text:
    453 A.2d 1001
    COMMONWEALTH of Pennsylvania v. Roy Robert ROACH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1981.
    Filed Dec. 10, 1982.

      Timothy W. Misner, Waynesboro, for appellant.
    John F. Nelson, Assistant District Attorney, Chambers-burg, for Commonwealth, appellee.
    Before CERCONE, P.J., and WIEAND and LIPEZ, JJ.
   CERCONE, President Judge:

This is an appeal from an order of the Court of Common Pleas of Franklin County denying appellant’s Post Conviction Hearing Act (hereinafter PCHA) petition.

On December 8,1978 appellant entered a plea of guilty to the felony charge of escape. On December 20, 1978 the court sentenced appellant to the payment of costs, a fine and imprisonment in a state correctional institution for one and a half to three and a half years. The court then suspended the sentence and placed appellant on “probation” for three and a half years. The terms of his probation included participation in an alcohol abuse program, the non-consumption of alcoholic beverages, and imprisonment in the Franklin County Prison for twenty-three months and twenty days. Following imposition of sentence appellant was advised that he had ten days within which to request a modification of sentence and thirty days within which to file a direct appeal. Neither a motion to modify sentence nor a direct appeal was ever filed. On May 4,1978 appellant filed a PCHA petition which was amended May 17, 1978. The petition, as amended, alleged the unlawful inducement of his December 8 guilty plea, the violation of double jeopardy principles by the sentence of probation, and the ineffectiveness of counsel for failure to file the required Pa.R.Crim.P. 1410 motion for modification of sentence and to take a direct appeal. On July 2, 1979 the court set August 20,1979 as the date for the hearing on this PCHA petition. Also on July 2, 1979 the court, after a full hearing on a petition to revoke probation, found that appellant had violated the conditions of his probation and entered the following order:

NOW, July 2, 1979, a hearing having been held this date and the Court being of the opinion that Robert Roy Roach violated the terms of his agreement for participation in the work/education program of the Franklin County Prison in that he (1) cashed his paycheck of May 18, 1979 and diverted $83.00 to Wendy Carnes (2) he had incurred indebtedness to Miss Carnes without the consent of the Work Release Director, (3) he received and possessed a quantity of vodka at his place of employment, and (4) he consumed a sufficient quantity of alcohol while on work release so that he tested .10 on the Sober Meter test administered at the Franklin County Prison at 5:24 P.M. on May 18, 1979; all of which led to his removal from the Work Release Program.
In addition the defendant violated condition No. 6 of his special probation by reason of his voluntary conduct leading to his failure to maintain employment and the special court imposed condition against the consumption of alcohol.
IT IS ORDERED THAT that suspended sentence imposed December 20, 1978 be vacated. The Defendant shall be given credit for all time served in the Franklin County Prison against the 1 year to SVz year sentence imposed December 20, 1978.
(Emphasis added.)

On August 6, 1979 an order was entered specifically giving appellant six months and sixteen days credit to be applied to the one and a half to three and a half year prison term the court imposed on December 20 and then immediately suspended. The PCHA petition hearing was held as scheduled. On October 25, 1979 the court entered findings of fact, and based thereupon, denied appellant the relief sought. This timely appeal followed.

Two issues are raised on appeal. First, he alleges that the sentence imposed against him following his plea of guilty to a felony charge of escape is illegal. Secondly, he contends that counsel was ineffective for failing to inform him of the illegality of the sentence, and in failing to petition for modification of sentence and take a direct appeal to this court.

We consider the ineffectiveness claim first. Following the PCHA hearing the court found as facts that: counsel informed appellant that, to his mind, the sentence imposed was of doubtful legality; that if appellant wanted him to counsel he would file a petition for modification and a direct appeal; and that appellant never requested counsel to pursue the case. We are, of course bound to accept a PCHA court's findings of fact where supported by the record. As the Supreme Court has stated:

The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. [Citations omitted.] Consequently, this court will not disturb its findings if they are supported in the PCHA record. [Citations omitted.] This is true even where the record could support a contrary holding. [Citations omitted.]

Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977). Counsel fully performed all that was required of him. He was under no obligation to file a Rule 1410 motion or a direct appeal where he was not asked to do so. No claim having been foregone, or duly neglected, it follows a fortiori that counsel was not ineffective. Cf. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

We next consider appellant’s contention that the sentence imposed on December 20,1978 violates the principle of double jeopardy. The Commonwealth argues to the contrary that the sentence is a permissible one, and in any event, that appellant has waived the issue by his failure to pursue it on direct appeal. Although we cannot agree with the Commonwealth that the question of the sentence’s legality has been waived, we are constrained to rule that this sentence was not illegal. This is so despite this Court’s ruling in Commonwealth v. Johnson, 269 Pa.Superior Ct. 122, 409 A.2d 94 (1979) holding that such a sentence does violate the constitutional protection against double jeopardy. (Opinion by Van der Voort, J.; with Watkins, J. joining and Lipez, J. concurring.) (Allocatur denied December 19,1979).

In the case of Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982) the Supreme Court considered this Court’s ruling in Johnson and rejected it. In an opinion by Justice Larsen the Supreme Court stated:

Appellant’s claim that his sentence is violative of the Fifth Amendment double jeopardy clause is based upon the Superior Court’s decision in Commonwealth v. Johnson, 269 Pa.Super. 122, 409 A.2d 94 (1979). We disagree and reject the Superior Court’s ruling in Commonwealth v. Johnson, supra.

Id. 497 Pa. at 441, 441 A.2d at 1220. Thus, we are forced to conclude that the sentence given appellant, which was structurally identical to the one imposed in Johnson, is not illegal, and further, that the court below did not err in denying appellant’s PCHA petition.

There is one final matter which we believe deserves comment. The court below had the benefit of our decision in Johnson at the time it was considering the instant PCHA petition. In fact, it is clear that the PCHA court had read and considered the Johnson case, which was directly on point with the sentence attacked here, but refused to follow its clear mandate. The pertinent portion of the PCHA court’s opinion reads:

This Court recognizes and readily acknowledges its responsibility and duty to accept and be bound by the precedential decisions of the appellate courts of the Commonwealth. This Court is well acquainted with and acknowledges its complete respect for the legal expertise and scholarship of Judges Van Der Voort, Watkins and Lipez. However, this Court is totally at loss as to the precedential weight to be given the Johnson panel decision, for only Judge Van Der Voort was an active member of the Superior Court of Pennsylvania on the date of presentation of briefs in the case. Judge Watkins was retired from the bench of the Superior Court and assigned as a senior judge by Order of the Supreme Court of Pennsylvania to the Superior Court. Judge Lipez was retired from the bench of the Court of Common Pleas of the 25th Judicial District (Clinton County), and assigned as a senior judge by Order of the Supreme Court of Pennsylvania to the Superior Court. Presumably Judge Watkins concurred without comment. Thus, it would appear that the decision of the Superior Court in Johnson was reached by three judges for an Appellate Court constitutionally mandated to consist of seven judges. (Art. V, Section 3 Constitution of Pennsylvania); and two of the panel were not active sitting judges of that Court.

We feel that we are obligated to comment on this questioning of the precedential value of our cases lest this type of error perpetuate itself throughout the Commonwealth. At the time the decision in Johnson was rendered Article V, Section 3 of the Pennsylvania Constitution provided that this Court consist of seven judges. Article V, Section 10 of the Constitution of this Commonwealth further provided that:

(a) The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace, including authority to temporarily assign judges and justices of the peace from one court or district to another as it deems appropriate.
(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose....

Pursuant to the authority granted in by Article V, Section 10, the Pennsylvania Supreme Court promulgated the Pennsylvania Rules of Appellate Procedure on November 5, 1975. Of course, among the rules thus promulgated was Rule 3102, which provides in pertinent part:

(a) Quorum. A majority of the Supreme Court and, except as otherwise prescribed ... a panel of three judges of any other appellate court shall be a quorum of the court.
(d) Action. Except as otherwise prescribed by general rules, ...:
(1) Any judicial matter heard or considered by a quorum of an appellate court may be determined by action of a majority of the judges who participated in the hearing or consideration of the matter.

Pa.R.A.P. 3102(a), (d)(1). Moreover, on May 9, 1978 Chief Justice Eagen entered the following order:

AND NOW, this 9th day of May, 1978, in view of the exceedingly heavy volume of appeals coming to the Superior Court, presently at the rate exceeding 3,000 per year, and the emergency created thereby, it is
ORDERED and DIRECTED that on or before September 1, 1978, and consistently with Rule 3102 of the Pennsylvania Rules of Appellate Procedure, all appeals in the Superior Court be heard by a three-judge panel, unless in a given case the Superior Court, by special order, directs otherwise; this order to remain in effect until further order of this Court.

Furthermore, Article V, Section 16(c) of the Constitution reads:

A former or retired justice or judge may, with his consent, be assigned by the Supreme Court on temporary judicial service as may be prescribed by rule of the Supreme Court.

