author: JOHNSON, Judge:

text:
    472 A.2d 217
    COMMONWEALTH of Pennsylvania v. Ronald LOMAX, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed Jan. 27, 1984.
    Reargument Denied April 3, 1984.
    Petition for Allowance of Appeal Denied Sept. 11, 1984.

      Dennis G. Kuftic, Edinboro, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant was convicted in a nonjury trial of retail theft, third offense and sentenced to 3V2 to 7 years imprisonment. Two issues are raised on this direct appeal: (1) whether the trial court erred in denying appellant’s petition to dismiss the complaint pursuant to Pa.R.Crim.P. 1100 (Rule 1100) and (2) whether the trial court erred in accepting into evidence appellant’s prior, uncounseled summary retail theft convictions to raise the grade of the instant charges to a felony. Finding merit in appellant’s first argument, we vacate judgment of sentence and discharge appellant.

The first issue concerns when Rule 1100’s 180 day time limitation commenced. The procedural history indicates that appellant was charged by private criminal complaint on August 7, 1979 with retail theft which occurred on July 19, 1979. This complaint was signed by the security guard for the store and also signed by the district justice. Process against appellant, in the form of a summons, was issued the same day and returned August 9. On August 20, appellant appeared before the district justice for fingerprinting. An arrest warrant was issued on December 6 for appellant’s failure to appear as requested. Pursuant to this warrant, appellant was arrested on February 26, 1980 and preliminarily arraigned on February 28. He was incarcerated following arraignment.

The complaint was not approved by the district attorney’s office until March 26, 1980. Appellant was held for court on April 18, 1980. A petition for extension of time was filed September 22, 1980 and subsequently granted. The information, charging appellant with retail theft, third offense was filed September 23. Various petitions for extensions of time were subsequently filed by the Commonwealth as well as waivers of Rule 1100 by appellant. Appellant’s petition to dismiss pursuant to Rule 1100 was filed June 11, 1981 and following its denial, trial commenced.

Rule 1100 states, in pertinent part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Appellant argues that the 180 day period commenced on August 7, 1979, the date the complaint was filed and process issued. As the run date would then have been February 3, 1980, appellant argues that Rule 1100 was violated. The Commonwealth argues that the 180 day period did not commence until the complaint was approved by the district attorney’s office on March 26, 1980 and hence, when the time periods are excluded where extensions were granted by the trial court, no violation occurred.

Both parties and the trial court state that the district justice endorsed the complaint in the wrong order; that he should have forwarded the complaint to the district attorney’s office for approval prior to endorsing it and issuing process.

The complaint did not specify the grade of retail theft charged in the instant case. Section (g) of the retail theft statute states:

(g) Fingerprinting.—
Prior to the commencement of trial or entry of plea of a defendant 16 years of age or older accused of the summary offense of retail theft, the issuing authority shall order the defendant to submit within five days of such order for fingerprinting by the municipal police of the jurisdiction in which the offense allegedly was committed or the state police. Fingerprints so obtained shall be forwarded immediately to the Pennsylvania State Police for determination as to whether or not the defendant previously has been convicted of the offense of retail theft. The results of such determination shall be forwarded to the Police Department obtaining the fingerprints if such department is the prosecutor, or to the issuing authority if the prosecutor is other than a police officer. The issuing authority shall not proceed with the trial or plea in summary cases until in receipt of the determination made by the State Police. The district justice shall use the information obtained solely for the purpose of grading the offense pursuant to subsection (b).

Hence, if the complaint was for retail theft graded as a summary offense, it was not necessary to forward the complaint to the district attorney’s office until such time as it became apparent that appellant had prior retail theft convictions so as to raise the charges to a misdemeanor or felony. 18 Pa.C.S.A. § 3929(b).

On the other hand, if the complaint was meant to charge a misdemeanor or felony retail theft offense, Pa.R.Crim.P. 133(B) and 134 require submission of the private complaint to the district attorney’s office prior to filing, endorsing and issuing process on the complaint. See Commonwealth v. Kellie, 275 Pa.Super. 106, 111 n. 4, 418 A.2d 634, 636 n. 4 (1980) (only when district attorney has approved complaint and issuing authority signed it may warrant or summons issue).

Rule 1100 contemplates the commencement of the 180 day period at the point criminal proceedings are initiated. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). It has been held that where a private criminal complaint is filed, the 180 day period commences upon the issuance of process, by summons or warrant of arrest. Commonwealth v. Bowser, 318 Pa.Super. 571, 465 A.2d 1001 (1983).

The Commonwealth argues that the instant case is controlled by Commonwealth v. Iaderosa, 276 Pa.Super. 439, 419 A.2d 538 (1980), which also involved a retail theft charge initiated by private criminal complaint. The defendant in Iaderosa argued that Rule 1100 commenced when the complainant went to file the complaint versus the date the complaint was formally signed by the complainant and endorsed by the magistrate. This court held that the later date marked the commencement of the 180 day period, as the delay was caused by an investigation as to the defendant’s prior theft convictions. Hence, Iaderosa merely restated the well-settled principal that it is the filing of the complaint that initiates Rule 1100 considerations. The Commonwealth, however, goes on to cite a portion of the Iaderosa opinion that states:

It is implicit under 18 Pa.C.S.A. § 3929(b), when a retail theft offense is charged, that before a formal complaint may be issued, there must be a determination as to whether, the person so charged is a second offender, and if so, the offense must be graded as a misdemeanor and not a summary.

Id., 276 Pa.Superior Ct. at 442, 419 A.2d at 540.

We disagree that § 3929 requires such a determination prior to filing a complaint charging retail theft. As stated supra, section 3929(g) regarding summary retail theft offenses clearly permits the issuing of a formal complaint prior to a determination as to the defendant’s prior retail theft offenses. As far as Iaderosa holds to the contrary, it is disapproved.

As stated in Commonwealth v. Silver, 238 Pa.Super. 221, 229-30, 357 A.2d 612, 616 (1976):

When a written complaint is filed, on the other hand, prosecutorial forces are quickly brought to bear against the named individual. If he is not already in custody the issuing authority, upon approving the complaint, will issue a summons or warrant of arrest. See Pa.R.Crim.P. 134 and 102. If a summons is used the defendant will be commanded to appear for a preliminary hearing, Pa.R. Crim.P. 110; if he fails to comply an arrest warrant will follow. Pa.R.Crim.P. 113. If an arrest warrant is used the defendant will be taken without unnecessary delay for a preliminary arraignment, Pa.R.Crim.P. 122, 130, which will be followed within three to seven days by a preliminary hearing. Pa.R.Crim.P. 140.
It is clear that this activity, whether it be complaint followed by summons or arrest, or arrest followed by complaint and preliminary arraignment, has immersed the defendant in the intricacies of substantive and procedural criminal law. The defendant has been confronted “with the prosecutorial forces of organized society,” Kirby v. Illinois, supra 406 U.S. [682] at 689, 92 S.Ct. at [1877] 1882 [32 L.Ed.2d 411 (1972) ]; see Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), and must begin to deal with the consequences of those forces.

Also, the A.B.A. Project on Standards for Criminal Justice, Standards Relating to Speedy Trial § 2.2 comment to § 2.2(a) (Approved Draft, 1968) state:

[I]f at the time of the filing of the charge the defendant is being held to answer — whether in custody or on bail or recognizance — ... then the time for trial commences running from the date the defendant was held to answer. In all other cases the time begins running as of the date the charge is filed. Charge means a written statement filed with a court which accuses a person of an offense and which is sufficient to support a prosecution; it may be an indictment, information, complaint, or affidavit, depending upon the circumstances and the law of the particular jurisdiction.

In the instant case, the charges were filed on August 7, 1979. Appellant was held to answer, and did appear, in response to the summons issued that day. An arrest warrant was subsequently issued on December 6, 1979 and appellant was eventually arrested on February 28, 1980. On these facts, we are convinced that appellant had been confronted “with the prosecutorial forces of organized society.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 418 (1972).

Whether or not the district justice erred in endorsing and filing the signed complaint and issuing process on August 7, 1979 without approval by the district attorney’s office is immaterial. As far as appellant was concerned, he was subject to prosecution at that time. We are unwilling to require appellant to bear the burden of any error concerning the initiation of criminal charges against him. Hence, once a private criminal complaint, properly signed by the complainant and endorsed by the issuing authority, is filed and process is issued, the 180 day period set forth in Rule 1100 commences, regardless of whether the district attorney’s approval pursuant to Pa.R.Crim.P. 133(B) and 134 has been obtained or should have been obtained.

