text:
    435 A.2d 896
    Pat SEIDEL, Appellant v. GREAT FACTORY STORE.
    Superior Court of Pennsylvania.
    Argued May 27, 1981.
    Filed Oct. 9, 1981.

      Arnold J. Wolf, Philadelphia, for appellant.
    Andrew L. Braunfeld, Norristown, for appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   PER CURIAM:

This appeal is from the dismissal of a complaint, pursuant to authority contained in Montgomery County Rule of Civil Procedure 302(d), for failure to file a timely brief in response to preliminary objections and from a subsequent refusal by the court to vacate the earlier order. For reasons hereinafter appearing, we reverse the later order and remand for further proceedings.

On December 14, 1979, the appellant, Pat Seidel, caused a five count complaint to be filed against the appellee, Great Factory Store. On February 19,1980, appellee filed preliminary objections in the nature of a demurrer to the complaint, which appellant answered on March 10, 1980. Appellee thereafter caused the case to be listed for argument and filed its brief. By stipulation of counsel, the time for filing-appellant’s brief was extended to May 20, 1980. Appellant failed to file his brief by that date, however, and on May 28, 1980 the trial court dismissed the complaint pursuant to authority contained in Montgomery County Rule of Civil Procedure No. 302(d).

On June 5, 1980, appellant presented to the trial court a motion to rescind and vacate the order dismissing the complaint, alleging that the due date for appellant’s brief had been incorrectly diaried and inadvertently overlooked by counsel. The same day, the court dismissed appellant’s motion without hearing and without receiving evidence by depositions or stipulation.

On appeal to this Court, appellant argues that Montgomery County Rule 302(d) is invalid because it is inconsistent with the Pennsylvania Rules of Civil Procedure and, in any event, that his default in failing to file a timely brief should have been excused because it was caused by inadvertence on the part of his attorney.

The validity of the Montgomery County Rule 302(d) has been upheld by recent decisions of this Court. In Dunham v. Temple University, 288 Pa.Super. 522, 432 A.2d 993 (1981), it was held that Rule 302(d) was not in conflict with Pa.R.C.P. No. 1034(b) or 1037(c). In Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa.Super. 319, 430 A.2d 305 (1981), a panel of the Court held further that Rule 302(d) was not unreasonable. The panel observed, however, that the court making such a rule has broad power to suspend or disregard the rule to prevent an injustice. It said: “Accordingly, although Rule 302(d) is silent as to the procedure to be followed after a sanction has been imposed, we believe that the Montgomery County Court of Common Pleas would vacate an order imposing a sanction if the noncomplying party, by timely petition, offered a reasonable excuse for its failure to file a brief within the prescrt’s refusal to excuse noncompliance constituted an abuse of discretion, its decision would be reversed on appeal.” Id., 287 Pa.Super. 319, 430 A.2d 305. See also: Shapiro v. Albright, 287 Pa.Super. 455, 430 A.2d 672 (1981).

Inadvertence of counsel, if reasonably explained, is an adequate excuse for the failure to file a brief and will justify relief. See generally Horan v. R. S. Cook & Associates, Inc., 287 Pa.Super. 265, 430 A.2d 278 (1981); St. Joe Paper Co. v. Marc Box Co., Inc., 260 Pa.Super. 515, 394 A.2d 1045 (1978); Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331 (1976); Alexander v. Jesray Construction Co., 237 Pa.Super. 99, 346 A.2d 566 (1975).

A review of the order and opinion of the trial court in the instant case discloses that the adequacy of the excuse offered by appellant was neither considered nor determined. Appellant’s application to vacate the court’s dismissal order contained averments that the failure to file a brief had been attributable to an inadvertent failure by counsel to diary the correct date on which the brief was due. Appellee’s answer contained an effective denial of those averments. No evidence was taken, and the court made no findings. The motion was disposed of by a simple order of denial. A subsequently filed opinion discussed the reasons for the Montgomery County rule but disclosed affirmatively that there had been no consideration given and no determination made concerning the reasonableness of the excuse offered for appellant’s default. Such a determination is essential to our present review.

Therefore, we will reverse the order of June 5, 1980, and remand for further proceedings on appellant’s application to vacate the court’s dismissal order of May 29, 1980.

It is so ordered.

      . At the time of this litigation, Montgomery County Rule of Civil Procedure 302(d) provided as follows:
      “Briefs required—In Interlocutory matters, 302(c)(1), briefs or memoranda of law may be submitted by counsel to the court administrator at any time prior to the day of argument or to the hearing judge at the time of argument. In Appealable matters, 302(c)(2), the moving party or parties shall file its brief within 30 days of the filing of the motion, petition or preliminary objection, and shall file the same by giving three copies of the brief to the court administrator’s office, who shall stamp the same received, and by serving concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.
      “The responding party or parties, within 30 days of the filing and service of the moving party’s brief, shall likewise file three copies of its brief with the court administrator’s office, who shall stamp the same received, and shall serve concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.
      “If the briefs of either the moving party or responding party are not timely filed within the period above stated, unless the time shall be extended prior thereto by the court for good cause and reason shown, the court administrator shall notify the court, and the court shall, without further notice, mark the motion, petition or preliminary objection granted or dismissed, depending upon which party does not comply with the brief filing requirements of this rule. If neither party complies, the court, at the time of argument and upon notification of joint non-compliance, shall impose whatever sanction it deems appropriate. In the case of multiple parties, the relief shall be granted or the action dismissed as appropriate to the position of the non-filing party or parties. The court administrator shall notify the judge or judges to whom the argument has been assigned. There can be no extension of the time for the filing of briefs by agreement of counsel.
      “The moving party shall file a praecipe in duplicate with the prothonotary at the time it files its Appealable matter and the prothonotary shall time-stamp the praecipe. The moving party shall serve a copy of the praecipe on opposing counsel or unrepresented party long with the motion or petition.”

        The rule has since been amended, effective October 27, 1980, to give the court discretion to determine and impose an appropriate sanction for failure of a party to comply with the time constraints imposed by the rule.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    435 A.2d 899
    Barbara SCHINDLER, Appellant, v. Marlin D. KENLEY.
    Superior Court of Pennsylvania.
    Argued June 23, 1981.
    Filed Oct. 9, 1981.

      John J. Krafsig, Jr., Harrisburg, for appellant.
    Lawrence J. Neary, Harrisburg, submitted a brief on behalf of appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.
   PER CURIAM:

This is an appeal from an Order modifying support. It directs Appellee father to pay $17.50 per week for the support of his three-year-old son. This amount represents an increase of $2.50 per week. Appellant mother argues the lower court has abused its discretion. We agree, and we therefore reverse.

The record in this matter reveals there was no evidentiary hearing in the court below. Contained in the “notes of testimony” are the brief arguments of respective counsel. With these arguments as the sole “evidentiary record,” the lower court entered the present Order.

As recently reiterated by this Court:

“To reduce or modify an existing order there must be a change of circumstances and the burden is on the one who asserts the change to prove it by competent and sufficient evidence. Our duty on review is to determine whether the evidence supports the hearing judge’s order and whether there has been an abuse of discretion.” Dugery v. Dugery, 276 Pa.Super. 51, 419 A.2d 90 (1980).

In the instant case we find there has been an abuse of discretion in that the lower court had before it no evidence warranting any modification of support. See also Stump v. Stump, 291 Pa.Super. 65, 435 A.2d 221, (Pa.Super.Ct.).

For the foregoing reasons, we reverse and remand with directions that the lower court hold an evidentiary hearing to determine if a modification of support is warranted. This Court does not retain jurisdiction in this matter.

PRICE, J., did not participate in the consideration or decision of this case.

      . Although we recognize the problem of crowded dockets, we cannot review, and therefore will not allow, the entry of such an Order without an evidentiary hearing.


author: CERCONE, President Judge:

text:
    435 A.2d 900
    COMMONWEALTH of Pennsylvania v. Terrance WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1981.
    Filed Oct. 9, 1981.

      Lester G. Nauhaus, Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   CERCONE, President Judge:

This is a direct appeal from judgment of sentence entered against appellant on charges of burglary and recklessly endangering the life of another. Appellant contends that he has been denied his appeal rights because post-verdict counsel was ineffective. The specific allegation is that post-verdict counsel’s failure to file post-verdict motions as to these charges operated as a waiver for appeal purposes of any issue which might have been raised in those motions, and that such failure and the concomitant waiver constituted ineffectiveness.

