of law, or inflict punishment exceeding that prescribed by statute. The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant, and should consult a pre-sentencing report if one has been prepared, especially where, as here, incarceration for one year or more is a possible disposition. Likewise, the court should consider any information in the record bearing on degree of punishment.

Id. 479 Pa. at 212-13, 387 A.2d at 1299 (citations omitted). See also Commonwealth v. Edrington, 490 Pa. 251, 255-56, 416 A.2d 455, 457 (1980); Commonwealth v. Franklin, 301 Pa.Super. 17, 29-30, 446 A.2d 1313, 1319 (1982).

We conclude that as a general rule, a trial judge may not refuse to consider relevant evidence that defense counsel brings to his attention during the sentencing hearing. We must now apply this rule to the case sub judice. This case is unusual in two respects. First, this is an appeal from a judgment of sentence imposed by a court which had previously sentenced appellant for the same crimes. Second, the evidence which defense counsel introduced concerned appellant’s behavior while in prison following his conviction. We find that these special circumstances do not excuse the trial court’s intentional failure to consider the evidence.

As we have already noted, appellant was originally sentenced in 1984, the Superior Court vacated and remanded, and appellant was resentenced in 1986. The 1986 sentencing court interpreted the Superior Court’s order as a remand for the limited purpose of providing an explanation as to why appellant had received a longer jail term than his codefendants. It is true that the reason why this court had reversed the trial court was that the trial court had not stated sufficient reasons for its sentence on the record. This court, however, did not remand for a new statement of reasons; we vacated the judgment of sentence and remanded for resentencing. “When a sentence is vacated and the case remanded for resentencing, the sentencing judge should start afresh. Here, on remand the sentencing judge merely attempted to justify his original sentence.” Commonwealth v. Kostka, 276 Pa.Super. 494, 511, 419 A.2d 566, 575 (1980) (Spaeth, J., concurring).

Reimposing a judgment of sentence should not be a mechanical exercise. What is at stake in a sentencing decision is nothing less than the liberty of the individual and the safety of the public. If the trial judge ignores the defendant’s conduct during the months preceding the final sentencing hearing, he may reach an inaccurate determination as to whether the defendant is a danger to society or is capable of being a productive and law-abiding citizen. Cf Commonwealth v. Sinwell, 223 Pa.Super. 544, 302 A.2d 400 (1973) (court which resentenced defendant properly considered crime which defendant committed after his original conviction was overturned on appeal); Commonwealth v. Johnson, 333 Pa.Super. 42, 46, 481 A.2d 1212, 1214 (1984) (dictum) (court “would have been remiss” if it had failed to consider crime which defendant committed during interval between conviction and sentencing). Given the important nature of the interests involved, the judge at a second sentencing hearing should reassess the penalty to be imposed on the defendant — especially where defense counsel comes forward with relevant evidence which was not previously available.

The remaining question is whether the new evidence at issue in this case is relevant. The Commonwealth contends that a convicted felon’s good behavior while in prison has no bearing on what sentence should be imposed for his crimes. We disagree. Even long after the offense has been committed, a defendant's conduct and attitudes may reflect his potential for rehabilitation. Factors which weigh in favor of imposing a reduced criminal penalty include: the defendant’s contrition and remorse for his misdeeds Commonwealth v. Lowe, 361 Pa.Super. 343, 349, 522 A.2d 614, 617 (1987); his cooperation with law enforcement agencies Commonwealth v. Frazier, 347 Pa.Super. 64, 69, 500 A.2d 158, 160 (1985); and his efforts to cure himself of drug addiction. See Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979). We do not think that these factors cease to be relevant as soon as the defendant is incarcerated.

Few Pennsylvania cases discuss the impact of evidence of good prison conduct on the sentencing process. However, this subject is explored in the United States Supreme Court’s recent decision in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In Skipper, the defendant was convicted of rape and capital murder. At the sentencing phase of his trial, he sought to introduce the testimony of two jailers and one regular visitor to the jail; these witnesses would have testified that defendant had made a good adjustment to prison life during the seven-and-one-half months between his arrest and trial. The trial court ruled that this evidence was irrelevant and inadmissible, and defendant was sentenced to death. On direct appeal, the Supreme Court held that defendant had proffered “relevant evidence in mitigation of punishment” 90 L.Ed.2d at 6, and that the trial court’s failure to admit this evidence at the capital sentencing hearing violated the due process clause of the fourteenth amendment.

We recognize that the case sub judice does not involve either a capital offense or a constitutional challenge. This case, however, is governed by the provisions of the Pennsylvania Sentencing Code. The Code demands something more than the minimum level of due process required by the federal constitution; the Code directs the trial judge to consider the defendant’s character in every case in which a defendant is sentenced to a term of imprisonment. See §§ 9725, 9722(9), 9721(b), cited supra. Today we interpret the Sentencing Code in light of the United States Supreme Court’s key finding in Skipper: that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination.” 476 U.S. at 7, 106 S.Ct. at 1672, 90 L.Ed.2d at 8 (footnote omitted). Accordingly, we find that the trial court’s affirmative refusal to consider evidence relating to this aspect of character at the 1986 sentencing hearing constitutes reversible error.

We hold that when judgment of sentence is vacated and the case is remanded for resentencing, the judge at the resentencing hearing may not refuse to consider any relevant defense evidence concerning appellant’s conduct since the prior sentencing hearing. We therefore vacate the judgment of sentence imposed upon appellant on June 20, 1986 by the Court of Common Pleas, and remand for resentencing.

On remand, appellant must be permitted to introduce relevant evidence relating to his good conduct both before and after the 1986 sentencing hearing. The trial judge must take note of this new evidence. Moreover, he must reevaluate whether the jail term which appellant received is a just and appropriate punishment.

We emphasize, however, that our decision is limited in scope. We hold that the trial judge must consider evidence of appellant’s good conduct in prison. Yet, the trial judge is also free to consider a broad range of other information. He may review all of the testimony and exhibits introduced at both of appellant’s prior sentencing hearings. He may also allow the prosecution to introduce evidence relating to appellant’s bad conduct, if any, since the time that judgment of sentence was last imposed. Appellant’s favorable adjustment to life in the penitentiary is only one of several variables upon which the trial judge should focus; there is no right to have this one factor take precedence over all others. See Commonwealth v. Sessoms, 516 Pa. 365, 376-377, 532 A.2d 775, 781 (1987). In the end, the trial court may conclude that appellant’s new evidence pales in significance when compared with the other aspects of his case including the gravity of his offenses.

In summary, we vacate and remand appellant’s judgment of sentence on the basis of his first allegation of error. Appellant is entitled to a full and fair reassessment of his case. If he receives fair consideration, the trial court may again choose to impose a lengthy prison sentence. Cf Commonwealth v. Ruffo, 360 Pa.Super. at 191, 520 A.2d at 49 (similar disposition).

IV

This case already has been the subject of two appeals, and appellant’s second issue is likely to arise on remand. We will therefore address appellant’s remaining issue in the interest of judicial economy.

At the 1984 sentencing hearing, the trial court failed to state sufficient reasons for the disparity between Mr. Losch’s sentence and the sentences imposed on his codefendants, Mr. Wolf and Mr. Jones. This court reversed and remanded. Appellant now contends that the trial court compounded its original error by again failing to sufficiently explain this disparity. This time we disagree.

At the June 20, 1986 hearing, the trial judge said:

[A]s to Mr. Jones and Mr. Wolf, as much as perhaps I personally regret it, perhaps then, certainly now, both of these fellows were the recipients of favorable plea agreements from the Commonwealth. ■
... It’s true that the Court has the authority to abrogate or throw out a plea agreement when the Commonwealth and the Defense arrive at such a plea agreement. The Court has been tempted on a few occasions to do that. This judge was at one time a district attorney, but prior to that he was a defense attorney with considerable experience in hundreds of cases both by way of defense and prosecution, and I know that when defense counsel and district attorneys approach the Court with a plea agreement they do not do that by the seat of their pants. There is good, sound, substantial reason why a Court should be very hesitant to overrule the sound judgment of two experienced practitioners. While the Court has the power to second guess a plea agreement, the Court will rarely exercise that power because the Court cannot have the facts and circumstances and information known to counsel.