Finally, both Judge Watkins and Judge Lipez had been assigned to sit as senior judges of this Court, by the Supreme Court, at the time the Johnson case was heard and decided.

Therefore, Johnson carried the full weight and the same authority as any opinion of this Court and it was error on the lower court’s part to conclude otherwise. Nevertheless, in light of the Supreme Court’s opinion in Commonwealth v. Pierce, supra, we may not now reverse the order of the PCHA court.

Finding no reversible error we are constrained to affirm.

Affirmed.

      . The judgment of sentence of December 20, 1978 reads:
      December 20, 1978, the Court sentences the defendant to pay the costs of prosecution, pay a fine of $750.00 and undergo imprisonment in a STATE CORRECTIONAL INSTITUTION for a period of not less than IV2 years nor more than 3V2 years to be computed from this date and stand committed to the appropriate STATE CORRECTIONAL DIAGNOSTIC AND CLASSIFICATION CENTER for compliance with the within sentence.
      December 20, 1978, the imposition of sentence of imprisonment is SUSPENDED and the defendant is placed on Probation for a period of 3V2 years, upon the conditions that the defendant shall pay the costs of prosecution, pay the sum of $750.00 to the use of Franklin County Law Library. As a condition of probation defendant shall serve 23 months 20 days in Franklin County Prison.

      (X) The defendant is placed under the supervision of State Board of Probation and Parold and subject to the Conditions Governing Special Probation established by the Board of Probation and Parole.
      (X) The Court recommends intense supervision.
      (X) The defendant shall participate in Alcohol Programs directed by the probation authority.
      (X) The defendant shall not consume alcoholic beverages.

      . Illegality of sentence is not waivable and may even be raised sua sponte by the reviewing court. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 459 n. 17, 442 A.2d 1133, 1142 n. 17 (1982); Commonwealth v. Schilling, 288 Pa.Superior Ct. 359, 431 A.2d 1088 (1981); Commonwealth v. Jellots, 262 Pa.Superior Ct. 17, 396 A.2d 461 (1978).

      . In Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982) the Pennsylvania Supreme Court considered and rejected this Court’s ruling in Commonwealth v. Johnson, 269 Pa.Superior Ct. 122, 409 A.2d 94 (1979).
      The defendant in Pierce pleaded guilty to a charge of robbery. After a pre-sentence report, the common pleas judge imposed a sentence of eleven and one-half to twenty three months imprisonment to be followed by eight years probation. The defendant was subsequently paroled, and completed the term of his parole without incident. However, during the subsequent probationary period the defendant was convicted of another crime, and his probation revoked, The probation revocation court imposed a sentence of four to eight years imprisonment. We affirmed the judgment of sentence at 273 Pa.Superior Ct. 626, 422 A.2d 1164 (1979). The Supreme Court likewise affirmed the judgment of sentence citing as authority the Pennsylvania Sentencing Code, 18 Pa.C.S. § 1321(a), and this Court’s decision in Commonwealth v. Nickens, 259 Pa.Superior Ct. 143, 393 A.2d 758 (1978) (Opinion by Van der Voort, J.) (Judgment of sentence of six months to twenty-three and one-half months imprisonment followed by three year term of probation affirmed.)
      The facts of the Johnson case are these. The defendant was found guilty in a non-jury trial of aggravated assault and sentenced to a term of imprisonment of two to four years. The imposition of this sentence was suspended and the defendant placed on “probation” which was to consist of a ten month term of incarceration in a county jail followed by probation of three years and two months. Following the defendant’s release from the county jail his probation was revoked and the suspended sentence reimposed. On appeal this Court vacated the sentence imposed at the probation revocation hearing as violative of the proscription against double jeopardy. See Commonwealth v. Johnson, supra.
      Despite the fact that the sentences imposed in Nickens and Pierce, on the one hand, and Johnson on the other are factually clearly distinguishable (the former two involve a prison term followed by probation while the latter one involves a prison term which is then suspended followed by “probation” consisting of yet another prison term followed by probation) and without so much as a word of explanation as to why Johnson was incorrect, or as to how it applied to the factually distinct Pierce case, the Supreme Court “rejected” the Johnson ruling. See Commonwealth v. Pierce, supra. We are constrained to follow.

      . Pa. Const, of 1874, art. V, § 3, as adopted April 23, 1968, P.L.App. 16, Prop. No. 7; amended November 6, 1979, J.R.l.

      . Pa. Const, of 1874, Art. v, § 10(a), (c), as adopted April 23, 1968, P.L.App. 16, Prop. No. 7.

      . Pa. Const, of 1874, Art. V, § 16(c), as adopted April 23, 1968, P.L.App. 16, Prop. No. 7. And see, Pa.R.J.A. 701.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    453 A.2d 1006
    Frank E. STULZ and Harriet C. Stulz, h/w v. Wallace E. BOSWELL, Herbert P. Levine, Stanton Greller and Cast Metal Manufacturing Company and Metal & Alloys, Corporation. Appeal of Wallace E. BOSWELL, Stanton Greller and Cast Metal Manufacturing Company.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Dec. 10, 1982.

      Donald P. Russo, Bethlehem, for appellants.
    John Field Oldt, Easton, for appellees.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

We here consider an appeal from a judgment in the amount of $7,011.95 entered in favor of the plaintiff-appellees. We affirm.

Appellees commenced this action by means of a complaint filed on December 28, 1978, in which they sought to recover accounts receivable which were assigned to them in connection with the sale in 1973 by the appellees to the appellants of the stock of Cast Metal Manufacturing Company (Cast Metal). On February 8,1979, appellants filed an answer and new matter in which they denied the claims pleaded in the complaint and on February 28, 1979, appellees filed a reply to new matter. A pre-trial conference was held on August 28, 1979, at which time appellants asserted a set-off of $4,400.00 against the claims of appellees. The appellants petitioned the court on September 10,1979, for permission to file an amended answer in order to specifically plead the set-off as new matter to which appellees filed an objection. The learned President Judge Alfred T. Williams, Jr., ruled as follows:

AND NOW, this 7th day of November 1979, after conference with counsel and consideration of the defendants’ petition to file an amended answer and counterclaim, the court will permit the original defendants to file an amended answer properly pleading the alleged set-offs to the various charges or accounts set forth in the complaint within 20 days from this date. The petition to file a counterclaim with respect to other matters or unrelated causes of action is denied.

Pursuant to this order, the appellants filed an amended answer and new matter on December 13,1979, in which they averred that appellees had breached warranties in the 1973 agreement of sale and in which they listed forty items as setoffs. The majority of items were related to credits for the return of defective products that were sold prior to the change of ownership, but the appellants also alleged set-offs for salesmens’ commissions earned prior to the sale of the corporation, costs related to a transmission repair to a company truck, credit card charges, taxes and the cost of Christmas gifts.

Appellees filed preliminary objections in the nature of a motion to strike on the ground that the majority of items set forth in the appellants’ amended pleading had no relation to the claims made by the appellees and that, therefore, the amended answer and new matter violated the November 7, 1979 order of the court. The appellees also alleged that the first thirty-five of the forty items listed by the appellants were barred by the statute of limitations since the events relating to these items took place on or before August 3, 1973, and the appellants did not request permission to file an amended answer and new matter until September 10, 1979. The court, after argument, entered the following order upon the motion to strike:

AND NOW, this 9th day of May, 1980, after thorough review of all the pleadings, all New Matter in Defendants’ Amended Answer which does not constitute a set-off to the various charges or accounts in the original complaint in accordance with the prior Order of Court of November 7,1979, is hereby stricken from said Amended Answer and New Matter. Since a full, final and complete factual adjudication of exactly what New Matter must be stricken as falling within the purview of this Order cannot be made at this time, the issue is expressly reserved for presentation in a Motion for Judgment or for the trier of fact at the time of trial.

The distinguished Judge Franklin S. Van Antwerpen conducted a non-jury trial and ruled that the appellants owed the appellees $5,768.49 subject to a recoupment by appellants in the amount of $1,041.28 to be deducted from the judgment for the appellees. Thus, a verdict in the amount of $4,727.21 plus interest to be computed thereon was rendered in favor of the appellees. The trial judge rejected the claims made by the appellants for affirmative relief since such relief was first sought in the amended answer and new matter filed after the six year statute of limitations had expired.

Appellees initially argue that the appeal should be quashed since the notice of appeal filed by the appellants erroneously stated that they were appealing from the June 18, 1981, order of the court en banc which denied and dismissed their exceptions to the verdict, rather than from the judgment in favor of the appellees which was entered on the docket on June 23, 1981. Appellees first brought this challenge to the jurisdiction of this court by means of a motion to quash and by order of December 11, 1981 this court denied the motion to quash, “without prejudice to appellants’ right to file an amended notice of appeal identifying the appealable order of 6/23/81.” Pursuant to this order the appellants filed an amended notice of appeal which properly listed the June 23 judgment as the appealable order. Thus, since the technical error has been corrected, there is no merit to the contention that this court lacks jurisdiction.

