author: JOHNSON, Judge:

text:
    434 A.2d 769
    COMMONWEALTH of Pennsylvania, v. Eugene NANCE, a/k/a James Lawson, a/k/a Charles Clarke, a/k/a Lester Banks, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Sept. 4, 1981.

      David G. Metinko, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant was found guilty of Burglary, Robbery, and Aggravated Assault. A motion for a new trial was granted, after which Appellant pled guilty to a single count of Burglary. On November 23, 1976, he was sentenced to a five-year period of probation. In May, 1979, Appellant was convicted on an unrelated charge of Armed Robbery. On September 10, 1979, the trial judge on the earlier sentence was advised of the subsequent conviction; and a probation violation hearing was held on September 27, 1979.

At this hearing, the lower court revoked and set aside the probation and sentenced Appellant to incarceration of not less than five, nor more than twenty, years. This appeal is from the judgment of sentence of September 27, 1979.

Appellant presents seven issues for our consideration. First, was the guilty plea unintelligently, unknowingly, and involuntarily entered? Second, was Appellant denied the right to effective assistance of counsel at the guilty plea hearing and at the probation revocation hearing? Third, did the trial court violate due process when it introduced extrinsic evidence to determine whether or not Appellant received proper notice of the probation violation? Fourth, was the period of time between the alleged probation violation and the probation revocation hearing so unreasonable that it constituted a denial of due process? Fifth, did the trial court’s failure to inform Appellant of his rights, as mandated by Pa.R.Crim.P. 1405, constitute a denial of due process? Sixth, did the trial court err in not granting Appellant an opportunity to withdraw his guilty plea before sentencing?

Appellant’s seventh issue was presented after this court, on November 11, 1980, granted Appellant’s Motion to Amend Brief to present an additional argument. This additional argument is that the imposition of a sentence exceeding the five-year period of probation constituted double jeopardy.

For the following reasons, we vacate the judgment of sentence of September 27, 1979, and remand.

Appellant’s first issue, which challenges the validity of the guilty plea that he entered in 1976, is not properly before this court. Appellant has filed neither a direct appeal from the order of probation nor a petition under the Post Conviction Hearing Act to challenge the validity of the guilty plea. Appellant cannot collaterally attack this issue on appeal until he has challenged the validity of the plea in the trial court.

The prosecution argues that Appellant’s failure to raise the issue of the validity of the guilty plea constitutes a waiver of the issue. In support of this argument, the prosecution cites Commonwealth v. Gilmore, 465 Pa. 202, 348 A.2d 425 (1975). In Gilmore, the court states,

The knowing failure to appeal from the order of probation constitutes a waiver of the right to challenge the validity of the conviction upon which the probation order is based. (Emphasis added.)

Id., 465 Pa. at 205, 348 A.2d at 427.

In the instant case, Appellant contends that he was coerced to plead guilty by his counsel from the public defender’s office, who advised Appellant “to get things over with” (Pro Se Supplemental Brief, section 1A, paragraph 3). Until the merits of Appellant’s allegations concerning coercion of the guilty plea have been determined at an evidentia-ry hearing, this court cannot presume that Appellant’s failure to appeal from the order of probation constituted a knowing waiver. If an overworked public defender coerced Appellant to plead guilty in order to “get things over with,” it is reasonable to believe that the same defender may not have adequately advised Appellant of his right to appeal from the order of probation. If Appellant’s failure to appeal from the order of probation cannot be presumed to constitute a knowing failure, then, according to Gilmore, Appellant has not waived the issue of the validity of the guilty plea.

Appellant may raise the issue of the guilty plea in a petition pursuant to the Post Conviction Hearing Act. See Commonwealth v. Houser, 232 Pa.Super. 384, 386, 334 A.2d 691, 692 (1975). In Houser, the court held that the defendant, despite his failure to appeal from the probation order, had not waived the issue of the validity of his prior guilty plea. Since the defendant in Houser had not previously raised the issue of the guilty plea before the trial court, the appellate court did not decide this issue. Instead, the court informed Houser that he could raise the issue by filing a PCHA petition. In the instant case, Appellant may follow the same procedure.

Appellant’s second issue alleges that he was denied the right to effective assistance of counsel at the guilty plea hearing and at the probation revocation hearing. Throughout the proceedings in the lower court, as well as in this appeal, Appellant has been represented by various members of the Allegheny County Public Defender’s office. Under these circumstances, the proper procedure is to remand for the appointment of counsel who is not associated with the public defender’s office. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Patrick, All Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). The rationale underlying this procedure is the assumption that appellate counsel who has been associated with trial counsel, whose ineffective assistance is at issue, may not provide the “zealous advocacy” to which Appellant is entitled. Commonwealth v. Fox, 476 Pa. at 479, 383 A.2d at 200.

If, on remand, Appellant chooses to retain Public Defender counsel, he should be made aware of the dangers and possible disadvantages of proceeding with counsel he asserts is ineffective. The court should inform appellant of those facts necessary to ensure that his decision is intelligent and voluntary. Commonwealth v. Gardner, 480 Pa. 7, 11, 389 A.2d 58, 60 (1978). Commonwealth v. Boyer, 277 Pa.Super. 82, 419 A.2d 671, 672 (1980).

Appellant’s third issue asserts that he was denied due process of law because the written notice of the probation violation does not appear on the record. The lower court found that Appellant received written notice on September 21, 1979—six days before the hearing. This is confirmed in Appellant’s pro se Supplemental Brief, at page 2 of his argument, wherein he contends that the six-day written notice was not sufficient to prepare a defense.

Although Appellant did not raise the issue that written notice had not been placed on the record at the probation revocation hearing, the Commonwealth’s brief concedes that Appellant has preserved this issue for appeal because this issue was included in Appellant’s Statement Of Matters Complained Of On Appeal. Appellant does not deny that he received written notice of the hearing; instead, he argues that this notice must be placed on the record. The Commonwealth has no obligation to produce evidence of written notice if defendant has not challenged a lack of written notice. Commonwealth v. Quinlan, 488 Pa. 255, 260, 412 A.2d 494, 497 (1980). Thus, Appellant’s third issue is without merit.

Appellant’s fourth basis for appeal is that the length of time between his probation violation and his revocation hearing was unreasonable and, accordingly, violated due process. In the instant case, the hearing was held in less than four and one-half months following conviction. Appellant had served less than three years of his five-year probation at the time of revocation. The hearing judge scheduled the revocation proceeding, and it was held within seventeen days of Appellant’s notification of the violation. Appellant was in the Allegheny County Jail on the new conviction throughout this period.

Pa.R.Crim.P. 1409 states that a revocation hearing must be held “as speedily as possible.” The courts have held that the requirement of Rule 1409 is not to be determined solely by the length of time between the conviction and the hearing. Rather, the question is one of what constitutes a reasonable time under the circumstances. Commonwealth v. Young, 262 Pa.Super. 253, 256, 396 A.2d 741, 742 (1978). To determine the reasonableness of the delay, the court examines three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay. Id., 262 Pa.Super. at 257, 396 A.2d at 743.

In Commonwealth v. Williams, 254 Pa.Super. 202, 385 A.2d 979 (1978), this court held that a delay of five and one-half months was not unreasonable where the Commonwealth did not deliberately delay the hearing and where the delay did not prejudice the defendant’s case. In the instant case, Appellant has not even alleged that the Commonwealth deliberately delayed the hearing, nor has he presented any facts to support his allegation that the delay resulted in prejudice to his case. Thus, we find this issue is without merit.

Appellant’s fifth issue alleges that another violation of due process occurred at the probation revocation hearing because he was not informed of his right to appeal or of the consequences of his failure to appeal. Since Appellant has filed the timely appeal that we are now considering, and since Appellant has not been prejudiced by failure to appeal, we consider this issue to be moot. Commonwealth ex rel. Reno v. Lawler, 343 Pa. 353, 354, 22 A.2d 900, 901 (1941).

Appellant’s sixth contention is that the trial court erred when it imposed the maximum sentence permitted by statute upon Appellant without first allowing him to withdraw the 1976 guilty plea. This issue is frivolous and has no merit or basis in the law.