The only issue which we may consider at this juncture is the legality of the sentence imposed. The sentence falls within the statutory limits for crimes of this type and is therefore legal. Nevertheless, because of appellant’s ineffectiveness claim we are constrained to vacate the judgment of sentence and remand the case of an evidentiary hearing on the claim. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (Footnote 8). If the lower court should find counsel was ineffective then it shall permit the filing of post-verdict motions nunc pro tunc. On the other hand, if the court finds counsel was not ineffective it shall order the judgment of sentence reinstated. Jurisdiction relinquished.

Affirmed in part and remanded in part with directives.


text:
    435 A.2d 901
    COMMONWEALTH of Pennsylvania v. Michael Duane THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1978.
    Filed Oct. 9, 1981.

      Lester G. Nauhaus, Public Defender, Pittsburgh, for appellant.
    Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   CERCONE, President Judge:

The present appeal comes to us from an order of the criminal division of the common pleas court of Allegheny County purporting to revoke appellant’s parole and sentencing him to a term of incarceration of from two and a half years to five years. We now reverse the judgment of sentence entered and remand the case for proceedings not inconsistent with this opinion.

Appellant was arrested July 10, 1974 on a charge of robbery. Shortly after his arrest and before his arraignment appellant exhibited “bizarre behavior;” following testimony by the director of the County’s Behavior Clinic, a board certified psychiatrist, appellant was ordered committed to Mayview State Hospital for sixty days. This commitment was made pursuant to Section 408 of the Mental Health & Mental Retardation Act of 1966, Special Sess. No. 3, October 20, P.L. 96, art. iv, § 408; 50 P.S. § 4408. (Hereinafter, the Act of 1966 or the Mental Health & Mental Retardation Act of 1966.) Upon the recommendation of the hospital’s professional staff the commitment was ordered continued on November 8, 1974 for a period of ten months or appellant’s attainment of competency sufficient, whichever was shorter, to allow him to stand trial on the robbery charge. In mid-January, 1975 the hospital informed the court that with the aid of medication appellant’s condition had significantly improved and that he was now competent to stand trial. Appellant was ordered returned to the county jail January 27, 1975. Apparently a board certified psychiatrist employed by the Behavior Clinic advised the court on January 31, 1975 that appellant was not criminally responsible for the robbery he committed July 10, 1974 and recommended acquittal by reason of insanity. The same psychiatrist recommended appellant’s parole under the Act of 1911, May 11, P.L. 273, § 1; 1913, May 23, P.L. 335, § 1. 19 P.S. 1381 (Hereinafter, the Act of 1911). A bench trial was held February 13, 1975. Following the close of testimony, which included medical evidence, the court found appellant not guilty by reason of insanity. Pursuant to the Act of 1911 the court ordered appellant placed on parole in the custody of the Allegheny County Parole and Probation Office for a period of five years. As conditions for appellant’s parole the court required him to reside with his father and to report to the nearest mental health clinic for continued medication and treatment as needed. No appeal was taken from this order of parole.

Appellant’s behavior between February 13, 1975 and August 1, 1976 was marked by numerous psychotic episodes followed by varying periods of civil commitment. On August 1, 1976 appellant threw his two month old child down a flight of concrete city steps, which action caused the child’s death. Appellant was apprehended shortly thereafter. Because he was once again determined to be unable to stand trial or assist in his defense he was committed to Fairview State Hospital, again pursuant to Section 408 of the 1966 Mental Health and Mental Retardation Act. He stood trial for the infanticide in April 1977, and was adjudged not guilty of murder by reason of insanity. The instant record does not reveal what action in the nature of commitment the court took following that acquittal. At any rate, appellant was brought before the court for a hearing on the revocation of the parole order issued for the earlier robbery. On September 20, 1977, the court revoked the parole earlier imposed and sentenced appellant to a term of imprisonment.

The illegality of sentence is not a waivable matter and may be considered by the appellate courts of the Commonwealth sua sponte. See Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981). And see Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Jellots, 262 Pa.Super. 17, 396 A.2d 461 (1978); Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977). Despite his acquittal on the robbery charge a judgment of sentence of parole was entered against the appellant, which judgment of sentence was never appealed. Although he was not originally sentenced to imprisonment appellant was released on a conditional parole and later imprisoned for violation of the parole conditions. Appellant now argues correctly that parole is the legal equivalent of imprisonment, in that both constitute judgments of sentence on a conviction. See Commonwealth ex rel. Johnson v. Bookbinder, 213 Pa.Super. 335, 247 A.2d 644 (1968); Commonwealth ex rel. Alexander v. Rundle, 206 Pa.Super. 528, 214 A.2d 304 (1965); Commonwealth ex rel. Lerner v. Smith, 151 Pa.Super. 265, 30 A.2d 347 (1943). And see Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923); United States ex rel. Binion v. O’Brien, 273 F.2d 495 (3 Cir. 1959) cert. denied, 363 U.S. 812, 80 S.Ct. 1249, 4 L.Ed.2d 1154 (1960). Thus, it can undeniably be said that there was a judgment of sentence entered against appellant the legality of which is subject to our sua sponte review.

The Act of March 31, 1860 empowered the Commonwealth’s criminal courts to keep a person of unsound mind in strict custody so long as that condition pertained, even following acquittal of that person for reasons of insanity. Act of March 31, 1860, P.L. 427, § 66; Act of April 17, 1929, P.L. 532, § 2. 19 P.S. § 1351. (Hereinafter, the Act of 1860.) The Act of May 11, 1911 specifically allowed the courts to release persons acquitted by reason of insanity from strict custody and to place them on parole. In Commonwealth v. Wilcox, 77 Pa.Super. 136 (1921), this Court held that the Act of 1911 authorized not just unconditional parole, but conditional parole as well, and that the parolee could be returned to court custody if parole conditions were violated. It was on the basis of these two Acts that the court released appellant into the custody of the Allegheny County Parole and Probation Office, and upon which he was later imprisoned. However, in Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (1972) the Supreme Court of Pennsylvania held that the Mental Health & Mental Retardation Act of 1966, supra, repealed the Act of 1860. And see Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977). Section 413 of the Act of 1966, which established procedures for civil commitment of persons acquitted for reasons of insanity, reads:

Commitment of person acquitted of crime because of insanity.

(a) Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such reason for acquittal in its verdict.
(b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406.

50 P.S. § 4413. The Commonwealth argues that the Act of 1966, although it permits the court to direct proceedings under another section of the Act, to-wit, Section 406, 50 P.S. § 4406, does not preclude parole of the person acquitted as per the Act of 1911; 19 P.S. 1381. The Commonwealth’s argument ignores the teaching of Commonwealth ex rel. DiEmilio v. Shovlin, supra, where the Supreme Court stated:

Thus the Mental Health and Mental Retardation Act of 1966 evidences a clear legislative intent that those defendants acquitted on the ground of insanity were to be accorded the same procedural safeguards when committed for medical treatment as any other individual committed under section 406. To achieve that end the Legislature by its Mental Health and Mental Retardation Act of 1966 repealed the Act of 1860 by providing in section 4701(b) of the Mental Health and Mental Retardation Act of 1966: “All other acts and parts of acts are repealed in so far as they are inconsistent herewith.”
In enacting the Mental Health and Mental Retardation Act of 1966 the Legislature . . . established a comprehensive program for the commitment and medical treatment of all mentally disturbed individuals....

Id., 449 Pa. at 181-182, 295 A.2d at 323. If the Act of 1860, which permitted the court to maintain an individual acquitted of a crime by reason of insanity in its strict custody and under its control, was repealed by the Mental Health & Mental Retardation Act of 1966, for reasons of inconsistency with the later Act’s substance and procedure, then it would follow logically that the Act of 1911, which specifically empowered the court to authorize parole as a form of custody of such an one, must also have been repealed by the Act of 1966. See 50 P.S. § 4701(b). Therefore, we hold that the Act of 1911, which authorized the court to parole a person acquitted by reason of insanity, was repealed by the Mental Health & Mental Retardation Act of 1966 and replaced with the procedural safeguards contained elsewhere in that Act, to-wit, Section 406 of the Act of 1966. 50 P.S. §§ 4406, 4701(b). Because the Act which authorized the court to parole appellant had been repealed at the time of his acquittal by reason of insanity the sentence of parole was beyond the power of the court and illegal; it follows that the revocation of appellant’s parole was also void.

Ordinarily the remedy for the imposition of an illegal or erroneous sentence is not discharged but remand to the lower court for resentencing. See Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977). However, in this case sentencing was not only illegal but statutorily contradicted. At the time of the purported sentencing the court should have followed the procedures set out in Section 406 of the Mental Health & Mental Retardation Act of 1966. However, that section of the Act of 1966 has been repealed by Section 502 of the Mental Health Procedures Act of 1976, July 9, P.L. 817, No. 143 (50 P.S. § 7502) and replaced with a more comprehensive procedural scheme. Therefore, we vacate the judgment of sentence and remand the case to the lower court with the directive that appellant be discharged from criminal custody for the violation of his purported parole, and that the court order the appropriate proceedings under the Mental Health Procedure Act of 1976.