N.T. at 21, 24.

In order to impose unequal sentences on codefendants, the court must articulate differences between the codefendants that justify the disparity in treatment. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). See n. 8, supra. We find that the trial judge adequately discharged this duty. As the trial court noted, one key factor set Wolf and Jones apart from appellant Losch: Wolf and Jones were parties to a plea bargain. A codefendant who has successfully negotiated a plea bargain and a fellow codefendant who is not covered by a plea agreement are not similarly situated for sentencing purposes.

The presence or absence of a plea bargain is among the most important of all sentencing considerations. The trial court need not accept a plea agreement — see Pa.R.Crim.P. 319(b), but such agreements are encouraged because they serve the interests of the criminal justice system as a whole. See Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337,' 223 A.2d 699 (1966); Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973). The practical benefits of plea bargaining have been summarized as follows:

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.

Commonwealth v. West, 250 Pa.Super. 557, 563, 378 A.2d 1289, 1292 (plurality opinion) (citing Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977)). For many years, plea bargaining has been the method by which the majority of criminal cases are resolved. See Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). In light of the significant role that plea bargaining plays in the administration of justice, it is reasonable for a trial judge to base a disparity in sentencing on the fact that a codefendant participated in a court approved plea arrangement.

Appellant maintains that the trial court must first independently “justify the existence of the plea agreements in the codefendants’ cases, and the absence of one in the Defendant’s case.” (Appellant’s Brief at 11). The difficulty with this argument is that the initial decision whether to enter into plea discussions is subject to the discretion of the district attorney. Commonwealth v. Howard, 358 Pa.Super. 259, 264-65, 517 A.2d 192, 194 n. 2 (1986). Appellant has no right to a deal with the Commonwealth; the district attorney is ordinarily free to choose with whom he will negotiate. See Bordenkircher v. Hayes, 434 U.S. 357, 364-365, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604 (1978); Commonwealth v. Stafford, 272 Pa.Super. 505, 509-510, 416 A.2d 570, 573 (1979) (Watkins, J., with two judges concurring in result). Appellant has not presented evidence that the prosecution practiced any form of invidious discrimination in this case. Moreover, the record clearly shows that appellant’s decision to plead guilty without the benefit of a plea bargain was knowing and voluntary. Under these circumstances, we find that the trial judge had no duty to inquire further into the reasons why the prosecution did not treat all three codefendants equally. Therefore, the court may choose to sentence appellant more severely than his codefendants on remand.

The judgment of sentence is vacated and the case is remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

      . Appellant’s son, Eugene Donald Losch, was also implicated in the Millerstown break-in. The younger Mr. Losch had no prior criminal record and was admitted into the ARD (accelerated rehabilitative disposition) program.

      . The record does not specify the length of Wolf and Jones’ sentences.

      . The court did not consider the 1982 sentencing guidelines when imposing sentence. These guidelines did not apply to sentences imposed for offenses committed before July 22, 1982. 204 Pa.Code § 303.1(d). This case is therefore not affected by the Pennsylvania Supreme Court’s invalidation of the sentencing guidelines in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987).

      . This testimony was not a mere repetition of the evidence previously presented to the sentencing court. Indeed, only one of these five witnesses, a Mr. James LeValley, had testified at appellant’s first sentencing hearing.

      . "I think that the Court can consider, on the issue of Mr. Losch’s sincerity, what his conduct has been since he was sentenced by this Court in a way I think it’s fair to say was a disappointment to Mr. Losch. That disappointment did not dissuade him. It did not make him bitter. It made him act in the way that has been described this morning, and I would ask that the Court consider that in imposing sentence.” N.T. at 18.

      . Counsel also asserts that the trial judge’s comments at the 1984 sentencing hearing showed that at that time he improperly considered as an aggravating factor in sentencing the fact that appellant had been granted immunity in connection with the murder of Hank Swartz. Counsel raised this issue for the first time in his motion to modify the 1986 judgment of sentence. Counsel failed to raise this issue at either the 1984 sentencing hearing, or in his motion to modify the 1984 sentence. Moreover, neither counsel nor the trial judge referred to this allegedly improper consideration at the 1986 sentencing hearing.

        An objection to a discretionary aspect of a sentence is clearly waived if it was neither raised at the sentencing hearing nor raised in a motion to modify the sentence imposed at that hearing. See Commonwealth v. Krum, 367 Pa.Super. 511, 513-515, 533 A.2d 134, 135-36 (1987) (en banc); Commonwealth v. Cottman, 327 Pa.Super. 453, 461, 476 A.2d 40, 44 (1984); Commonwealth v. Albert, 335 Pa. Super. 424, 484 A.2d 775 (1984). Since appellant’s third issue concerns evidence which was considered only at the 1984 sentencing hearing, and since appellant did not raise the issue at that hearing or in his motion to modify his 1984 judgment of sentence, we find that the issue was not properly preserved for review on this appeal.

      . What constitutes a "substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process. See, e.g., Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980) (sentence must be adjudicated by fair and impartial judge); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (sentence may not be based in part on impermissible consideration).
      In this case, an overview of appellant’s brief demonstrates that the court’s actions were arguably inconsistent with section 9721(b) of the Code. This section provides:
      In selecting from the [sentencing] alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the

        rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing). In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.
      42 Pa.Cons.Stat.Ann. § 9721(b) (Purdon 1982) (emphasis added). We therefore grant review. See Commonwealth v. Tilghman, 366 Pa.Super. 328, 332 n. 2, 531 A.2d 441, 443 n. 2 (1987) (dictum) (failure to comply with § 9721(b) presents substantial question).

      . By vacating the 1984 judgment of sentence, the Superior Court acted in accordance with established precedent. The 1984 sentencing court failed to explain the disparity between appellant’s sentence and the sentences of his codefendants. Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978) held that a judge must state for the record his reasons for treating two codefendants unequally. See also Commonwealth v. Barrett, 293 Pa.Super. 100, 437 A.2d 1010 (1981); Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). The Thurmond rule is a special application of the general principle of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) ; Riggins held that the judge must articulate his reasons for the judgment of sentence at the time of the original sentencing hearing. See also Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). The remedy for a Riggins violation is to vacate sentence and remand for a new sentencing hearing. A Riggins violation may never be cured simply by remanding for a new statement of reasons. See Commonwealth v. Bolyard, 256 Pa.Super. 57, 62 n. 9, 389 A.2d 598, 601 n. 9 (1978) ; Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983) (en banc).
      The Riggins doctrine has been incorporated into the text of the Sentencing Code. Section 9721(b) of the Code states in relevant part:
      In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed____ Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

      42 Pa. Cons. Stat.Ann. 9721(b) (Purdon 1982) (emphasis added). See also Pa.R.Crim.P. 1405(b), cited infra at n. 9.

      . We also note that on remand, the trial judge should comply with the terms of Pa.R.Crim.P. 1405 (relating to sentencing). Subsection b of the rule provides that "[At the time of sentencing, the judge shall:] state on the record the reason for the sentence imposed." See also 42 Pa.Cons.Stat.Ann. § 9721(b), cited at n. 8 supra. This requirement applies both to the original sentencing hearing and to all subsequent resentencing hearings. See Commonwealth v. Kostka, 276 Pa.Super. 494, 511, 419 A.2d 566, 575 (1980) (Spaeth, concurring), Commonwealth v. Phillips, 258 Pa.Super. 109, 114, 392 A.2d 708, 710 (1978); Cf. Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669 (1980) (statement of reasons necessary following revocation of probation). Of course, the trial judge need not record his reaction to every scintilla of evidence introduced by the defense. In the instant case, however, the trial judge should at least: 1) state for the record that he has considered appellant’s new evidence; and 2) state for the record whether he incorporates by reference the sentencing considerations expressed in the presence of the defendant at the prior sentencing hearings.