Judgment of sentence is vacated and appellant discharged.

CAVANAUGH, J., concurs in the result.

MONTGOMERY, J., noted his dissent.

      . 18 Pa.C.S.A. § 3929.

      . The complaint did not specify the grade of the offense.

      . Even if the period during which the arrest warrant was outstanding were excluded, trial still did not commence within the period specified in Rule 1100.

      . Pa.R.Crim.P. 133(B) states:
      (B) Private Complaints:
      (1) When the affiant is not a police officer as defined in Rule 51(C) and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to the attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.

      . Pa.R.Crim.P. 134 states in part:
      Rule 134. Issuance of Process Pursuant to Complaint
      (a) In any proceeding initiated by complaint, the issuing authority shall ascertain that:
      (1) the complaint has been properly completed and executed;
      (2) there is probable cause for the issuance of process, in the form of an affidavit;
      (3) when prior submission to the attorney for the Commonwealth is required, that he has approved the complaint.
      (b) Upon ascertaining the above matters, the issuing authority shall:
      (1) accept the complaint for filing;
      (2) endorse ... the complaint;
      (3) issue a summons or warrant of arrest as the case may be.


source: Caselaw Access Project

author: CAVANAUGH, Judge: MONTGOMERY, Judge,

license: Public Domain

text:
    472 A.2d 220
    COMMONWEALTH of Pennsylvania v. George F. RITCHIE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1983.
    Filed Feb. 3, 1984.
    Reargument Denied April 3, 1984.
    Petition for Allowance of Appeal Granted Aug. 30, 1984.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Appellant George Ritchie was tried by a jury and convicted of rape, involuntary deviate sexual intercourse, incest, and corruption of minors. Post-verdict motions were denied and appellant was sentenced to a term of three to ten years incarceration. The instant appeal followed. For the reasons discussed below, we now vacate the judgment of sentence and remand for further proceedings.

The instant charges arose out of an incident involving appellant’s daughter, Jeanette, who was thirteen at the time of trial. Jeanette testified that she was watching television on the evening of June 11, 1979, when appellant entered the room and demanded that she perform oral sex on him “or else.” (N.T. at 24.) Jeanette testified that based on past experience, she knew that the “or else” meant that if she did not do as appellant requested, she would be hit. Appellant forcibly removed Jeanette’s clothes when she refused to do so and then forced her to commit oral intercourse. He then attempted to have normal intercourse with Jeanette, which caused pain to her. When the incident was over, appellant told Jeanette to go to bed.

Several days later, Jeanette told her cousin about sexual contacts between herself and appellant and the cousin told her mother, Jeanette’s aunt. The aunt took Jeanette to the police station.

Appellant denied that he ever sexually molested Jeanette.

One of the claims raised by appellant is that the evidence was insufficient to convict appellant of rape. Specifically, appellant alleges that the Commonwealth failed to establish penetration. In reviewing the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Stockard, 489 Pa. 209, 212-13, 413 A.2d 1088, 1090 (1980).

We stated in the recent case of Commonwealth v. Ortiz, 311 Pa.Super. 190, 193, 457 A.2d 559, 560-61 (1983), that:

[i]t is quite clear ... that the definition of “sexual intercourse” found at [18 Pa.C.S.A. § 3101] does not specify “penetration of the vagina,” but instead specifies “some penetration however slight.” ... Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950) ... is the only Pennsylvania appellate case specifically delineating what penetration means in this context. That case stated that entrance in the labia is sufficient: “To constitute the crimes of rape there must be penetration, however slight. (Res in re, but entrance in the labia sufficient: 44 Am.Jur., Rape, § 3).” Id., 166 Pa.Superior Ct. at 628, 74 A.2d at 796 (emphasis in original). We therefore will not hold that a finding of penetration of the vagina is necessary for the jury to find “penetration however slight____” ... [P]enetration of the vagina, in essence the father reaches of the female genitalia, is not necessary to find penetration under Section 3101.

It is clear that the testimony of the victim alone can be sufficient to establish penetration so as to sustain a conviction of rape. Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.2d 352 (1976). Jeanette testified that she was lying on her back on the floor and appellant was lying on top of her and that he tried to push his penis into her vagina. This caused her pain and appellant finally desisted and told Jeanette to go to bed. We feel that Jeanette’s testimony is sufficient to support a finding of penetration as defined in Commonwealth v. Ortiz, supra.

Appellant next claims that the trial court erred in allowing Jeanette to testify that appellant had been sexually molesting her three or four times a week for a period of about four years, in spite of the fact that she could not remember the exact dates of any attack other than the one on June 11, 1979.

It is clear that “in a prosecution for incest it is ‘competent for the commonwealth to introduce evidence of illicit relations between the parties prior to the commission of the specific offense laid in the indictment.’ ” Commonwealth v. Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1235 (1980) (quoting Commonwealth v. Bell, 166 Pa. 405, 411, 31 A. 123, 123 (1895), and Commonwealth v. Leppard, 271 Pa.Super. 317, 319, 413 A.2d 424, 425 (1979)). Such testimony is relevant to “show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial.” Commonwealth v. Buser, 277 Pa.Super. at 455, 419 A.2d at 1235, (quoting McCormick on Evidence § 190 at 449 (Cleary ed. 1972)). Nor does the fact that Jeanette could not remember the exact dates of previous sexual attacks render the testimony inadmissible. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

Appellant admits that Commonwealth v. Leppard, supra, and Commonwealth v. Buser, supra, specifically hold that evidence such as that in question is admissible but he contends that these holdings violate his right to confront his accuser, and that they should therefore not be followed. We are not persuaded by his argument and decline to overrule the precedent. There was, therefore, no error in admitting Jeanette’s testimony regarding prior sexual attacks.

Another claim raised by appellant is that the trial court erred in refusing to permit him to enter into evidence certain letters written by Jeanette to other individuals. The letters were offered for the purpose of showing that Jeanette freely communicated with persons outside her home and failed to mention either the sexual attacks by her father or the fear she allegedly had of him. Appellant hoped to discredit Jeanette’s testimony by raising a question as to why she waited so long to report the sexual attacks which had allegedly been occurring for several years. The trial court held that the letters were not relevant, and therefore refused to admit them in evidence.

“Any analysis of the. admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value.” Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976).

Determination of the relevancy of evidence offered at trial requires a two-step analysis. It must be determined first if the inference sought to be raised by the evidence bears upon a matter in issue in the case and, second, whether the evidence “renders the desired inference more probable than it would be without the evidence.” Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975) (citations omitted).

The Commonwealth did not contend that Jeanette had no opportunity to report the sexual molestation at an earlier date or that appellant had prevented her from making any complaint. Jeanette freely admitted that she had numerous and frequent contacts with members of her family and friends during the period of time in question. She explained that she was afraid of her father and stated that she never would have gone to the police if she had not been taken to them by her aunt.

Since Jeanette had already testified as to her freedom to contact others, admission of the letters in question would not have made the desired inference “more probable than it would be without the evidence.” McCormick on Evidence § 185 (Cleary ed. 1972). Thus there was no abuse of discretion on the part of the trial court in refusing to admit the letters.

Appellant also claims that the trial court erred in permitting the Commonwealth to introduce testimony contrary to Jeanette’s birth certificate, the effect of which was to bastardize her, in order to support its charge of incest. Helen Ritchie, Jeanette’s mother, was permitted to testify that appellant George Ritchie, and not Thomas Bills, whose name appears on the birth certificate, was the natural father of Jeanette. Ms. Ritchie testified that although she was still married to Thomas Bills when Jeanette was born, she had not had sexual relations with him for three years prior to Jeanette’s birth. She further testified that appellant was the only man with whom she had had sexual relations around the time of Jeanette’s conception and that appellant had admitted not only to her but to the Welfare Department, that he was Jeanette’s father. Mr. Bills testified that he had not had sexual relations with Jeanette’s mother for at least a year and a half prior to Jeanette’s birth, and that appellant had admitted to him that he (appellant) was Jeanette’s father. Ms. Ritchie married appellant after obtaining a divorce from Mr. Bills.

Appellant claims that the testimony outlined above should not have been permitted, claiming that “no authority exists for allowing a child to be bastardized in order to prove the crime of incest.” (Appellant’s Brief at 25).

Appellant ignores the holding of Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969), which says that a child is not bastardized by the testimony of the mother and her husband as to their non-access to each other at the time of conception in cases where the alleged father later married the mother, thus legitimizing the child. The testimony in the instant case is clearly admissible under the holding in Leider. See also, Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975); Commonwealth ex rel. Meta v. Cinello, 218 Pa.Super. 371, 280 A.2d 420 (1971).