In his seventh issue, Appellant claims that the five-to-twenty-year sentence, which was imposed after the revocation of probation, constituted double jeopardy because it exceeded the five-year probation. Section 1371(b) of the Sentencing Code, which was effective when Appellant was originally sentenced, allows the judge at revocation to impose any sentence that was available at the time of the original conviction. Section 1371(b) states:

The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.

Thus, the sentence imposed following a revocation of probation is not limited by the terms of the probation. Commonwealth v. Mueller, 274 Pa.Super. 397, 400, 418 A.2d 465, 467 (1980); Commonwealth v. Raymond, 261 Pa.Super. 108, 395 A.2d 1337 (1978).

In the instant case, Appellant pled guilty to Burglary, which is a felony of the first degree. The sentence for a felony of the first degree may include a period of imprisonment not in excess of twenty (20) years. Appellant’s sentence does not exceed twenty (20) years, which was the sentence available at the time of the original conviction. Thus the sentence imposed after revocation of Appellant’s probation does not constitute double jeopardy.

The judgment of sentence, dated September 27, 1979, is vacated; and the case is remanded for the appointment of new counsel for an evidentiary hearing concerning the validity of the guilty plea and the alleged ineffective assistance of counsel, and for all other proceedings consistent with this opinion.

POPOVICH, J., concurs in the result.

      . 18 Pa.C.S.A. § 3502.

      . Id., § 3701.

      . Id., § 2702.

      . Id., § 3701, § 6103.

      . 19 Pa.C.S.A. § 1180-1 et seq. (Supp. 1979-80).

      . 1974, Dec. 30, P.L. 1052, No. 345, § 1371(b), effective in 90 days. As amended 1980, Oct. 5, P.L. 693, No. 142, § 401(a), effective in 60 days.

      . Both Mueller and Raymond cite Commonwealth v. Cole, 222 Pa. Super. 229, 294 A.2d 824 (1972), as precedent for the holding that we have reached in the instant case. We note, however, that Cole was based upon the rationale that “the term of probation is not a term of sentence, and may not act as a limitation on the court to impose a sentence for a term of years greater than the probationary period, not in excess of the maximum fixed by law for the particular offense” [emphasis added]. Id., 222 Pa.Super. at 232, 294 A.2d at 826; Commonwealth v. White, 264 Pa.Super. 495, 500, n. 6, 400 A.2d 194, 196 n. 6. The statutory basis for the rationale that probation is not a sentence is to be found in section 331.25 of the Pennsylvania Parole and Probation Act, which states:
      Whenever any person shall be found guilty of any criminal offense by verdict of a jury, plea, or otherwise, except murder in the first degree, in any court of this Commonwealth, the court shall have the power, in its discretion, if it believes the character of the person and the circumstances of the case to be such that he is not likely again to engage in a course of criminal conduct and that the public good does not demand or require the imposition of a sentence to imprisonment, instead of imposing such sentence, to place the person on probation for such definite period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law for the offense for which such sentence might be imposed. 1941, Aug. 6, P.L. 861, § 25. [Emphasis added.] 61 Pa.C.S.A. § 331.25.
      Section 9721(a) of the Sentencing Code, however, includes probation among the alternatives to be considered in imposing a sentence:
      (a) General rule.—In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
      (1) An order of probation.
      (2) A determination of guilt without further penalty.
      (3) Partial confinement.
      (4) Total confinement.
      (5) A fine.
      Section 2(b) of the Act of Dec. 30, 1974, P.L. 1052, No. 345 (the Sentencing Code), provides that “All acts and parts of acts are repealed in so far as they are inconsistent herewith.” Thus, in any conflict between the Sentencing Code and the Parole and Probation Act, the Sentencing Code has priority.
      Although Cole and other cases tried to avoid double jeopardy problems, when probation was revoked, by referring to probation as a “conditional order,” or an order “in lieu of sentencing,” this rationale is no longer valid under the Sentencing Code. The following cases are also based upon the rationale that probation is not a sentence: Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); Commonwealth v. Rooney, 233 Pa.Super. 225, 335 A.2d 710 (1975); Commonwealth v. Preininger, 230 Pa.Super. 39, 326 A.2d 612 (1974). Although an order of probation constitutes a final sentence from which an appeal may be taken, the distinctions made by previous cases need not be considered in an attempt to avoid double jeopardy issues. Section 1371(b) of the Sentencing Code (now 42 Pa.C.S.A. § 9771[b]) determines the maximum sentence that the court may impose upon revocation of probation.

      . 18 Pa.C.S.A. § 3502(c).

      . Id., § 1103(1).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    434 A.2d 774
    COMMONWEALTH of Pennsylvania ex rel. John OCTAVIANO v. Linda DOMBROWSKI. Appeal of John OCTAVIANO.
    Superior Court of Pennsylvania.
    Argued May 27, 1981.
    Filed Sept. 4, 1981.

      Lynne Z. Gold-Bikin, Philadelphia, for appellant.
    Linda Dobrowski, did not file a brief on behalf of herself (in pro. per.)
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WIEAND, Judge:

In this custody proceeding, the trial court concluded sua sponte that Pennsylvania was an inconvenient forum and declined to exercise its jurisdiction. Therefore, it dismissed the action. We agree with appellant that this was error.

The appellant, John Octaviano, is the biological father of a child, Nicole, born out of wedlock to the appellee, Linda Dombrowski, on November 3, 1979. The parties, who lived together in Philadelphia for approximately a year, had separated in July, 1979, prior to the birth of the child. After the child was born, appellee sought to place the child for adoption, but appellant refused to consent to any adoption. Over appellant’s objection the child was then placed with Catholic Social Services. Appellant, however, made repeated efforts to have the child placed in his care. On February 11, 1980, appellee removed the child from the agency and took her to live with appellee in the apartment which she leased at 900 Asbury Terrace, Philadelphia. Appellant came there regularly to visit his daughter. As a result of an argument between the parties on the evening of April 27, 1980, Nicole was taken to and spent the night at the home of appellant’s parents. On the following day, appellee broke into the home, pushed appellant’s mother down, and removed the child to the home of appellee’s parents in Rochester, New York.

Meanwhile, on April 23, 1980, appellant had commenced an action to obtain custody of Nicole and had obtained an ex parte injunctive order restraining appellee from removing Nicole, from Pennsylvania. Neither the petition nor the restraining order had been served prior to the time when appellee went to New York. A copy of the petition and notice of hearing were subsequently served on appellee by certified mail. Upon the advice of New York counsel, appellee did not appear at the hearing; and, therefore, it proceeded without her. After a hearing on the merits had been concluded, the trial court entered an order declining to decide the custody issue on the grounds that Pennsylvania was an inconvenient forum. From that order, the present appeal was filed.

Jurisdiction to hear and decide the custody issue clearly existed in the courts of Pennsylvania under the provisions of the Uniform Child Custody Jurisdiction Act, enacted in Pennsylvania as the Act of June 30,1977, P.L. 29, No. 20, 11 P.S. § 2301 et seq. Section four thereof provided:

“(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) this State:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; ...”

“Home state” was defined by Section three as the “state in which the child . . . lived with his parents, a parent, in an institution or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned.” Nicole was physically present in Pennsylvania from birth until after commencement of the instant custody proceeding. The child is presently absent because removed by a parent to New York after the commencement of proceedings but before service of the petition. Pennsylvania clearly is Nicole’s home state; and the courts of Pennsylvania have jurisdiction to determine custody.

The trial court, although recognizing that it had jurisdiction to decide the merits of the custody proceeding, declined to exercise that jurisdiction because it found Pennsylvania an inconvenient forum. With this conclusion we are unable to agree.

Section eight of the Act provided: “A court which has jurisdiction under this act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum”’ Such a finding of inconvenient forum may be made upon the court’s own motion or on motion of a party. In determining if it is an inconvenient forum, the court is directed to consider if it is in the interest of the child that another state assume jurisdiction. “For this purpose it may take into account the following factors, among others:

(1) if another state is or recently was the child’s home state;

(2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;

(3) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;

(4) if the parties have agreed on another forum which is no less appropriate; and

(5) if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in section 2.”