      . A trial court may even impose a harsher sentence on remand after considering new prosecution evidence. Commonwealth v. Sinwell, 223 Pa.Super. 544, 302 A.2d 400 (1973). We caution, however, that the trial court must comply with the United States Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce held:
      Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation of the part of the sentencing judge.
      In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. 395 U.S. at 725-26, 89 S.Ct. at 2080-81 (footnote omitted). See also Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) (interpreting Pearce).

      Although Pearce refers to the imposition of a more severe punishment after a new trial, these constitutional limitations on the trial court’s authority to increase a sentence would apply with equal force to any resentencing proceeding which takes place after judgment of sentence has been vacated. See Commonwealth v. Hermankevich, 220 Pa.Super. 197, 286 A.2d 644 (1971) (invalidating enhanced penalty imposed following vacation of illegal sentence).

      . We note that appellant testified at his 1984 sentencing hearing that he was not offered a plea bargain because he would have been subject to impeachment on this basis when he testified as a Commonwealth witness.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    535 A.2d 125
    In the Matter of the ESTATE OF Anthony BARILLA, Deceased. Appeal of Teresa Young BARILLA, a/k/a Theresa Young Barilla, Widow of the Decedent.
    Superior Court of Pennsylvania.
    Submitted July 27, 1987.
    Filed Dec. 7, 1987.

      Joseph V. Agresti, Erie, for appellant.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order determining the parties’ respective rights as established by an ante-nuptial agreement and the laws of intestacy. Appellant, the decedent’s widow, contends that the lower court erred in concluding that (1) the antenuptial agreement provided for her to receive a one-fourth share of decedent’s estate; (2) appellees, decedent’s children, did not breach the ante-nuptial agreement; (3) appellant is only entitled to a life estate in the marital domain and not the net rental income from that property; (4) appellant is not entitled to share in the income from the assets of decedent’s estate; and (5) she is not entitled to receive the accrued interest on her share of the estate. For the reasons set forth below, we affirm the order of the court below.

Prior to their marriage on June 19, 1959, decedent and appellant entered into an antenuptial agreement which was drafted by decedent’s attorney. Decedent died intestate on December 7, 1971 and was survived by appellant and his three children by a prior marriage. On January 19, 1972, appellee Dominic Barilla, one of decedent’s children, filed a petition to have letters of administration issued to him in an effort to be appointed administrator of decedent’s estate. Appellant contested the appointment and requested that she be appointed administratrix. The parties subsequently agreed to allow decedent’s bank to act as administrator. After several attempts at settlement negotiations, the bank declined to proceed as administrator because the parties failed to fully cooperate. On March 1, 1984, Barilla, again, filed a petition to have letters of administration issued to him. Following a hearing, the court appointed the respective attorneys for the parties as co-administrators of the estate. Thereafter, when the co-administrators could not agree on the values of the assets of the estate, appellant’s attorney filed a petition for an accounting and filing of inventory. Following a hearing, the lower court held that the antenuptial agreement was valid and that appellant was a creditor of the estate entitled to a one-fourth share of the estate. The parties filed post-trial motions and this appeal followed.

Appellant first contends that the lower court erred in not determining that the intent of decedent was to provide her with a one-third share of the estate in accordance with the laws of intestacy rather than a one-fourth share as stated in the antenuptial agreement. We disagree.

One of the chief purposes of an antenuptial agreement is to alter the statutory provisions that the Pennsylvania legislature has enacted for the benefit of the surviving spouse. Emery Estate, 362 Pa. 142, 147, 66 A.2d 262, 265 (1949); In re Estate of Geyer, 338 Pa.Superior Ct. 157, 165, 487 A.2d 901, 905 (1985). It is an instrument of contract which entails the private undertakings between a husband and wife. Accordingly, such an agreement is governed by the law of contracts. Hollman v. Hollman, 347 Pa.Superi- or Ct. 289, 300, 500 A.2d 837, 843 (1985). A court’s review of a contract is confined to its interpretation of the agreement. Steuart v. McChesney, 498 Pa. 45, 51, 444 A.2d 659, 661 (1982).

In interpreting a contract, the intention of the parties must be ascertained from the complete writing and each and every part of it must be taken into consideration and given effect if reasonably possible.

Laub v. Laub, 351 Pa.Superior Ct. 110, 116, 505 A.2d 290, 293 (1986); see International Org. Masters, Mates and Pilots of America, Local No. 2, v. International Org. Masters, Mates and Pilots of America, Inc., 497 Pa. 102, 108-09, 439 A.2d 621, 624 (1981).

Here, the antenuptial agreement provides that:

WHEREAS the intended husband desires to marry the intended wife but desires to limit her interest in his estate and
WHEREAS the intended wife desires to release all her inchoate interest and any other rights granted to her by the laws of Pennsylvania; and ...
If the intended husband dies first the intended wife shall inherit and receive an undivided one-fourth (V4) part of the estate of said intended husband absolutely, it being the true intent and meaning hereof that she, the said intended wife, shall, in such event, receive the same share or portion of the estate of the said intended husband as would be received by each of the children of intended husband in the event of his death intestate, he at this time having three children. The intended wife does hereby forever remise release and quit claim all right, title and interest which she might or otherwise could have in and to the personal or real estate of said intended husband as his widow under the intestate laws of Pennsylvania, and does hereby agree to accept and receive the share of said estate hereinabove mentioned to wit, the undivided one-fourth (V4) part thereof, in full settlement of all such claims and demands as she might or otherwise could have as widow of the said intended husband in the event of his death in the manner hereinafter set forth.

Antenuptial Agreement at 1-2 (emphasis added). This language indicates that decedent’s purpose in executing the agreement was to limit appellant’s statutory rights upon his death and to prevent her from claiming her share as either a testate or intestate beneficiary.

Appellant maintains that the decedent’s true intention is reflected in the language of the antenuptial agreement where it states that appellant “shall ... receive the same share or portion of the estate ... as would be received by each of the children of [decedent] in the event of his death intestate ...” Antenuptial Agreement at 1-2 (emphasis added).

To determine whether the parties intended for appellant to receive a one-fourth share, the court must consider the complete writing. See Laub v. Laub, supra. The agreement when read as a whole shows that decedent intended to limit appellant’s share of his estate and to preclude her from taking her intestate share upon his death. The specific language that appellant refers to is not sufficient to overwhelm decedent’s intention that his spouse and children share equally in his estate. After considering the intention of the parties and reviewing the language in the agreement, we conclude that the trial court did not err in determining that appellant was not entitled to a one-third share under the agreement.

Appellant next contends that the lower court erred in not finding that the appellees breached the antenuptial agreement by failing to comply with its terms, thus rendering the agreement unenforceable. The antenuptial agreement granted appellant a life estate in the marital residence and designated appellees as the remaindermen. Appellant claims that appellees padlocked the entrance to the property and have, in effect, deprived her of her life estate. She maintains that appellees’ action constituted a breach of the antenuptial agreement.

It is a well established principle of law that a contract cannot legally bind persons not party thereto. Cumberland-Perry Area Vo-Tech School v. Bogar & Bink, 261 Pa.Superior Ct. 350, 357, 396 A.2d 433, 435 (1978); Chambers Dev. Co. v. Commonwealth ex rel. Allegheny County, 81 Pa.Commonwealth Ct. 622, 626, 474 A.2d 728, 731 (1984). Generally, under Pennsylvania law, a person not a party to a contract cannot be held liable for breach. Hampton v. Holmesburg Prison Off Is., 546 F.2d 1077, 1082 n. 4 (3d Cir.1976).

Here, appellant alleges that appellees have breached the antenuptial agreement by their actions, which prevented her performance of the contract. Appellees, however, are not parties to the antenuptial agreement nor are they intended third party beneficiaries. Moreover, appellant has failed to allege that appellees have a contractual duty under the antenuptial agreement. The general principles of contract law dictate that appellant cannot seek to legally bind persons who are not parties to the antenuptial agreement. Cumberland-Perry Vo-Tech School v. Bogar & Bink, supra; Chambers Dev. Co. v. Commonwealth ex rel. Allegheny County, supra. Therefore, because appellees are not parties to the antenuptial agreement and have no duties under the agreement, we conclude that appellant cannot maintain a cause of action for breach of contract against appellees.