Parole revocation reversed, judgment of sentence vacated and case remanded for proceedings not inconsistent with this opinion.

      . Section 502 of the Mental Health Procedures Act, 1976, July 9, P.L. 817, No. 143 (50 P.S. § 7502) repealed this section except insofar as it related to mental retardation or to persons who are mentally retarded.

      . The record transmitted to this Court contains neither transcript of testimony nor copy of any written communication in this regard. However, because it is reported in the lower court’s opinion we will take it to be an accurate statement of the facts.

      . The instant record does not contain the notes of testimony of this trial either.

      . The Act of 1911 reads:
      Release on parole after acquittal because of insanity.
      When any person charged with any crime or misdemeanor has heretofore been, or shall hereafter be, acquitted by the jury, on the ground of insanity, such person may be released from custody on parole, by the court wherein such person shall have been so acquitted.
      Act of May 11, 1911, P.L. 273, § 1; May 23, 1913, P.L. 335, § 1. 19 P.S. 1381.
      It was apparently adopted as an adjunct to the Act of March 31, 1860, P.L. 427, § 66; 1929, April 17, P.L. 532, § 2. 19 P.S. 1351. The Act of 1860 reads:
      Proceedings after acquittal on the ground of insanity; costs.
      In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offense, and he shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offense, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall order the cost of prosecution to be paid by the county, and shall have the power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of unsound mind.

        Id. The Act of 1911 was specifically repealed by the Judiciary Act Repealer Act (JARA), Act of 1978, April 28, P.L. 202, No. 53, § 2(a)[377] and not reenacted elsewhere.

      . Appellant’s brief reveals that following psychotic episodes in prison he was removed to Fairview State Hospital.

      . Because the court had no statutory authority to order appellant’s parole or imprisonment we need not address the issue of whether it constitutes cruel and unusual punishment under the Eighth Amendment to the federal Constitution to sentence a person found not guilty by reason of insanity to parole, or subsequently to revoke parole. Nor need we consider whether the Mental Health Procedures Act of 1976 repealed the Acts of 1860 and 1911 since we have already held the latter Acts repealed by the Act of 1966.


author: WATKINS, Judge: PRICE, Judge,

text:
    435 A.2d 1217
    COMMONWEALTH of Pennsylvania, Appellant, v. William Robert WEBSTER.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed May 15, 1981.
    Reargument Denied Oct. 26, 1981.
    Petition for Allowance of Appeal Denied Jan. 26, 1982.

      Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.

      Joseph J. DelSordo, Media, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the orders of the Court of Common Pleas of Delaware County, Criminal Division, involving a Commonwealth appeal from an order which found the defendant’s arrest to be illegal. The court also held that the search of defendant and his confession were so connected to his illegal arrest so as to be tainted by the arrest. The court further held defendant’s confession to be inadmissible because, as a juvenile, he had not had the opportunity to confer with his mother prior to confessing.

The defendant was arrested on January 11, 1980, a few weeks before his 18th birthday. (His date of birth is February 2, 1962). The arrest was made by Pasquale Mignogna, of the Upper Chichester Township Police Department at 12:30 P.M. at the Baltimore & Ohio railroad track overpass at Route 452 in Upper Chichester Township. The arrest was for a burglary which had occurred in the township between 11:00 A.M. and 11:40 A.M. Two other juveniles were also arrested.

After his arrest the defendant was brought to the Aston Township Police Department (Delaware County) for questioning relative to another burglary committed several days prior to January 11, 1980.

As the Aston Township Police station Officer David D’Angelo attempted to contact the defendant’s mother for almost an hour. When he reached her she informed him that her older son, Edward, had legal custody over the defendant, and that Edward would be there. When Edward arrived at the station, he and the defendant were left in the room alone to talk. When they returned the defendant signed a waiver and gave two statements to the police, one oral and one written. The statement concerned the Aston Township burglary and took ten minutes to complete. Criminal Complaints relative to the burglaries were subsequently filed against the defendant and the cases transferred to Adult Court. The defendant then filed various pre-trial motions and on March 11, 1980, the court ordered defendant’s confessions, his fingerprints taken at the Aston Township police station, and the evidence obtained at the time of his arrest suppressed. The Commonwealth took this appeal.

An opportunity to consult with an interested adult is a prerequisite to an effective waiver of a constitutional right by a juvenile. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). The court below held that the defendant’s 21 year old brother was not in “interested adult” as that term is applied to the prerequisite of juvenile confessions. We do not agree. In the instant case the defendant was several weeks shy of being an adult (age 18), the police contacted his mother (after considerable effort) only to be informed by her that her other son was the defendant’s legal guardian, defendant’s brother was an adult, and the defendant was permitted to consult with his brother and his brother’s wife prior to his confession. Under this set of circumstances we cannot hold that the police violated defendant’s right to consult with an “interested adult” prior to waiving his right to remain silent. In fact it appears that defendant’s brother was certainly more “interested ” in defendant’s welfare than was his mother since the brother at least took the time to go to the police station and consult with the defendant while his mother would not. A juvenile must be afforded the opportunity to confer with “an attorney, parent, or other interested adult ” prior to effecting a valid waiver of his constitutional right to remain silent. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977). (Emphasis-ours). Nowhere has it been held that only a parent qualifies as an “interested adult”. Certainly an adult brother so qualifies. We hold that the court below erred when it found that defendant’s confession was inadmissible because he was not afforded the opportunity to confer with an “interested adult” prior to giving his confession.

We also hold that the court below erred when it suppressed the evidence obtained as a result of defendant’s arrest. Detective Mignogna arrived at 717 Dulten Street, Upper Chichester Township at noon on January 11, 1980. He was informed that a burglary had been committed at that address on the same date less than an hour before his arrival there. Upon arriving at the house he observed the doorway where the entry had been made and discovered footprints in the new snow which led away from the rear of the home towards the B & 0 railroad tracks. Another officer radioed Mignogna and informed him that he had observed three youths along the same railroad tracks a few minutes previous to the call. The youths were observed about one-quarter mile from the burglarized house, moving away from the house, with objects in their hands which appeared to be radios. Following the directions of the other officer, Mignogna returned to his vehicle and drove to the Route 452 overpass where he intercepted the youths. When the police attempted to halt the youths two of them fled. The defendant did not flee and was apprehended immediately. The other two youths were subsequently apprehended, all three youths were searched and several stolen items were found in the possession of each of the culprits. The police also discovered several of the stolen items along the railroad tracks between the burglarized house and the place of the defendant’s apprehension. Because the police did not have a description of the burglars’ race, sex, and physical descriptions and because they did not have a list of the stolen items at the time of the defendant’s arrest the court below held that the arrest was illegal and also suppressed all of the evidence seized as a result of the arrest. This was error.

An officer who lacks probable cause to arrest may make a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, even if the police lacked sufficient probable cause to arrest the defendant they did have enough to justify a stop of the defendant and his cohorts. The officer knew that a burglary had been committed less than an hour previously, had observed the doorway of the home where the burglars had entered, and had observed tracks in the snow leading away from the house towards the railroad tracks where the defendant and his comrades were seen moving away from the house towards the overpass with radios in their possession. This knowledge clearly constituted sufficient grounds for Detective Mignogna to halt the youths to preserve the status quo. Surely he should not have been expected to stand by helplessly and watch the culprits disappear. When two of the youths fled after being addressed the police were justified in apprehending them and searching them for possible weapons thereby revealing various stolen items. The other stolen items found along the railroad tracks were also properly seized as they were abandoned by the youths and in plain view. See Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976). The items seized included several rings, one a gold one with seven diamonds, another a gold one with a shield emblem on it, and another a blue sapphire star-type ring with four diamonds. Radios and other items commonly found in a home were found along the railroad tracks. It would be ludicrous to hold that the discovery of these items in possession of a juvenile did not constitute probable cause to arrest him for the burglary in light of his proximity in both time and place to the site of the burglary, the incriminating footprints, and his companions’ attempts to flee. See Commonwealth v. Lovette, 271 Pa.Super. 250, 413 A.2d 390 (1980). Thus, we hold that the court below erred when it suppressed the evidence found in defendant’s possession at the time of his apprehension.

The judgment of sentence is reversed and the appeal remanded to the lower court for further proceedings.

PRICE, J., files a concurring and dissenting statement.