The primary focus of the argument of the appellants is concerned with the decision of the trial judge to reject the items alleged as set-offs by the appellants as a counterclaim. Appellants argue: (1) that the set-offs in their amended pleadings only amplified their original answer and new matter and that the trial judge erred when he decided that most of the items were barred by the statute of limitations; and (2) that the judge improperly limited the claims of appellants to those which could be classified as a recoupment. In order to address these contentions, we must examine the law of this Commonwealth with respect to: (1) the counterclaims of set-off and recoupment; and (2) the application of the statute of limitations to amended pleadings.

A counterclaim is defined as a “claim presented by a defendant in opposition to, or deduction from, the claim of the plaintiff”; a counterclaim encompasses both a set-off and a recoupment. 6 Standard Pennsylvania Practice 2d § 29:2. A recoupment differs, however, from a set-off. A recoupment concerns solely the claim asserted by the plaintiff and no affirmative relief may be obtained by the defendant, Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950), while a set-off will permit an affirmative judgment for defendant. 6 Standard Pennsylvania Practice 2d § 29:4. The doctrine of equitable recoupment does not permit inclusion of any set-off arising from a transaction unrelated to the suit, but rather provides for “a transaction which is made the subject of a suit by a plaintiff to be examined in all its aspects and [a] judgment to be rendered that does justice in view of the one transaction as a whole.” Provident National Bank v. United States, 507 F.Supp. 1197 (E.D.Pa.1981). Recoupment is a common law remedy designed to avoid the harsh results of the statute of limitations. Id. Thus, as in the instant case, a court will allow a defendant to reduce the award obtained by a plaintiff if the defendant has a counterclaim that relates to the particular transaction that is the subject of the litigation commenced by the plaintiff, notwithstanding the fact that the defendant failed to assert this counterclaim before the statute of limitations had run.

The appellants in the instant case argue that they are entitled to more than a recoupment, and assert that the set-offs alleged in their amended answer and new matter were not barred by the statute of limitations. It is understood that a challenge by a plaintiff to an amended answer, new matter or counterclaim is subject to the same rules which affect the right of a defendant to challenge an amended complaint filed by a plaintiff. Goodrich-Amram 2d § 1033:9. The law of this Commonwealth concerning amendments to pleadings was recently reiterated by this court in Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 187, 448 A.2d 588, 589 (1982):

The general rule is that an amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action, Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Junk v. East End Fire Dept., 262 Pa.Superior Ct. 473, 396 A.2d 1269 (1978), but if the amendment would only amplify or enlarge the existing cause of action, it will be permitted. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981).

In the instant case the amendment to the pleading is not merely an amplification of the original answer and new matter filed by the appellants. Rather, the amended pleading states a new cause of action for it is in this latter pleading that the appellants first assert their claim for a set-off. There is no mention in the original pleading that the defendants were asserting the affirmative defense of a set-off. Although amendments are to be liberally allowed, such liberality does not encompass the commencement of a new cause of action after the statute of limitations has run. Thus, we conclude that the trial judge did not commit an abuse of discretion when he limited the counterclaim asserted by the appellants to a recoupment in the amount of $1,041.28 which was based on credits given by appellants to customers whose accounts receivables were the subject of the claims made by appellees.

Appellants next argue that the findings of the trial judge are not supported by sufficient competent evidence. Our distinguished colleague, Judge Harry A. Montgomery, recently reiterated in Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982) our standard of review when a litigant' questions the propriety of the findings of the trial judge:

[W]e must be mindful that findings of the trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of the jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. The appellate court, in these circumstances, is limited to determinations of whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law. It is also clear that in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected. (Citations omitted).

Appellants specifically argue that the trial judge did not properly interpret the contract of sale and also incorrectly concluded that the appellants stipulated that they “owed” the appellees $5,768.49. Appellants assert that they did not stipulate that they “owed” this amount, but rather, stipulated only that they had “received” this amount in accounts receivable following the sale of the business.

It is true that the appellants did not stipulate that they unconditionally “owed” the appellees $5,768.49; but the parties did stipulate (1) that the appellants received $10,019.97 on the dates and for the reasons claimed by the appellees, and (2) that the appellees were entitled to a credit of $4,251.48 for accrued payroll for the week prior to closing; the net figure is, of course, $5,768.49. The only issue that remained for decision at trial concerned the set-offs which the appellants claimed were owed to them. Contrary to the assertions of appellant, there are no contractual provisions which would provide a defense to the claim of appellants for the accounts receivable.

It is clear, contrary to the assertion of appellants that the trial judge relied solely on the stipulation, that the decision of the court rested upon the following conclusions: (1) that the stipulation entered into by the parties revealed the sum of $5,768.49 was due appellees; (2) that the set-offs asserted by appellants were barred by the statute of limitations; and (3) that appellants were, under the doctrine of recoupment, entitled to a credit of $1,041.28. Our examination of the record as well as our study of the applicable law leads us to conclude that the determination of the court was proper and correct.

Appellants next contend that the court erred by permitting the admission into evidence of a letter dated February 22, 1972, from the former attorney for appellants to the former attorney for appellees. The appellants contended at trial that the letter was immaterial and irrelevant, but the trial court admitted the letter over these objections. Appellants now argue that the letter was inadmissible for the reason that it was hearsay and not the subject of any exception to the hearsay rule. Where a litigant objects to evidence on appeal on a different ground than that which was asserted at trial, we will not consider the new objection since it has not been properly preserved for appellate review. Estate of Cusat, 470 Pa. 418, 368 A.2d 698 (1977); Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).

The final grievances of appellants relate to the computation of interest on the judgment. There is no merit to any of these assertions.

Judgment affirmed.

      . There was no date ascribed to the additional five items in the amended pleading, but at trial Mr. Sedora, the office manager for Cast Metal and a witness for the appellants, testified as to these items. His testimony was that the claims on these items were made in the early months of 1973. Therefore, any set-offs on these items would also be barred by the statute of limitations.

      . The court found that seven of the forty items should be allowed as a recoupment.

      . 42 Pa.C.S.A. § 5527.


author: CIRILLO, Judge:

text:
    453 A.2d 1010
    COMMONWEALTH of Pennsylvania v. Jeffrey MADDOX, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1982.
    Filed Dec. 10, 1982.
    Petition for Allowance of Appeal Denied March 16, 1983.

      Andrew Achman, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant was arrested on February 5,1980 and arraigned on the charges of murder, two counts of burglary and one count of criminal conspiracy. On August 26, 1980, appellant’s motion to suppress his confession was denied after a hearing before the Honorable George H. Ross. A trial by jury commenced before Judge Ross in September 1980. On September 4,1980, the jury found appellant guilty of second degree murder, criminal conspiracy and two counts of burglary. On December 4, 1980, appellant was sentenced to a term of life imprisonment on the conviction of second degree murder and five (5) to ten (10) years on one burglary count to be served consecutively to the term of life imprisonment. Sentences on all other counts were suspended. This appeal followed.

On appeal, Mr. Maddox argues that the trial court erred: (1) when it denied his motion to suppress an unlawfully obtained statement made by him prior to arraignment; (2) because he was denied effective assistance of trial counsel, and (3) when it imposed an illegal sentence. We find no merit to appellant’s arguments and affirm the judgment of sentence.

On February 3,1980, at 11:10 p.m., Mary Buchewicz heard a hammering noise coming from the basement of the Strand Building, in Sharpsburg, Allegheny County, where her husband, Joseph Buchewicz, was custodian. While Mr. Buchewicz went to investigate the cause of the noises, Mrs. Buchewicz called the police. After completing the call, Mrs. Buchewicz started to follow her husband and upon reaching the stairwell, she heard her husband shout, “stay upstairs, two guys got me.” Mrs. Buchewicz returned to her apartment and called the police again.

Sharpsburg Police Officer Michael Rapiño was first to arrive at the Strand Building. When he reached the basement, he saw Mr. Buchewicz lying in the hallway unconscious with wounds in his chest. Officer Rapiño never saw anyone in the immediate area, and Mr. Buchewicz died without ever regaining consciousness. Upon subsequent investigation, it was discovered that two offices in the basement of the building, one belonging to Adams Enterprises, and the other to National Home Products, had been broken into.

At 11:59 a.m. on February 5, 1980, Detective John Markel went to the Main De-Lite Restaurant to question appellant about the death of Joseph Buchewicz. Appellant agreed to accompany the detective to the Sharpsburg Police Station for questioning. Upon arrival at the station, one of the officers read appellant his Miranda rights which he agreed to waive. Appellant began to make a detailed exculpatory statement, but because of excessive noise and commotion in the Sharpsburg Police Station, Detective Markel asked appellant to accompany him to the Allegheny County Homicide Division in the Jones Law Building. They arrived at County Homicide at 12:58 p.m. At the Jones Law Building, appellant was confronted with some inconsistencies in his statement, and he began to inculpate himself. Appellant confessed to his participation in the burglary but claimed it was his companion who stabbed the victim. Appellant agreed to sign a written statement and started the narrative at 2:03 p.m. It was completed at 4:20 p.m., and at 4:22 p.m., appellant was formally placed under arrest. At 5:02 p.m., appellant was arraigned at the Coroner’s Office on the charge of criminal homicide. The arraignment on the burglary and conspiracy charges took place at a squire’s office in Sharpsburg at 7:08 p.m.