Appellant next contends that, because the antenuptial agreement granted her a life estate in the marital residence, the lower court erred in determining that she is not entitled to the net rental income from the residence during the period when she was absent from the property. The antenuptial agreement provides:

In consideration of the premises, the intended husband does hereby grant unto the intended wife the right to live in the first floor apartment on premises known as 902 West 17th Street, Erie, Pennsylvania, for and during her natural life, provided, however, during such occupancy she shall pay one-half of the costs of the maintenance and repair of the premises and one-half of all taxes and assessments that might be levied against said property. Her right to live in said apartment shall begin at the time of the death of the intended husband. This right to live on said premises shall be extinguished upon her failure to occupy the premises immediately after said death or upon her removal therefrom any time there after.

Antenuptial Agreement at 2. Based upon this provision, the lower court concluded that appellant was entitled to a life estate in the marital residence but was not entitled to rental income because appellant was a creditor of the estate and not entitled to receive income acquired from those assets.

Generally, an act or event designated in a contract will not be construed as a condition unless that clearly appears to be the intention of the parties. American Leasing v. Morrison Co., 308 Pa.Superior Ct. 318, 326, 454 A.2d 555, 557 (1982). Conditions in a contract need not take on any particular form to create a condition of duty. Id. To determine the purpose of the conditions, the general rules of contract interpretation are applied and the intention of the parties is controlling. Id.

Here, it is clear on the face on the antenuptial agreement that the deceased and appellant contracted for the existence of a life estate contingent upon appellant’s compliance with certain conditions. Under the terms of the agreement, appellant’s life estate came into existence only if she occupied the premises immediately after decedent’s death. Antenuptial Agreement at 2. Furthermore, the life estate was defeasible should appellant fail to pay one-half of all property taxes and maintenance costs or cease to reside in the home. Id.

Based on the foregoing, we conclude that it was the intention of decedent and appellant to create and provide for the continuance of a life estate only upon appellant’s compliance with the terms in the agreement. See American Leasing v. Morrison Co., supra.

Our review of the record indicates that appellant did not occupy the property after decedent’s death and has not resided in the marital home for the last seventeen years. N.T. September 9, 1986 at 39. Appellant argues that the reason she has not resided in the marital residence is because appellees padlocked the entrance to the home shortly after decedent’s death. We note, however, that the lower court found that appellant had access to two other entrances of the house and failed to make any attempts at correcting her situation for the last seventeen years. Trial Court Opinion October 9, 1986 at 11. Additionally, appellant has failed to contribute to the payment of taxes or the costs of maintenance as provided in the agreement. N.T. September 9, 1986 at 41. Accordingly, because appellant failed to perform her contractual obligations entitling her to a life estate dating back to 1971, she is not entitled to rental income derived from that property for the last seventeen years.

Appellant next contends that her one-fourth share of the estate should include all income derived from assets of the estate. Appellant maintains that the intention of the agreement was that she share in the estate and receive any profits and income that flowed from the assets of the estate before distribution.

An antenuptial agreement establishes the surviving spouse as a creditor of the deceased spouse’s estate rather than as an heir. Zeitchick Estate, 426 Pa. 171, 175, 231 A.2d 131, 133 (1967); Pratt Estate, 422 Pa. 446, 450, 221 A.2d 117, 119 (1966); Durst v. Frick, 222 Pa.Superior Ct. 290, 294, 295 A.2d 125, 127 (1972). Under Pennsylvania law, the net income earned on an intestate decedent’s estate prior to distribution is distributed to his or her heirs. Mellott v. United States, 257 F.2d 798, 800 (3d Cir.1958). Additionally, rental income that accrues from decedent’s real property passes to the heirs of an intestate’s estate and not to the creditors of that estate. Bakes v. Reese, 150 Pa. 44, 46, 24 A. 634, 635 (1892). In the event that a decedent’s assets are not sufficient to satisfy the claims of creditors, Pennsylvania law provides that the administrator may acquire control over the real property and the income derived from it to satisfy the creditors’ claims. Wolfe v. Lewisburg Trust & Safe Deposit Co., 305 Pa. 583, 584, 158 A. 567, 568 (1931).

Here, there is an antenuptial agreement and, therefore, appellant assumes the status of a creditor of decedent’s estate. See Zeitchick Estate, supra. The real estate holdings of decedent and any income derived from those holdings are earmarked for decedent’s heirs. See Mellott v. United States, supra. As a creditor, appellant is not entitled to rental income. If appellant’s claims cannot be satisfied with the personal property of decedent, the co-administrators of the estate are vested with statutory powers which enable them to seek control over decedent’s real estate holdings in an effort to satisfy the debts of the estate. Wolfe v. Lewisburg Trust & Safe Deposit Co., supra. Accordingly, appellant’s contention that she is entitled to an outright share in the income derived from the assets of decedent’s estate, prior to a determination in that there are insufficient funds to satisfy her claim, is merit-less.

Appellant’s final contention is that because she is a creditor of the estate, she is entitled to interest earned on her share of the estate since 1972. The lower court held that appellant’s share should be calculated at the current market values in order to reflect the increased value of appellant’s share and not the market values that prevailed in 1972. Appellant argues that under Brown’s Estate, 340 Pa. 350, 17 A.2d 331 (1941), she is entitled to have interest calculated on her share from the time that she could demand payment of her claim. We disagree.

In Brown’s Estate, the testator’s widow contended that she was entitled to receive interest on her share of the estate left to her in accordance with an antenuptial agreement and a will. Id., 340 Pa. at 352, 17 A.2d 331, 332. The court specifically looked to the language of the antenuptial agreement and the will to determine if the testator intended for his wife to receive interest on her share of his estate. Id., 340 Pa. at 353, 17 A.2d 331, 332. The court acknowledged that the widow was a creditor of the estate and as a creditor was entitled to interest on her share from the time she could demand payment provided that the testator did not express a contrary intention either in the will or ante-nuptial agreement. Id., 340 Pa. at 352-53, 17 A.2d 331, 332. The court found that the testator expressly contemplated a specific time of payment and did not intend to enlarge the widow’s share by way of interest or otherwise. Id., 340 Pa. at 353, 17 A.2d 331, 332.

Here, an antenuptial agreement contains a provision, whereby, should there be insufficient cash to pay appellant her share, the heirs of the estate shall pay the balance, “in monthly installments of $125.00 without interest.” Ante-nuptial Agreement at 2 (emphasis added). The plain language of the agreement thus indicates that decedent’s intention was to exclude interest from appellant’s share of the estate. Under the principle espoused in Brown’s Estate, supra, appellant’s claim for accrued interest on her share of the estate must be disallowed because the agreement expressly states that she is not entitled to interest. In light of the fact that the antenuptial agreement contains specific language to the contrary, we conclude that appellant’s claim that she is entitled to interest must fail.

For the above-stated reasons, we affirm the order of the lower court.

Order affirmed.

      . Although neither party questioned the propriety of an appeal from the lower court’s order, our Court may raise issues of appealability and jurisdiction sua sponte. See Wertz v. Anderson, 352 Pa.Superior Ct. 572, 575, 508 A.2d 1218, 1220 (1986). It is well-settled that an appeal will lie only from a final order unless otherwise permitted by statute. Praisner v. Stocker, 313 Pa.Superior Ct. 332, 336, 459 A.2d 1255, 1258 (1983). A determination whether a petition for an accounting and a filing for an inventory can be considered a final and appealable order must be the result of a practical, rather than a technical, construction and it must be found to be collateral to the main cause of action. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1941); Bell v. Beneficial Consumer Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). In the case at bar, the lower court’s holding that appellant is a creditor by the terms of a valid antenuptial agreement has finally adjudicated her status in these proceedings along with her rights with regard to the estate. Accordingly, we hold that the order determining appellant’s status and respective rights, is "collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., supra 337 U.S. at 546-47, 69 S.Ct. at 1225-26.