PRICE, Judge,

concurring and dissenting:

I concur in the majority’s conclusion that the appellee’s arrest was proper and the evidence secured by the arrest and search of appellee was improperly suppressed.

I dissent from that portion of the majority’s opinion which holds that appellee’s brother was an interested adult. To my view the record does not support such a conclusion, and therefore, I would hold that appellee’s statements were properly suppressed.


author: HESTER, Judge: CAVANAUGH, Judge,

text:
    435 A.2d 1220
    COMMONWEALTH of Pennsylvania, v. Allyn D. BOOTH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1980.
    Filed June 12, 1981.
    Reargument Denied Oct. 27, 1981.
    Petition for Allowance of Appeal Denied Jan. 28, 1982.

      Peter G. Loftus, Scranton, for appellant.
    Sam W. Lewis, Assistant District Attorney, Montrose, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

On April 26, 1977, the Grand Jury of Susquehanna County, Pennsylvania, returned a multi-count indictment against appellant Allyn D. Booth charging him with three counts each of involuntary deviate sexual intercourse, furnishing contraband, and indecent assault and one count each of facilitating escape, obstructing administration of the law, and official oppression. Following a ten-day jury trial in August, 1977, appellant was found guilty only of obstructing administration of the law, furnishing contraband (one count) and facilitating escape. He was acquitted of all other charges. Post-trial motions were argued and denied and in aggregate sentence of two to four years imprisonment was imposed. This appeal followed.

At the time of the alleged offenses, appellant was the Sheriff of Susquehanna County and warden of the county jail. Specifically, the Commonwealth averred that at divers times in January and February of 1977, appellant engaged in various sexual activities with several inmates of the jail; that he had unlawfully furnished alcohol to these individuals and permitted one of them to escape; and that he generally obstructed administration of the law and subjected the victims to official oppression by mistreating them and providing alcohol to them. The evidence supporting those charges of which appellant was ultimately convicted was as follows:

On Friday afternoon, February 4, 1977, Paul Howard Gross, age 20, was brought in custody to the Susquehanna County Jail from the Elmira Correctional Facility in New York where he had been serving a sentence for burglary. Gross was transported from New York by appellant and Police Chief Willard Collier and brought to Susquehanna County to face criminal charges pending in that jurisdiction. Appellant at first placed Gross with the general prison population, but later transferred him to the cell reserved for juvenile prisoners, which is located above the other cell blocks and adjacent to the sheriff’s residential quarters. Upon his arrival at the jail, Gross complained that he was not feeling well and that he had a headache. Appellant escorted Gross to the sheriff’s living quarters, located within the jail building, and gave Gross a bottle of beer which he consumed in the kitchen. Gross spent that night (Friday, 2/4/77) in the juvenile cell. The next day, appellant gave Gross breakfast in the sheriff’s kitchen and left him in the livingroom watching television while he, appellant, tended to some business in town. That afternoon, appellant drove Gross to nearby Hallstead to purchase a watch. Gross was not handcuffed, shackled, or restrained in any way and was left in the car alone while appellant went into several stores. That evening, appellant furnished Gross with scotch, which he drank in appellant’s quarters. Later, Gross was placed back in the juvenile cell but was not locked therein.

The next day, (2/6/77) appellant again provided this inmate with beer and scotch. Gross was permitted to watch television in the sheriff’s living room that day and the next day as well. On Tuesday night, 2/8/77, Gross was again not locked in his cell. Desiring to escape, he walked into the sheriff’s kitchen and was able to crawl through a window to the outside. He was apprehended a few days later in New York.

We have reviewed the evidence in the light most favorable to the Commonwealth and conclude there was sufficient evidence by which the jury could find all elements of crimes of which appellant was convicted beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). Providing Gross with beer and liquor certainly constituted “furnish[ing] to any convict in a prison . . . any kind of spirituous or fermented liquor.” 18 Pa.C.S.A. § 5123 (Contraband). Further, by failure to assure that Gross securely confined within his cell and allowing him to roam about the sheriff’s living quarters, appellant, being a public servant, “knowingly or recklessly permitted] an escape.” § 5121(b) (Escape), and failed to maintain requisite control over the prisoner. Toll, Pa.Crimes Code Annotated, p. 605 (1974). See e. g., Commonwealth v. Shields, 50 Pa.Super. 194 (1912); Commonwealth v. Norris, 87 Pa.Super. 66 (1925) (prosecutions of sheriffs under Act 1860, March 31, P.L. 382, for permitting prisoners to escape). Finally, appellant could properly be convicted of “impairing] . . . the administration of law . . . by . . . breach of official duty” on evidence that he provided liquor to Gross and permitted him to escape. § 5101. This section has been interpreted to reach, inter alia, malfeasance of public office. Toll, supra, p. 578.

Appellant contends the court erred in its instructions to the jury concerning the charge of facilitating escape. Under 18 Pa.C.S.A. § 5121, escape or facilitating escape will rise to a third degree felony if any of the three subsections of § 5121(d)(1) are present. Otherwise, the offense constitutes a misdemeanor of the second degree. The indictment herein averred that appellant was being charged with a felony under this section, but appellant contends the court instructed the jury only as to a misdemeanor. We do not agree. By inclusion of the words “reasonably prudent man” and “reasonably prudent sheriff” in the charge, the court was allowing the jury to find that appellant did not necessarily intentionally permit Gross to escape, but that he nonetheless recklessly permitted same. § 5121(b). The element of recklessness does not, as appellant urges, reduce the crime to a misdemeanor in all instances, for § 5121(d)(1)(i) provides that the offense will constitute a felony if “the actor [i. e., prisoner] was under arrest for or detained on a charge of felony or following conviction of crime.” The evidence established that Gross, the “actor” herein, was serving a sentence on a New York state conviction. Thus, under the facts as presented by the Commonwealth, the jury charge was proper.

Appellant next contends that all charges should have been dismissed because of alleged prosecutorial misconduct and improper influence over Commonwealth witnesses by the prosecutor. Before trial, the court granted a defense request to sequester all witnesses. On the morning of the fifth day of trial, the district attorney informed the court in chambers that he may have unintentionally violated the order. On the record, the prosecutor stated that in interviewing a potential Commonwealth witness, one Kathy Sterling, he related to her a small portion of Paul Gross’ testimony. Specifically, Miss Sterling was, at the time of the crimes, a cook at the jail and often delivered food to the prisoners in their cells. While interviewing Miss Sterling, the prosecutor, through an apparent oversight, told her that Gross had already testified that she “unlocked him twice” from his cell and “handed him a meal”. Defense counsel’s motion for a mistrial, based upon the violation of the sequestration order, was denied. Prior to Miss Sterling’s in-court testimony, the court instructed the jury that she had inadvertently become aware of a portion of Gross’ testimony and that they should bear this in mind in assessing her credibility. During her testimony, Miss Sterling denied ever handing a meal to Gross except through a latch in his cell door and denied ever unlocking him from his cell.

In Commonwealth v. Floyd, 259 Pa.Super. 552, 557, 393 A.2d 963, 966 (1978), we summarized the law governing violations of sequestration orders:

The selection of a remedy for the violation of a sequestration order is within the sound discretion of the trial court. See Commonwealth v. Martin, 440 Pa. 150, 153, 269 A.2d 722, 723 (1970); Commonwealth v. Turner, 389 Pa. 239, 264, 133 A.2d 187, 199 (1957). In exercising its discretion, the trial court should consider the seriousness of the violation, its impact on the testimony of the witness, and its probable impact on the outcome of the trial. We will disturb the trial court’s exercise of its discretion only if there is no reasonable ground for the action taken. Commonwealth v. Smith, 464 Pa. 314, 320-1, 346 A.2d 757, 760 (1975).
Additionally, we have stated the trial court should consider whether the witness intentionally disobeyed the order so that he might determine what the others will testify to, and whether the party calling the witness procured his disobedience. Commonwealth v. Smith, 227 Pa.Super. 355, 372, 324 A.2d 483, 492 (1974). See also, Commonwealth v. Gibson, 245 Pa.Super. 103, 369 A.2d 314 (1976).

Under these standards, we find no abuse of the court’s discretion. The violation was certainly not serious as we do not find it to be intentional and the statements of Gross of which Miss Sterling was made aware were very minor, considering Gross’ lengthy testimony. Further, the woman’s testimony was not in accord with those particulars of Gross’ statements. Thus, if the violation benefited anyone, it was the defense since two Commonwealth witnesses contradicted each other. We think, considering the minor nature of the violation and its negligible impact on the trial, that the court’s instructions were sufficient to cure any taint.