Appellant’s first argument is that the trial court erred when it denied his motion to suppress the statement made at 2:03 p.m. He contends that the statement was improperly admitted into evidence in violation of the rule established in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).

In Davenport, the Supreme Court of this Commonwealth held that if the accused is not arraigned within six hours of his arrest, any statement obtained after arrest but prior to arraignment shall not be admissible at trial. Therefore, the crucial issue in the application of the rule must turn on the time when appellant was placed under arrest.

Appellant contends that he was arrested sometime between 11:59 a.m., and the departure from the Sharpsburg Police Station to downtown Pittsburgh, rather than at 4:22 p.m., when he was expressly told he was under arrest. If the time of arrest was before 1:08 p.m., the arraignment on the burglary charges would have occurred beyond the six hour limit of Davenport.

The lower court agreed that the arrest occurred prior to 4:22 p.m., but found that the arrest took place at the time appellant started to incriminate himself, at 2:03 p.m.

In Commonwealth v. Benson, 280 Pa.Super. 20, 27, 421 A.2d 383, 386, 387 (1980), our court outlined the test to determine when an arrest has occurred. We wrote:

The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974). The question is viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in terms of the subjective view of the police officer. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

The detective who interviewed the appellant had asked him at 11:50 if he would be willing to speak with him regarding the incident. At the suppression hearing, Detective Markel testified in part:

Q. From 11:59 when you first met Mr. Maddox until you arrived at the Jones Law Building, at anytime was Mr. Maddox under arrest?
A. He was not.
Q. Did you advise him of such?
A. Yes, I did.
Q. Did you advise him that he was free to leave at any time?
A. Yes, I advised him of that and his Constitutional rights.

Detective Markel explained that he thought the Sharps-burg Police Department was too noisy and he therefore asked appellant if he would go to the Pittsburgh building. Appellant agreed. The detective’s testimony clearly indicates that it was appellant’s voluntary decision to accompany the detective. There is no indication that appellant was given reason to believe that the circumstances had changed since 11:50 when he was told he was not under arrest. In fact, the detective testified that he told appellant that he wanted to change locations because the Pittsburgh office had a “better atmosphere.” In view of these circumstances, we cannot agree that appellant was placed under arrest before his arrival in Pittsburgh.

We agree with the lower court’s finding that Mr. Maddox was placed under arrest prior to 4:22. Surely, when he began to incriminate himself both he and the police knew that he was no longer free to leave. Even placing the time of arrest at 2:03, however, arraignment at 7:08 was timely. See, Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981), in which a person was taken to police headquarters voluntarily at 11 a.m., interrogated, given a polygraph test and arraigned at 5:55 p.m. Our Supreme Court found he was not arrested until he began to admit involvement in the crime.

Appellant next alleges that his trial counsel was ineffective in not calling certain character witnesses and in' not using expert witnesses to counter those called by the Commonwealth.

In assessing a claim that counsel has been ineffective, we are guided by the following principles:

[0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

The initial factor which must be considered in applying this reasonable basis standard is whether the claim which ... counsel is charged with not pursuing had some reasonable basis.

Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant contends that his attorney should have secured the presence of Anna Greisbaum, a woman with whom appellant had lived, and Alfred V. Milliman, an attorney who supervised a drug abuse program in which appellant had participated in 1973. As the trial court notes, “neither party had any knowledge of the crime, but they were merely former associates from Maryland.” We agree with the trial court that the only possible use of these witnesses would have been as a character witness. They were apparently asked to be available as such at the time of sentencing. Counsel testified at a post-conviction hearing that he did not call the witnesses because they had nothing relevant to offer. His decision clearly had a reasonable basis. See, Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

Appellant also argues that his trial counsel should have sought experts to counter the testimony as to blood samples that had been given by the Commonwealth’s experts.

In Commonwealth v. Rhodes, 272 Pa.Super. 546, 554, 555, 416 A.2d 1031, 1035 (1979), we explained:

The pertinent rule in this Commonwealth provides that trial counsel’s failure to present a possible witness is not per se ineffective assistance of counsel. Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977). The failure of defense counsel to call a possible witness is not to be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to that defense.

Appellant has not demonstrated in any way that calling an expert to testify as to blood samples would have helped his defense. His attorney testified at the post-conviction hearing that his past experience gave him reason to believe that the results of the tests performed by the crime lab were accurate. He did, however, cross-examine the witness.

Particularly, given the facts of this case, we cannot say that counsel’s decision resulted in ineffective assistance. Appellant was convicted of felony murder. His conviction did not require that he had actually stabbed the decedent— only that he was a participant in the underlying felony. See 18 Pa.C.S.A. § 2502, (Act of 1974, March 26, P.L. 213, No. 46 § 4, as amended). Mr. Maddox’s confession placed him at the scene as a participant in the burglary. Under these circumstances, we cannot find counsel to have been ineffective.

Appellant’s final argument is that his consecutive sentence of life imprisonment for murder of the second degree, and of from five (5) to ten (10) years for burglary should have merged because the underlying felony is an element of the charge of second degree murder. We agree with appellant that one of the burglaries is an element of the charge of second degree murder and merges with the greater offense for sentencing purposes. However, the lower court’s imposition of a consecutive sentence on the other burglary count which did not form the basis of the murder conviction was also proper.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This Constitutional guarantee is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (a) protection against a second prosecution for the same offense after an acquittal; (b) protection against a second prosecution for the same offense after conviction; and (c) protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). (emphasis added). Our concern in this case is with the third guarantee.

The case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), states the rule for determining whether two offenses are the “same” for Federal double jeopardy purposes:

Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Id. at 304, 52 S.Ct. at 182.

This test focuses upon the statutory elements of the two offenses, not upon the evidence introduced at trial to establish their commission. Iannelli v. United States, 420 U.S. 770, 785, fn. 17, 95 S.Ct. 1284, 1293-1294, fn. 17, 43 L.Ed.2d 616 (1975). Furthermore, our own State Supreme Court in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), applied the Blockburger “same offense” test when it held that under the 1939 Penal Code, the underlying felony of robbery was a constituent offense of felony murder. While the felony murder statute which governs the present case is a different one than applied in Tarver, we believe that a similar holding is called for here.

The present Pennsylvania felony murder statute, 18 Pa.C. S.A. § 2502, provides:

(b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(d) Definitions.—. . .:
“perpetration of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping, (emphasis added).

Act of December 6,1972, P.L. 1482, No. 334, § 1, as amended 1974, March 26, P.L. 213, No. 46, § 4, imd. effective; 1978, April 28, P.L. 84, No. 39, § 1; (18 Pa.C.S.A. § 2502).

Burglary is defined in 18 Pa.C.S.A. § 3502, as:

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

Act of December 6, 1972, P.L. 1482, No. 334, § 1; (18 Pa.C.S.A. § 3502).

In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court discussed a District of Columbia statute similar in effect to 18 Pa.C.S.A. § 2502. The statute proscribed the killing of another person in the course of committing certain felonies. Whalen had been convicted of rape and killing in the course of a rape. The court held that proof of rape was a necessary element of proof of felony murder, and that for sentencing purposes, the offenses merged.

Similarly, proof of felony murder in the instant case requires proof of the underlying offense of burglary.

A double jeopardy violation would have taken place if the trial court had failed to merge one of the burglaries into the second degree murder charge. However, in the case at bar, there were two burglary counts, one of which merged in the felony murder. Appellant received a separate sentence on the other burglary. This clearly was not a multiple punishment for the same offense but separate punishment for two distinct offenses and no double jeopardy violation was committed.

Appellant’s contention that both burglaries must merge into the murder conviction would be meritorious if it were found that the two burglaries initially merged with one another. This is clearly not the case.

The doctrine of merger applies when one crime “necessarily involves” another. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). It is well settled that for one crime to necessarily involve another the essential elements of one must be the essential elements of the other. Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981); Commonwealth v. Olsen, supra; Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748 (1976). That is, if no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes. Only one sentence may thereafter be imposed. See, Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979); Commonwealth v. Cox, 209 Pa.Super. 457, 228 A.2d 30 (1967).

Applying this standard, it is obvious that the two burglary offenses did not merge. In order to convict appellant of two burglaries it was necessary for the Commonwealth to prove that he entered two “separately secured or occupied portion[s]” of a building or occupied structure. In the instant case, the Commonwealth established that appellant had burglarized two separate offices of two businesses in the Strand Building.

We are aware that our position will undoubtedly require this court some time in the future to decide which of two unequal felonies should constitute the “underlying felony” of a felony murder when the trial court decides that it is impossible to determine during which felony the murder actually occurred. This question is not before the court at this time and should be left for future resolution. In this case, we have before us two felonies of the same degree and choosing one as the “underlying felony” and the other as a separate offense does not create a problem.