      . We note that appellant does not challenge the validity of the ante-nuptial agreement on appeal, and thus we are prevented from reviewing this potentially meritorious argument. See Rago v. Nace, 313 Pa.Superior Ct. 575, 576, 460 A.2d 337, 338 (1983) (issue not raised in the statement of issues will not be addressed on appeal). Accordingly, we offer no opinion on the merits of such an argument.

      . We note that appellant’s allegations that the actions of appellees prevented her from meeting the legal obligations imposed upon her by the terms of the antenuptial agreement properly sounds in tort rather than contract. Appellant’s proper remedy would have been an action for tortious interference of contract. See Birl v. City of Philadelphia Elec. Co., 402 Pa. 297, 300-01, 167 A.2d 472, 474 (1960) (one who, without privilege to do so induces or otherwise properly causes a person not to perform a contract with another has set forth a cause of action for tortious interference of contract).

      . The lower court granted appellant the right to resume her life estate in the marital residence should she so desire but denied her entitlement to any rental income generated from that property. The lower court apparently bestowed upon appellant the life estate based solely on equitable considerations. As neither party has challenged this part of the lower court’s order, we may not address the lower court’s determination in this matter. See Commonwealth v. Unger, 494 Pa. 592, 595, 432 A.2d 146, 147 n. 1 (1980) (issue not preserved for appellate review where it is not included in the statement of questions or raised on appeal).


text:
    535 A.2d 131
    COMMONWEALTH of Pennsylvania v. Terry Lynn PROCTOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1987.
    Filed Dec. 7, 1987.

      Anthony W. DeBernardo, Jr., Ruffs Dale, for appellant.
    Donna J. McClelland, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This appeal is from an order denying appellant’s motion to withdraw his plea of nolo contendere to charges of criminal solicitation and promoting prostitution. Appellant contends that trial counsel was ineffective because he failed to object to a defective plea colloquy. For the reasons that follow, we remand the case for an evidentiary hearing to determine whether trial counsel had a reasonable basis for failing to object to the lower court’s colloquy.

Appellant was charged with criminal solicitation and promoting prostitution, and was to have been tried with a co-defendant who had been charged with rape. Pursuant to a plea agreement, appellant pled nolo contendere to the charges. Appellant was sentenced to a one-to-four-year term of imprisonment. A timely motion to withdraw appellant’s plea of nolo contendere was filed by trial counsel, and after a hearing, the motion was denied. New counsel was appointed, and this appeal followed.

Appellant contends that trial counsel was ineffective because he failed to object to a defective plea colloquy. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 156, 527 A.2d 973, 975 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra, 515 Pa. at 161, 527 A.2d at 976-77. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. at 2064.

In this case, there has been no evidentiary hearing on appellant’s ineffectiveness claim. We must, therefore, examine his claim, determine whether it has arguable merit and has prejudiced appellant, and if so, remand for an evidentiary hearing to determine whether counsel had a reasonable basis for his actions. See Commonwealth v. Spotts, 341 Pa.Superior Ct. 31, 33, 491 A.2d 132, 134 (1985).

Accordingly, the first step in our analysis is to determine whether appellant’s underlying claim — that his due process rights were compromised because his plea colloquy was defective — has arguable merit. Our Courts have repeatedly held that a court must ensure that a plea is knowing, intelligent and voluntary, see, e.g., Commonwealth v. Willis, 471 Pa. 50, 52, 369 A.2d 1189, 1189-90 (1977); Commonwealth v. Ingram, 455 Pa. 198, 200, 316 A.2d 77, 78 (1974); Commonwealth v. Dello Buono, 271 Pa.Superior Ct. 572, 577-78, 414 A.2d 631, 633-34 (1979), and this is to be accomplished by means of an on-the-record colloquy, Commonwealth v. Dello Buono, supra, 271 Pa. Superior Ct. at 577, 414 A.2d at 633. In this vein, our Supreme Court has held that a court hearing a plea is required to elicit the following information from the defendant:

(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 the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentence and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 826-27 (1976); Pa.R.Crim.P. 319(a). Importantly, failure to satisfy these minimal requirements is reversible error. Commonwealth v. Dilbeck, supra.

In this case, appellant contends that his plea colloquy was defective because the lower court failed to inform him about the presumption of innocence. A review of the record discloses that the court did omit that portion of the colloquy. N.T. January 14, 1987 at 8-12. A court’s failure to inform a criminal defendant about the presumption of innocence will result in reversal. See Commonwealth v. Willis, supra, 471 Pa. at 52, 369 A.2d at 1189; see also Commonwealth v. Dello Buono, supra, 271 Pa.Superior Ct. at 578-79, 414 A.2d at 634. Because the plea colloquy was defective, we conclude that appellant’s claim that his trial counsel was ineffective is meritorious. Moreover, appellant clearly was prejudiced by this failure, as had he been informed of the presumption of innocence, he might have sought to withdraw his plea of nolo contendere and proceed to trial. Accordingly, we remand to the lower court for an evidentiary hearing on the question whether trial counsel had a reasonable basis for failing to object to the lower court’s failure to inform appellant of the presumption of innocence. Commonwealth v. Spotts, supra, 341 Pa.Superior Ct. at 33, 491 A.2d at 134.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Under Pennsylvania law, the procedure governing the withdrawal of pleas of nolo contendere and pleas of guilty is the same. See Commonwealth v. Hayes, 245 Pa.Superior Ct. 521, 523, 369 A.2d 750, 751 (1976).

      . Appellant also contends that trial counsel was ineffective for failing to (1) object to the lower court's failure to order a presentence report; (2) move for severance of appellant’s case from that of his co-defendant; and (3) object when the court relied on appellant’s statement that he understood the implications of entering a plea. In addition, appellant contends that the lower court erred by proceeding with a hearing on appellant’s motion to withdraw his plea when it was aware that trial counsel wished to withdraw from the case. We do not reach these issues because of our disposition of appellant’s claim that trial counsel was ineffective for failing to object to a defective plea colloquy.

      . We note that this Court held in Commonwealth v. Siebert, 305 Pa.Superior Ct. 321, 451 A.2d 552 (1982), that a lower court’s failure to inform a defendant about the presumption of innocence was not reversible error. In that case, Judge Johnson concluded that
      In the instant case, the trial judge informed Appellant not only that the prosecution would have the burden of proving his guilt beyond a reasonable doubt, but also ‘before a jury could find you guilty ... all twelve of them would have to agree that you are guilty beyond a reasonable doubt.’ When the trial judge informed Appellant that the members of the jury must agree before they find him guilty, the judge was, in essence, informing Appellant that he was innocent until proven guilty. The phrase ‘before a jury could find you guilty,’ conveys the same idea as the phrase ‘presumed innocent. ’

        Id., 305 Pa.Superior Ct. at 325-26, 451 A.2d at 553 (emphasis added). Siebert, however, is inapplicable to the present case because here appellant was neither informed that he is presumed innocent nor that a jury would have to find him guilty beyond a reasonable doubt. N.T. January 14, 1987 at 8-12.


author: KELLY, Judge:

text:
    535 A.2d 134
    COMMONWEALTH of Pennsylvania v. Donald Ray BLOUGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1987.
    Filed Dec. 17, 1987.

      Thomas Dobson, Mercer, for appellant.
    James P. Epstein, District Attorney, Sharon, for Com.
    Before BECK, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

Defendant, Donald Blough, appeals nunc pro tunc from the judgment of sentence imposed upon convictions of arson and related offenses. On appeal, appellant raises two issues: (1) whether the evidence presented was insufficient to sustain the verdict; and (2) whether trial counsel was ineffective in failing to object, on the grounds of spousal immunity, to the testimony of a Commonwealth witness regarding a statement made by appellant’s wife. We find that the issues raised on appeal are without merit. We therefore affirm.