It is important to remember that a finding of inconvenient forum cannot properly be made unless the court finds that a court of another state is a more appropriate forum. In the Matter of D.L.S., 278 Pa.Super. 446, 420 A.2d 625, 627 (1980), the contestants for custody of two children had been lifelong residents of Erie County, Pennsylvania, where both children had also been bom. Less than a month before the custody proceedings were commenced, the mother took the children to Florida. In sustaining the trial court’s refusal to decline the exercise of jurisdiction, this Court, per Price, J., said: “In light of the very brief presence in Florida of the children and one of the contestants—a mere three and one-half weeks—and the lack of any prior connections there, it is difficult to understand how a Florida court could properly exercise jurisdiction under the criteria of the Uniform Child Custody Jurisdiction Act.”

When the present custody proceedings were commenced for Nicole, the child’s entire lifetime of less than six months had been spent in Pennsylvania. Both contestants were also residents of Pennsylvania; and the social agency whose services had been enlisted on behalf of the child was located in Philadelphia. Only the maternal grandparents of the child maintained a home in New York. The grandparents, however, were neither parties to the custody proceedings nor responsible for the child’s care and maintenance. It seems clear, therefore, that when these custody proceedings were commenced, both the contestants and the child had stronger connections with Pennsylvania than with New York. Indeed, it is difficult to perceive that New York had any interest in the issue of Nicole’s custody when proceedings were commenced in Pennsylvania on April 23, 1980.

Similarly, there was no reason for holding New York the more convenient forum because of available evidence. The situs of the factual evidence was predominantly in Pennsylvania. The witnesses who had observed and were familiar with Nicole were in Pennsylvania. The only evidence available in New York was that which became available after appellee removed the child to that state following the commencement of custody proceedings in Pennsylvania. This is an inadequate basis on which to hold that a court in Pennsylvania is an inconvenient forum. For this Court to hold otherwise would allow parties to custody proceedings to defeat jurisdiction by the simple expedient of removing the child to another state. The prevention of such a result was one of the principal purposes of the act. See: Parks v. Parks, 284 Pa.Super. 400, 407, 426 A.2d 108, 111 (1981).

The trial court concluded that since the child was in New York at the time of the hearing, where appellee intended to remain and had obtained employment, the courts of that state had more substantial “contacts” with the child than the courts of Pennsylvania. By doing so, the trial court placed unwarranted emphasis on the physical location of the child. The Uniform Child Custody Jurisdiction Act was intended, inter alia, to deter “unilateral removals of children” and evidenced a direction to reduce the emphasis previously placed upon physical location of the child at the time of custody proceedings. Sections 2(a)(5) and 4(c). Thus, Nicole’s presence in New York with appellee, although a fact to be considered, was not determinative. Of greater significance was the fact that at the time when the proceedings had been commenced the child and both parents were residents of and physically present in Pennsylvania. This fact demonstrated unequivocally that Pennsylvania and not New York was the appropriate forum where the best interests of the child could more readily be determined and custody decided. See: Matter of D.L.S., supra. See also: Williams v. Zacher, 35 Or.App. 129, 581 P.2d 91 (1978). The trial court erred in refusing to exercise its jurisdiction to consider the merits of appellant’s petition for custody.

Reversed and remanded for further proceedings consistent with the foregoing opinion.

      . This statute was subsequently repealed and is now found in the Judicial Code at 42 Pa.C.S.A. § 5341 et seq.

      . 11 P.S. § 2304. Now 42 Pa.C.S.A. § 5344.

      . 11 P.S. § 2303. Now 42 Pa.C.S.A. § 5343.

      . 11 P.S. § 2308. Now 42 Pa.C.S.A. § 5348.

      . 11 P.S. § 2302(a)(5). Now 42 Pa.C.S.A. § 5342(a)(5).

      . 11 P.S. § 2304(c). Now 42 Pa.C.S.A. § 5344(c).


text:
    434 A.2d 777
    Estate of Mary DePaola VITTORIO, Deceased. Appeal of Alessandro TARSIA, Elena Tarsia and Angelina Tar-sia, Beneficiaries of Trust Account No. 07010528 at Roxbor-ough—Manayunk Federal Savings & Loan Association.
    Superior Court of Pennsylvania.
    Submitted May 28, 1981.
    Filed Sept. 4, 1981.

      Silvio F. Modafferi, Philadelphia, for appellants.
    John A. DiCicco, Norristown, for appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WIEAND, Judge:

The principal issue in this case is whether an oral expression of dissatisfaction for and intent to alter a tentative trust constituted a valid revocation of the trust. The trial court held that the trust had been revoked and ordered the proceeds of the trust savings account paid to the estate of the deceased depositor. We disagree and reverse.

During her life time, Mary DePaola Vittorio had opened an account at . the Roxborough—Manayunk Federal Savings & Loan Association in her name as trustee for a nephew and two nieces, Alessandro Tarsia, Elena Tarsia and Angelina Tarsia, who are citizens of Italy. She died on December 19, 1978, leaving a will dated January 4, 1973. Her executrix, Anna Sabre, filed in the Orphans Court of Montgomery County a petition for an injunction restraining the Savings & Loan Association from distributing $15,000.00 remaining in the account to the named beneficiaries. She also filed a supplemental petition claiming the account as an asset of the estate. After several hearings, the court found that the tentative trust had been revoked and granted the relief requested. Exceptions were dismissed and this appeal followed.

The basis for the court’s conclusion that the tentative trust had been revoked consisted of statements made by decedent on November 19, 1978, while she was hospitalized. She then told Anna Sabre, in the presence of the latter’s daughters, that she had “made a mistake” about the “certificate” going to her nieces and nephew and that she wanted the money to go, instead, to her adopted daughter, Anna Sabre. She asked her daughter to obtain the certificate and bring it to her so that it might be changed. Her daughter failed to comply with this request, believing that her mother would recover and that hasty action was unnecessary. The mother’s health became worse, however, and a few days later she lapsed into a coma. Although she subsequently regained consciousness, her mental acuity was suspect at all times thereafter.

The doctrine of tentative trusts was born in New York in the case of In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The doctrine was adopted as a part of the law of Pennsylvania in Scanlon’s Estate, 313 Pa. 424, 169 A. 106 (1933). It is now defined in the Restatement of Trusts 2d, § 58, as follows:

“Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.”

A tentative trust can be revoked by the depositor at any time prior to death by any clear manifestation of an intention to do so. No particular formalities are necessary to effect a revocation. Restatement of Trusts 2d, § 58, comment c. It may be revoked by a transfer of the deposit; by the terms of the depositor’s will; by the depositor’s unequivocal act or declaration of disaffirmance; or by facts and circumstances resulting in inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes and other charges. Rodgers Estate, 374 Pa. 246, 249-50, 97 A.2d 789, 790-791 (1953).

There is no rule which excludes oral declarations of revocation. Pennsylvania courts, on the contrary, have repeatedly said that a depositor may revoke a tentative trust by oral declaration See: In re Estate of McFetridge, 472 Pa. 546, 372 A.2d 823 (1977); Schuck Estate, 419 Pa. 466, 214 A.2d 629 (1965); Brose Estate, 416 Pa. 386, 206 A.2d 301 (1965); Rodgers Estate, supra.

However, the courts have generally maintained strict standards for revocation of tentative trusts and have required that the act or declaration relied upon be of such a decisive character as to establish an unequivocal disaffir-mance. The number of cases where tentative trusts “have been held to be revoked by oral declarations alone, appear to be few.” In re Estate of Service, 49 Misc.2d 399, 267 N.Y.S.2d 782, 787-8 (1965).

Thus, in Krewson Estate, 154 Pa.Super. 509, 36 A.2d 250 (1943), oral statements made by a decedent that she had made her niece beneficiary of a tentative trust merely so that the niece could withdraw funds for decedent’s own use in the event she became bedridden were held not sufficiently clear and unambiguous to constitute a parol revocation of the trust.