In a related argument, appellant contends that two Commonwealth witnesses, who were former inmates at the Susquehanna County jail, had been influenced by investigating officers. One Russell Dimmick, for example, stated in an in-camera hearing that Detective Collier and Trooper John Salinkas threatened him with various prosecutions if he did not give a statement adverse to appellant. Collier and Salinkas stated, however, that there had been no coercion, intimidation, or pressure upon Dimmick and that he had very willingly offered his statement. The trial court, which heard the testimony and could assess credibility, credited the officers’ version that there was no coercion. We will not disturb that finding. Further, we note Dimmick was never called as a witness at trial. We can perceive no prejudice to appellant. Similarly, we find no merit in appellant’s contention that Commonwealth witness Richard Beck was improperly influenced. Although he was ferried back and forth to court by Chief Collier because he had no other transportation, there was no evidence that Beck was subject to influence or suggestion by Commonwealth officials. Collier flatly denied discussing the case with Beck and appellant had ample opportunity to cross-examine Collier and Beck pertaining to this issue. There was no error.

Next, appellant avers that the court erred in admitting evidence of crimes committed by appellant which were not charged in the indictment. Specifically, appellant was charged with engaging in involuntary deviate sexual intercourse with inmates Gross, David Butts, and John Kressell. The Commonwealth also introduced evidence that appellant had sex with various other inmates not named in the indictment. The court admitted this testimony, over defense objection, on the theory that the evidence suggested a common plan, scheme, or design. Although the jury eventually acquitted appellant of the sex-related crimes, they may have been nonetheless swayed by this evidence in convicting him of the other charges. We will thus examine appellant’s claim.

Our courts have often reiterated the two-step approach in analyzing the admissibility of such evidence:

“ ‘One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant’. Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). See also Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955); See, generally, McCormick on Evidence, § 190 at 447-454 (2nd Ed.1972). Special circumstances justifying exceptions to the general rule exist when the evidence of other crimes ‘tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial—in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.’ Commonwealth v. Peterson, supra, 453 Pa. at 197-198, 307 A.2d 269. See also Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Boulden, supra.” See Common wealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978). Second, even if a particular exception applies, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. See also Commonwealth v. Ulatoski, 472 Pa. 53, 63 n.11, 371 A.2d 186, 191 n. 11 (1977).

Commonwealth v. Wright, 259 Pa.Super. 293, 298-299, 393 A.2d 833, 835-6 (1978). Thus, with reference to the fourth exception listed above, our courts have admitted evidence of another crime not charged where there is a “logical connection” between the two and where there is a “high correlation in the details of the crimes.” Commonwealth v. Bastone, 262 Pa.Super. 590, 396 A.2d 1327 (1979). “[SJomething more [is required] than the commission of the same class of crime, such as theft, namely something unusual or distinctive as to be like a signature.” Commonwealth v. Patterson, 484 Pa. 374 n.6, 399 A.2d 123 n. 6 (1979), citing Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975). See, e. g., Commonwealth v. Gilmore, 447 Pa. 21, 288 A.2d 757 (1972) and Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971) (in robbery prosecution, evidence of other robberies committed by defendant admissible where circumstances of the two crimes were very similar): Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502 (1980) (evidence of prior rape in rape prosecution held admissible where there were many similarities between the two). Where, however, the “other crimes” evidence contains many dissimilarities from the crime charged and embrace no distinctive elements which would suggest a common design, we will find error in the admission thereof. See, e. g., Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979) (in rape prosecution, admission of prior rape by defendant, held, error where dissimilarities between the two crimes included the weapon used, locales, disguise of assailant, use of violence); Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978) (no distinctive similarity between a past drug sale and the sale charged instantly); cf. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973) (dissimilar robberies). Further, we have held, at least with respect to sex offenses, that use of “other crimes” to prove design is to be limited to acts committed no more than one year prior to the offense actually charged. Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976); cf. Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981).

Under these standards, we are satisfied that the evidence of “other crimes” was properly admitted instantly. All of the acts alleged were of similar character: an inmate in the Susquehanna County jail is invited by appellant to the sheriff’s quarters and offered beer and alcohol; afterwards, appellant makes sexual advances to the inmate either in the cell or in the private rooms; the sexual activity is always of the same variety. The pattern repeated in each of the encounters related by the various inmates who testified carried a mark of distinction absent from other sex-related crimes. Further, the court gave instructions to the jury cautioning them that such evidence was admissible solely for the purpose of showing mental plan or pattern. Charge, pp. 31-33. Nor do we think the prejudice outweighed the probative value of the evidence. Perhaps the best indication that the jury was not inflamed by the “other crimes” testimony is that they acquitted appellant of all sex offenses. Moreover, none of the acts averred were too remote under Bradley, supra. The high degree of similarities among the acts alleged persuade us that a common plan or design was established.

Appellant next contends that all charges should have been dismissed because of irregularities in the pre-trial and grand jury procedures. The criminal complaint filed on 2/17/77 charged three counts of indecent assault, 18 Pa.C.S.A. § 3126(5), but on the magistrate’s transcript it appears that indecent exposure was erroneously typed in as the charge for which appellant was held for court. The word “exposure” is crossed out and “assault” added thereon. We view this as no more than a clerical error. The correct section under the Crimes Code for indecent assault was set forth in the complaint and on the transcript and the acts alleged were described in the complaint in words directly incorporating the language of § 3126(5). Further, the issue would seem to be moot since appellant was acquitted on all counts of indecent assault. Similarly, appellant’s averment that the crime of attempt (§ 901) was erroneously added to the contraband charge as to John Kressell is moot since he was acquitted of that charge as well. Appellant contends that a defect on the grand jury’s indictment warrants dismissal of all charges. Pa.R.Crim.P. 210(a) provides: “After a grand jury has considered the bill of indictment, the foreman shall endorse thereon their action, either “approved” or “dismissed,” and he shall sign it and record thereon the date of the grant jury’s action.” The Grand Jury instantly returned the 12-count indictment against appellant on April 26, 1977. Yet, on several counts, it appears that the date of grand jury action was erroneously written as April 25, 1977 and then corrected to April 26. Both sides offer a variety of possible explanations for this discrepancy, none of which appear of record. In any event, appellant has failed to establish any actual prejudice as a result of this irregularity. In the past, our courts have refused to find reversible error where minor violations of the Grand Jury rules fail to result in prejudice to the defendant. Commonwealth v. Noyer, 265 Pa.Super. 544, 402 A.2d 679 (technical violation of Rule 210; no prejudice); Commonwealth v. Levinson, 239 Pa.Super. 387, 362 A.2d 1080 (1976), aff’d., 480 Pa. 273, 389 A.2d 1062 (1978), (minor violation of Rule 209; no prejudice). We likewise find no error meriting reversal. Further, we find the dates set forth in the counts on which appellant was convicted to be set forth with sufficient specificity. See, Rule 213(a)(3) (“if the precise date is unknown ... an allegation that it was committed on or about any date . . . shall be sufficient”).

Appellant complains that the district attorney did not file an adequate bill of particulars. However, we find the place and dates of the various crimes were set forth satisfactorily. Appellant was not entitled to the disclosure of witnesses’ statements before trial under Rule 310, then in force. Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974).

Finally, appellant contends that the concurrent sentences of two to four years imprisonment were unduly harsh and excessive and that the pre-sentence report was inaccurate. During the sentencing hearing, counsel pointed out several portions of the pre-sentence which were either false, misleading or hearsay. The court forthwith acknowledged the instances of hearsay and stated it would not consider those portions of the report objected to by counsel. The court further was provided with a wealth of information by which it could determine the character of appellant and the individual circumstances of the offense. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Pauze, 265 Pa.Super. 155, 401 A.2d 848 (1979). During the trial, numerous character witnesses attested to appellant’s good reputation and the pre-sentence report reviewed his employment record with the air force and with private industry. The report then elaborated on appellant’s public service career as a police officer, police chief, deputy game commissioner, and finally sheriff, adding that his former employers heaped “great praise” upon him. The circumstances of the offenses were related in detail during the trial and reviewed by the court on the record during the sentencing proceeding. The court then proceeded to evaluate these factors in light of the legislative guidelines for sentencing, 18 Pa.C.S.A. § 1321 et seq.; Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). The court noted the severity of the crimes, that appellant violated a public trust, that his actions breeded further disrespect for the law among those already incarcerated, and that he was in need of rehabilitation. Sec. 1325. Hearing of 4/5/78, pp. 11-14. The sentence was well within the statutory limits and we simply cannot find on this record that there was an abuse of discretion. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). We thus find the court fully complied with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and related cases in imposing this sentence.