Judgment of sentence affirmed.

      . Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701.

      . We would suggest that the lesser of the felonies involved should merge with the murder conviction as the “underlying felony.” Compare, Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980), (court held that when crimes merge for sentencing purposes, the one for which defendant may be sentenced is the most serious crime).


text:
    453 A.2d 1016
    COMMONWEALTH of Pennsylvania v. Andrew R. KNEPP, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed Dec. 10, 1982.

      Steven V. Manbeck, Mifflintown, for appellant.
    Michael Johnston, District Attorney, Mifflintown, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant entered a guilty plea on January 21, 1981 to a violation of the Uniform Firearms Act and two (2) counts of Recklessly endangering another person. He was sentenced to pay costs of prosecution, make restitution, if any, and to not less than 1 year nor more than 2 years in prison. Post-sentence motions were denied. This is an appeal from the judgment of sentence.

On appeal, appellant challenges the legality and propriety of the sentence imposed, on the basis that the sentencing court improperly took into consideration that he had previously been in an Accelerated Rehabilitative Disposition (ARD) program, resulting from a charge which had also involved a firearm. In imposing sentence, the sentencing judge stated,

The rationale for the imposition of the sentence is that the defendant utilized a firearm in this criminal activity and previously had been involved in an ARD Program wherein firearms were involved. The offense is such that a less severe sentence would depreciate the seriousness of the offense.

This court has held that the trial judge has broad discretion in imposing sentence. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979); Commonwealth v. Riggins, 232 Pa.Super. 32, 332 A.2d 521 (1974); Commonwealth v. Johnson, 235 Pa.Super. 185, 340 A.2d 515 (1975). If the sentence imposed is within statutory limits, there is no abuse of discretion, unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Garrison, 292 Pa.Super. 326, 437 A.2d 407 (1981); Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973); Riggins, supra. Absent an abuse of discretion, a sentence imposed by the trial court will not be disturbed on appeal. Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). However, the sentence may be set aside even where it is within statutory guidelines, but the appropriate reasons for sentence do not appear on the record. Commonwealth v. Kostka, 276 Pa.Super. 494, 419 A.2d 566 (1980). If it appears that the trial court relied on an impermissible factor, the sentence will be rendered invalid. Commonwealth v. Cowan, 275 Pa.Super. 341, 418 A.2d 753 (1980); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Kostka, supra.

Before sentencing an individual to a term of more than one year in prison, a pre-sentence investigation and report should be made. 42 Pa.C.S.A. § 9731. The contents of this report are to include a history of delinquency or criminality, and any other matters that the person preparing the report deems relevant. 42 Pa.C.S.A. § 9732. The statute permits reference to be made to all arrests, whatever the disposition of the case. Shoemaker, supra; 42 Pa.C.S.A. § 9731 et seq. The information used by a judge, in imposing sentence, need not necessarily meet the standards of admissible evidence at trial. Johnson, supra; Shoemaker, supra. In imposing sentence, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Giffin, 279 Pa.Super. 264, 420 A.2d 1134 (1980); Commonwealth v. Goldbard, 276 Pa.Super. 193, 419 A.2d 161 (1980) . In addition, the sentencing judge must make a brief statement of his reasons for the sentence being imposed and the factors that he considered in reaching his determination. Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981) ; Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980); Campolei, supra.

In this case, the trial judge properly ordered a presentencing report. The contents of the report as prescribed by 42 Pa.C.S.A. § 9737 shall include, “... all criminal charges brought in any court against the defendant and report to the court on the disposition of such charges.” Consequently, a proper presentencing report would include participation in an ARD program and the subsequent disposition of the charges upon completion of that program. The problem in the matter before this court is that it is not clear how the successful completion of an ARD program should be catagorized in analysing the factors which may properly be considered by the sentencing judge in reaching a determination of sentence.

The rationale behind the concept of the ARD program is “to keep persons such as [a] high spirited college student out of the criminal justice system, [and] to rehabilitate those who are generally law abiding, and to protect them from lasting damage because of an isolated, relatively minor infraction of the law.” Commonwealth v. Briley, 278 Pa.Super. 363, 373, 420 A.2d 582, 588 (1980). Once an individual has been held for court he may be considered for ARD on his own motion, or upon request of his attorney or the attorney for the Commonwealth. Pa.R.Crim.P., Rule 175. When the individual is accepted into ARD, “the judge shall order that further proceedings on the charges shall be postponed during the term of the program.” Pa.R.Crim.P., Rule 181. When the program has been successfully completed, application may be made to the court for an order dismissing the charges. The conditions of the program are such as may be imposed for probation, after conviction of a crime, however, the period of the program may not exceed two years. Pa.R. Crim.P., Rule 182.

This court has held that admission into an ARD program does not constitute a “conviction” for purposes of impeachment of a witness at trial. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981). It necessarily follows that admission to an ARD program is not equivalent to a conviction under any circumstances since charges are deferred until completion of the program. In the event that the program is successfully completed and the charges are dismissed, no conviction ever results. However, this does not remove the original charges nor participation in the program from the record in the event of subsequent criminal activity.

Appellant asserts that the sentencing judge’s consideration of his prior involvement in an ARD program is comparable to an improper consideration of prior unadjudicated arrests. In support of this contention, he cites Commonwealth v. Shoemaker, supra. However, appellant’s reliance on this case is misplaced. In Shoemaker, this court held that a judge could consider prior unadjudicated arrests provided that they were not regarded as showing criminal conduct. The important factor is that the judge must not ignore the presumption of innocence nor regard the prior arrest record information as evidence of criminal conduct. It is clear, in the instant case, that the sentencing judge did not improperly consider the ARD information because he states in his opinion. “In our opinion a judge would be remiss to be blind to past activities involving abuse of a firearm, even though criminality did not ultimately attach.” (emphasis added) In addition, the sentence imposed is within sentencing guidelines and cannot be termed excessive or too severe. Therefore, we find that the sentencing judge did not ignore the presumption of innocence nor regard the ARD information as evidence of criminal conduct. It is also of note that the charges, both in the instant case and those brought against the defendant before, involve a crime of violence. The sentencing judge makes it very clear that that was his major consideration in the imposition of sentence. Accordingly, we find that the judge’s rationale was not improper nor did he abuse his discretion in imposing sentence.

Appellant also contends that the sentence is unlawful because the copy of the pre-sentence investigation report, reviewed by defense counsel, did not contain a reference to the ARD proceedings. In support of his contention, he cites Pennsylvania Rule of Criminal Procedure, Rule 1404(a)(2) which states,

(a) All psychiatric and pre-sentence reports shall be confidential records. They shall be available only to:
(2) ... counsel for the defendant . . .

There is no question that defense counsel has a right to examine the pre-sentence report before sentencing, Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973). This is for the purpose of permitting counsel to contest portions of the report or to disclose inaccuracies in it to the judge, Burton, supra; 42 Pa.C.S.A. § 9735. Refusal to allow defense counsel to inspect and comment on the pre-sentence report is error and will require remand for resentencing. Commonwealth v. Stanton, 239 Pa.Super. 47, 362 A.2d 355 (1975) (reversed on other grounds) 479 Pa. 521, 388 A.2d 1053 (1978).

Here, defense counsel was not denied access to the presentence report. Apparently his copy of the report did not include appellant’s criminal record due to an incorrect practice of the Juniata County Probation Department’s policy of not stating a defendant’s criminal record in writing. This policy is no longer in effect. However, appellant does not contend that the sentencing judge utilized incorrect information. In fact, appellant concedes that he did successfully complete an ARD program and, as a result, charges were dismissed. It is true that had the appellant’s criminal record been submitted to defense counsel, he would have had the opportunity to object to the inclusion of the ARD program for consideration. However, we find that since the judge did not utilize incorrect information, the harm to be prevented is not an issue.

Since we have determined that the sentencing judge’s use of information in the pre-sentencing report was not incorrect or prejudicial to the appellant, his final contention that the judge should have recused himself is moot.

Judgment of sentence affirmed.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334 § 1, 18 Pa.C.S.A. § 6106 et seq.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334 § 1, 18 Pa.C.S.A. § 2705.

      . Pa.R.Crim.P., Rule 175 et seq.

      . Appellant has not asserted that the sentence imposed exceeds statutory limits or constitutes too severe a punishment. Recklessly endangering another person is a misdemeanor of the second degree. 18 Pa.C.S.A. § 2705. In 18 Pa.C.S.A. § 106, the classes of offenses are given and appropriate sentences of imprisonment for each offense. 18 Pa.C.S.A. § 106(b)(7) states: “A crime is a misdemeanor of the second degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than two years.” Therefore, it is clear that the sentence imposed by the sentencing judge was well within statutory limits.

      . Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1.