In Conry v. Maloney, 5 N.J. 590, 76 A.2d 899 (1950), the Supreme Court of New Jersey considered a factual pattern similar to that present in the instant case. There, the decedent had made a request to his nephew to inquire concerning the procedure necessary to transfer the monies in several trust savings accounts to the bank where decedent kept his personal checking account. The nephew made the requested inquiry and, pursuant to instructions received at the bank, delivered to the decedent the six bank books evidencing tentative trust, together with withdrawal slips to be used in effecting transfers. The depositor died three days later without having signed the slips and without having taken any other affirmative steps to withdraw the money in the trust accounts. The court held that there was no evidence of a decisive act or declaration disaffirming or revoking the tentative trusts. It said: “The words attributed to the decedent, unsupported by any action on his part effectuating the intention expressed, do not constitute a convincing and unequivocal disaffirmance or revocation of the trusts.... ”

In the Estate of Stelma, 25 Misc.2d 234, 201 N.Y.S.2d 609 (1960), the decedent, while speaking to a friend, expressed disappointment with his son, the beneficiary of a tentative trust. He said that he was going to turn over the books and money to his daughter, Anne, so she could take care of him while he was sick and pay funeral expenses when he died. The court held that this was insufficient to revoke the trust, noting that he had not signed any withdrawal orders by which he could have withdrawn cash to pay his expenses. His “acts and declarations [were] just as indicative of an intention to take future action as they [were] of a present intent to affect the fund then and there.” Id. 201 N.Y.S.2d at 611.

In Estate of Service, supra, reliance to establish revocation of a tentative trust was placed upon an expressed intent “to cancel those temporary trusts in the bank.” This intent the depositor had expressed to the attorney-draftsman of her will. The will, however, had not been executed until almost a year later and failed to contain language manifesting an intent to revoke the tentative trusts. In the meantime the testatrix had made withdrawals from the accounts but had done nothing to change them. The court reviewed the decided cases and concluded that although there was no rule precluding oral revocation of a tentative trust, the act or declaration relied upon for that purpose had to disaffirm the trust decisively. The court held that the declarations made by the depositor to her attorney were insufficient “to effect a disaffirmance or revocation of the Totten trusts apart from and independently of the terms of the will.” Id. 201 N.Y.S.2d at 788.

This holding seems at first blush to be inconsistent with the decision of the Pennsylvania Supreme Court in Rodgers Estate, supra. In that case, the depositor had told the scrivener of her will that her sister, Martha, was the prime object of her bounty and that she wished to create for her sister a trust for maintenance and support with power to invade principal. The depositor described to her attorney the property to be subject to the trust and included in that description a specific reference to money in a savings account held in her name in trust for Martha. The will was written in accordance with her instructions. At the time of the testatrix’s death, Martha was incompetent, and litigation was commenced to determine whether Martha’s guardian or the executor of the testatrix’s estate should be entitled to receive the proceeds of the savings account. The Court held that the tentative trust had been revoked. It had been revoked, first, by the oral declarations made by the testatrix, and secondly, by the provisions of the will which could not reasonably be carried out without resort to the trust account.

The result in Rodgers was clearly correct according to the facts of that case. It is questionable, however, whether the declaration of the testatrix, in and of itself, “could fairly be said to manifest a revocation of the trust except as [it] gave greater scope to the terms of the will and thus put an end to one only because it was swallowed in the other.” See: In re Estate of Service, supra, 267 N.Y.S.2d at 786. In any event, we conclude that factually Rodgers is not determinative of the instant appeal.

Instead, a review of the decided cases suggests that the following principles have been accepted by the courts and are determinative of the instant appeal. First, while there is no rule of law which precludes the revocation of a tentative trust by oral declaration, the number of cases in which tentative trusts have been held to be revoked by oral declaration alone are few. Secondly, the declaration relied upon to terminate a tentative trust must clearly, unequivocally and decisively establish a present disaffirmance and revocation thereof. Finally, a declaration evidencing an intent to revoke a tentative trust by a future act is insufficient to constitute a clear, unequivocal and decisive disaffirmance or revocation of the trust unless it is supported by action effectuating that expressed intent.

In the instant case, the decedent’s oral declarations did not constitute a clear and unequivocal, immediate disaffirmance and revocation of the tentative trust. On the contrary, she referred to the creation of the trust for her nephew and nieces as a mistake and expressed an intent to take action to alter the account so that the money would go to her adopted daughter. She requested her daughter to obtain the “certificate” so that she could accomplish that intended result. She died before she could take the action which was necessary to carry into effect her expressed intent. The trust, therefore, remained unrevoked.

A tentative trust may also be revoked by “facts and circumstances resulting in inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes and other charges.” Rodgers Estate, supra, 374 Pa. at 250, 97 A.2d at 791. The testatrix raised this issue in the court below and has pursued it on appeal. The trial judge found it unnecessary to consider revocation for this reason because he had concluded that the trust was revoked by oral declaration. In the absence of findings of fact by the trial court, we are unable to review adequately this issue. Therefore, we will remand so that the trial court may first consider the same.

Reversed and remanded for further consideration in accordance with the foregoing opinion.

      . Appellee filed a petition to quash the appeal, asserting various procedural defects, including a failure to file a reproduced record of the hearing or pertinent portions thereof, an incorrect statement of jurisdiction, and a failure to include rulings of the trial court in response to questions stated in the brief. The first defect is substantial; the others are not. However, the technical quashing of an appeal is to be deprecated. Schmehl v. Mellinger, 325 Pa. 487, 191 A. 62 (1937). Motions to dismiss appeals must be considered in light of the fact that the law favors appeals, and reviews on the merits are preferred. Therefore, in a doubtful case, the appeal will be maintained. First Valley Bank v. Steinmann, 253 Pa. Super. 8, 11, 384 A.2d 949, 951 (1978). In the instant case, our ability to conduct a meaningful review has not been impaired, and appellee has not been prejudiced by the procedural defects recited. Therefore, we have not quashed the appeal but have considered the merits thereof.


text:
    434 A.2d 781
    COMMONWEALTH of Pennsylvania. v. Michael D. GILLESPIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1981.
    Filed Sept. 4, 1981.
    Petition for Allowance of Appeal Denied Dec. 4, 1981.

      Daniel McGee, Public Defender, Bellefonte, for appellant.
    Ray F. Gricar, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WIEAND, Judge:

Michael David Gillespie was tried by a jury which found him guilty of voluntary manslaughter in a death growing out of a street altercation in Bellefonte, Centre County. On appeal, following denial of post trial motions, Gillespie argues that the evidence was insufficient to prove that the killing was not in self-defense, or at least that the verdict was contrary to the weight of evidence showing that the killing was in self-defense. He also contends that it was error for the trial court to refuse to sequester jurors and that a sentence of imprisonment for not less than five or more than ten years was manifestly excessive. We find no merit in appellant’s contentions; and, therefore, we affirm the judgment of sentence.

Following completion of a baseball game on the evening of June 19, 1980, appellant and two friends were driving around downtown Bellefonte where they became involved in a verbal argument with Donald Summers, who was seated on the steps of a building, shouting at those who passed in their automobiles. The vehicle was stopped, and appellant and his companions exited the vehicle and approached Summers. Although angry words were exchanged, the arrival of a police officer terminated the confrontation.

Appellant and his friends re-entered their vehicle and drove to the outskirts of Bellefonte, where they drank beer and talked to friends. When they subsequently returned to the downtown area, they stopped to speak with Fred Hock-enberry, who had been an observer of their earlier confrontation with Summers. Meanwhile, the driver of the vehicle, David Johnstonbaugh, got out of the vehicle and walked to the rear of the building which housed the Wooden Apple Bar. Upon his return, Johnstonbaugh encountered Summers, who lived in a neighboring building and who attempted to block Johnstonbaugh’s passage. A fight erupted in which fists were thrown by both men. Johnstonbaugh eluded Summers, however, and returned to the car where appellant was seated.