Judgment of sentence affirmed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

While I concur in the result reached by the Majority, because the issue of the admissibility of evidence offered to show a common plan, scheme or design has been waived, I would decline to reach the merits.

Prior to the taking of testimony trial counsel objected to the presentation of evidence by the Commonwealth to show common plan, scheme, or design. This objection was overruled without prejudice to appellant to make specific objections when such evidence is presented. At trial testimony was heard without objection from four witnesses, other than the complaining witnesses, concerning offenses committed by the appellant for which he had not been charged. Because trial counsel failed to make specific objections to the testimony at trial, appellant is foreclosed from raising this issue on appeal. See Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979). Although the issue of waiver has not been addressed by either party, this court may reach the issue sua sponte. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Tunnel, 463 Pa. 462, 345 A.2d 611 (1975).

Appellant’s waiver of the issue notwithstanding, I am compelled to comment on what I deem to be erroneous in the Majority’s disposition on the merits.

The rule of evidence that a distinct crime, except under certain special circumstances, cannot be received in evidence against a defendant being tried for a different crime has been referred to us “one of our most fundamental and prized principles in the administration of criminal law.” Commonwealth v. Wright, 259 Pa.Super. 293, 298, 393 A.2d 833, 835-36 (1978) quoting Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). See also Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955). The reasons for this rule are two-fold: The fact that a defendant has committed one criminal act is not proof that he committed another. Secondly, because the risk of jury prejudice is so great, the defendant may be convicted of being a “bad person”, rather than of the specific crime charged. Id. See generally, McCormick on Evidence, § 190 at 447-54 (2d ed. 1972).

Because of the potential lack of probative value and the risk of prejudice, evidence of unrelated criminal acts are not admissible unless such evidence fits within certain special circumstances exceptions. Thus evidence of other crimes may be admissible when it is offered to prove motive, intent, absence of mistake or accident, identity of the accused, or common plan, scheme or design of two or more crimes which are so related that proof of one tends to prove the other. Commonwealth v. Wright, supra, Commonwealth v. Showalter, 231 Pa.Super. 278, 332 A.2d 456 (1974). However, even if the evidence comes within one of the special circumstances exceptions, in determining its admissibility the trial court must balance the need for the evidence against its potential prejudice. Commonwealth v. Wright, supra.

In the instant case the Commonwealth offered the testimony of four witnesses who had been incarcerated in the Susquehanna County jail at or about the time that the acts with which the appellant was charged were committed. These witnesses, McKinney, Cronk, Razderk, and Koshinski, testified concerning criminal acts allegedly performed by the appellant. The lower court admitted this testimony as evidence of a common plan, scheme or design. In reference to the admission of this testimony into evidence, the Majority states:

. . . [W]e are satisfied that the evidence of “other crimes” was properly admitted instantly. All of the acts alleged were of similar character: An inmate in the Susquehanna County jail is invited to the sheriff’s quarters and offered beer and alcohol; afterwards, appellant makes sexual advances to the inmate either in the cell or in the private rooms; the sexual activity is always of the same variety. The pattern repeated in each of the encounters related by the various inmates who testified carried a mark of distinction absent from other sex-related crimes. . . The high degree of similarities among the acts alleged persuade us that a common plan or design was established.

A review of the record, however, reveals that the acts testified to were not of the similar character described by the Majority. McKinney testified that on four occasions he was invited into the appellant’s quarters where acts of oral sodomy were performed. On three of these occasions McKinney, appellant and Butts were present. The fourth incident included only McKinney and the appellant. McKinney denied ever being served alcohol by the appellant. Cronk testified that while in the appellant’s quarters the appellant asked him to take a shower with him but Cronk declined. No sodomy occurred nor was any alcohol served. Razderk testified to drinking beer and scotch in the appellant’s quarters but he did not testify that any sexual acts were committed. Finally, Koshinski testified to being furnished alcohol by the appellant, but not to the occurrence of any sexual acts.

Thus while the evidence may show a propensity in the appellant for homosexual activity, the record in the instant ease clearly shows that no common plan was established. As the Majority states, where the “other crimes” evidence contains many dissimilarities from the crime charged and contains no distinctive elements, it is error to admit such testimony. In sum, the evidence here showed nothing more than reckless opportunism in the exercise of appellant’s proclivities rather than the sinister methodology signifying common plan, scheme or design.

Moreover, the mere existence of a “high degree of similarities among the acts allegéd” is not sufficient to bring such evidence within the common plan, scheme, or design exception. As noted above, to be admissible the crimes alleged must be so related that proof of one tends to prove the other. Thus McCormick limits the admissibility of common plan, scheme, or design evidence to situations where the prosecution uses the evidence to shed light on the disputed issues of the defendant’s motive, identity, or intention. McCormick, supra at 448 49. This proposition was cited with approval in Commonwealth v. Bradley, 243 Pa.Super. 208, 214 n.2, 354 A.2d 944, 947 n.2 and is consistent with the principle that testimony of other alleged crimes may not be offered to demonstrate criminal propensity. See also Commonwealth v. Boulden, supra. In Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979) Judge Spaeth in a concurring opinion addressed the problem of common plan evidence in prosecution for sexual offenses and the application of the Bradley and Boulden decisions to such situations:

Those decisions adhere to the principle that in a prosecution for a sexual offense the Commonwealth may not introduce evidence that the defendant committed prior or subsequent offenses against third persons similar to the offense committed against the complaining witness, if its only purpose is to show that the defendant is generally lustful or sexually depraved. It is hornbook law that evidence of prior criminal acts is admissible if “[t]o show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial,” McCormick on Evidence § 190 at 449 (Clearly ed. 1972) (footnote omitted); it is also hornbook law that evidence of “[ojther like sexual crimes with other persons do[es] not qualify for this purpose.” Id. (footnote omitted). See also Wigmore, supra § 402(c) (“The defendant’s former rape or attempt of rape of a third person cannot be treated as indicating a passion or desire for the woman in issue. . . . ” (original emphasis).

271 Pa.Super. at 319, 413 A.2d at 425.

In the instant case the appellant did not attempt to establish that he lacked motive, or that he committed the crimes accidentally or that the complaining witnesses were mistaken as to the identity of the perpetrator. Therefore, in allowing the evidence of common plan under its mistaken view of the facts, the Majority thereby sanctions the admission of testimony establishing that the defendant committed the acts charged in the past as proof that he will, and in fact did, commit those acts again. Evidence admitted for this purpose is irrelevant and prejudicial.

Further, the Majority seems to rely on Bradley for the proposition that sex offenses committed less than one year are not too remote so as to render them inadmissible. However, Bradley should not be given such an expansive reading and the language must be viewed within the proper context. In Bradley this court approved the holding in Boulden which sought to limit the prior decision in Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949). We stated:

The trial court and the Commonwealth rely heavily on Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949), as support for an expanded and loose definition of “plan or design.” In Kline, the Pennsylvania Supreme Court stated that, “The word ‘design’ implies a plan formed in the mind. That an individual who commits or attempts to commit abnormal sex offences is likely to have such a mental ‘plan’ finds recognition in the fact that when a defendant is charged with the commission of a sexual offence the law is more liberal in admitting as proof of his guilt evidence of similar sexual offences committed by him than it is in admitting evidence of similar offences when a defendant is charged with the commission of non-sexual crimes.... [I]f A is being tried for the rape or attempted rape of Y the fact that recently he raped or attempted to rape X is admissible in evidence because it tends to prove that he possessed such an abnormal mental or moral nature as would likely lead him to commit the offence charged.” 361 Pa. at 443-444, 65 A.2d 351 (1949). (emphasis supplied). In Kline, however, the defendant was charged with a rape occurring on October 20, 1946, and another witness testified that defendant exposed himself to her sometime late in October. “There was thus a close relationship in time, with the probability that the events occurred within a week of each other and the possibility that they occurred the same day.” Commonwealth v. Boulden, supra, 179 Pa.Super. at 347, 116 A.2d at 876. We agree with Judge Woodside’s opinion in Boulden that the rule of the Kline case should not be extended beyond its facts to permit evidence of events occurring more than one year prior to the offense charged.

243 Pa.Super. at 214, 364 A.2d at 947. This language does not establish a general rule as the Majority seems to conclude, but rather is merely noting its approval of the holding in Boulden in light of its own particular facts. (There in a prosecution for corrupting the morals of two girls it was held that admission of testimony that defendant, a year prior to offenses for which he was being tried, had committed a similar act with another girl and had shown a pornographic picture to yet another girl was error.) Also in Bradley we stated that the court should be more willing to construe reasonable time litigations even more strictly when the prosecution seeks to offer in its case in chief evidence of other offenses not documented by recorded convictions or even resulting in arrest or trial. 243 Pa.Super. at 216 n. 5, 364 A.2d at 948 n. 5.