Finally, appellant claims that the trial court erred in refusing to order Child Welfare Services (hereinafter referred to as CWS) to comply with appellant’s subpoena for files pertaining to an examination of the prosecutrix which occurred in 1978. He claims that his sixth amendment right to confrontation is superior to any claim the state might have regarding the need to maintain the confidentiality of the records.

In September, 1978, Child Welfare Services conducted an examination of Jeanette and her two younger brothers at the Ritchie home. The examination was prompted by a report of child abuse from an unidentified source and was CWS’ only contact with Jeanette. Appellant’s trial counsel served a subpoena upon CWS requesting that they turn over to him any records pertaining to Jeanette. CWS refused to produce the records based on a statutory provision regarding the confidentiality of the records. Appellant’s motion for sanctions was denied after the court reviewed the records in camera and found that “no medical records are being held by Child Welfare Services that would be of benefit to the defendant in the case.” Appellant contends that his counsel should have been permitted to review the files for himself, of that, at a minimum, he should have been granted access to any verbatim statements made by the prosecutrix contained in the file.

Appellant’s right of confrontation must be weighed against the state’s interest in maintaining the confidentiality of the information in the records. Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111-1112, 39 L.Ed.2d 347 (1974). We agree that the need for confidentiality in this case must, to a certain extent, yield to appellant’s right of confrontation. But we do not feel that appellant is entitled to examine the entire file kept by CWS. We feel, for instance, that the state’s interest in maintaining confidentiality regarding the source of the complaint which triggered CWS’ involvement outweighs appellant’s right to obtain that specific information which does not appear to be relevant to the instant trial.

In determining what information appellant is entitled to we are guided by the Pennsylvania Supreme Court’s holding in Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981). The issue in that case was “the extent to which a court presiding over a rape trial may authorize counsel for the accused seeking to impeach the credibility of the complainant to inspect a rape crisis center file containing communications between the complainant and rape crisis center personnel.” 494 Pa. at 19, 428 A.2d at 127. The court there recognized the “societal interest” in promoting communications between rape crisis center personnel and persons seeking the center’s assistance, but it also recognized the “compelling societal interest in the truth-seeking function of our system of. criminal justice.” 494 Pa. at 19, 428 A.2d at 127. In order to protect both interests, the court held that upon defense request, a trial court should authorize defense inspection of that portion of the crisis center’s file which reflects verbatim statements of the complainant bearing on the facts of the alleged offense.

We realize that the holding in Matter of Pittsburgh Action Against Rape is not directly on point. The issue there was whether the common law of Pennsylvania should be expanded to create an absolute privilege for all communications between rape crisis center personnel and their clients. It was not argued that any statute accorded a privileged status to such communications or directed that records relating to such communications be kept confidential. In the instant case, there is a statute directing that the records at issue be kept confidential, but there is no claim of an absolute privilege of communications between CWS personnel and the children they investigate. Still, we feel that the competing interests involved in Matter of Pittsburgh Action Against Rape are similar to those involved here and we are persuaded that the procedure adopted by the Supreme Court there should also be applied in the instant case. We hold, therefore, that appellant is entitled to inspect any portion of CWS’ files which reflects statements regarding abuse made by Jeanette to the CWS’ worker who examined her.

The procedure employed by the trial court in the instant case was not sufficient to protect appellant’s rights in spite of the court’s “finding” that the records contained nothing that would benefit appellant. As the Supreme Court stated in Matter of Pittsburgh Action Against Rape:

[i]t is not for the trial court to review these statements with an eye toward the utility or permissibility of their ultimate use at trial____ “Prior statements may, by themselves or in conjunction with other information known by the defense, open up valuable lines of cross-examination for the defense, even though the statements involve matters not directly relating to a witness’ direct testimony____ ‘Whether the statements of the prosecution’s witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters contained in a witness’s statement may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness.’ ”

494 Pa. 15, 28-29, 428 A.2d at 132 (citations omitted).

We do not have the CWS records before us and therefore we are unable to determine whether they contain any statements to which appellant is entitled. We must therefore remand the case for further proceedings. We direct the trial court to review the CWS records in camera to determine whether they contain any statements made by Jeanette regarding abuse. If the court determines that there are no such statements, then it should reinstate the judgment of sentence. If the records do contain such statements they should be made available to appellant’s counsel, who should then be given an opportunity to argue to the court that the statements could have been used to discredit Jeanette’s testimony. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978). The Commonwealth should be permitted an opportunity to argue that the court’s failure to provide appellant’s counsel with the statements prior to trial was harmless error. If the court is not convinced that the statements were irrelevant or that any error was harmless, then it should grant appellant a new trial. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977). Following the court’s ruling, either party may file an appropriate appeal.

In order to preserve the parties’ rights to effective counsel and allow appellate review, the entire record reviewed by the court at its in camera proceeding should be preserved for appeal. This record may be sealed in order to protect its confidentiality. In addition, counsel should be permitted access to this record in order to argue the relevance of the material in accordance with this decision. Counsel, of course, are permitted access to this record for this purpose only and are otherwise bound by the confidential nature of the material in the record.

Judgment of sentence is vacated and case remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

MONTGOMERY, J., files concurring and dissenting statement.

MONTGOMERY, Judge,

concurring and dissenting:

I agree with the majority that appellant is entitled to direct statements made by the victim which appear in the CWS files. I would make a distinction not made by the majority, however, and limit appellant to only those statements bearing on the offense in question, that is, sexual abuse, rather than permitting inspection and use of statements regarding “abuse” in general.

      . We note that Jeanette’s testimony regarding oral intercourse would have sustained a verdict of rape as defined at 18 Pa.C.S.A. §§ 3121 and 3101. However, the court in the instant case, pursuant to the Commonwealth request, charged the jury that in order to find appellant guilty of rape, they must find "that there was some penetration, however slight, of the sexual organ of the female by the male.” (N.T. 11-9-79 at 348).

      . 11 P.S. § 2215(a) states that reports made pursuant to the Child Protective Services Law shall be confidential and shall only be made available to certain enumerated persons or agencies. Under § 2215(a)(5), the reports shall be made available to a court of competent jurisdiction pursuant to a court order.

      . We note that subsequent to the decision in Matter of Pittsburgh Action Against Rape, a statute was enacted granting rape counseling communications an absolute privilege. 42 Pa.C.S.A. § 5945.

      . The CWS examination occurred over a year prior to the incident which is the basis of the charges in the instant case, and it might therefore be argued that anything contained in the file is irrelevant to this trial. We feel, however, that in view of the fact that Jeanette was permitted to testify that the sexual abuse had been going on for about four years, statements made by her regarding abuse at the time of the CWS examination are at least potentially relevant.


author: HESTER, Judge:

text:
    472 A.2d 226
    Cathy J. BASTION (Now Cathy J. West), Appellant, v. Allen BASTION.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1984.
    Filed Feb. 24, 1984.
    John Kocsis, III, Athens, for appellant.
    Emy Lore Franz, Sayre, for appellee.

      Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

On July 20, 1977, appellant Cathy J. Bastion, now Cathy West, filed a Complaint in Divorce under the old Divorce Law, alleging indignities as grounds for the divorce. The new Divorce Code took effect on July 1, 1980. A final decree in divorce was granted on September 29, 1980, and in December, 1982, appellant filed a Complaint in Partition. On August 1, 1983, nearly three years after the final divorce was granted, appellant filed an application to proceed under the Divorce Code with respect to equitable distribution. The application was denied by the lower court on September 7, 1983, and appeal was then taken to our Court. Appellant’s sole argument is that since the divorce was granted after the effective date of the Divorce Code, the lower court erred in denying her application.

Section 103 of the Divorce Code provides that the Code does not apply to cases in which divorce or annulment decrees have been granted prior to the effective date of the Code. Since in the case before us the divorce decree was granted nearly three months after the Code took effect, § 103 itself would not seem to preclude appellant’s petition. Furthermore, since § 103 provides that the provisions of the Code do not affect any pending action, but provides that such action may be pursued either under prior law or under the Code “upon application granted,” it would seem that appellant’s application to proceed to equitable distribution under the Code was not necessarily improper. Nevertheless, relying upon dictum of our Court in Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683, 695 (1981), aff'd., 498 Pa. 570, 449 A.2d 1378.(1982), the lower court found that it was precluded from granting the application. We agree with the lower court’s ruling, although for different reasons.

