text:
    450 A.2d 136
    In re Michael CONDRY—Section 303. Appeal of Michael CONDRY.
    Superior Court of Pennsylvania.
    Submitted Dec. 9, 1981.
    Filed Sept. 10, 1982.

      John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
    Kimberly D. Borland, Wilkes-Barre, for Mental Health, participating party.
    Ralph C. S. Johnson, Wiles-Barre, for Luzerne, participating party.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   CAVANAUGH, Judge:

This appeal is from an order entered pursuant to section 303(g) of The Mental Health Procedures Act (MHPA), Act of July 9, 1976, P.L. 817, No. 143, as amended, 50 P.S. § 7303(g), upholding the certification of a Mental Health Review Officer who committed appellant to Clarks Summit State Hospital for a period not to exceed twenty days. Because the statutory requirements were not strictly adhered to, we vacate the order in question.

We must first point out that although the commitment order appealed from expired long before the appeal was submitted to us, the issue of the propriety of the commitment is not moot as alleged by The Luzerne County Solicitor. As we reiterated in a recent case, appeals from involuntary commitment orders which have expired are not moot “because involuntary commitment affects an important liberty interest, and because by their nature most involuntary commitment orders expire before appellate review is possible.” Commonwealth v. Ida Blaker, 293 Pa.Super. 391, 393 n.1, 446 A.2d 976, 977 n.1 (1981). Furthermore, “were we to dismiss such appeals as moot, the challenged procedure could continue, yet its propriety would evade our review.” In re Ann S., 279 Pa.Super. 618, 621 n.2, 421 A.2d 370, 372 n.2 (1980). See also In re S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980); Commonwealth ex rel. Bielat v. Bielat, 257 Pa.Super. 446, 390 A.2d 1321 (1978).

Appellant was initially admitted to Clarks Summit State Hospital on a voluntary basis. When he indicated a desire to leave, the hospital staff initiated proceedings for emergency treatment under section 302 of the MHPA. The hospital subsequently filed a petition for involuntary commitment under section 303 of the MHPA. A hearing on that petition was held before a Mental Health Review Officer. A psychiatrist from the hospital testified that appellant suffered from schizophrenia paranoid type. ■ He stated that appellant believed that all members of the hospital staff were Russian KGB agents or Communists and that he adjusted his behavior to protect himself from the perceived danger. He testified that appellant had refused to accept nourishment based on his belief that it had been poisoned by the suspected KGB agents. He further testified that appellant had failed to observe even the most rudimentary requirements for his personal hygiene in that he had refused to bathe, shave or change his clothes.

Following the hearing, the Mental Health Review Officer issued an order committing appellant to Clarks Summit State Hospital for a period not to exceed twenty days. Appellant filed a petition for review of that order in the court of common pleas pursuant to section 303(g) of the MHPA. Following a hearing, the lower court denied the petition, thus upholding the commitment order of The Mental Health Review Officer. This appeal was taken from the order denying the petition for review.

Appellant first alleges that the hearing held by the lower court did not comply with the requirements of section 303(g), which provides as follows:

(g) Petition to Common Pleas Court.—In all cases in which the hearing was conducted by a mental health review officer, a person made subject to treatment pursuant to this section shall have the right to petition the court of common pleas for review of the certification. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person’s counsel. The hearing shall include a review of the certification and such evidence as the court may receive or require. If the court determines that further involuntary treatment is necessary and that the procedures prescribed by this act have been followed, it shall deny the petition. Otherwise, the person shall be discharged.