In conclusion, I note that my disagreement with the majority is threefold. First, the issue was waived by trial counsel’s failure to object. Second, the testimony adduced fell far short of establishing a common plan. Finally, assuming arguendo that a common plan was shown, such evidence was not admissible because it did not tend to prove the crimes charged.

In Commonwealth v. Boulden Judge Woodside set forth three dangers which accompany the admission of evidence of other crimes: (1) A defendant would have to meet charges of which he had no notice and which might be totally fabricated; (2) the defendant would have to respond to collateral issues and the attention of the jury would be diverted from the crime being charged; (3) the jury might conclude that proof of prior offenses justified a condemnation of the defendant irrespective of his guilt of the crimes charged. Because each of these dangers are overwhelmingly present in the instant case and because the common plan, scheme or design exception has been extended far beyond its permissible scope, I strongly disagree with the majority. By allowing the testimony of McKinney, Cronk, Razderk, and Koshinski the majority extends the common plan, scheme or design exception to such an impermissible degree as to deny the defendant a fair trial.

      . Crimes Code, 18 Pa.C.S.A. §§ 5101, 5123, 5121(b) respectively.

      . § 5121(d)(1) provides:
      (1) An offense under this section is a felony of the third degree where:
      (i) the actor was under arrest for or detained on a charge of felony or following conviction of crime:
      (ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
      (iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.

      . Although the Majority states that such evidence was admitted over objection, no objection was made. Trial counsel did object during the direct examination of a complaining witness, Butts, to questions concerning crimes prior to the dates alleged on the indictment. However, such evidence involving a victim of sexual offenses is governed by a more liberal standard. Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979).

      . Formerly it was held that courts may be more liberal in allowing evidence of prior crimes to show common plan, scheme or design where the crimes were involved are sex offenses. Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1974). However, in Commonwealth v. Shively, 492 Pa. 411, 417, 424 A.2d 1257, 1259-60 (1981) (per O’Brien, C. J. with one Justice concurring and two Justice concurring in the result), Kline was expressly overruled. Cases of this court have also seriously questioned the holding of Kline and have urged that sexual and nonsexual crimes must be treated alike in deciding whether evidence of prior criminal activity should be admitted. See Commonwealth v. Bradley, supra; Commonwealth v. Boulden, supra.


author:
WICKERSHAM, Judge:
      MONTEMURO, Judge,

text:
    435 A.2d 1231
    COMMONWEALTH of Pennsylvania v. ALAN D., Appellant.
    Superior Court of Pennsylvania.
    Argued April 22, 1981.
    Filed Oct. 2, 1981.

      William R. Bernhart, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   WICKERSHAM, Judge:

On April 24, 1980 in the Court of Common Pleas of Berks County, Pennsylvania—Juvenile Division, the defendant was found guilty of the summary offense of criminal mischief and was fined one hundred dollars ($100.00), costs and restitution. The juvenile-appellant appealed to this court.

Following an episode where two concrete and wooden park benches were found overturned in a tree-well at the West Reading Playground, West Reading Police charged Alan D., age 12, with criminal mischief under the Pennsylvania Crimes Code, 18 Pa.C.S. § 3304(a)(2). A district justice entered a summary criminal conviction against defendant on the offense charged on November 20, 1979, imposed a $300 fine and ordered restitution in the amount of $150.34. Defendant timely appealed his summary criminal conviction to the Court of Common Pleas of Berks County for a trial de novo, Pa.R.Crim.P. 67, and shortly thereafter the matter was ordered transferred from regular miscellaneous court to the juvenile division. Defendant, at the time of trial, challenged the jurisdiction of the juvenile division of the court of common pleas over an appeal from a district justice’s summary conviction.

Following testimony, the lower court entered its adjudication: finding defendant guilty beyond a reasonable doubt of the acts alleged, imposed a fine of $100, and ordered defendant to make restitution in the amount of $300.68. The court further found that the amount of damages being less than $500, the crime committed was a summary offense, 18 Pa.C.S. § 3304(b), and unless defendant failed to pay the fine levied, he had not committed a delinquent act, and therefore was not a delinquent child. 42 Pa.C.S. § 6302.

Underlying appellant’s objection to jurisdiction appears to be the contention that the Juvenile Act, 42 Pa.C.S. § 6301, et seq., applies only to delinquent acts, that summary offenses are not included within the designation “delinquent act,” and, therefore, the juvenile division lacks jurisdiction over the subject matter of this case. Section 6302 of the Juvenile Act (hereinafter “Act”) indeed provides that a delinquent act is one designated a crime under the law and that the term shall not include summary offenses, “unless the child fails to pay a fine levied thereunder . . . . ” However, jurisdiction under the Act does not depend solely on allegations of delinquency. Section 6303 of the Act, entitled “Scope of chapter,” provides that in addition to proceedings in which delinquency is alleged, the Act shall apply to “[transfers under section 6322 (relating to transfer from criminal proceedings).” Section 6322, subsection (a), states, in pertinent part, that:

f it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. (Emphasis added).

A threshold question in applying the facts of the case to the above section would be whether a hearing on a charge of a summary offense is a “criminal proceeding.” The Crimes Code, 18 Pa.C.S. § 101, et seq., itself provides the answer. Section 106 of the Crimes Code, subsection (a), states: “An offense defined by this title for which a sentence of death or of imprisonment is authorized constitutes a crime.” 18 Pa.C.S. § 106(a) (Supp.1981 82) (emphasis added). At section 1105, the Crimes Code provides: “A person who has been convicted of a summary offense may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 90 days. Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976). It follows logically that a criminal proceeding encompasses a summary offense.

In the instant case, following defendant’s appeal of his summary criminal conviction, the case was listed for a hearing in the common pleas court to be held January 9, 1980. Five days after that hearing, on January 14, 1980, the trial judge entered an order on the record noting that defendant was a child and certifying the matter to the juvenile division of the court. Thus, the procedures enumerated in section 6322, subsection (a), were carried out precisely according to their terms. We believe that section 6303 of the Act, subsection (a)(2), which directs that the Act applies exclusively to transfers under section 6322, confers jurisdiction over a matter such as this one to the juvenile division of the court of common pleas.

It is significant to note that the lower court did not find that the child had committed a delinquent act and did not find that Alan D. was a delinquent child as those terms are defined in section 6302 of the Act. Clearly the term delinquent act expressly excludes summary offenses.

When Alan D. appeared before the court of common pleas in a de novo proceeding arising out of his appeal from a conviction before a district justice, Alan D. was clearly involved in a “criminal proceeding”. Being a child, age 12, the Juvenile Act immediately became applicable and it was appropriate and proper to transfer the case to the division of the court assigned to conduct juvenile hearings. Sections 6303 and 6322 of the Act clearly support the action taken by the Juvenile Division of the Court of Common Pleas of Berks County, and we affirm the order of the court below.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

The only question before this court is whether the Juvenile Division of the Court of Common Pleas of Berks County had jurisdiction to hear the appeal de novo of a juvenile’s conviction of the summary offense of criminal mischief before a District Justice. The majority agreed with the lower court that it had jurisdiction. Since I do not agree, I must respectfully dissent.

Alan D. a 12-year-old child, was charged on a citation with the crime of criminal mischief. He was subsequently tried before a District Justice and was found guilty as charged. The sentence of the District Justice was a fine in the amount of three hundred dollars ($300.00) and restitution in the amount of one hundred fifty-four dollars and thirty-four cents ($154.34).

The juvenile filed a timely appeal of his summary criminal conviction to the Court of Common Pleas for a trial do novo. Shortly thereafter, the Court of Common Pleas of Berks County, Miscellaneous Division, on its own motion, transferred the case for trial to the Juvenile Division of the Court of Common Pleas of Berks County.

Counsel for the juvenile entered a timely objection to the jurisdiction of the Juvenile Division of the Court of Common Pleas to hear a case involving a juvenile charged with a summary offense and to render a finding of guilt or innocence.

The juvenile court has jurisdiction over children charged with delinquent acts. In Re Gillen, 236 Pa.Super. 521, 344 A.2d 706 (1975). The Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978, 42 Pa.C.S.A. § 6302 (Purdon’s 1980 Pamphlet), defines “Delinquent Act” as follows:

(1) The term means an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinances.
(2) The term shall not include:
(i) the crime of murder; or
(ii) summary offenses, unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court, (emphasis added)

The majority agrees that this provision of the law is clear and that the juvenile court does not have jurisdiction over summary offenses unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court. Here, the juvenile did not fail to pay the fine levied by the District Justice but instead appealed his conviction to the Court of Common Pleas pursuant to Pa.R.Crim.P. 67.