When appellant recognized Summers as the person involved in the earlier confrontation, he got out of the car and sat on the hood. As Summers approached, appellant came off the hood of the car, removed his belt and wrapped it around his hand. Summers, whose hands had been behind his back, now produced a paring knife. In the ensuing struggle, appellant was cut on the wrist and had his belt taken from him by Summers. A temporary lull occurred when appellant managed to push Summers away and make his way back to the car. When appellant reached the car door, however, he was told by onlookers that Summers was directly behind him. He picked up a baseball bat, which his companions had placed against the side of the car moments earlier, and told Summers to get back. Instead, Summers struck out with the knife, scratching appellant across the midsection. Appellant then swung the bat twice, in the same manner as a batter would swing at a thrown ball, hitting Summers both times on the head with heavy and severe blows. Summers was dazed by the first blow and fell unconscious to the sidewalk after the second. Appellant then kicked Summers in the head, shouting that Summers would never stab him again. Summers, although taken to a hospital, never regained consciousness. He died five days later.

In determining whether the evidence was sufficient to sustain a verdict of guilty of voluntary manslaughter, as opposed to a finding that the killing was in self-defense, we must view the evidence in the light most favorable to the Commonwealth, as verdict winner, and draw all reasonable inferences therefrom. Commonwealth v. Fisher, 491 Pa. 231, 420 A.2d 427 (1980); Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. McKee, 269 Pa.Super. 568, 410 A.2d 847 (1979). Where, as here, there was evidence of self-defense, the burden was on the Commonwealth to prove beyond a reasonable doubt that the killing was not committed in self-defense. Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506 (1980); Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979). That burden could be met by evidence showing that appellant was not free from fault in provoking or continuing the confrontation; or by showing that appellant did not reasonably believe it necessary to kill in order to protect himself against death or serious bodily injury; or by showing that appellant used greater force than reasonably appeared necessary to save himself; or by showing that appellant had a duty to retreat or avoid the danger presented by the deceased. Commonwealth v. Watson, 495 Pa. 467, 431 A.2d 949 (1981); Commonwealth v. Fisher, supra; Commonwealth v. Burns, supra.

In the instant case, the evidence was sufficient to permit a finding that appellant was not without fault in provoking his confrontation with the decedent. Indeed, the jury could have found that as between Summers and appellant, it was appellant who was the aggressor. Similarly, the evidence demonstrated opportunities in which appellant could have retreated safely. This was not a situation where events occurred within a home or an enclosed area. Cf. Commonwealth v. Helm, supra; Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977); Commonwealth v. Jackson, 467 Pa. 183, 355 A.2d 572 (1976). Rather, the fight occurred on a public sidewalk, with several avenues of retreat available. Cf. Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976); Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970); Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968). Finally, a jury could have found that appellant used more force than was reasonably necessary to protect himself from death or serious bodily injury. Witnesses testified that the decedent had been stunned by the first blow to his head, which shattered his glasses and buckled his knees. Nevertheless, appellant hit him again on the head with the baseball bat, and, after he had fallen, appellant kicked the prostrate Summers in the head. We conclude, therefore, that the evidence was sufficient to support the jury’s finding that appellant was guilty of voluntary manslaughter. See: Commonwealth v. Andrews, 466 Pa. 418, 353 A.2d 424 (1976).

If the evidence was sufficient to preclude an arrest of judgment, appellant argues, the verdict was nevertheless contrary to the weight of the evidence which showed a killing in self-defense. The grant or refusal of a new trial on the grounds that the verdict was or was not against the weight of the evidence is generally committed to the sound discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Larew, 289 Pa.Super. 34, 432 A.2d 1037 (1981); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978); Commonwealth v. James, 197 Pa.Super. 110, 177 A.2d 11 (1962). If the findings of the jury are supported on the record, the trial court’s denial of a motion for new trial will generally not be disturbed. Commonwealth v. Larew, supra; Commonwealth v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979); Commonwealth v. Hayes, 205 Pa.Super. 338, 209 A.2d 38 (1965). Our review of the record is persuasive that the trial court properly denied appellant’s motion for new trial based on the weight of the evidence.

A motion to sequester jurors during trial is governed by Pa.R.Crim.P. 1111(a), which states:

“The trial judge may, in his discretion, order sequestration of trial jurors in the interests of justice.”

See also: Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). As a general rule, the trial court which denies a request for sequestration will not be deemed to have abused its discretion where the case was not the subject of unusual or prejudicial publicity and the jurors were not shown to be subject to extraneous influences of pressures. Commonwealth v. Jackson, 481 Pa. 426, 392 A.2d 1366 (1978); Commonwealth v. Gooslin, 439 Pa. 170, 266 A.2d 655 (1970); Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979).

In the instant case, the media’s coverage of the killing, as well as the trial, was factual and non-hysterical; publicity did not exceed that which might normally be anticipated in a capital case. Commonwealth v. Jackson, supra. Cf. Commonwealth v. Reeves, 255 Pa.Super. 409, 387 A.2d 877 (1978). Moreover, the jurors were carefully admonished not to listen to or read media coverage of the trial and were warned not to discuss the case with persons outside the courtroom. See: Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979); Commonwealth v. Tolassi, 258 Pa.Super. 194, 392 A.2d 750 (1978). There was no abuse of discretion by the trial court and no prejudice to appellant by virtue of the court’s failure to sequester the members of the jury during trial.

Finally, appellant argues that a sentence of imprisonment for not less than five nor more than ten years was manifestly excessive for voluntary manslaughter in view of the peculiar circumstances of this case. It is well settled, however, that sentencing is vested in the sound discretion of the trial judge. The sentence imposed, of course, must be within the statutory limits, see 18 Pa.C.S. §§ 1101-1105, and should impose confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See 18 Pa.C.S. § 1321(b); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980). However, absent an abuse of discretion, a sentence will not be disturbed on appeal. Commonwealth v. O’Brien, 282 Pa.Super. 193, 422 A.2d 894 (1980); Commonwealth v. Lee, 278 Pa.Super. 609, 420 A.2d 708 (1980); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979).

In the instant case, the trial judge had the benefit of a thorough presentence report. The record reveals that he considered appellant’s character and the particular circumstances of the offense. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Andrews, supra. Moreover, his reasons for the sentence imposed were adequately stated on the record. See: Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Therefore, we are unable to conclude, as appellant would have us do, that the sentence, even though admittedly harsh, was manifestly excessive or that there was an abuse of the trial judge’s discretion.

The judgment of sentence is affirmed.


author: VAN der VOORT, Judge: HESTER, Judge,

text:
    434 A.2d 785
    COMMONWEALTH of Pennsylvania, v. David H. EVERETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed Sept. 4, 1981.
    Petition for Allowance of Appeal Denied Nov. 30, 1981.

      Alan Ellis, State College, for appellant.
    Michael Butera, Assistant District Attorney, Pittston, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant pleaded guilty to a three count information in which he was charged with possession of marijuana, possession with intent to deliver, and the manufacture of marijuana. All charges rose out of a raid of appellant’s apartment, conducted by the Pennsylvania State Police. The state police recovered 112 pounds of marijuana, $28,578, in U. S. currency, and paraphernalia related to the manufacture and distribution of marijuana. The Commonwealth in accordance with its agreement with appellant, recommended that if appellant was to be given jail time, he should serve it in the county jail and if eligible for and accepted by such program, be placed in a work-release program. The court accepted appellant’s plea and ordered a pre-sentence investigation.

On the charge of possession with intent to deliver, appellant was sentenced to a term of eighteen (18) to thirty-six (36) months incarceration in the county jail; work-release was recommended if appellant met the conditions of the program. On the count of manufacturing, the court imposed a two year period of probation, to run consecutively to the term of imprisonment and any period of parole resulting therefrom. The Internal Revenue Service had filed a lien for $27,261.50 against the $28,578 confiscated. The court ordered the remainder to be distributed to a number of charitable organizations.

Appellant filed a motion challenging the validity of his guilty plea. He filed a second motion to vacate the sentence as well as challenging the guilty plea. The court below denied both motions. Appellant then appealed to this Court. On this appeal, appellant attacks the validity of his guilty plea; the propriety of the sentence imposed and the confiscation and apparent forfeiture of the money.