50 P.S. § 7303(g) (emphasis added).

Appellant claims that in order to satisfy the requirements of this section, the mental health authorities must “either offer evidence in the nature of a de novo hearing, or alternatively, must offer a transcript of the hearing occurring before The Mental Health Review Officer.” Appellant’s brief at 6. We agree with the lower court’s conclusion that this is not required by the MHPA. The Act requires only that the hearing include “a review of the certification and such evidence as the court may receive or require.” 50 P.S. § 7303(g). The lower court in the instant case did review the certification of the Mental Health Review Officer, which contained a summary of the evidence presented at the hearing before the Review Officer. The court further indicated that it was willing to accept any additional evidence presented by either party. Appellant did, in fact, testify in his own behalf at the hearing before the lower court. Counsel for the mental health authorities indicated at the hearing that although he had no evidence to present other than the certification of The Mental Health Review Officer, he did have a doctor who had examined appellant at the hospital present in case the court or counsel for appellant wished to question him. Neither the court nor appellant chose to question the doctor. We feel that the hearing held by the lower court complied with the procedural requirements of section 303(g).

Appellant next claims that the certification lacked sufficient findings to allow continued commitment. We disagree. The evidence presented to the Mental Health Review Officer and summarized in the certification was sufficient to justify a finding that appellant was a clear and present danger to himself under section 301(b)(2)(i) of the MHPA (50 P.S. § 7301(b)(2)(i)) and that the least restrictive environment in which appellant could safely remain consistent with the provision of adequate treatment was as an inpatient on a closed ward at Clarks Summit State Hospital.

Finally, appellant alleges that the certification was insufficient in that it did not contain a description of the treatment to be provided as required by section 303(d)(2) of the MHPA (50 P.S. § 7303(d)(2)). We agree with this contention. Section 303(d), entitled “Contents of Certification,” contains a list of things which must be included in a certification. Among the list of requirements is the inclusion of “a description of the treatment to be provided together with an explanation of the adequacy and appropriateness of such treatment, based upon the information received at the hearing.” 50 P.S. § 7303(d)(2). The certification in the instant case did not contain a description of the treatment to be provided. In fact, the lower court noted the absence of a description of treatment at the hearing on the petition for review. The court nevertheless found that the procedures prescribed by the MHPA had been followed.

As the Pennsylvania Supreme Court has stated, “The legislative policy reflected in The Mental Health Procedures Act is to require that strict conditions be satisfied before a court order for commitment shall be issued.” Commonwealth v. Hubert, 494 Pa. 148, 153, 430 A.2d 1160, 1162 (1981). Thus, “strict adherence to the statutory requirements is to be compelled.” Id., 494 Pa. at 153, 430 A.2d at 1163. See also Commonwealth v. Blaker, supra; In re S.C., supra. Because the certification did not include a description of the treatment to be provided as required by the MHPA, the order of involuntary commitment must be vacated.

Order vacated.

      . Although the court held that the mental health authorities had no duty to produce a transcript of the proceeding before The Mental Health Review Officer, counsel for the.mental health authorities testified at the court hearing that a tape recording of the proceeding was available to appellant. Appellant could have introduced the tape as evidence if he so desired.

      . The “certification” which the lower court must review is much more than a bare statement by The Mental Health Review Officer that the person in question is in need of involuntary treatment. Section 303(d) of the MHPA (50 P.S. § 7303(d)) lists the required contents of a certification as follows:
      (d) Contents of Certification.—A certification for extended involuntary treatment shall be made in writing upon a form adopted by the department and shall include:

        (1) findings by the judge or mental health review officer as to the reasons that extended involuntary emergency treatment is necessary;
      (2) a description of the treatment to be provided together with an explanation of the adequacy and appropriateness of such treatment, based upon the information received at the hearing;
      (3) any documents required by the provisions of section 3022;
      (4) the application as filed pursuant to section 303(a)3;
      (5) a statement that the person is represented by counsel; and
      (6) an explanation of the effect of the certification, the person’s right to petition the court for release under subsection (g), and the continuing right to be represented by counsel.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    450 A.2d 139
    Edward BOOTHMAN, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY and City of Philadelphia.
    Superior Court of Pennsylvania.
    Argued April 21, 1982.
    Filed Sept. 10, 1982.