      . Id

      . It should be noted that ARD is given most definite consideration under certain circumstances. See 75 Pa.C.S.A. § 1534. The Commonwealth Court has held that the election of a motorist of participation in ARD amounts to a conviction for purposes of classifying the motorist as an habitual offender. Commonwealth Department of Transportation, Bureau of Traffic Safety v. McDevitt, 57 Pa.Cmwlth, 589, 427 A.2d 280 (1981). See, also 75 Pa.C.S.A. § 1542(c) which states:
      Accelerative Rehabilitative Disposition as an offense.—Acceptance of Accelerative Rehabilitative Disposition for any offense enumerated in subsection (b) shall be considered an offense for the purposes of this section.

        See, also 75 Pa.C.S.A. § 1539(c).

      . In Shoemaker the judge improperly regarded these prior arrests as showing criminal conduct. However, while this court held that to be error, it did not reverse the sentence. In addition, this court held in Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975), that the sentencing judge could consider a murder charge so long as it clearly realized that the defendant had been acquitted.

      . Act of Dec. 30, 1974, P.L. 1052, No. 345 § 1.


author: BECK, Judge:

text:
    453 A.2d 1020
    William Joseph SMITH, Appellant v. Sherry Ann SMITH.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed Dec. 10, 1982.

      Philip Samuel Cosentino, Chambersburg, for appellant.
    John F. Nelson, III, Chambersburg, submitted a brief on behalf of appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   BECK, Judge:

Appellant-father, William Joseph Smith, and appelleemother, Sherry Ann Smith, were married on June 13, 1977 and their daughter, Jesse Michelle Smith, was born on March 9, 1979. This is an appeal from an October 14, 1981 order granting appellee primary custody of Jesse.

The procedural history leading up to that order was as follows. On August 21,1980, appellant filed a Petition to Confirm Custody to which appellee filed an Answer on September 5,1980. On September 18,1980, the parties met with Richard Mason, the Franklin County Child Mediation Officer, and on October 7,1980, Mason filed a report recommending the imposition of a shared custody arrangement. On October 10, 1980, in response to Judge John W. Keller’s request, Mason suggested a plan for implementation of a viable shared custody arrangement. On April 13,1981 there was a stipulation by the parties arranging for shared custody; that stipulation was reduced to a court order imposing shared custody which read as follows:

1. Respondent [appellee] shall have custody of Jesse Michelle Smith each Monday from 8:00 a.m. until Wednesday at 11:30 a.m.; each Wednesday from 7:30 p.m. until Thursday at 3:00 p.m.; each Friday from 8:00 a.m. until 3:00 p.m.
2. The Petitioner [appellant] shall have custody of Jesse Michelle Smith each Wednesday from 11:30 a.m. until 7:30 p.m.; each Thursday from 3:00 p.m. until Friday at 8:00 a.m.; and each Friday from 3:00 p.m. until Monday at 8:00 a.m.
3. Each party shall have uninterrupted custody during his/her vacation provided that he/she has given the other party at least two weeks advance notice as to the time of said vacation.
4. Each party shall be entitled to additional custody at such times as can be mutually agreed upon.

On July 2, 1981, appellant, seeking primary custody, filed a Petition to Modify the Custody Order, and on August 14, 1981, appellee filed her Answer. A September 11, 1981 hearing followed after which Judge George E. Hoffer entered an order granting appellee primary custody.

Our Court enunciated clearly in Robert H.H. v. May L.H., 293 Pa.Super. 431, 433-434, 439 A.2d 187, 188-189, as amended, (Feb. 26, 1982) (footnote omitted) our broad scope or review in child custody matters:

Our scope of review in custody disputes is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We will review the record very closely not with a mind toward usurping the fact-finding function of the trial court, but with a responsible eye searching to ferret out what is in the “best interest of the children.” In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). Accordingly, we are not bound by the deductions and inferences made by the judge who heard the dispute. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). Thus, we make an independent review of the evidence and render an independent judgment which will assure that the Commonwealth’s justifiable concern for the health and safety of its children is met. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977) .... We shall approach this review with an open mind and will not adhere to an abuse of discretion standard. Simply stated, our broad scope of review encompasses but is not limited to the narrow scope of review described by the term abuse of discretion. Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). To reason in any other manner contradicts the very essence of our standard of review in custody cases. In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, 286 Pa.Super. 171, 176, 428 A.2d 627, 629 (1981) (HOFFMAN, J., Concurring Opinion); Commonwealth ex rel. E.H.T. v. R.ET., 285 Pa.Super. 444, 458, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., Concurring Opinion).

The lower court judge modified the shared custody arrangement and ordered sole custody to appellee because he found a substantial change of circumstances warranting the modification:

The first question we must address is whether the circumstances have sufficiently altered to permit the prior decree to be modified. The prior decree granted joint custody[;| with possession of the child alternating nearly daily between the parties. The father established at the hearing that he has enrolled in Kutztown State College and shortly will be moving to the Allentown area, a distance of approximately 120 miles from Chambersburg. Clearly, in light of the parties’ work and school schedules and the distance between the parties’ homes, joint custody under the prior April 13, 1981, decree is not feasible.

Lower court opinion at 7-8.

We disagree with that finding and conclude that a shared custody arrangement is in Jesse’s best interests. While we do not dispute the need to change the shared custody order of April 13th to reflect the exigencies of the 120 mile distance between the current homes of appellant and appellee, we do not feel this should preclude a shared custody arrangement.

It is clear, as we noted in In re Wesley J.K., 299 Pa.Super. 504, 514, 445 A.2d 1243, 1248 (1982), that Pennsylvania courts possess authority to award shared custody, although there is no presumption favoring that award:

In deciding whether courts of this Commonwealth have authority to decree shared custody arrangements, attention to a recent legislative enactment is helpful:
The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child or children, to assure a reasonable and continuing contact of such child or children with both parents after a separation or dissolution of marriage, and the sharing of the rights and responsibilities of child rearing by both parents.
Section 2 of the Custody and Grandparents Visitation Act (“Act”), Act of November 5, 1981, Act 1981-115, 23 P.S. § 1002.[]
Section 3 of the Act, 23 P.S. § 1003, defines “legal custody,” “physical custody” and “shared custody” as follows:
“Legal custody.” The legal right to make major decisions affecting the best interests of a minor child, including but not limited to, medical, religious and educational decisions.
“Physical custody.” The actual physical possession and control of a child.
“Shared custody.” An order awarding shared legal custody or shared physical custody or both of a child in such a way as to assure the child or children of frequent and continuing contact, including physical access, to both parents.
In Section 5 of the Act, 23 P.S. § 1005, our courts are granted broad discretion in determining when to order “shared custody,” and it is clear that the courts may award such custody sua sponte as long as that award comports with “the best interests of the child.”

We arrive at the conclusion that shared custody is the best solution for Jesse because of the fulfillment of the four criteria enunciated by the New Jersey Supreme Court in Beck v. Beck, 86 N.J. 480, 432 A.2d 63 (1981) and adopted by our Court in Wesley J.K., 299 Pa.Super. at 516, 445 A.2d at 1249: “that 1) both parents are ‘fit,’ 2) both desire continuing involvement with their child, 3) both parents are seen by the child as sources of security and love, and 4) both parents are able to communicate and cooperate in promoting the child’s best interests.... ”

We proceed to review the record to underscore the fulfillment in this custody determination of all four factors. That both parents are “fit” and that they provide love for their child were at no point controverted in the record. In fact, the lower court found that “[n]o doubt exists that both parties are fit and proper parents.” Lower court opinion at 9. Stephen B. Coslett, a clinical psychologist, found that appellant is “an exceptional parent.” Notes of Testimony (“N.t.”) at 31. He, in fact, portrayed both parties as very competent parents. Id. at 31, 47. While Coslett stated a marginal preference for appellant-father, he concluded that they are both fit parents:

Jesse loves both these people. They are both important to her. I think it’s real important that she doesn’t think they are divorcing her. Your Honor, I find this a very difficult case, because these parents are both so competent. They are both really neat good parents. I want you to understand that I am not voting against mother. I am simply giving dad another check concerning if it goes to primary custody. I would give the nod to dad. There is a lot of thought and consideration because it’s not easy.

Id. at 47-48. Coslett also stated that whether or not shared custody was imposed, Jesse should alternate between her parents’ two homes for periods of four or six weeks at a time. Id. at 51.

Similarly, Richard B. Mason, M.S.W., concluded in his September 23, 1980 report to Judge John W. Keller that “Mr. and Mrs. Smith are both caring and loving parents.” In recommending shared custody he stated:

I cannot help but feel that it would be grossly unfair for Jesse to remove her from her father’s care, yet at the same time, I feel that there is no strong reason to deny Mrs. Smith [an] equal amount of involvement in her daughter’s life.