During the guilty plea colloquy, the court initially informed appellant that he could be sentenced to a maximum term of five years and/or fined $15,000 on each of the two counts. A brief discussion occurred concerning an agreement between the appellant and the Commonwealth that the possession with intent to deliver would merge with the manufacturing count. Thereafter, the court revised its statement to indicate that the appellant would only be subjected to one term of five years and/or a fine. Appellant here claims that his plea was invalid because the court sentenced him on two counts, when it had previously indicated he could only be sentenced on the one count.

We agree that this inconsistency entitles 'appellant to some relief. A defendant must be informed of the maximum punishment he may face before the court can accept his guilty plea. Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978). Here, however, the problem lies not so much with the plea but with the sentencing. The lower court assumed during the colloquy that the charges would merge; the record is unclear as to whether this was an acceptance of the plea bargain or whether the court did believe the charges would merge. In the present circumstances we do not believe the merger doctrine is applicable.

“As previously indicated, all of the charges against appellant arose out of the same criminal transaction.. . . In determining whether the respective charges merge the test to be applied ‘is ... whether one crime necessarily involves another . . . . ’ Commonwealth v. McCusker, 363 Pa. 450, 457, 70 A.2d 273, 276 (1950), citing Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Hill, 237 Pa.Super. 543, 353 A.2d 870 (1976). Moreover, ‘. . . in order for one crime necessarily to involve another, the essential elements of one must also be essential elements of the other.’ Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207, 1211 (1977).” Commonwealth v. Belgrave, 258 Pa.Super. 40, 391 A.2d 662 (1978).

Appellant was charged with three counts; one under 35 P. S. 780-113(16), possession; and two under subsection(30), possession with intent to deliver and the manufacture of marijuana. As previously noted the two possession counts merged. However, the same does not hold true for the manufacturing charge. In Commonwealth v. Proietto, 241 Pa.Super. 385, 361 A.2d 712 (1976) this court affirmed a conviction for both delivery and possession finding that “[w]hen appellant gave [the undercover officer] the bundle of heroin he removed and kept four bags. Accordingly appellant’s conviction for possession can stand independently of his conviction for delivery.” 241 Pa.Super. at 390, 361 A.2d 712. In this case, an actual or attempted delivery could not be demonstrated, but could be inferred from the possession of a large amount of marijuana and so appellant was not charged with delivery. However, the charge of manufacturing was not dependent solely upon possession of a large quantity of marijuana; the state police also seized other paraphernalia associated with the manufacture of marijuana as well as a number of marijuana plants. The Controlled Substance, Drug, Device and Cosmetic Act states:

“Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, other drug or device or the packaging or repackaging of such substance or article, or the labeling or relabeling of the commercial container of such substance or article, but does not include the activities of a practitioner who, as an incident to his administration or dispensing such substance or article in the course of his professional practice, prepares, compounds, packages or labels such substance or article. The term ‘manufacturer’ means a person who manufactures a controlled substance, other drug or device.” 35 P. S. § 780-102.

Accordingly, the manufacturing count in these circumstances stands independently of the conviction for possession.

During the plea colloquy, the court advised appellant he could be sentenced only on one count, when actually he could have been sentenced on two counts. From our perspective, the error which appellant complains of lies not in the plea colloquy but in the sentencing. Accordingly, we must remand for resentencing.

Our discussion does not end here, for appellant alleges other errors which he claims demonstrate that his plea was not knowingly, intelligently and voluntarily entered.

Appellant in his second attack upon his guilty plea alleges that no factual basis existed for the charge of manufacture. See Commonwealth v. Nelson, 455 Pa. 461, 317 A.2d 228 (1974). The court, after conducting the colloquy, requested the Commonwealth to set forth the factual basis for the charges. In regards to the manufacture, a state police trooper simply stated that “other paraphernalia associated with the manufacture and distribution of marijuana was confiscated.” From this, the court may have satisfied itself that a basis did exist. This claim is more of an attack upon the sufficiency of the evidence. By pleading guilty, appellant has waived such issue. A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979); Commonwealth v. Arndt, 269 Pa.Super. 578, 410 A.2d 852 (1979).

Next appellant argues that his plea was invalid because several words or terms were not defined to him. Specifically, appellant claims the court should have defined: marijuana, manufacture, knowingly, intentionally and possession. In his motion challenging the validity of his plea, he mentioned only that the failure to define marijuana invalidated the plea. Appellant has therefore waived consideration of the definition of the other words. See Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978). Appellant claims the court should have informed him of the statutory definition found in the Controlled Substance, Drug, Device and Cosmetic Act, 35 P. S. § 780-102(b). He cites Commonwealth v. Ingram, 455 Pa. 198, at 203-204, 316 A.2d 77 (1974) which held that “for an examination to demonstrate a defendant’s understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms.” We, note that “marijuana” has a commonly accepted and easily understood meaning. The record of the guilty plea colloquy demonstrates that appellant understood the charges and the nature of those charges. (N.T. Guilty Plea, pp. 3—4) Accordingly, we find no merit to this claim of appellants.

Finally, appellant claims he was improperly convicted several times for a single act and therefore his plea is invalid. As previously discussed, at the time he entered his guilty plea the court indicated he was pleading guilty only to one count. Any error there benefited appellant.

Lastly, we must consider the court’s disposition of the confiscated money. Appellant was sentenced on June 7, 1979, at that time the court ordered the remainder of the money; i. e. the sum to which the Internal Revenue Service had not filed a lien, to be distributed among a number of charities. At that time appellant indicated he would file a petition under Rule 324, Pa.R.Crim.P. for the return of such amount. Appellant through his counsel filed such petition the same day. The court entered an order to show cause upon the Commonwealth, returnable June 13, 1979. The Commonwealth contends that a stipulation was agreed to on August 2, 1979, wherein the petition was withdrawn. However, such stipulation does not appear in the record. Accordingly, upon remand the lower court should also dispose of appellant’s petition.

Sentence is vacated. Case is remanded for resentencing in accordance with the Sentencing Code and Guide Lines and for disposition of appellant’s petition for return of property.

HESTER, J., files a concurring opinion.

HESTER, Judge,

concurring:

I concur with the majority. Appellant entered counseled pleas of guilty to the charges of possession of marijuana, possession of marijuana with intent to deliver and the manufacture of marijuana. The raid on his premises produced 112 pounds of marijuana, weighing scales, marijuana plants, a tray of marijuana drying in the oven, $28,578 in United States currency and other paraphernalia associated with the manufacture and distribution of marijuana. This was no minor undertaking. The facts indicate that appellant was a major marijuana distributor.

Appellant was a graduate of a vocational technical school; he attended a community college and he was an Honorably Discharged veteran of the Military where he attained the rank of Specialist Fourth Class. He was and continues to be represented by private counsel. His plea was obviously intelligently and voluntarily entered.

Appellant received a lenient sentence in view of the serious crimes involved in his pleas. I agree that we must remand for resentencing in accordance with the Sentencing Code and guidelines, in all other respects, the appeal is patently frivolous.

      . 35 P. S. § 780-113(16).

      . 35 P. S. § 780-113(30).

      . 35 P. S. § 780-113(30).

      . The lower court correctly found the charge of possession merged with the charge of possession with intent to deliver. See Commonwealth v. Williams, 219 Pa.Super. 304, 279 A.2d 303 (1971); cf. Commonwealth v. Proietto, 241 Pa.Super. 385, 361 A.2d 712 (1976).

      . (16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
      (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

      . The receipt/inventory filed in this case in conjunction with the execution of the search warrant indicates that weighing scales, a number of marijuana plants, and a tray of marijuana drying in an oven were seized.

      . Appellant raises other errors concerning the sentencing, due to our disposition here we need not discuss them.

      . “Marihuana” consists of all forms, species and/or varieties of the genus Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin; but shall not include tetrahydrocannabinols, the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, cake, or the sterilized seed of such plant which is incapable of germination.


author: PER CURIAM:

text:
    434 A.2d 790
    CARSON PIRIE SCOTT & COMPANY v. Peter A. PHILLIPS and Michael L. Culver, individually and now or formerly t/a Carpetmobile, a partnership, and Peter A. Phillips and Christine Phillips. Appeal of Peter A. PHILLIPS.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Sept. 4, 1981.