Neither the majority nor the court below was deterred by this road block to jurisdiction. Determined as they were to find jurisdiction, where I submit none existed, a detour was sought via Sections 6303 and 6322 of the Act.

Section 6303 entitled “Scope of Chapter” provides that in addition to proceedings in which a child is alleged to be delinquent or dependent, the Act shall apply to “transfers under Section 6322 (relating to transfer from criminal proceedings).” Section 6322, subsection (a), provides that:

... if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. (Emphasis added by the majority.)

But here the lower court, with the majority repeating the lower court’s language almost verbatim, and thus agreeing, found the detour as difficult as the main roadblock and a tortuous process of “legal bootstrapping” was begun. They said that “a threshold question in applying the facts of the case to the above section would be whether a hearing on a charge of a summary offense is a ‘criminal proceeding.’ ” Since the Crimes Code, 18 Pa.C.S.A. § 106(a) provides that “an offense defined by this title for which a sentence of death or of imprisonment is authorized constitutes a crime” and further, since 18 Pa.C.S.A. § 1105 provides that “person who has been convicted of a summary offense may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 90 days,” the conclusion was inescapable that a criminal proceeding encompasses a summary proceeding. Assuming that the legislature meant Section 6322 relating to transfer to the juvenile court from criminal proceedings to be applicable to appeals de novo from convictions of summary offenses by District Justices, the majority completely by-passes Section 6303(b) of the Act which provides that “no child shall be detained, committed or sentenced to imprisonment by a district justice or a judge of the minor judiciary.” (Emphasis added.) Since the juvenile defendant could not be sentenced to a term of imprisonment by the District Justice, the majority’s “threshold question” of whether a hearing on a charge of a summary offense is a “criminal proceeding” must be answered in the negative.

It may be argued that on an appeal de novo from a conviction for a summary offense, the Court of Common Pleas may, following conviction, sentence the juvenile to a term of imprisonment. But here the only courts that ever entertain jurisdiction were the minor judiciary and the Juvenile Court. Be that as it may, I am at a loss to understand why the legislature would refuse to permit a District Justice to imprison a 12-year-old child for damaging two park benches and condone a sentence of imprisonment on this same juvenile if handed down by a Judge of the Court of Common Pleas.

Thus, the primary ground for the majority’s approval of the juvenile court’s assumption of jurisdiction in this case is a very technical reading of “transfer” jurisdiction under §§ 6303(a)(2) and 6322 of the Juvenile Act. Under the terms of § 6322, the court should transfer a case to juvenile court “if it appears to the court . . . that the defendant is a child ...” (Emphasis added.) While it is true that such a transfer is mandatory in cases other than murder (and optional for murder), it is also true that the nature and wording of the section, when read with other provisions of the Act, can allow for no reading other than that this provision is remedial in nature and intended to allow the court to quickly correct a situation wherein a child is inadvertently and mistakenly before the adult division in a criminal proceeding which was initiated in the adult division (emphasis added).

It is a basic rule of statutory construction requiring no citation that the legislature does not intend a result that is absurd, impossible of execution, or unreasonable. I submit it would be absurd for the legislature to say that the Juvenile Court does not have jurisdiction over children charged with summary offenses and at the same time provide that appeals from summary convictions before the minor judiciary be heard in Juvenile Court. If that were the case, then any juvenile convicted of a summary offense by a District Justice could be brought within the jurisdiction of the Juvenile Court merely by taking an appeal de novo. The legislature instead provided for appeals de novo in these cases to be taken to the Court of Common Pleas and not to the Juvenile Court.

The majority says it is significant that the lower court did not find that the child had committed a delinquent act and did not find that this appellant was a delinquent child as those terms are defined in Section 6302 of the Act.

I agree with the majority that this is significant, but for a different reason. I submit that the finding of the lower court is significant because it violates the intent of the Act.

Section 6341(b) entitled “Adjudication” provides as follows:

If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent it shall enter such finding on the record and it shall then proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child is in detention, or to hear evidence as to whether the child is in need of treatment, supervision, or rehabilitation and to make and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony shall be sufficient to sustain a finding that the child is in need of treatment, supervision or rehabilitation. If the court finds that the child is not in need of treatment, supervision or rehabilitation, it shall dismiss the proceeding and discharge the child from any detention or other restriction theretofore ordered.

Section 6352(a)(5) entitled “Disposition of delinquent child” provides that:

(a) If the child is found to be a delinquent child, the court may make any of the following orders of disposition best suited to his treatment, supervision, rehabilitation and welfare.
(5) Ordering payment by the child of the reasonable amounts of money as fines, costs, or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child.

In the interest of judicial economy, the legislature provided in the last sentence of Section 6322 relating to “transfer from criminal proceedings,” relied upon by the majority, that “unless the court directs the filing of a petition, the accusatory pleading may serve in lieu of a petition.” Here the accusatory pleading which constituted the petition was the Citation issued by the District Justice charging the juvenile with the summary offense of criminal mischief. (Emphasis added.)

The Juvenile Act does not authorize the lower court to do what it did in this case; that is, finding beyond a reasonable doubt that the juvenile committed the act alleged in the petition and imposing fines and restitution in the amount of $300.00 plus the costs and at the same time entering a finding that the juvenile had not committed a delinquent act. (Emphasis added.) It is clear from the reading of Section 6352(a)(5) of the Act (Supra) that the Juvenile Court can only impose fines and restitution after a finding that the child is delinquent. (Emphasis added.)

Although not clear from the record, the lower court probably adopted this novel finding for the reason that it would have been difficult to find that this juvenile was in need of treatment, supervision, or rehabilitation and in such case, the proceeding would have to be dismissed. See Section 6341(b), supra.

Although not raised in the court below and consequently not properly before this court on appeal, I note in passing that the court below made no effort whatsoever to determine the appellant’s ability to pay the fine and restitution. This, the court must do. In the Interest of Ryan, 277 Pa.Super. 433, 439 (1980), 419 A.2d 1224 at 1227 (1980).

I would reverse the lower court and remand the case for proceedings consistent with this opinion.

      . The appellant frames the Statement of Questions Involved as follows:

        A. Whether the Juvenile Court of Berks County, Pennsylvania had jurisdiction to hear a case involving a minor charged with a summary offense and to render a finding of guilt of [sic] innocence.
      B. Whether the citation in the instant case is fatally defective in charging an improper section under 18 Pa.C.S.A. § 3304(a)(2)?

      . 42 Pa.C.S. § 6302 provides that a delinquent act does not include a summary offense unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court. See In Interest of Ryan, 277 Pa.Super. 433, 419 A.2d 1224 (1980). In both cases in Ryan, a child was convicted by a district justice of various summary offenses. The child was fined and did not take an appeal. When the child did not pay the fines, the district justice certified the case to the court of common pleas. The juvenile court ruled that the only issue properly before it was whether the child had failed to pay the fines. Finding that the child had failed to pay, the juvenile court adjudicated the child delinquent and placed him on probation. This court held that the juvenile court acted properly, and that pursuant to 42 Pa.C.S. § 6302, the juvenile court may not adjudicate a child delinquent simply because the child has been convicted of a summary offense.

      . Alan D.’s further contention that the citation issued to him was defective is utterly devoid of merit.

      . 18 Pa.C.S.A. 3304(a)(2).

      . It is not clear how the District Justice arrived at the restitution figure of $154.34. Mr. Thomas Bagenstose, the Borough Manager of West Reading Borough, testified that the damages totalled $300.68 and this testimony was adopted by the court below. (R.R. 34a, 35a.)

      . Pa.R.Crim.P. 67.

      . I note that the caption of the case on the appeal de novo from the conviction by the District Justice was “Commonwealth of Pennsylvania v. Alan D., In the Court of Common Pleas—Civil—of Berks County, Pennsylvania, No. 223 November, 1979.” (Emphasis supplied). The majority embraced the lower court’s finding that this case was the transfer of a criminal proceeding to the juvenile division of the court and makes no mention of the fact that the case is captioned as a civil proceeding. (R.R. 4a).

      . As Administrative Judge of the Family Court Division of the Philadelphia Court of Common Pleas, I argued against divesting the Juvenile Court of jurisdiction in summary cases. Later, Judge Joseph Glancey, President Judge of the Municipal Court of Philadelphia, joined me in an attempt to have the Act amended to place jurisdiction of summary offenses back in Juvenile Court. We were not successful.