In his October 10, 1980 report to Judge Keller suggesting a plan for implementing a shared custody arrangement, Mr. Mason underscored his prior finding that both parties are very competent parents:

It would appear that both Mr. and Mrs. Smith have a great deal to offer their daughter and it would be a shame for her to be deprived of their influence if it was possible to avoid that. If either of the parents see Jesse only on a visitation basis they will only be able to relate to her as a temporary guest in that home. I often hear visiting parents complain of feeling much like an “entertainer” as opposed to a parent, because of their brief contact with their child and their desire to have everything go smoothly during their contact. In most instances this cannot be avoided, yet when it appears that a couple is significantly mature and have interest for their children that goes beyond their own personal feelings about the other, joint custody may become a feasible option. Because of the Smiths’ daughter’s age, (18 months) she will not be ready for kindergarten for another 3 years. During this period of time I feel it would be beneficial for her to spend an equal amount of her life in both the care of her mother and in the care of her father. Because this is a rather new procedure, it is difficult to know just how much time she should spend with each parent and because there is a distance of a few hundred miles[] involved, this complicates the situation to some extent. Certainly moving Jesse back and forth between her mother and father on a weekly basis would be far too complicated and would not really allow Jesse to become established in either household for any length of time. On the other hand, if one parent had Jesse for 6 months and the other for the next 6 months, I feel that this would probably be too long a period of time and at Jesse’s age she would probably quickly forget about or dismiss the absent parent. I do feel that a period of one month to six weeks with each parent might be appropriate. It would be expected that should there be any special events involving extended family members that each parent would have the right and privilege to make minor alterations in scheduling. Joint custody affords a certain amount of flexibility and while it demands a great deal of cooperation on the part of Jesse’s parents, it also gives Jesse the opportunity for a living experience with both mother and father, and not only a “visit”.

As noted above, the couple subsequently entered into a shared custody agreement; however, when it became clear that appellant’s move to the Allentown area was imminent, he petitioned the court for sole custody. The parties met again with Mr. Mason who concluded that primary custody should be awarded to appellant. While noting that “it is very difficult to make a recommendation when you feel that both parents have the strength and maturity to care reasonably well for their children”, Mr. Mason concluded that he was faced with the choice of one or the other. The lower court in its opinion echoed that sentiment: “It is unfortunate in a case where both parents are excellent that one parent must ‘lose.’ ” Lower court opinion at 17. We disagree with the preceding conclusion that one parent must “win” and the other must “lose,” and we suggest that Mr. Mason’s findings as outlined in the three reports to Judge Keller lead inexorably to the conclusions that both parents are fit and that shared custody is in Jesse’s best interests. There was no need for that most difficult of choices.

The second requirement as enunciated in Beck and Wesley J.K., that both parents desire continuing involvement with the child, is also fulfilled in the instant case. Each parent sought continued contact with Jesse, and each initially agreed that it was in the child’s best interest to spend extended periods with the other. Thus, they initially agreed upon a shared custody arrangement. Neither withdrew in his or her efforts to spend a good deal of time with Jesse. Although father filed on July 2, 1981 a Petition to Modify the Custody Order seeking primary custody and mother also sought primary custody in her Answer, neither balked in expressing profound interest in continuing contact with Jesse.

While the child was only two and one-half years old at the time of the hearing and therefore was not consulted as to feelings about the two parents, it is apparent that she sees them both as sources of love and so the lower court found that “[t]he parties both love the child and the child loves them.” Lower court opinion at 10. Thus, the third factor as enunciated in Beck and Wesley J.K. is fulfilled.

The fourth factor to be considered is whether the parties are capable of communicating in promoting Jesse’s best interests. This clearly does not mean that the parents must be at all times agreeable:

This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.

Wesley J.K., 299 Pa.Super. at 516, 445 A.2d at 1249 (quoting Beck, 86 N.J. at 498, 432 A.2d at 71-72).

That these parents stipulated to a shared custody agreement which was reduced to a court order shows significant ability to cooperate on matters of importance to Jesse. We note also that they subsequently agreed to a modification of that agreement which reflected changes in the mother’s work schedule.

We do acknowledge the presence of some animosity on the part of the father toward the mother. Specifically, he claimed that Sherry drank and smoked in front of Jesse. N.T. at 85. In addition, as the lower court noted, “[t]he father denied her weekend visitation solely because her mother’s boyfriend, whom she intends to marry (N.T. 180), would be with the child and the mother for parts of the weekend. (N.T. 66, 170, 191).” Lower court opinion at 11 (footnote omitted). The father also accused the mother of permitting her boyfriend to spend the night with her on two occasions while Jesse was in her home. The mother testified that she does not drink in front of Jesse. She stated that she does smoke, but she does not permit Jesse to do so (a rather unlikely activity for a toddler). N.T. at 170. She also admitted that her boyfriend had spent the night on those occasions, but stated unequivocally that Jesse was not aware of his presence. Id. at 172. She also stated that her husband told her that because she was involved with this boyfriend, she did not need Jesse. Id.

We are not persuaded, as was the lower court, that appellant’s complaints about appellee reflect adversely upon his ability to cooperate in promoting Jesse’s best interests. Appellant’s complaints reflect a fear that he would lose any meaningful opportunity to be with his daughter. This was borne out by the September 23, 1980 report of Richard Mason: “Mr. Smith stated that he felt that unless a strong report was provided by me in his favor he would not have a chance of winning custody of Jesse. He indicated that he felt that because mothers traditionally were given custody of their children, particularly daughters, he would not stand a chance in court unless I stated categorically that he was the one to have primary care for Jesse.” We prefer to place emphasis on the cooperation that was apparent before and after their separation. We consider the aforementioned relatively mild attacks upon appellee’s character to be aberrations in appellant’s behavior and we will not sustain an award of custody to appellee upon those criticisms.

We believe that shared custody is the appropriate disposition in this case and that such a disposition will avert the sense of loss involved in the sole custody arrangement. That sense of loss has been well documented:

One well-known study of 60 families and 131 minor children aged two through eighteen found that preschoolers feared being abandoned after their parents’ divorce, and that children of all ages expressed verbally and behaviorally a great sense of loss if one parent was absent. The same study observed that the effects of being left almost exclusively in the care of only one parent were negative. Another study found that limited visitation by the noncustodial parent severely restricts the opportunity to provide the daily nurturing and comfort needed to strengthen the relationship. Some noncustodial parents, reacting to the pain of being forced to see their children only intermittently, cope by seeing them infrequently.

Trombetta, Joint Custody: Recent Research and Overloaded Courtrooms Inspire New Solutions to Custody Disputes, 19 Fam.L.Q. 213, 217 (1981) (footnotes omitted). In addition, sole custody arrangements are likely to increase conflict between the parties:

[S]ole custody exacerbates conflict and the children are often used by the mother as a club. The studies we’ve cited heretofore all deplored the disastrous consequences of parental conflict in the sole-custody household while recognizing the virtues of low conflict and the importance of the father’s continued and solid involvement with his children. In other words, sole custody seems to work best when it is pretty much akin to joint custody.

M. Roman & W. Haddad, The Disposable Parent 117 (1978) (emphasis in original). Roman and Haddad underscored the need for continued contact with both parents after a divorce:

The participants at a recent National Institute of Mental Health Conference agreed that continuous, meaningful contact with the non-custodial parent was a critical factor in the child’s post-divorce adjustment. Further, all agreed that joint custody was an important and desirable alternative for divorced parents.
For the child, an awareness of his parents’ joint involvement is crucial. There is not only the most solid evidence of being loved by both parents, but the chance to express, rather than bury, whatever angers and conflicts the divorce engenders.

Id. at 119 (footnote omitted).

The notion of shared custody has been widely misunderstood to require equal time split between the homes of both parents. That misunderstanding stems from an inability to separate two distinct concepts: shared “legal” and shared “physical” custody. We outlined that distinction in Wesley J.K., 299 Pa.Super. 504, 512 n. 8, 445 A.2d 1243, 1247 n. 8 (1982):

Shared custody need not encompass shared “physical” custody: it may constitute merely shared “legal” custody. Shared “legal” custody entails joint input in all major decisions affecting the child, i.e., educational, medical, and religious matters. Shared “physical” custody entails the child splitting his or her time between the two homes. See Miller, Joint Custody, 13 Fam.L.Q. 343, 360 (1979):
There are two basic versions of joint custody: joint “legal” custody and joint “physical” custody. The former consists exclusively of the shared decision making function. The latter has the additional component of shared residence. That is, under joint physical custody the children live with each parent on an equal or split-time basis. Thus, in a sense, minor as well as major decisions are made by both parents where there is joint physical custody. Examples of these minor matters are what and when to eat, when to do chores, and when to go to bed. In joint legal custody, only one parent has physical custody, and that parent makes these day-to-day decisions.

Thus, the arrangements as to residence may take a variety of shapes; a 50-50 split is certainly not required:

The possible residential arrangements under joint custody are infinite. The time spent with each parent can range from 50-50 (absolute joint physical custody) to 100-0 (absolute joint legal custody). Often a family will experiment with various living arrangements until they find one suitable to their needs, desires, and resources. The frequency of switches also varies substantially. If the parents live far apart, the child may switch homes every six months or even every year. Probably the most common arrangement is based on units of one week; the child spends about four days with one parent and three with the other, switching in the middle of the week and the middle of the weekend. Also common are cycles based on intervals of two weeks, three and one-half days, and four weeks. In a few cases the child changes houses on a daily basis. Some parents speak on the telephone the night prior to each switch; they discuss the child’s activities since the previous exchange and perhaps share aneedotes that only parents can appreciate. Regardless of what schedule is chosen there is general acknowledgement that some schedule should be adopted, since this mitigates forces causing anxiety and uncertainty for the child.