Following a jury trial, appellant was found guilty of arson by recklessly placing firefighters in danger of death or bodily injury, arson committed with the purpose of destroying or damaging an inhabited building or occupied structure of another, arson with intent of destroying or damaging property in order to collect insurance proceeds, arson by intentionally starting a fire and thereby recklessly placing an inhabited building or occupied structure of another in danger of damage or destruction, risking a catastrophe, and criminal mischief. Post-trial motions were denied, and the court sentenced appellant to three (3) to six (6) years for arson by recklessly placing firefighters in danger of death or potential injury, and six (6) to twelve (12) months for criminal mischief, to be served concurrently. Sentence was not imposed upon the remaining offenses.

I.

Appellant first contends that the Commonwealth presented insufficient evidence to support the convictions. In evaluating this contention, “we view the evidence in the light most favorable to the Commonwealth as verdict winner and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Griffin, 511 Pa. 553, 559, 515 A.2d 865, 867 (1986); Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984). Viewed in that light, the record discloses the following.

Prior to January 1985, the appellant and his wife resided in a Sharon, Pennsylvania home which was owned by appellant’s wife and her sister. The home was insured against fire loss. In January 1985, the gas was disconnected, causing the water pipes to freeze. Appellant and his wife moved into a friend’s home temporarily. Appellant hired a neighbor to thaw the pipes and asked him to watch over the home while it was vacant. While working on the home, the neighbor discovered that one of the pipes had broken, causing water damage to the ceiling. The neighbor testified that on January 18, upon viewing the damage and learning that the loss would not be covered by insurance, appellant’s wife stated that she would not stay in the house any longer.

On the evening of January 18, between 6:30 and 7:00 p.m., the neighbor received a phone call from appellant, who told him that he need not keep an eye on the house any longer. Commonwealth witness Linda Crocker, who lived in a home located across an alley from appellant’s residence, testified that at about 7:00 p.m. she heard the appellant’s side door slam. Looking out the window, she saw appellant close the screen door and walk rapidly to his car, which was parked in the street. Appellant got into his car and drove away at a high rate of speed. Ten to fifteen minutes later, Linda Crocker learned from a neighbor that the appellant’s house was on fire. Upon arriving, firefighters found a very intense fire in the kitchen; air packs were required because of the dense smoke. Using water hoses, the firefighters put the fire out within a short time after arriving.

As appellant’s next-door neighbor Linda Crocker stood viewing the scene, the appellant arrived. She said to appellant, “You were just here.” He replied, “Yes, but everything was all right when I left.” The Commonwealth produced Detective Frank White; he testified that, during an interview on January 19, 1985, appellant stated that on the night of the fire he remained at a bar from 5:35 p.m. until 7:35 p.m., when he received a call from his wife informing him of the fire. The Commonwealth also called Thomas Myers, a friend of appellant’s, who recalled that he accompanied appellant to two bars, between 4:30 p.m. and approximately 6:00 p.m. Appellant left the second bar at about 6:00 p.m. and returned about forty-five minutes later. He then received a call informing him of the fire.

On January 19, the day after the fire, Chief Paul McSherry of the Sharon Fire Department and Fire Marshall Goeltz of the Heritage Fire Department examined the scene to determine the cause of the fire. Chief McSherry testified that the kitchen was completely gutted, with a hole burned through the kitchen floor between the stove and kitchen sink. The chief testified that fire normally travels upward, toward the ceiling, leaving the floor intact. In this case however, the floor and baseboard were charred; after cleaning the debris from the floor, the chief was able to see a circular pattern, consistent with a flammable liquid being poured and burned. The chief checked all the electrical outlets in the kitchen and found them to be intact. A partially filled container of flammable liquid was discovered on the back porch. In the chiefs opinion, “the fire could not have been accidental. It had to be ... ignited by some unknown person.” (N.T. 6/13/85 at 135).

Appellant argues that the evidence against him is only circumstantial in nature. He points out that his companion at the bar, Thomas Myers, testified that appellant left the bar from 6:00 to 6:45 p.m., while Linda Crocker stated that she saw appellant leaving the home at about 7:00 p.m. According to appellant, this inconsistency results in a verdict based upon conjecture. Appellant argues further:

... [TJhere is no evidence to show when the fire started. We only know when it was discovered. The fire could just as easily started [sic] after Appellant left the house. Without a showing of when the fire started, the fact Appellant was seen leaving the house at 7:00 p.m. only creates a suspicion he started the fire. It does not prove beyond a reasonable doubt he started it.

(Appellant’s brief at 10).

While a criminal conviction may not be based upon mere surmise or conjecture, the Commonwealth’s burden to present sufficient evidence to prove every element of the crime beyond a reasonable doubt may be sustained based on wholly circumstantial evidence. Commonwealth v. Potter, 350 Pa.Super. 61, 504 A.2d 243 (1986); Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985). To establish complicity, mere presence at the scene of a crime, like flight from the scene, without more, is not sufficient. Commonwealth v. Rosetti, 322 Pa.Super. 536, 541, 469 A.2d 1121, 1123 (1983). However, those factors combined, along with other direct or circumstantial evidence may provide a sufficient basis for a conviction. See Commonwealth v. Rosetti, supra; Commonwealth v. Wilson, 294 Pa.Super. 101, 439 A.2d 770 (1982).

In the instant case, the Commonwealth established that appellant had a motive for setting fire to the house: money was needed to make major repairs within the home. Further, shortly before the fire was discovered, appellant telephoned a friend whom he had asked to watch the home, and told him he need not keep an eye on it any longer. Appellant was seen leaving the house and speeding away minutes before the fire was discovered. Appellant reappeared at the scene, admitting that he had been present a short time before; yet in a statement made to an investigating officer, he denied that he had been present at the house before the fire occurred. A jury could properly infer a consciousness of guilt from this false statement to authorities. Commonwealth v. Hart, 403 Pa. 652, 170 A.2d 850 (1961), cert, denied 368 U.S. 881, 82 S.Ct. 130, 7 L.Ed.2d 81 (1961); Commonwealth v. Snyder, 335 Pa.Super. 19, 483 A.2d 933 (1984). Considering all the testimony in the light most favorable to the Commonwealth, it is clear that the jury’s verdict was based upon sufficient evidence. The Commonwealth’s evidence, though circumstantial, was sufficient to prove each of the elements beyond a reasonable doubt.

II.

Appellant next contends that trial counsel was ineffective for failing to object, on the basis of spousal immunity, to the testimony of a Commonwealth witness regarding a statement made by appellant’s wife. As with any ineffectiveness claim, we begin with the observation that counsel is presumed to be effective, and the burden of proving otherwise is on the defendant. Commonwealth v. Diggs, 351 Pa.Super. 444, 506 A.2d 431 (1986). To make out a claim of ineffectiveness, a defendant must first demonstrate that the underlying issue is of arguable merit. If so, then inquiry must be made whether the course chosen by counsel was reasonably designed to protect his client’s best interests and whether counsel’s dereliction so prejudiced the client as to deny him the right to a fair trial. Commonwealth v. Westcott, 362 Pa.Super. 176, 203, 523 A.2d 1140, 1153 (1987); Commonwealth v. Diggs, supra. Counsel is not ineffective for failing to assert a baseless claim. Commonwealth v. Glass, 514 Pa. 287, 523 A.2d 741 (1987); Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). With this standard in mind, we proceed to examine appellant’s specific claim of ineffectiveness.

A.