      M. Richard Mellon, Erie, for appellant.

      Donald L. Phillips, Pittsburgh, submitted a brief on behalf of appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

Presently before the court is the appeal by appellant Peter A. Phillips from the order of the lower court dated November 5, 1979 wherein the lower court refused appellant’s petition to open judgment.

We reverse and remand.

The facts may be briefly summarized as follows: On April 16, 1979, appellee, a commercial carpet distributor, brought an action sounding in trespass and assumpsit against divers entities including the appellant as an individual, for damages as a result of merchandise sold and delivered but not paid for. On April 30, 1979, counsel for the Phillips filed preliminary objection which were dismissed by order of the lower court dated June 1,1979. On June 5,1979, counsel for the Phillips filed a petition for reconsideration. On that same date, appellant caused interrogatories to be served upon the appellee. On June 29, 1979, the lower court dismissed appellant’s petition for reconsideration.

On August 13, 1979, appellee filed a praecipe for default judgment against Peter A. Phillips and Christine Phillips, his wife in the total amount of $6,477.28. On August 30, 1979, Peter A. Phillips and Christine Phillips filed a petition to open judgment. Appellee filed an answer thereto and on October 23, 1979, argument on said petition to open judgment was convened in the lower court.

On November 5,1979, the lower court granted the petition to open judgment in favor of Christine Phillips but refused the petition to open judgment as to appellant, Peter A. Phillips. Hence this appeal by appellant Peter A. Phillips only.

Our scope of review on appeal from either the opening or the refusal to open a judgment taken by default has been clearly defined over many years. To reiterate, our scope of review on appeal from the lower court’s grant or refusal to grant a petition to open a judgment taken by default is a narrow one. A Petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court’s discretion in either opening or refusing to open a judgment taken by default will not be disturbed on appeal unless the lower court has committed a clear abuse of discretion or an error of law. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Sprouse v. V. F. W. Post 7155, 237 Pa.Super. 419, 352 A.2d 134 (1975); Campbell v. Heilman Homes, Inc., 233 Pa.Super. 366, 335 A.2d 371 (1975).

In order to open a default judgment in an assumpsit action (here, assumpsit and trespass), three elements must coalesce: (1) the petition to open must be promptly filed; (2) the failure to answer must be reasonably explained; and (3) a meritorious defense must be shown. McCoy v. Public Acceptance Corp., supra, Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). As we stated in Kraynick, supra:

The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant. (At 443 Pa. Ill and 277 A.2d 147).

Until recently, the taking of a “snap” judgment has been most troublesome to the orderly administration of justice. In the instant case, the judgment was taken on August 13, 1979 notwithstanding the fact that appellee’s counsel had had numerous contacts with counsel for appellant Peter A. Phillips. Further, there can be no doubt that appellee was cognizant of the fact that appellant was represented by counsel. In fact, in June of 1979, appellant’s counsel served interrogatories on appellee’s counsel.

In an effort to ameliorate the inequities which oft times inured, the rules committee adopted Rule 237.1 Pa.Rules of Civil Procedure on December 14, 1979, effective February 1, 1980. Rule 237.1 provides in relevant part:

Rule 237.1 Notice of Praecipe for Entry of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

As found in the explanatory note accompanying Rule 237.1, we sharply disapprove the entry of “snap judgments” without notice.

As this court stated in Brooks v. Surman Dental Lab Inc., 262 Pa.Super. 369, 373-74, 396 A.2d 799, 802 (1979):

We note in closing that once again, appellees’ counsel failed to give any notice to appellants of an intent to enter a default judgment. Although the Rules of Civil Procedure do not contain a notice requirement, we have repeatedly chastized counsel for failing to accord that courtesy. In Silverman v. Polis, 230 Pa.Super. 366, 370-71, 326 A.2d 452, 454-55 (1974), Judge Cercone wrote for a majority of this court:
“One very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment. [Citations omitted.]
.... [Attempts to utilize every niggling procedural point for maximum advantage demean the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof, is properly made a significant factor in reaching a just decision. [Footnote omitted.]”

In the instant case, we conclude that all three of the criteria necessary to open a judgment taken by default have been satisfied; the petition was promptly filed, appellant’s failure to answer was reasonably explained or excused, and a meritorious defense was shown.

Notwithstanding the promulgation of Rule 237.1, we wholeheartedly reaffirm our statement found in Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331 (1976) that “there must be some point at which our courts must refuse to accept an attorney’s negligent representation of his client when it interferes with orderly administration of justice.”

However, we are of the opinion that in the instant case, that point had not yet been reached. We therefore conclude that the lower court abused its discretion when it refused appellant’s petition to open judgment.

The order of the lower court is reversed and the case remanded for further proceedings consistent with this opinion.


text:
    434 A.2d 792
    FOWLER & WILLIAMS, INC. v. INTERNATIONAL LITHOGRAPHING, v. SCRANTON LITHOGRAPHING COMPANY, INC. Appeal of INTERNATIONAL LITHOGRAPHING.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Sept. 4, 1981.
    David C. Harrison, Philadelphia, for appellant.
    Richard A. Gallagher, Philadelphia, for Fowler, appellee.
    David S. Foulke, Spring House, for Scranton, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   PER CURIAM:

This appeal must be quashed. The action was instituted by appellee as a holder in due course of a note made by appellant in favor of Scranton Lithographing, Inc., for appellant’s failure to honor its note when presented for payment. Appellant counterclaimed, alleging fraud, and joined Scranton Lithographing as an additional defendant. The case was tried before the lower court without a jury. The court found against appellant on all three claims. Appellant filed exceptions, which the lower court dismissed. Appellant has appealed from the order dismissing its exceptions. An order dismissing exceptions following a trial without a jury is like an order refusing a new trial. It is interlocutory and unappealable. Penstan Supply, Inc. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981).

Quashed.


text:
    434 A.2d 793
    COMMONWEALTH of Pennsylvania, v. Michael KALSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1981.
    Filed Sept. 4, 1981.

      Bruce S. Miller, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   PER CURIAM:

This is a direct appeal from a judgment of sentence imposed following the entry of a plea of guilty to receiving stolen property. Appellant raises in this Court for the first time: (1) the alleged invalidity of his guilty pleas, and (2) the propriety of a sentence of incarceration for which the trial judge failed to state his reasons on the record. This Court will hear only those claims which are first raised in the trial court. Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Brown, 288 Pa.Super. 171, 431 A.2d 343 (1981); Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980). See also Pa.R.Crim.P. 1405(c)(5). However, the trial court failed to advise appellant on the record that a challenge to the validity of his guilty plea and to the propriety of the sentence had to be raised in the first instance by post-sentencing motions. Therefore, we will remand in order to permit appellant to file nunc pro tunc a petition to withdraw his plea of guilty and/or to challenge the propriety of the sentence.

It is so ordered.

      . Pa.R.Crim.P. 1405(c)(2) requires that at the time of sentencing the judge shall “advise the defendant on the record ... of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the piea).” See also: Pa.R.Crim.P. Nos. 321 and 1410.


author: CAVANAUGH, Judge:

text:
    434 A.2d 794
    COMMONWEALTH of Pennsylvania, v. Robert E. TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 15, 1981.
    Filed Sept. 11, 1981.

      Barbara H. Schickling, Clearfield, for appellant.
    Thomas F. Morgan, District Attorney, Clearfield, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   CAVANAUGH, Judge:

On June 12, 1980, following a plea of guilty, the appellant was sentenced to a term of incarceration of not less than two years nor more than four years at the Western Diagnostic and Classification Center at Pittsburgh, Pennsylvania on a charge of riot.

On appeal the appellant argues that the Sentencing Court failed to indicate a reasoned basis for imposition of this sentence. Before addressing this question we initially note that the record does not include a sentencing colloquy of any kind nor does it include a presentence report and therefore our review is hampered. The only statement of reasons is the following sentence which appears on a sentencing form:

Said period of incarceration entered into [sic] view of the nature and seriousness of the present offense, his prior criminal history and his failure to adjust to probationary periods.