      James L. Womer, Philadelphia, for appellant.
    George D. Sheehan, Jr., Philadelphia, for Prudential, appellee.
    Steven B. Berger, Philadelphia, for City of Philadelphia, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

On March 8, 1978, Edward Boothman filed a complaint in assumpsit against Prudential Property and Casualty Insurance Company (hereinafter Prudential) alleging, inter alia, that plaintiff Boothman had been involved in a motor vehicle accident with another vehicle in January of 1977, as a result of which he sustained personal injuries. Further it was alleged that plaintiff Boothman had requested the defendant, who insured Boothman under a policy of insurance, to make payment of medical bills and lost wages incurred as a result of the accident pursuant to the provisions of the Pennsylvania No-Fault Act.

Thereafter, on March 30, 1978, Prudential filed an answer to the complaint and filed a complaint against the City of Philadelphia, as an additional defendant, setting forth that at the time of the accident occurring January 26, 1977, plaintiff Edward Boothman was a policeman employed by the City of Philadelphia and was on duty at the time of said accident and alleging further that the security for the payment of basic loss benefits covering the motor vehicle furnished to the plaintiff by the City of Philadelphia was such security as was provided by the City of Philadelphia. Extended pre-trial discovery followed.

On January 24, 1980, the Honorable Edward Rosenwald, Senior Judge, granted a motion of Prudential for summary judgment and dismissed plaintiff’s cause of action against it. This appeal by Edward Boothman followed. We reverse and remand.

In Petraglia v. American Motorists Insurance Company, 284 Pa.Super. 1, 3, 424 A.2d 1360, 1361 (1981), aff’d per curiam, 498 Pa. 32, 444 A.2d 653 (1982), we stated that:

Summary judgment ‘shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’ Pa.R.Civ.P. 1035(b). Summary judgment can only be granted in the clearest of cases. See, e.g., Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). Additionally, the evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

Brunelli v. Farelly Brothers, 266 Pa.Super. 23, 402 A.2d 1058 (1979), involved a similar issue:

On August 6, 1975, Frederick A. Brunelli, an employee of Cobb and Lawless, was injured in a collision with an automobile driven by Luis Aviles, an employee of Farelly Brothers. At the time of the accident, Mr. Brunelli was operating a motor vehicle furnished by his employer, within the scope of his employment. . . .
Under No-fault § 111(b), the no-fault insurer (or ‘obligor’, to use the term employed in the Act) must pay the injured insured (the employee Brunelli in this case) ‘basic loss benefits’, regardless of who was responsible for causing the accident. .. . the workmen’s compensation insurer must pay all that it is required to pay under the provisions of the workmen’s compensation statute before the no-fault insurer’s financial obligations begin to accrue.

Id., 266 Pa.Superior Ct. at 24-27, 402 A.2d at 1059-60.

The facts of record in this case clearly disclose that Boothman was injured in his employer’s vehicle, while acting in the course and scope of his employment. In Augostine v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa.Super. 50, 437 A.2d 985 (1981), plaintiff Robert J. Augostine was employed by Penn Road Materials Company and was injured while alighting from one of his employer’s trucks in the course of his employment. He applied for and was receiving total disability benefits under the Pennsylvania Workmen’s Compensation Act. At the time of the accident the plaintiff owned his own car and was insured under a no-fault policy issued by Pennsylvania National Mutual Casualty Insurance Company. He then initiated an action in assumpsit whereupon the lower court held that the plaintiff could not recover from his own no-fault carrier because the employer’s no-fault insurance carrier was the proper company against whom he should proceed. We said:

The Supreme Court’s recent decision in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980) clearly indicates that although the plaintiff cannot recover from his employer’s no-fault insurance carrier he is entitled to receive basic work-loss benefits to make up the difference between his actual wage loss and benefits conferred on him under the Workmen’s Compensation Act from his own no-fault insurance carrier.
The court found that neither of these sections created an exception to the exclusivity of remedy section of the Workmen’s Compensation Act and held that the appellant could not recover from the employer’s no-fault insurance carrier. The court specified, however, that an employee would be limited to workmen’s compensation benefits only in a situation identical to the one before it; i.e., where the driver carries no insurance of his own on his own vehicle and no other vehicle is involved in the injury-producing accident. Wagner, supra 492 Pa. at 167, 422 A.2d at 1068 (Emphasis added).