The Commonwealth called appellant’s neighbor, William McLaughlin, to testify regarding appellant’s reaction to the water damage caused by the ruptured pipes and regarding the events immediately preceding the fire. Mr. McLaughlin testified that on the day of the fire, while working on the water lines in the home, he suggested to appellant that the water damage might be covered by homeowner’s insurance. Mr. McLaughlin testified that the following exchange then occurred:

A. ... So I am back downstairs; and then Mr. Blough and Candie was — they were — they started arguing. They were arguing about whether or not they were going to be there or not.
Q. All right; now, Candie is Mrs. Blough; is that correct?
A. Yes, sir.
Q. All right; now did Mr. Blough in the presence of Mrs. Blough say anything to you about the results of the call to the insurance company?
A. Yes, sir; I came back, and I asked Don, I said, ‘Is the insurance company going to cover it?’ and he says, ‘No,’ he said, ‘they’re not going to cover it.’ I says, ‘Well, Don,’ I says, T know you don’t have the money to fix it, so,’ I says, ‘what I’ll do,’ I says, ‘what we could do is clean it up and then put a drop ceiling in there.’
Q. How did Mrs. Blough react to this?
A. She was kind of upset. She was — she says, ‘I’m not staying here like this.’ She says, ‘Look at this house.’ And it was a mess. It was — the water seeped all through the night, and the plaster, you know—
Q. What was her state of mind? Describe her—
A. She was upset at the insurance company not covering the damages and upset at the damage done to the house.

(N.T. 6/13/85 at 105-6). The defense attorney objected to this testimony, arguing that the alleged statements made by appellant’s wife constituted hearsay; this objection was overruled, and the testimony was allowed.

B.

On appeal, appellant claims that defense counsel should have objected to the testimony on the basis of spousal immunity. The applicable statute, 42 Pa.C.S.A. § 5913, provides that, with certain exceptions not applicable in the instant case, “in a criminal proceeding a husband and wife shall not be competent or permitted to testify against each other.” Appellant recognizes that his wife did not testify directly against him; he argues, however, that “[e]xtra-judicial admissions ... are a form of testimony,” and that “the [spousal immunity] Act should apply to them with the same force as though made by a spouse from the stand.” (Appellant’s Brief at 14).

Although the statute is often referred to as a spousal or marital immunity statute, it is actually more accurately described as an incompetency statute; adverse spousal testimony in a criminal case is prohibited, regardless of the spouses’ desires. The purpose behind such statutes is to preserve and protect the marital relationship. See Cornelius, Spousal Testimony in Pennsylvania, 86 Dick.L.Rev. 491, 493-5 (1982); 8 Wigmore, Evidence § 2227 (McNaughton rev. 1961).

As was previously stated, the statute provides that one spouse shall not be permitted to “testify” against the other. “Testify” is defined in Black’s Law Dictionary as “[t]o bear witness; to give evidence as a witness; to make a solemn declaration under oath or affirmation, in a judicial inquiry, for the purpose of establishing or proving some fact.” Black’s 5th ed. at 1323 (1979). According to the rules of statutory construction, “[w]ords and phrases shall be construed ... according to their common and approved usage ...”. 1 Pa.C.S.A. § 1903(a). Applying the commonly used definition, to “testify” would not include the spouse’s extrajudicial statements, and the statute would not bar a third party from repeating those statements in a judicial proceeding.

Although a very limited number of cases address the question here presented, some early authorities do support appellant’s argument that the statute (and its predecessor) bars such testimony, despite the clearly restrictive language of the statute. The rationale behind these cases is that, if the disclosure by defendant’s spouse of information adverse to defendant is intentional and the information is produced in court through the third person’s testimony, admission of the testimony may result in an evasion of the statute by accomplishing indirectly what cannot be accomplished directly through the spouse. See C.J.S. Witnesses § 86 (Indirect Testimony).

In Commonwealth v. Fisher, 221 Pa. 538, 70 A. 865 (1908), the defendant, while incarcerated and awaiting trial, sent two incriminating letters to his wife. The letters were obtained by the district attorney and admitted into evidence, over defense counsel’s objection. Defendant was found guilty of first degree murder. On appeal to the Supreme Court, defendant argued that the admission of the letters was in effect the giving of testimony by the wife against the husband, forbidden by statute. The Court agreed:

It is true the evidence does not show how the district attorney got possession of the letters, but the wife having received them, the reasonable presumption is that she gave them to the prosecuting officer____ For the purposes of the present case it is not necessary to consider or determine whether the letters were such confidential and privileged communications as not to be admissible in evidence at all under any circumstances, but we do hold that they could not be produced by the wife and offered in evidence as coming from her because this was in effect permitting the wife to testify against her husband and as to confidential communications made by one to the other, which cannot be done under our statute.

221 Pa. at 544, 70 A. 865. The judgment was reversed and a new trial granted. In the 1942 case of Kerr v. Clements, 148 Pa.Super. 378, 25 A.2d 737 (1942), this Court stated:

What is prohibited by the act is testimony in any form by the wife or husband against the other. Extra-judicial admissions are a sort of testimony; hence the prohibition of the act applies to them with the same force as though made by a spouse from the stand.

148 Pa.Super. at 382, 25 A.2d 737 (emphasis in original).

In his treatise on evidence, Wigmore opines regarding the spouse’s extra-judicial statements:

It can be argued that that which is privileged is the testimonial utterance in any form, by the wife or husband, offered against the other. Hearsay statements— oral or documentary — are testimonial utterances. Hence, it would follow that they are equally privileged with testimony on the stand.

8 Wigmore, Evidence § 2232 (McNaughton rev. 1961). See also P.L.E. Witnesses § 41 note 6.

Contrary to the broad statements of some of these authorities, the modern trend is to determine on a case-by-case basis whether the privilege applies to extra-judicial statements; the question becomes whether admission of the statement will offend the rationale underlying the privilege. In Kine v. Forman, 205 Pa.Super. 305, 209 A.2d 1 (1965), this Court stated:

We have held that this Act is subject to limitations and the modern view is that these limitations may be expanded. ‘This privilege has no longer adequate reason for retention. In an age which has so far rationalized, depolarized and dechivalrized the marital relation and the spirit of femininity as to be willing to enact complete legal and political equality and independence of man and woman, this marital privilege is the merest anachronism in legal theory and an indefensible obstruction to truth in practice____’ Wigmore on Evidence, Vol. VIII, § 2228, page 221.

205 Pa.Super. at 309-10, 209 A.2d 1. In Kine, as in Kerr, supra, the Court held that the privilege would not apply to shield one spouse from testifying as to a fraudulent transaction existing between husband and wife:

The prohibition against the competency of husband and wife to testify against each other operates only within proper bounds. It was not intended in the act to supply the means of protecting another in a fraudulent transaction nor to render husband and wife secure in the enjoyment of the fruits of fraud. [Kerr, 148 Pa.Super. at 384, 25 A.2d 737]. See also: Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964). “Not only is the policy of the privilege against a wife’s testimony not seriously violated ... but otherwise the husband could always shield himself from liability by choosing to make his wife his agent to transact business.” Wigmore on Evidence. Vol. VIII, § 2232, pages 227, 228.

Kine, supra, 205 Pa.Super. at 310, 209 A.2d 1.

In another group of cases, the courts distinguish between statements of one spouse which are directly against the other and statements which are factual or lead the listener to discover evidence. In Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964), cert, denied 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1964), the Supreme Court distinguished Fisher so as to hold certain evidence inadmissible. In Wilkes, the Commonwealth alleged that the defendant and his son were involved in an illicit relationship with the same woman, and that the existence of this relationship provided defendant with a motive for killing his son. The wife lived apart from her husband; two days after the killing the wife searched her husband’s home and discovered five love letters defendant had written to the woman. After the wife delivered the letters to the authorities, they were admitted into evidence against the defendant. Defendant was convicted of second degree murder, and on appeal, he argued that the admission of the letters violated the rule of spousal incompetency. The Court disagreed, distinguishing Fisher:

Fisher is clearly distinguishable. Therein personal letters addressed and sent to his wife by a defendant who was in jail were delivered by her to the district attorney. They were ruled inadmissible at trial as being in contravention of the Act of 1887. Herein, the letters were not addressed or sent to the wife; they were not a communication from one to the other; their exposure breached no confidence between them; they were not her property; she had no right or interest therein. The circumstances here obtaining do not constitute the giving of testimony by the wife against the defendant.