The decisions of our court and the Supreme Court insist that the trial judge explain in detail the reasons for the sentence imposed in light of the Sentencing Code. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Maxwell, 280 Pa.Super. 235, 421 A.2d 699 (1980); Commonwealth v. O'Brien, 282 Pa.Super. 193, 422 A.2d 894, 895 (1980); Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980).

We recognize that “no case has held that the Sentencing Code, 18 Pa.C.S.A. § 1301 et seq., states the exclusive and inflexible criteria in the sentencing process. Indeed, our cases hold that a statement of reasons should not be held insufficient when it is apparent that the court considered and applied the Code even though it made no explicit reference to those guidelines.” Commonwealth v. Zimmerman, 282 Pa.Super. 286, 299, 422 A.2d 1119, 1125 (1980). However, we do not believe that the judge’s brief statement in the instant case adequately complies with the mandates of Commonwealth v. Riggins, supra. We therefore remand for resentencing.

Judgment of sentence vacated and case is remanded for resentencing.

      . Appellant has also argued that his sentence was excessive because of the disparity in the sentence imposed upon his codefendant. Since we remand for resentencing we do not reach this issue.

      . The lower court opinion does refer to such a report but it is not included in the record. The opinion also refers to reports from the appellant’s grandparents but these too are not included in the record.

      . Although the judge further discussed these reasons in his opinion filed sometime after the sentence, we have held that the reasons for sentence must be given on the record at the time sentence is imposed. Commonwealth v. Cappiello, 11 Pa.Super. 476, 426 A.2d 146 (1981); Commonwealth v. Young, 272 Pa.Super. 82, 414 A.2d 679 (1979).


author: WICKERSHAM, Judge:

text:
    434 A.2d 796
    1000 GRANDVIEW ASSOCIATION, INC., a Non-Profit Corporation by its Board of Directors, Appellants, v. MT. WASHINGTON ASSOCIATES, a Joint Venture, Rub-A-Dub-Dub, Inc., a Pennsylvania Corporation, Stanley Perlman, Marilyn Perlman and Marc Scoratow, Individuals, and Friendship Federal Savings and Loan Association of Pittsburgh.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed Sept. 11, 1981.

      E. J. Strassburger, Pittsburgh, for appellants.
    John M. Feeney, Pittsburgh, for Mt. Washington, et al., appellees.
    C. John Tillman, Pittsburgh, for Friendship, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

This is an appeal by 1000 Grandview Association (hereinafter “the association”) from an order sustaining preliminary objections and dismissing its complaint.

The association is a non-profit corporation comprised of all unit owners of a residential condominium property known as 1000 Grandview Avenue in Pittsburgh, Pennsylvania. On November 20, 1978, it filed a complaint against the developers of the condominium, Mt. Washington Associates, Rub-A-Dub-Dub, Inc., Stanley Perlman, Marilyn Perlman, and Marc Scoratow (hereinafter “the developers”) and the construction lender, Friendship Federal Savings and Loan Association of Pittsburgh (hereinafter “the lender”). The complaint contained three counts. The first count is not involved in the instant appeal. The second count is in assump-sit for damages for alleged specific and implied breaches of warranty for defects and omissions in the construction of the condominium. The third count, an alternative count in trespass, states that if the lender is not liable as a joint venturer as alleged in the second count, then it is still liable for breach of warranty because it breached its duty of care in supervising the design and construction of the condominium complex.

The developers and the lender both demurred and filed preliminary objections to the complaint. The developers alleged that the association lacked standing to sue. The lender alleged that the association had failed to state a cause of action against it as the lender of the construction money and that the association lacked standing to sue. On July 11, 1979, the court below sustained the objections by holding that the association had no standing to sue and that the lender could not be held liable as a joint venturer. This timely appeal followed.

We shall first turn to the association’s contention that it has standing to sue as the representative of the individual condominium unit owners. The basic principles of standing were set forth by Mr. Justice Roberts of the Pennsylvania Supreme Court in Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). The “core concept” in standing questions is whether the person is adversely affected or “aggrieved” in any way by the matter which he seeks to challenge through the judicial process. “[I]t is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law.” Id., 464 Pa. at 192, 346 A.2d at 281. To have standing, the adversely affected party must allege an immediate, direct and substantial injury. See id.

In finding that the association lacked standing, the lower court relied heavily on the fact that a condominium council, the association herein, is created pursuant to the Unit Property Act, Act of July 3, 1963, P.L. 196, 68 P.S. § 700.101 et seq., and that the act does not expressly grant the council authority to maintain a lawsuit. The court reasoned that if the legislature intended the condominium council to have standing the statute would have expressly granted it. In conclusion, the lower court found that the “aggrieved” party with standing to sue would be individual condominium unit owners, not the association as their representative.

We do not agree that the association does not have standing to represent the individual condominium unit owners. While we agree with appellees that the association has not alleged injury to its status as the decision-making body representing the individual unit owners, it has alleged injury to its members’ pecuniary interests as unit owners. Ordinarily, one may not claim standing to vindicate the rights of a third party. See Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).

Even in the absence of injury to itself, [however], an association may have standing solely as the representative of its members. The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.

Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343, 362 (1975) (citations omitted). See also Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977); Tripps Park Civic Association v. Pennsylvania Public Utility Commission, 42 Pa.Cmwith. 317, 415 A.2d 967 (1980); Concerned Taxpayers v. Commonwealth of Pennsylvania, 33 Pa.Cmwlth. 518, 382 A.2d 490 (1978).

Thus, an association may have representational standing to assert the rights of its individual members, if it alleges an immediate, direct and substantial injury to any one of them. The allegations of the second count of the complaint, which are admitted for the purposes of the demurrer, Arel Realty Corporation v. Myers Bros. Parking Corp., 237 Pa.Super. 87, 346 A.2d 796 (1975), after remand, 258 Pa.Super. 548, 393 A.2d 669 (1978), state that the appellees failed to comply with their implied and express warranties for the common areas resulting in, inter alia, cracked masonry, water leakage, a defective sewage pump, etc. Surely these are allegations of a direct injury to the interests of the association’s members which permit the association to claim standing.

In holding that the association has standing to represent the individual condominium owners, we acknowledge the precedent of other jurisdictions holding otherwise. Friendly Village Condominium Association, Inc. v. Silva and Hill Construction Company, 31 Cal.App.3d 220, 107 Cal.Rptr. 123 (1973); Wittington Condominium Apartments, Inc. v. Braemer Corp., 313 So.2d 463 (Fla.App.1975); Deal v. 999 Lakeshore Association, 579 P.2d 775 (Nev.1978). See also, 69 A.L.R.3d 1148 (1976); 72 A.L.R.3d 314 (1976). The reasoning in these cases, however, predated or ignored the Warth holding that an association may have standing to represent its members; instead, they held that the condominium association lacked standing purely because it was not expressly granted by the particular state’s statute. Since we have looked beyond the Pennsylvania statute which created the condominium association, the Unit Property Act, supra, and have based our holding on the general principles of standing, we find the precedent to be unpersuasive.

In concluding the discussion on the standing issue, we note that since this appeal was taken, the Pennsylvania legislature has repealed the Unit Property Act and has adopted the Uniform Condominium Act, 68 Pa.C.S. § 3101 et seq. (Adopted on July 2, 1980, effective in 120 days). The new act specifically states that the condominium association, even if unincorporated, may “[institute, defend or intervene in litigation ....” 68 Pa.C.S. § 3302(a)(4). Moreover, even if the unit owners’ association was formed before the effective date of the act, the association would still have standing to sue under the new statute if the complained of injury occurred after the act’s effective date. 68 Pa.C.S. § 3102(a). Of course, the Uniform Condominium Act is not applicable to instant case.

The association’s second allegation is clearly without merit. Friendship Federal was a mere lender of construction money and, as such, cannot be held liable for the quality of construction. See Christiansen v. Philcent Corporation, 226 Pa.Super. 157, 313 A.2d 249 (1973). Therefore, we affirm the lower court’s order sustaining Friendly Federal’s preliminary objections.

Order of the lower court affirmed in part and reversed in part. This action is remanded to the lower court for proceedings consistent with this opinion.