Miller, Joint Custody, 13 Fam.L.Q. at 388 (footnotes omitted).

It becomes apparent then that Judge Hoffer’s emphasis on the 120 mile distance between the parents’ homes was misplaced. While this will make the frequent transfer of custody highly impractical, it certainly does not preclude the awarding of shared custody.

We therefore reverse the order of the lower court and remand with instructions to reinstate shared “legal” and “physical” custody and consider a plan which will reflect the distance between the parents’ homes. When Jesse reaches school age, the shared “physical” custody element of the shared custody order will need to be modified to reflect that changed circumstance, but we are confident that the shared “legal” custody arrangement will remain in Jesse’s best interests.

Jurisdiction is relinquished.

CAVANAUGH and MONTEMURO, JJ., concur in the result.

      . As we noted in Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 39 n. 1, 446 A.2d 1323, 1324 n. 1 (1982), the stipulation which was reduced to a court order binds the parties just as any other custody order:
      Although an agreement between parties as to custody is not binding upon the court, Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super.Ct. 447, 344 A.2d 613 (1975), where the parties’ agreement is incorporated into a court order, the order binds the parties and governs further court action in the same manner as any other custody order issued by a court. Commonwealth ex rel. Ackerman v. Ackerman, 34 D. & C.2d 111 (1964), aff’d, 204 Pa.Super.Ct. 403, 205 A.2d 49 (1964), allocatur refused, Feb. 15, 1965 (involved unilaterally requested modification of the parties’ prior stipulation which had been approved by the court); Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super.Ct. 332, 264 A.2d 420 (1970), allocatur refused, May 25, 1970; Pa.R.C.P. 1915.7 and Pa.R.C.P. 1915.9 and the attendant explanatory comments of the Civil Procedural Rules Committee [.]

      . We find the lower court was correct in finding that there had been a substantial change in circumstances that would justify the modification of the prior order. See Daniel K.D. As this Court noted in In re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978), relocation of one of the parents may constitute the predicate for a court ordered modification. In the instant case, “possession of the child altemat[ed] nearly daily between the parties.” Lower court opinion at 7. It is quite clear that the move would make compliance with the prior order virtually impossible.

      . Shared custody is referred to as joint custody by some of the authorities quoted herein. The two terms are synonymous and interchangeable.

      . As we noted in In re Wesley, J.K., 299 Pa.Super. 504, 508 n. 3, 445 A.2d 1243, 1245 n. 3 (1982) (quoting In re Arnold, 286 Pa.Super. 171, 174, 428 A.2d 627, 628 (1981):

        It is axiomatic that the polestar of any custody proceeding is the best interests of the child, a term which encompasses her spiritual, physical, emotional and intellectual well being. In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Shoup v. Shoup, 257 Pa.Super. 263, 390 A.2d 814 (1978); Commonwealth ex rel. Scott v. Martin, 252 Pa.Super. 178, 381 A.2d 173 (1977); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).

      . While the order from which this appeal was taken was entered prior to the effective date of the foregoing Act, section 11 of that Act allows us to modify that order:
      Any order for the custody of the child or children of a marriage entered by a court in this Commonwealth or any state may, subject to the jurisdictional requirements set forth in 42 Pa.C.S. §§ 5342 (relating to purposes and construction of subchapter) and 5344 (relating to jurisdiction) be modified at any time to an order of shared custody in accordance with the provisions of this section.

      . At the time of this report recommending shared custody, appelleemother had moved in with her parents in Danville. She lived with them for six months during which time Jesse remained in Chambers-burg with appellant-father. Upon the mother’s return to Chambers-burg, the parties stipulated to the aforementioned shared custody arrangement.

      . Of course, evidence of this non-marital relationship is not sufficient to deny appellee custody of her daughter. No negative effect of that relationship upon Jesse was established at the hearing. See Wesley J.K., 299 Pa.Super. at 509 n. 4, 445 A.2d at 1245 n. 4 and cases cited therein.


author: SPAETH, Judge:

text:
    453 A.2d 1028
    COMMONWEALTH of Pennsylvania v. Gregory JONES, a/k/a Frank Dobson, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1982.
    Filed Dec. 17, 1982.

      Norris E. Gelman, Philadelphia, for appellant.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for burglary and theft. We quash the appeal as filed too late.

Whether an appeal has been filed in time is a jurisdictional question that may be raised by this court sua sponte. Commonwealth v. Gottshalk, 276 Pa.Super. 102, 105, 419 A.2d 115, 116 (1980). The notice of an appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). “When the order appealed from is a judgment of sentence, the date of the entry of the order is the day the court imposes sentence on the defendant, informs Trim of his right to appeal within 30 days, and enters judgment on the docket.” Commonwealth v. Gottshalk, supra, 276 Pa.Super. at 105, 419 A.2d at 116 (citing Commonwealth v. Dorman, 272 Pa.Super. 149, 155, 414 A.2d 713, 717 (1979)) (footnote omitted).

The lower court’s certified docket entries show that appellant was sentenced on June 9, 1980. The transcript of the sentencing proceeding shows that when he was sentenced, appellant was advised of his right to appeal “within 30 days of today’s date.” (N.T. 6/9/80 at 21). The notice of appeal to this court was filed on August 20, 1980.

The appeal is quashed.

      . A petition for reconsideration of sentence was filed on June 24, 1980. This was beyond the ten day limit prescribed by Pa.R.Crim.P. 1410, but in any event, a petition for reconsideration does not extend the time for taking an appeal. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 78, 393 A.2d 1020, 1021 (1978).


text:
    453 A.2d 1029
    COMMONWEALTH of Pennsylvania v. Walter MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1982.
    Filed Dec. 17, 1982.

      Steven Berk, Philadelphia, for appellant.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence imposed after appellant entered a plea of guilty to a charge of robbery in the third degree. 18 Pa.C.S.A. § 3701(b) (1973). The sentence imposed was not less than one year nor more than seven years in prison. Appellant argues that this sentence was excessive. Since the record does not include a transcript of the sentencing proceedings, we remand.

-1-

The Commonwealth argues that appellant has waived his right to challenge his sentence because he did not file a motion to modify the sentence, as prescribed by Pa.R.Crim.P. 1410. However, appellant did not waive his right to challenge his sentence unless he knew that he had such a right, and he will not be deemed to have known that he had such a right unless the lower court told him that he did and also, told him how he could exercise his right. See Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981); Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981).

As transmitted to us, the record does not include a transcript of the sentencing proceeding. Accordingly, we do not know whether the lower court told appellant of his right to file a motion challenging the propriety of his sentence. Pa.R.Crim.P. 1405(c)(2). It is the Commonwealth’s burden to prove that appellant has waived his right to challenge his sentence. Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376 (1978). Given the absence of a transcript of the sentencing proceeding, the Commonwealth has not met its burden.

-2-

In imposing sentence, the sentencing court must, of course, impose a sentence that falls within the statutory sentencing range prescribed for the particular offense. Appellant does not argue, nor could he, that the lower court exceeded the statutorily authorized maximum sentence for robbery in the third degree, which is seven years. 18 Pa.C.S.A. § 1103(3) (1973).

The sentencing court has additional responsibilities: the court must have before it information relating to the sentencing guidelines set forth in 42 Pa.C.S.A. § 9701-81 (1982); the court must apply those guidelines, Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); see also 42 Pa.C.S.A. §§ 9721, 9725 (1982); and the court must state on the record the reasons for its sentence, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Pa.R.Crim.P. 1405(b).

Appellant does not argue that the lower court did not state its reasons for the sentence; he only argues that the sentence was excessive, which is to say, that it did not conform to the sentencing guidelines. However, given the absence of a transcript of the sentencing proceeding, we cannot appraise this argument.

-3-

We have concluded that fairness, both to appellant and the Commonwealth, requires that we remand for further proceedings. On remand, one of two situations will arise.

First, it may appear that stenographic notes of the sentencing proceeding were not made. In that event, the lower court shall vacate appellant’s sentence and conduct a new sentencing proceeding.

Second, it may appear that the stenographic notes of the sentencing proceeding were made. In that event, the lower court shall have the notes transcribed forthwith. Should the transcribed notes reveal that appellant was not advised at the sentencing proceeding of his right to file a motion to modify the sentence, the lower court shall so advise him, and the case shall proceed accordingly. If, however, the transcribed notes reveal that appellant was advised of his right to file a motion to modify the sentence, no further sentencing proceedings shall occur. However, appellant may within 30 days of the date of notice to him that the transcript of the sentencing proceedings has been filed with the lower court file a new appeal, so that another panel of this court may consider both his argument that the sentence was excessive and the Commonwealth’s argument that appellant has waived his right to argue that the sentence was excessive.

The case is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.