Section 401(j) of the Code provides: “Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b).” (Emphasis added). When the divorce decree was granted with no specific reservation of property rights, under this section appellant lost any right to equitable distribution under the Code. If the lower court had granted appellant’s application to proceed under the Code, appellant would still have been precluded by § 401(j) from proceeding to equitable distribution. We therefore find that the lower court properly denied appellant’s application.

Order affirmed.

      . Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed).

      . Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq.

      . That section states: "The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto." (Emphasis added).

      . "Plainly, therefore, the legislature intended that an application could be filed at any time after the effective date of the Divorce Code, so long as a decree had not been filed." (Emphasis in original). In Gordon, the application to proceed under the Divorce Code had been filed prior to the grant of the final divorce, unlike in the case before us.


text:
    February 3, 1984.
    472 A.2d 231
    Campbell, et ux. v. Harristown Dev. et al. Appeal of Harristown Development Corporation.
    Argued November 15, 1983.
    Eugene E. Pepinsky, Jr., for appellant;
    Deborah Ann Hughes, for appellees.

      Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Order affirmed.

SPAETH, President Judge, concurred in the result.


text:
    472 A.2d 232
    Casbeer v. Casbeer, Appellant.
    Submitted November 4, 1983.
    Anthony D. Miele, for appellant;
    Lowell Coolidge, for appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Order affirmed.


text:
    472 A.2d 232
    Commonwealth v. Africa, Appellant.
    Submitted September 9, 1983.
    Richard E. Johnson, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 232
    Commonwealth v. Austin, Appellant.
    Petition for Allowance of Appeal Denied June 20, 1984.
    Submitted October 3, 1983.
    Kalvin Kahn, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 233
    Commonwealth v. Baker, Appellant.
    Submitted November 7, 1983.
    Robert Bruce Evanick, Public Defender, for appellant;
    William T. Hast, Assistant District Attorney, for Commonwealth, appellee.

      Before McEWEN, JOHNSON and POPOVICH, JJ.
   The judgment of sentence of the learned York County Common Pleas Court Judge Joseph E. Erb is affirmed.


text:
    472 A.2d 233
    Commonwealth v. Carter, Appellant.
    Submitted October 20, 1983.
    Jeremy T. Ross, for appellant; .
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 233
    Commonwealth v. Ceasar, Jr., Appellant.
    Petition for Allowance of Appeal Denied June 28, 1984.
    Submitted November 7, 1983.
    Anthony S. Federico, Jr., for appellant;
    Katherene E. Holtzinger, Deputy District Attorney, for Commonwealth, appellee.

      Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 233
    Commonwealth v. Chestnut, Appellant.
    Submitted September 9, 1983.
    Robert F. Pappano, Assistant Public Defender, for appellant;
    A. Sheldon Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 234
    Commonwealth v. Deremer, Appellant.
    Submitted October 3, 1983.
    Thomas T. Ling, for appellant;
    Daniel Lee Howsare, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


author: The judgment of sentence is affirmed.

text:
    472 A.2d 234
    Commonwealth v. Deseignoria, Appellant.
    Petition for Allowance of Appeal Denied June 12, 1984.
    Argued October 20, 1983.
    Joseph M. Smith, for appellant;
    Michael L. Turner, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    472 A.2d 234
    Commonwealth v. DeShields, Appellant.
    Submitted October 24, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 234
    Commonwealth v. Dotson-Africa, Appellant.
    Submitted September 9, 1983.
    Richard E. Johnson, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.

SPAETH, President Judge, filed a memorandum concurring statement.


text:
    472 A.2d 235
    Commonwealth v. Dukeman, Appellant.
    Submitted October 14, 1983.
    James Vincent McGough, for appellant;
    Stephen D. Wicks, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order to the PCHA court is affirmed.


text:
    472 A.2d 235
    Commonwealth v. Glover, Appellant.
    Submitted September 30, 1983.
    George B. Angelí, for appellant;
    Jeffrey E. Leber, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   In the appeal at No. 727 Pittsburgh, 1982, the judgment of sentence is affirmed. The appeal at No. 910 Pittsburgh, 1982, is quashed.

POPOVICH, J., concurred in the result.


text:
    472 A.2d 235
    Commonwealth v. Hagood, Appellant.
    Submitted November 7, 1983.
    Judith A. Calkin, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the learned Dauphin County Common Pleas Court Judge John C. Dowling is affirmed.

POPOVICH, J., concurred in the result.


text:
    472 A.2d 236
    Commonwealth v. Hawkins a/k/a Bucky, Appellant.
    Petition for Allowance of Appeal Denied May 14, 1984.
    Submitted October 14, 1983.
    Richard S. Levine, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 236
    Commonwealth v. Jones, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Argued October 5, 1983.
    Morton Gordesky, for appellant;
    Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 236
    Commonwealth v. Lundergan, Appellant.
    Submitted September 23, 1983.
    Marilyn C. Zilli, Assistant Public Defender, for appellant;
    Katherene E. Holtzinger, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 237
    Commonwealth v. Morris, Appellant.
    Submitted November 4, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 237
    Commonwealth v. Newhart, Appellant.

      Argued September 28, 1983.
    Mitchell A. Kaufman, Assistant Public Defender, for appellant;
    Kenneth J. Benson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Order affirmed.


text:
    472 A.2d 237
    Commonwealth v. Noquerol, Appellant.
    Submitted November 7, 1983.
    Joseph J. Huss, for appellant;
    Robert B. MacIntyre, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   We vacate the judgment of sentence and remand for resentencing. Jurisdiction is relinquished.


text:
    472 A.2d 237
    Commonwealth v. O’Hara, Appellant.
    Submitted October 27, 1983.
    Jay Stuart Nedell, for appellant;
    Timothy Lucas, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 238
    Commonwealth v. Paige, Appellant.
    Petition for Allowance of Appeal Denied May 8, 1984.
    Submitted October 3, 1983.
    Charles A. Cunningham, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   The judgments of sentence are affirmed.


text:
    472 A.2d 238
    Commonwealth v. Plowden, Appellant.
    Submitted November 8, 1983.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 718
    Commonwealth v. Sandutch, Appellant.
    Reargument Denied April 3, 1984.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.
    Argued September 15, 1983.
    Norma Chase, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 238
    Commonwealth v. Scott, Appellant.
    Submitted November 4, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 238
    Commonwealth v. Shaw, Appellant.
    Submitted September 9, 1983.
    Raymond E. Kumor, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.

SPAETH, President Judge, concurred in the result.


text:
    472 A.2d 239
    Commonwealth v. Smith, Appellant.
    Submitted October 14, 1983.
    Thomas Bowlen, for appellant;

      Gerald Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    472 A.2d 239
    Commonwealth v. Thomas, Appellant.
    Submitted November 7, 1983.
    Robert L. Thomas, appellant, in propria persona;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the learned Dauphin County Common Pleas Court Judge William W. Lipsitt is affirmed.

JOHNSON and POPOVICH, JJ., concurred in the result.


text:
    472 A.2d 239
    Commonwealth v. Winter, Appellant Commonwealth v. Cromwell, Appellant
    (at No. 2990).
    (at No. 2902).
    Reargument Denied March 16, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      Submitted June 15,1983.
    Alan Ellis, for appellants;
    Stewart L. Kurtz, District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   The orders of the learned Huntingdon County Common Pleas Court Judge Newton C. Taylor are affirmed.


text:
    472 A.2d 240
    Commonwealth ex rel. Dunkle v. MacBeth, Appellant.
    Submitted November 8, 1983.
    Sanford S. Finder, for appellant;
    Janet Moschetta, for participating party.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 240
    Dunn, Appellant, v. Cook.
    Submitted November 23, 1983.
    Joseph R. Siegert, for appellant;
    Christopher C. Fallon, Jr., for appellees.

      Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 240
    Farkaly v. Oldakowski. Appeal of Liberty Mutual Insurance Company.
    Submitted March 2, 1983.
    Lucille Marsh, for appellant;
    Richard S. Campagna, for appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   The order of the lower court is reversed and Liberty Mutual Insurance Company is entitled to intervene in the above captioned case, based upon its claim of subrogation under the Workmen’s Compensation Act. Any amount recovered by Liberty Mutual Insurance Company must be calculated in accordance with the ruling of our Supreme Court in Vespaziani v. Iasana, 501 Pa. 612, 462 A.2d 669 (1983).


text:
    472 A.2d 241
    Hesp v. Poplar Homes, Inc., Appellant.

      Argued November 16, 1983.
    David J. Rosenberg, for appellant;
    James P. Gannon, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Affirmed.