The court stated:

In sum, an employee injured in the scope of his employment while driving his employer’s vehicle may recover only workmen’s compensation benefits from his employer or the employer’s workmen’s compensation carrier; such a result is compelled by Section 303 of the Workmen’s Compensation Act. The injured employee may, if applicable, proceed against any of the applicable security mentioned in Section 204(a)(2)-(5). Should the employee recover no-fault benefits, workmen’s compensation benefits must first be deducted from any no-fault benefits to be paid. Should an employee be using his employer’s vehicle for private non-work related reasons, the employee could recover from his employer’s no-fault carrier.

Wagner, supra, 492 Pa. at 167, 422 A.2d at 1068.

Applying the principles of Wagner to the facts of the instant case it is clear that although the plaintiff may not recover from his employer’s no-fault insurance carrier, he may proceed against his own insurer under § 204(a)(2). It is also clear that § 206 of the No-Fault Act mandates that workmen’s compensation benefits must be deducted from this recovery.

Id., 293 Pa.Superior Ct. at 52-55, 437 A.2d at 986-87 (footnotes omitted).

Under the authority of Augostine and Wagner, Edward Boothman clearly has a right of recovery against his personal no-fault insurer subject to an appropriate deduction for any workmen’s compensation benefits received. Accordingly, the entry of summary judgment in favor of Prudential was erroneous and we reverse and remand for proceedings consistent with this opinion.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (Supp. 1981-82)

      . On April 23, 1980, a brief memorandum opinion was filed by Judge Rosenwald reading as follows:
      The issues involved in the above-captioned matter are controlled by the decision of the Superior Court of Pennsylvania in the case of Brunelli v. Farelly Brothers, [266] Pa.Super. [23], 402 A.2d 1058 (1979). It was upon that basis which this Court granted defendant Prudential’s Motion for Summary Judgment.

      . Appellant states the issue involved in this appeal as follows:
      Whether it was an abuse of discretion and an error at law for the Lower Court to grant Appellee’s Motion for Summary Judgment.
      Brief for Appellant at 1.


author: WIEAND, Judge:

text:
    450 A.2d 142
    COMMONWEALTH of Pennsylvania v. Wilbur CARTER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1982.
    Filed Sept. 10, 1982.

      Vincent Iannello, Jr., Media, for appellant.
    Vram Nedurian, Jr., Newton Square, David E. Fritchey, Deputy District Attorney, John A. Reilly, District Attorney, Media, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Wilbur Carter was tried without jury and convicted of possession of an instrument of crime, possession of a firearm without a license and conspiracy to possess an instrument of crime. Motions for new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of not less than one year nor more than two years on the conviction for possession of an instrument of crime. Sentence on the remaining convictions was suspended. Carter argues on direct appeal that the evidence was insufficient to sustain the convictions.

“In appraising the sufficiency of evidence, we must apply a two-step test. First, we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict; then we must ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Herriott, 265 Pa.Super. 143, 147, 401 A.2d 841, 843-844 (1979) quoting Commonwealth v. Eddington, 255 Pa.Super. 25, 26, 386 A.2d 117, 117-118 (1978). Accord: Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Allen, 287 Pa.Super. 88, 94, 429 A.2d 1113, 1115 (1981); Commonwealth v. Bentley, 276 Pa.Super. 41, 44, 419 A.2d 85, 86 (1980).