414 Pa. at 250-51, 199 A.2d 411, citing Commonwealth v. Smith, 270 Pa. 583, 113 A. 844 (1921).

Similarly, in Commonwealth v. Garrison, 398 Pa. 47, 157 A.2d 75 (1959), the Court focused upon the fact that the statement of the spouse was offered by a competent witness and the statement was not directly against the spouse. In Garrison, the husband, wife, and three other individuals were convicted of participating in a burglary which caused the death of the homeowner. In the trial of the husband, one of the previously convicted individuals was permitted to testify regarding the statements of appellant’s wife, who told him that the elderly victim’s home would make a good target for a burglary. On appeal, husband claimed that the statements violated the rule prohibiting spouses from testifying against one another. The Supreme court rejected this argument:

Mrs. Garrison did not testify, and we do not regard the evidence ascribed to her as being the equivalent of testimony. It was not against her husband and did not refer to him: hence it falls within the rule of Welker v. New York Central Railroad, 275 Pa. 82 (1922), 118 A. 615, and Commonwealth v. Johnson, 213 Pa. 432 (1906), 62 A. 1064, that: “Facts which have been learned by competent witnesses are not to be excluded because the witness may have been put on the track of them by information coming incidentally or otherwise from the prisoner or his wife.”

398 Pa. at 51, 157 A.2d 75.

One additional case bears mention. In Commonwealth v. Marker, 25 Pa.D. & C.3d 119 (1982) (Somerset County), an arson case, defendant’s wife had arrived at a neighbor’s house on the day of the fire, excited and apparently bruised, and told the neighbor that defendant set their home on fire. Over objection, the court permitted the neighbor to testify regarding the wife’s statement to him inculpating defendant. After finding that the statements fell within the res gestae “excited utterance” exception to the hearsay rule, the court addressed and rejected defendant’s contention that, by admission of the third party testimony, the wife was “permitted to testify” within the meaning of and in violation of the statute:

... [T]he prevailing rule is that res gestae (excited utterance) declarations are admissible in evidence through the testimony of a competent third party auditor even though the declarations were made by an incompetent witness. The circumstances making them admissible not only vouch for their reliability, but also negative deliberate evasion of the incompetency statute. The exception applies to incompetency as between husband and wife.

25 Pa.D. & C.3d at 127 (footnotes omitted). The court stated further:

Res gestae statements lack that deliberate quality. Moreover, as respects family harmony, third party evidence of a spouse’s spontaneous excited on-the-spot utterance is not nearly as offensive or disturbing to domestic peace as is confronting the spouse on trial with the other spouse’s direct testimony from the stand which was the original target of the prohibition.

The court concluded that the wife’s extrajudicial statement was properly admitted. See also Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979) (statements by wife against defendant held admissible under res gestae exception; no mention of interspousal incompetency).

C.

Bearing these more recent cases in mind, we conclude that admission of the spouse’s extrajudicial statements in the instant case did not offend the marital incompetency statute. We find that hearsay statements of a spouse recounted by a third party under oath pursuant to a recognized hearsay exception do not constitute testimony by a spouse. Consequently, 42 Pa.C.S.A. § 5913 did not provide a basis for appellant’s prior counsel to object to Mr. McLaughlin’s testimony as being violative of spousal incompetency.

While the statutory bar had been judicially extended in some earlier cases to situations where hearsay testimony or other artifices were used to purposefully evade the statutory proscription, no such circumstances exist here so as to warrant such an exercise of judicial discretion. Admission of the statement breached no confidence between husband and wife, and therefore did not offend the rationale of the privilege. See Wilkes, supra. Moreover, the statement lacks the deliberate quality, evidencing an intent to evade the Spousal Immunity Act, which might, under other circumstances not here present, justify an extension of the statute to a spouse’s extrajudicial statements. See Marker, supra. Rather, the statement was made by appellant’s wife at a time and in a manner which establishes the absence of such a purpose; the statement only acquired its incriminating nature by virtue of subsequent acts and even then its incriminating nature was inferential rather than direct or accusatory. See generally Annotation, Spouses Betrayal or Connivance as Extending Marital Communications Privilege to Testimony of Third Person, 3 ALR 4th 1104 (1981 & 1987 Supp.).

Finally, we note that while this Court is powerless to effect the repeal of the Spousal Immunity Act, 42 Pa.C.S.A. § 5913, uniform well-reasoned criticism of the rule provides ample justification for the courts to confine the Act’s effects to cases in which the letter of the Act requires application of this antiquated doctrine. Cf. Commonwealth v. Scott, 516 Pa. 346, 349-351, 532 A.2d 426, 429 (1978).

Based upon the foregoing, we conclude that the objection which appellant now advocates would have been meritless if voiced at trial. Trial counsel was therefore not ineffective in failing to present a meritless objection. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986); Commonwealth v. Davis, 363 Pa.Super. 562, 526 A.2d 1205 (1987).

Accordingly, judgment of sentence is affirmed.

HOFFMAN, J., concurred in the result of the Majority Opinion.

      . The trial court denied appellant’s post-trial motions on January 2, 1986 and sentenced appellant on February 24, 1986. In June 1986, appellant filed a post-conviction petition, alleging ineffective representation during trial and ineffectiveness of counsel for failure to perfect a timely appeal. Following a hearing, the court below entered an order granting permission to file an appeal nunc pro tunc. In all other respects, the petition was denied.

      . Appellant also contends that the guilty verdict was against the weight of the evidence. A weight of the evidence claim will entitle appellant to relief only if the verdict is so contrary to the evidence that it shocks the conscience; this determination is addressed to the sound discretion of the trial judge, and will be reversed only for an abuse of that discretion. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). We find no abuse of discretion in the instant case.

      . 18 Pa.C.S.A. § 3301(a)(l)(i).

      . 18 Pa.C.S.A. § 3301(a)(l)(ii).

      . 18 Pa.C.S.A. § 3301(c)(3).

      . 18 Pa.C.S.A. § 3301(c)(2).

      . 18 Pa.C.S.A. § 3302(b).

      . 18 Pa.C.S.A. § 3304(a)(1).

      . Appellant did not testify at trial.

      . The fact that the witnesses’ time estimates do not coincide exactly is not, of course, fatal to the Commonwealth's case. Witness Myers stated that he estimated the time rather than that he was certain of the exact time. In any event, the variation in the witnesses’ time estimates amounts to only a few minutes at most; the jury was not, as defendant claims, required to resort to speculation. (N.T. 6/13/85 at 14, 22; N.T. 6/13/85 at 123, 127).

      . See McCormick, Evidence § 249 at p. 733-4 & n. 8 (3rd ed. 1984); Binder, Hearsay Handbook, § 2.12 at pp. 37-38 (2nd ed. 1983). The statement may be offered to show the effect on the listener and the state of mind produced, including motive.

      . Section 5913 must be distinguished from 42 Pa.C.S.A. § 5914, the confidential communications privilege statute, which prevents testimonial disclosure of confidential marital communications over the objection of either party.

      . Defendant also argued that admission of the letters violated the privilege against disclosure of confidential marital communications. The statute at that time, former 19 P.S. § 683, provided that "neither husband nor wife shall be competent or permitted to testify against each other ... nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to another.”

      . In Welker, which involved the instituting of criminal proceedings based upon facts and evidence provided by the spouse, the Supreme Court stated:
      ... [P]laintiff contends error was committed in receiving evidence of facts learned through declarations or acts of plaintiff's wife, on the ground that she would not have been a competent witness against him, and, consequently, statements made by her were incompetent. While the wife would not have been a competent witness against her husband, there is no rule of law which prevents a third person from instituting criminal proceedings based on facts learned through information given by the wife of the accused. The admission of such facts in evidence is not permitting the wife to testify against her husband____
      275 Pa. at 86, 118 A. 615.

      . The testimony was presented at defendant’s preliminary hearing. The admission of these statements came for review by the common pleas court when defendant filed a petition for writ of habeas corpus, alleging that the evidence was insufficient to establish a prima facie case of arson and to hold him over for trial.