BROSKY, J., filed a memorandum dissenting opinion.


text:
    472 A.2d 242
    Hoyle v. Hoyle, Jr., Appellant.
    Reargument Denied April 3, 1984.
    Petition for Allowance of Appeal Denied July 2, 1984.
    Argued May 13, 1983.
    Henry W. Sawyer, III, for appellant;
    Albert Momjian, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Orders affirmed.


text:
    472 A.2d 241
    In re Roberts. Appeal of Dolly Irene Roberts.

      Argued September 28, 1983.
    Richard J. Bedford, for appellant;
    Alexander Ogle, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the learned Somerset County Common Pleas Court Judge Norman A. Shaulis is affirmed.


text:
    472 A.2d 241
    In the Interest of Lamp.
    Argued 'September 27, 1983.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant;
    William A. Dopierala, for participating party.
    Before BROSKY, McEWEN and BECK, JJ.
   The orders of the lower court are affirmed.


text:
    472 A. 2d 241
    Kovler, Appellant, v. Levine.
    Argued May 20, 1983.
    Jack J. Hetherington, for appellant;
    Sheldon Tabb, for appellee.

      Before HESTER, CAVANAUGH and BROSKY, JJ.
   Order affirmed.

HESTER, J., concurred in the result.


text:
    472 A.2d 242
    Steen v. Thrift Drug Co. Appeal of Thrift Drug Company.
    Submitted November 4, 1983.
    James D. Hilly, for appellant;
    John J. McCarty, for Steen, appellee;
    Charles B. Burr, II, for Rieger, M.D., appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Order affirmed.


text:
    February 10, 1984.
    472 A.2d 242
    Amadio et ux., Appellants, v. Levin, et al.
    Petition for Allowance of Appeal Granted July 11, 1984.
    Argued October 4, 1983.
    Jill Follows, for appellants;
    Gregory B. Hook, for appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   The order entering judgment for appellees in the wrongful death and survival actions is affirmed.


text:
    472 A.2d 243
    Commonwealth v. Bazemore, Appellant.
    Submitted October 19, 1983.
    Leslie Levi Payton, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 243
    Commonwealth v. Beckett, Appellant.
    Submitted January 19, 1984.
    Kimberly Hamilton, Assistant Public Defender, for appellant;
    Dennis C. Pfannenschmidt, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgments of sentence affirmed.


text:
    472 A.2d 243
    Commonwealth v. Blake, Appellant.
    Submitted January 18, 1984.
    Donald E. Havens, for appellant;
    Ann Aschauer Osborne, Assistant District Attorney, for Commonwealth, appellee. ■
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 243
    Commonwealth v. Bloemker, Appellant.
    Petition for Allowance of Appeal Denied Aug. 13, 1984.
    Submitted October 24, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 244
    Commonwealth v. Brown, Appellant.
    Submitted November 7, 1983.
    Judith A. Calkin, for appellant;
    Katherene E. Holtzinger, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order filed February 3, 1983 at 765 C.D. 1979 is vacated and the case is hereby remanded for an evidentiary hearing on the PCHA petitions. Jurisdiction is relinquished. Orders filed February 3, 1983 at 978 and 1380 C.D.1981 are affirmed.

POPOVICH, J., concurred in the result.


text:
    472 A.2d 244
    Commonwealth v. Carpenter, Appellant.
    Submitted April 13, 1983.
    James A. Consoli, Assistant Public Defender, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 244
    Commonwealth v. Cotton, Appellant.
    Submitted October 14, 1983.
    Jay H. Spiegel, for appellant;
    Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 245
    Commonwealth v. DeJesus, Appellant.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Submitted October 24, 1983.
    Charles B. Coleman, Assistant Public Defender, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 245
    Commonwealth, Appellant, v. Dunkelberger.
    Argued September 6, 1983.
    David James Tomaine and Amil Michael Minora, Assistant District Attorneys, for Commonwealth, appellants;
    Margaret Dunkelberger, in propria persona, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    472 A.2d 245
    Commonwealth v. Dykes, Appellant.
    Submitted October 24, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JL
   Affirmed.


text:
    472 A.2d 246
    Commonwealth, Appellant, v. Felder Commonwealth, Appellant, v. Brown
    (at No. 2178).
    (at No. 2179).

      Argued September 6, 1983.
    Garold Edward Tennis, Assistant District Attorney, for Commonwealth, appellant;
    Joseph Mistrano, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Orders reversed; Cases remanded for disposition of appellee’s remaining post-verdict motions.

Jurisdiction relinquished.


text:
    472 A.2d 246
    Commonwealth v. Gibson, Appellant.
    Submitted January 19, 1984.
    Joseph P. Caracappa, for appellant;
    William F. Merz, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order of the Trial Court affirmed.


text:
    472 A.2d 246
    Commonwealth v. Glassmire, Appellant.
    Submitted October 21, 1983.
    Joan A. Brown, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.

SPAETH, P.J., concurred in the result.


text:
    472 A.2d 246
    Commonwealth v. Goolsby, Appellant.
    Argued October 20, 1983.
    John P. Cotter, for appellant;
    Ronald Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 247
    Commonwealth v. Hall, Appellant.
    Submitted November 8, 1983.
    Anthony S. Dedola, Jr., for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order of the lower court affirmed.


text:
    472 A.2d 247
    Commonwealth v. Hansberry a/k/a Branch, Appellant.
    Submitted October 24, 1983.
    Charles R. Bernsee, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence vacated and case remanded for an evidentiary hearing on counsel’s effectiveness. Jurisdiction is not retained.


text:
    472 A.2d 247
    Commonwealth v. Hartley, Jr., Appellant.
    Submitted October 24, 1983.
    Edward F. Kane, for appellant;
    Patricia Ann Zaffarano, Assistant District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 248
    Commonwealth v. Kalkowski, Appellant.
    Petition for Allowance of Appeal Denied May 1, 1984.
    Submitted November 8, 1983.
    Paulette J. Balogh, Assistant Public Defender, for appellant;
    Kemal A. Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 248
    Commonwealth v. Kyle, Appellant.
    Submitted November 8, 1983.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant;
    Michael J. Veshecco, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 248
    Commonwealth v. Macon, Appellant.
    Submitted November 7,1983.
    Judith A. Calkin, for appellant;
    Katherene E. Holtzinger, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    472 A.2d 248
    Commonwealth v. Markman, Appellant.
    Submitted October 13, 1983.
    Jeffrey M. Miller, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Appeal quashed.


text:
    472 A.2d 249
    Commonwealth v. Mason, Appellant.

      Submitted October 24, 1983.
    Kenneth L. Mirsky, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN,' JJ.
   Affirmed.


text:
    472 A.2d 249
    Commonwealth v. Miller, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Submitted March 30, 1983.
    John H. Corbett, Jr., Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 249
    Commonwealth v. Park, Appellant.

      Submitted January 19, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 250
    Commonwealth v. Paullet, Appellant.
    Petition for Allowance of Appeal Denied May 1, 1984.
    Submitted September 30, 1983.
    John T. Bender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., filed a memorandum concurring opinion.


text:
    472 A.2d 250
    Commonwealth v. Ramseur, Appellant.

      Submitted November 18, 1983.
    Kim Eaton, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Charles P. Mirarchi is affirmed.


text:
    472 A.2d 250
    Commonwealth v. Ritchie, Appellant.
    Submitted November 8, 1983.
    Diane Barr Quinlin, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 250
    Commonwealth v. Robinson, Appellant.
    Submitted October 14, 1983.
    Paul Bogdon, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Allegheny County Common Pleas Court Judge Patrick R. Tamilia is affirmed.


text:
    472 A.2d 251
    Commonwealth v. Sanger, Appellant.
    Petition for Allowance of Appeal Denied May 25, 1984.
    Submitted November 21, 1983.
    Larry B. Maier, for appellant;
    Joseph C. Madenspacher, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 251
    Commonwealth v. Sirois, Appellant.
    Submitted November 4, 1983.
    James David Casale, for appellant;
    Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 251
    Commonwealth v. Smith, Appellant.
    Submitted October 18, 1983.
    George Henry Newman, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Nelson A. Diaz is affirmed.


text:
    472 A.2d 252
    Commonwealth v. Tucker, Appellant.
    Submitted September 30, 1983.
    John W. Murtagh, Jr., for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 252
    Commonwealth v. Turner, Appellant.
    Petition for Allowance of Appeal Denied May 2, 1984.
    Submitted October 21, 1983.
    Ferris Peter Webby, Assistant Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 252
    Commonwealth v. Wiegand, Appellant.
    Submitted January 17, 1984.
    Joseph W. Chupein, Jr., Assistant Public Defender, for appellant;
    Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, HESTER and ROBERTS, JJ.
   Order affirmed.


text:
    472 A.2d 252
    Commonwealth v. Whittal, Appellant.
    Submitted October 3, 1983.
    Michael Louis Goldberg, for appellant;
    Stephen B. Harris, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Appeal quashed.


text:
    472 A.2d 253
    Commonwealth ex rel. Burney v. Jarrett, Appellant.
    Submitted November 8, 1983.
    Samuel Joseph Davis, for appellant;
    Steve Peter Leskinen, for appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 253
    Delgaudio v. Delgaudio, Appellant.
    Argued November 23, 1983.
    David Bruce Hanes, for appellant;
    George F. Schoener, Jr., for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 253
    Fierstein, Appellant, v. Camelot.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Argued December 15, 1983.
    William J. Wheeler, Jr., for appellant;
    Michael J. Stack, Jr., for appellees.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Reversed and remanded.

Jurisdiction is not retained.


text:
    472 A.2d 253
    Goldstone Film Enterprises v. Wax, Appellant.
    Submitted December 15, 1983.
    Edward J. Hughes, for appellant;
    Karen Anita Von Dreusche, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   The order of the lower court is affirmed.


text:
    472 A.2d 254
    Goodman v. Scaltrito, Appellants.
    Submitted October 3, 1983.
    Nino V. Tinari, for appellants;
    Sidney L. Hofing, for appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Appeal quashed.


text:
    472 A.2d 254
    In re Sampson. Appeal of Robert James Sampson, Jr. and Susan Plants.

      Argued September 28, 1983.
    Alan Berman, for appellants;
    Mark P. Cancilla, for appellees;
    Mary Ellen McMeekin, for participating party.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the learned Allegheny County Common Pleas Court Judge Livingstone M. Johnson is affirmed.


text:
    472 A.2d 254
    Nasife, Appellants, v. Princess Hotels.
    Argued December 14, 1983.
    Edward Lawrence Hannaway, for appellants;
    Charles J. Bogdanoff, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   The order of the trial court is affirmed.


text:
    472 A.2d 255
    Rothstein, Appellant, v. Schlacter.
    Submitted November 22, 1983.
    Stephen G. Heckman, for appellant;
    James J. Oliver, for appellee.

      Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 255
    First Nat. Bank Honey Brook v. Bingaman, Appellant.
    Argued October 18, 1983.
    John J. Duffy, for appellant;
    Robert S. Gawthrop, Jr., for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 255
    Zell v. Zell, Jr., Appellant.
    Argued September 6, 1983.
    Mary McNeill Zell, for appellant;
    Elaine Smith, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Affirmed.


text:
    February 14, 1984.
    472 A.2d 255
    Barnes, Appellant, v. Rockwood Insurance.
    Argued November 21, 1983.
    Allen L. Feingold, for appellant;
    Nancy H. Resnick, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order of the lower court is reversed and remanded for compliance with Pa.R.C.P. 209 and Philadelphia Local Rule 140(e). Jurisdiction relinquished.


text:
    472 A.2d 256
    Phoenix Financial, Appellant, v. Dr. J. Donelson Jones.
    Submitted January 18, 1984.
    David S. Winston, for appellant;
    Jeffrey S. Kahn, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order affirmed.


text:
    February 15, 1984.
    472 A.2d 256
    Commonwealth v. Holmes, Appellant.
    Petition for Allowance of Appeal Denied July 2, 1984.
    Submitted January 26, 1984.
    John P. Liekar, Public Defender, for appellant;
    Raymond P. Amatangelo, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 256
    Commonwealth v. Johnson, Appellant.
    Argued January 24,1984.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant;
    Michael R. Cauley, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Judgment of sentence vacated, and case remanded for resentencing.


text:
    February 16, 1984.
    473 A.2d 203
    Commonwealth v. Jones, Appellant.
    Reargument Denied April 18, 1984.
    Submitted September 22, 1983.
    Richard R. Fink, for appellant;
    Seth Weber, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order of lower court denying the motion to quash informations is affirmed. Jurisdiction is relinquished.


text:
    472 A.2d 257
    Miller, Appellant, v. Ohio Cas. Ins.
    Argued January 25, 1984.
    Barbara L. Smith, for appellant;
    Thomas M. Lent, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Order and judgment affirmed. See: Camacho v. Nationwide Insurance Co., 314 Pa.Super. 21, 460 A.2d 353 (1983); Howe v. Harleysville Insurance Companies, 313 Pa.Super. 65, 459 A.2d 412 (1983); Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982); Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982); Rife v. State Farm Mutual Auto Insurance Co., 304 Pa.Super. 359, 450 A.2d 720 (1982).


text:
    February 17, 1984.
    472 A.2d 257
    Byron, Appellant, v. Byron.
    Argued June 9, 1983.
    Chere Winnek-Shawer, for appellant;
    Philip C. Ursu, for appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   The order of the court is affirmed.


text:
    472 A.2d 257
    Commonwealth v. Azzarella, Appellant.
    Petition for Allowance of Appeal Denied Aug. 6, 1984.
    Argued December 1, 1983.
    Robert D. Gleason, for appellant;
    Raymond J. Zadzilko, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 257
    Commonwealth v. Blackwell, Appellant.
    Submitted October 7, 1983.
    Marlene S. Cooperman, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 258
    Commonwealth v. Cole, Appellant.
    Submitted October 21, 1983.
    Michael H. VanBuskirk, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ. •
   Affirmed.


text:
    472 A.2d 258
    Commonwealth v. Flail, Appellant.

      Submitted October 24, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 258
    Commonwealth v. Gregory, Appellant.
    Petition for Allowance of Appeal Denied May 31,' 1984.
    Submitted November 18, 1983.
    Charles A. Cunningham, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 259
    Commonwealth v. Griffin, Appellant.

      Submitted May 20, 1983.
    Wayne A. Graver, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence for burglary affirmed. Judgment for criminal trespass is vacated.


text:
    472 A.2d 259
    Commonwealth v. Jones, Appellant.
    Submitted November 7, 1983.
    Marilyn C. Zilli, Assistant Public Defender, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.

McEWEN, J., concurred in the result.


text:
    472 A.2d 259
    Commonwealth v. Montgomery, Appellant.
    Submitted November 8, 1983.
    Peter Henry Shaffer, for appellant;
    Robert F. Hawk, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order of the lower court is affirmed.


text:
    472 A.2d 1166
    Commonwealth v. Saltzberg, Appellant.
    Reargument Denied April 3, 1984.
    Petition for Allowance of Appeal Denied July 10, 1984.
    Submitted October 12, 1983.
    Thomas Q. Ciccone, Jr., for appellant;
    A. Sheldon Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 260
    Commonwealth v. Salvadore, Appellant.
    Argued October 18, 1983.
    Theodore Simon, for appellant;
    Christopher J. Serpico, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Order reversed.


text:
    472 A.2d 260
    Commonwealth v. Tucker, Appellant.
    Petition for Allowance of Appeal Denied May 31, 1984.
    Submitted October 7, 1983.
    Allan M. Tabas, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 260
    Commonwealth v. Walters, Appellant.
    Submitted October 14, 1983.
    William R. Hughes, for appéllant;
    James B. Yelovich, District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    472 A.2d 260
    Commonwealth v. Wayman, Appellant.
    Petition for Allowance of Appeal Denied June 7, 1984.
    Submitted October 21,1983.
    Philip T. Medico, Jr., Assistant Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    472 A.2d 261
    Commonwealth v. Williams, Appellant.
    Submitted October 21, 1983.
    David Zwantez, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    472 A.2d 261
    Commonwealth v. Williams, Appellant.
    Submitted November 4, 1983.
    Harris Roy Rosen, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence for attempted burglary affirmed. Judgments of sentence for attempted criminal trespass and for conspiracy are vacated.


text:
    472 A.2d 261
    Commonwealth v. Woodson, Appellant.
    Submitted November 18, 1983.
    Daniel A. Rendine, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before McEWEN, HESTER and LIPEZ, JJ.
    Judgment of sentence affirmed.


text:
    472 A.2d 261
    Com. ex rel. Eager v. Eager. Appeal of Patricia A. Eager.
    Argued September 6, 1983.
    David Allan Binder, for appellant;
    Bernard Mendelsohn, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Reversed and remanded. Jurisdiction is relinquished.

ROWLEY, J., noted dissent.


text:
    472 A.2d 262
    Estate of Marra, etc., Appellant, v. TransAmerican, etc. Rhodaberger, etc., Appellant, v. TransAmerican, et al.
    (at No. 1170).
    (at No. 1171).
    Argued June 9, 1983.
    Charles H. Alpern, for appellants;
    Louis C. Long, for appellees.

      Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   The orders of the trial court sustaining appellees’ preliminary objections and dismissing appellants’ complaints are reversed. Case remanded; jurisdiction relinquished.


text:
    472 A.2d 262
    Kozain, et ux. v. Bologna Coal Co., Appellant.
    Argued December 1, 1983.
    Harvey A. Zalevsky, for appellant;
    William J. Ober, for appellees.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Order affirmed.


text:
    472 A.2d 262
    McGrath, Appellants, v. Tapper.
    Petition for Allowance of Appeal Denied July 19, 1984.
    Argued September 20, 1983.
    Barton A. Haines, for appellants;
    Dennis Yeneziale, for appellees.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   We vacate the trial court's order of January 5, 1982 and direct the trial court to enter the April 21, 1981 jury verdict as modified by the April 23, 1981 court order.

CIRILLO, J., filed a memorandum concurring opinion.


text:
    472 A.2d 263
    Schulz, etc., Appellants, v. Zulli.
    Argued December 13, 1983.
    Neil E. Jokelson, for appellants;
    Edgar R. Einhorn, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    February 21, 1984.
    472 A.2d 263
    Brady v. Macos, Appellant.
    Argued January 18, 1984.
    David H. Kubert, for appellant;
    Barry L. Rush, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order vacated and record remanded with instructions. Jurisdiction is not retained.


text:
    472 A.2d 263
    Commonwealth v. Brenner, Appellant.
    Petition for Allowance of Appeal Denied June 25, 1984.
    Submitted October 5, 1983.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 264
    Commonwealth v. Carnes, Appellant.
    Submitted October 3, 1983.
    Stanley M. Vasiliadis, Assistant Public Defender, for appellant;
    James Martin Connell, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 264
    Commonwealth v. Keith, Appellant.
    Submitted November 16, 1983.
    Owen W. Nash, Assistant Public Defender, for appellant;
    Dennis C. McAndrews, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.

SPAETH, President Judge, filed a memorandum dissenting opinion.


text:
    473 A.2d 203
    James, Appellants, v. Kane.
    Reargument Denied April 18, 1984.
    Petition for Allowance of Appeal Denied Sept. 17, 1984.
    Argued October 3, 1983.
    Allen L. Feingold, for appellants;
    Barbara Axelrod, Deputy City Solicitor, for Kane, et al., appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Order affirmed.


text:
    472 A.2d 264
    Prutzman v. Erie Ins. Group, Appellant.
    Submitted January 17, 1984.
    Clemson N. Page, Jr., for appellant;
    Kenneth E. Sands, Jr., for appellees.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   Order reversed and record remanded with instructions.

Jurisdiction is not retained.


text:
    472 A.2d 265
    Wells, Appellant, v. Erie Ins. Co.
    Argued December 15, 1983.
    Allen L. Feingold, for appellant;
    Russell M. Nigro, for appellee.
    Before SPAETH, P.J., and CIRILLO and JOHNSON, JJ.
   The order of the trial court is affirmed. Appellant’s request for counsel fees and costs is denied.


text:
    February 23, 1984.
    472 A.2d 265
    Commonwealth v. Taylor, Appellant.
    Argued January 26, 1984.
    Merle G. Johnson, for appellant;
    Jeffrey E. Leber, District Attorney, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Judgment of sentence vacated and jurisdiction relinquished.


text:
    472 A.2d 265
    Waligora, Appellants, v. Erie Insurance.
    Argued January 25, 1984.
    Peter Stinson, for appellants;
    David I. A in am an, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   Order affirmed and jurisdiction relinquished.


text:
    February 24, 1984.
    472 A.2d 265
    Commonwealth v. Batchler, Appellant.
    Argued December 8, 1983.
    Morton Gordesky, for appellant;
    Michael L. Turner, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Order affirmed.


text:
    472 A.2d 266
    Commonwealth v. Blount, Appellant.
    Petition for Allowance of Appeal Denied May 25, 1984.
    Submitted September 7, 1983.
    William T. Cannon, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 266
    Commonwealth v. Dillard, Appellant.
    Petition for Allowance of Appeal Denied July 23, 1984.
    Submitted November 18, 1983.
    Jack M. Bernard, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   Order affirmed.


text:
    472 A.2d 266
    Commonwealth v. Hopkins, Appellant.
    Submitted October 14, 1983.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Appeal quashed.


text:
    472 A.2d 266
    Commonwealth v. Hopper, Appellant.
    Submitted November 17, 1983.
    Warren D. Utermahlen, for appellant;
    Steven R. Guccini, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 267
    Commonwealth v. Jefferson, III, Appellant.
    Submitted November 8, 1983.
    Anthony S. Dedola, Jr., for appellant;
    Gerald S. Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 267
    Commonwealth v. Johnson, Appellant.

      Submitted October 4, 1983.
    Silvio Fausto Modafferi, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Judgment of sentence is affirmed.


text:
    472 A.2d 267
    Commonwealth v. $1,010.00 in U.S. Currency. Appeal of Robert W. Nunnery.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Submitted September 13, 1983.
    J. Brian Johnson, for appellant;
    William H. Platt, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.

MONTEMURO, J., filed a memorandum dissenting statement.


text:
    472 A.2d 267
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied June 12, 1984.

      Submitted October 24, 1983.
    Allan M. Tabas, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 268
    Commonwealth v. Stewart, Appellant.
    Submitted October 7, 1983.
    Vincent T. Snyder, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Petition to withdraw is denied. Counsel is directed to file an amended request for leave to withdraw that meets with the requirements outlined in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Counsel is to comply with this order within thirty (30) days or risk sanctions. Jurisdiction is retained.


text:
    472 A.2d 268
    Commonwealth v. Viall, Appellant.

      Submitted June 23, 1983.
    James F. Metka, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    472 A.2d 268
    Commonwealth v. Whiting, Appellant.
    Submitted October 21, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 269
    Facchiano v. Miller, Appellant, v. Stoner Truck Sales.
    Argued September 29, 1983.
    D. Ferito, for appellant; Leo P. Hajdukiewicz, for Facchiano, appellee;
    A.C. Stoner, appellee, in propria persona.
    Before BROSKY, McEWEN and BECK, JJ.
   Order affirmed.


text:
    472 A.2d 269
    Jazloveiticki, Appellant, v. Lipkin’s Bakery, Inc.
    Argued November 16, 1983.
    David Freeman, for appellant;
    Thomas L. DeLevie, for appellees.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment affirmed.


text:
    472 A.2d 269
    Kline, et al. v. Kohl, et ux. Appeal of Oliver W. Kohl and Ruth Kohl, Marlin D. Carey and Shirley Carey.
    Argued November 29, 1983.
    Barry Lee Smith, for appellants;
    John S. Kookogey, for appellees.

      Before ROWLEY, WIEAND and HESTER, JJ.
   Order and judgment affirmed.

WIEAND, J., filed a memorandum dissenting statement.


text:
    473 A.2d 203
    Schwartz, Appellant, v. Keystone Ins. Co.
    Reargument Denied April 18, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.
    Argued September 20, 1983.
    Allen L. Feingold, for appellant;
    Pamela B. Gagne, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order affirmed without prejudice.


text:
    February 27, 1984.
    473 A.2d 646
    Penfield v. Penfield, Appellant.
    Petition for Allowance of Appeal Denied Aug. 17, 1984.
    Argued February 7,1984.
    Joan D. Mason, for appellant;
    Theodore H. Watts, for appellee.

      Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   Order of June 30, 1983 affirmed.


text:
    February 28, 1984.
    472 A.2d 270
    Commonwealth v. Melice, Appellant.
    Submitted December 15,1983.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 270
    Commonwealth v. Perrins, Appellant.
    Submitted February 1, 1984.
    Patrick J. Flannery, Assistant Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 270
    Commonwealth v. Rivera, Appellant.
    Submitted February 2, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 271
    Commonwealth v. Suda, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1984.
    Submitted January 31, 1984.
    Patrick J. Flannery, Assistant Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   Affirmed.


text:
    472 A.2d 271
    Glosser v. Hoffman, Appellants.
    Submitted January 25, 1984.
    Joseph Colavecchi, for appellants;
    Donald A. Carosella, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   The appeal of Hoffman Contracting & Sales Company, Inc. is quashed.

The order of the court below as it affects C.L. Hoffman Associates, Inc. is affirmed.

Jurisdiction is relinquished.


author: WATKINS, Judge:

text:
    472 A.2d 615
    COMMONWEALTH of Pennsylvania v. Charles A. WALTON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1983.
    Filed Nov. 18, 1983.
    Reargument Denied April 9, 1984.
    Petition for Allowance of Appeal Denied July 27, 1984.
    See also, 287 Pa.Super. 614, 428 A.2d 267.

      William J. Honig, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case involves a situation where Senior Judge Smillie of the Court of Common Pleas of Montgomery County erroneously entered an order on August 11, 1982 advising the defendant that he would be discharged from Graterford where he had been sentenced for ten to twenty (10 to 20) years on August 19, 1977 by Judge Avrigion of the Montgomery County Court. At the time of Judge Smillie’s August 11, 1982 Order, the defendant’s case was on appeal to this Court, the defendant having filed an appeal from a denial of his Post Conviction motions which had been denied twice by the court below. The defendant’s appeal to our Court had been filed by him on June 15, 1982.

On July 29, 1982, during the pendency of defendant’s June 15, 1982 appeal to this Court, the defendant filed a Petition for Writ of Habeas Corpus with the court below. The matter was assigned to Judge Smillie who scheduled a hearing thereon for August 11, 1982. During the August 11, 1982 hearing, Judge Smillie was not informed of the pendency of the defendant’s June 15, 1982 appeal to our Court. A colloquy with counsel took place at the “hearing” after which Judge Smillie entered an order granting the defendant’s Habeas Corpus petition and ordering him discharged. The Commonwealth took no appeal from this order. Rather, on December 27, 1982, it filed a petition to vacate Judge Smillie’s order on the grounds that the order was null and void since it was issued at a time when the defendant’s case was on appeal here. The Commonwealth’s petition was designated as one for a “Writ of Coram Nobis” or in the alternative as a “Petition to Open Judgment”. The Commonwealth’s petition was then assigned to Judge Brown who asked for briefs and argument of the parties. After this took place, Judge Brown issued an opinion and order on April 25, 1983 granting the Commonwealth’s request that Judge Smillie’s order of August 11, 1982 be declared a nullity. The defendant now appeals from the April 25, 1983 order of Judge Brown.

On appeal, the defendant argues that the Commonwealth has no right to file a “Coram Nobis Petition”, that since the Commonwealth failed to appeal the August 11, 1982 order of Judge Smillie that it was precluded from raising the propriety of the order on December 27, 1982, and that Judge Brown “prejudged” the case by issuing his April 25, 1983 Order without benefit of a hearing.

As pointed out above the Commonwealth’s petition of December 27, 1982 was characterized as one for a “Writ of Coram Nobis” or, in the alternative, as a “Petition to Open Judgment”. What it is called is of no import for its only purpose was to call the court’s attention to the fact that Judge Smillie’s order was null and void because it was entered during the pendency of defendant’s appeal to our Court. An order entered by a lower court while a case is on appeal is a nullity. Commonwealth v. Lynch, 304 Pa.Superior Ct. 248, 450 A.2d 664 (1982); Commonwealth v. Canady, 297 Pa.Superior Ct. 292, 443 A.2d 843 (1982). Thus, Judge Smillie’s August 11, 1982 Order was void ab initio and of no legal effect. As such, the Commonwealth was not required to take an appeal from the order. See Dukmen v. Dukmen, 278 Pa.Superior Ct. 530, 420 A.2d 667 (1980). In any event this Court will not give effect to an order entered by the court below during the pendency of an appeal of the same matter to our Court.

Finally, Judge Brown’s decision of April 25, 1983 was explained by him as necessary to avoid confusion among prison officials as to whether Judge Smillie’s order was to be followed as valid. We find that neither Judge Smillie nor Judge Brown may re-sentence the defendant at this late date. Tillman v. Pennsylvania Board of Probation and Parole, 48 Pa.Comm.Ct. 325, 409 A.2d 949 (1980). We view Judge Brown’s order as a common-sense solution to a confusing situation, the confusion resulting from Judge Smillie’s void order. Judge Brown was not required to “re-hear” the case and thus, did not “prejudge” the case when he failed to schedule hearings thereon as defendant suggests.

Order affirmed; defendant’s Petition for Supersedeas denied.

MONTGOMERY, J., concurs in the result.

      . We had denied the defendant’s appeal from the denial of his first post conviction motions in Commonwealth v. Walton, 287 Pa.Superior Ct. 614, 428 A.2d 267 (1980). Our Supreme Court denied allocatur of this matter on September 9, 1980.

      . The defendant, having received an order discharging him from prison from Judge Smillie, withdrew his appeal to our Court on October 6, 1982.


author: LIPEZ, Judge:

text:
    472 A.2d 617
    COMMONWEALTH of Pennsylvania v. Ramsey CLARK, Esquire, Charles A. Glackin, Esquire, Michael C. Shields, Esquire, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1983.
    Filed Jan. 27, 1984.
    Reargument Denied April 3, 1984.
    Petition for Allowance of Appeal Denied Oct. 2, 1984.

      A. Richard Gerber, Norristown, for appellants.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   LIPEZ, Judge:

This appeal is from an order denying appellants’ motion to dismiss proceedings against them for direct criminal contempt. The basis for the motion was the Commonwealth’s alleged failure to comply with the 180-day time limit for trial under Rule of Criminal Procedure 1100(a)(2). The sole issue before us is whether Rule 1100 applies to cases of direct criminal contempt. We hold that it does not.

Pennsylvania Rule of Criminal Procedure 1100(a)(2) provides:

Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

It is clear that Rule 1100(a)(2) only applies to a “court case”, which is defined as follows: “ ‘Court Case ’ is a case in which one or more of the offenses charged is a misdemeanor, felony or murder of the first or second degree.” Pa.R.Crim.P. 3(f). Since contempt is not murder of the first or second degree, it can only be governed by Rule 1100 if it is a misdemeanor or felony.

Appellants contend that direct criminal contempt must fall within some degree of felony or misdemeanor, as defined by subsection (b)(2) through (9) of section 106 of the Crimes Code, 18 Pa.C.S. § 106(b)(2)-(9). This is plainly incorrect, because all the various degrees of felony and misdemeanor in subsection (b)(2) through (9) are defined in terms of the maximum penalty set by the legislature. See also 18 Pa.C.S. §§ 1103, 1104. As appellants themselves correctly assert, the legislature has set no maximum penalty for direct criminal contempt. Commonwealth v. Strickler, 481 Pa. 579, 590-91, 393 A.2d 313, 318-19 (1978); Commonwealth v. Falkenhan, 306 Pa.Super. 330, 339, 452 A.2d 750, 758 (1982); see S. Toll, Pennsylvania Crimes Code Annotated, § 107(c), Model Penal Code Comment, at 28; see also People v. Stollar, 31 Ill.2d 154, 157, 201 N.E.2d 97, 99 (1964). Because direct criminal contempt is neither a felony nor a misdemeanor, appellants’ case is not a “court case”, and is not within the scope of Rule 1100.

Order affirmed.

      . The order is interlocutory, but was certified for immediate appeal by the court below. See 42 Pa.C.S. § 702(b). This court then granted appellants’ petition for permission to appeal. See Pa.R.A.P. 1311(b).

      . Appellants make occasional references in their brief to indirect contempt, although it is not clear whether they actually contend that they are charged with indirect contempt. In any event, we regard the question certified to this court as involving only direct contempt. At the hearing on appellants’ petition to certify, the judge specifically stated that his ruling was that Rule 1100 does not apply to direct criminal contempt, and counsel for one of the appellants also specifically referred to the contempt charge as being direct contempt. At no time was any contention raised that appellants were charged with indirect contempt. Moreover, appellants specifically relied on the transcript of this hearing in their petition to this court to allow this interlocutory appeal.

      . We have not set forth the procedural background of the case because of the confused state of the record, and because it is irrelevant to the Rule 1100 issue, which is the sole issue before us. We emphasize that this is the only issue we are deciding, and we imply no view concerning any other issue whatsoever. We also note that appellants, in argument to the court below and in their brief in this court, have claimed that their rights under the speedy trial clauses of the United States and Pennsylvania Constitutions were violated. No specific argument concerning these claims has been made at any time. We do not consider the bald references to the speedy trial clauses in the lower court adequate to preserve the issue for appeal, and even if it were preserved, we would view it as abandoned on appeal for failure to make any specific argument.