The evidence, as summarized in the trial court’s opinion, established the following facts. “[0]n September 4, 1980 at approximately 12:30 in the morning, Officer Paul Schaum, Jr. of the Springfield Police Department was patrolling along Baltimore Pike in an unmarked car. He drove into the parking lot of an A & P Food Market to check the store which was open all night. When he drove into the parking lot, Officer Schaum noticed a brown Ford LTD with New Jersey license plates riding slowly in front of the Market. Officer Schaum stopped his vehicle and observed the other car as it pulled up near the door of the market and stopped for a moment. Officer Schaum was able to observe five people in the car . . . Gerald Gatewood was sitting in the front passenger’s seat; Wilbur Carter was sitting in the left rear seat and Nathaniel Wertz occupied the right rear seat of the vehicle. After stopping the car in front of the market, the driver turned the car around and drove past Officer Schaum’s vehicle. The occupants of the car looked at Officer Schaum as they rode by. The car then left the parking lot and made a left turn onto Baltimore Pike. Officer Schaum followed the car as it began to drive through Springfield. During the time he was following the car, Officer Schaum noticed . . . Wertz looking out the back window of the vehicle. Officer Schaum continued to follow the car through a residential area and then a small business district of Springfield for approximately five to ten minutes until the car stopped at a traffic light at Bishop Avenue and Springfield Road. While at the light, defendant Carter got out of the car and switched places with the driver. Carter then proceeded to drive the car through the red light and he began heading down Springfield Road at a rate of speed estimated by Officer Schaum to be in excess of 50 miles per hour. Officer Schaum continued to follow the car, and he then radioed for assistance to stop the vehicle. Detective John Reif of the Clifton Heights Police Department responded to Officer Schaum’s call and blocked the southbound lane of Springfield Road just below Baltimore Pike. When the [vehicle] arrived at Detective Reif’s location, defendant Carter stopped the vehicle after its front end went up onto the pavement immediately in front of Detective Reif’s car. Detective Reif got out of his vehicle, but he remained behind the open door of the car. He noticed defendant Carter slumping down in his seat so that only Carter’s head was visible to Detective Reif. Detective Reif ordered Carter to place his hands on the car’s windshield. Carter failed to obey the order at first, but obeyed when Detective Reif repeated the instruction. Detective Reif then ordered Carter to turn off the car’s engine and to get out of the car with his hands in the air. Carter obeyed the orders and walked to the rear of the car where Detective Reif’s partner was standing. At this point, an Aldan police officer arrived on the scene and he removed . . . Gatewood from the front passenger seat of the car. Detective Reif walked over to the [stopped] vehicle. The driver’s door of the car was still open and when Detective Reif looked inside, he observed a chrome-colored .25 caliber automatic pistol on the floor under the driver’s seat. The gun was found under the brake pedal. Detective Reif reached into the car and took possession of the gun. Officer Schaum arrived on the scene at this time and he was handed the gun by Detective Reif. Officer Schaum then went to the right rear door of the .. . car and ordered the three passengers in the rear to get out of the car . . . Wertz got out first and as he was leaving the car, Officer Schaum saw a .38 caliber revolver on the floor directly below where Wertz was sitting. After the two remaining occupants of the car got out, Officer Schaum seized the gun. Both guns which were seized were loaded.”

Appellant did not physically have the .25 caliber pistol on his person. He argues that the evidence also failed to show that he had constructive possession of the pistol. Mere presence in an automobile in which a weapon is found, he correctly contends, is not sufficient to prove that a passenger is in possession of the weapon. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). To show possession the Commonwealth was required to establish that appellant had the power of control over the weapon and the intention to exercise that control. Commonwealth v. Armstead, 452 Pa. 49, 51, 305 A.2d 1, 2 (1973); Commonwealth v. Townsend, supra 428 Pa. at 284, 237 A.2d at 194; Commonwealth v. Hamm, 301 Pa.Super. 266, 269, 447 A.2d 960, 962 (1982); Commonwealth v. Luddy, 281 Pa.Super. 541, 548, 422 A.2d 601, 604 (1980), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981); Commonwealth v. Bentley, supra, 276 Pa.Super. at 46, 419 A.2d at 87; Commonwealth v. Flythe, 273 Pa.Super. 248, 252, 417 A.2d 633, 634 (1979); Commonwealth v. DeCampli, 243 Pa.Super. 69, 74, 364 A.2d 454, 456 (1976). However, possession may be proved by circumstantial evidence. Commonwealth v. Bentley, supra 276 Pa.Super. at 46, 419 A.2d at 87. “Individually, the circumstances may not be decisive; but, in combination, they may justify an inference that the accused had both the power to control and the intent to exercise that control, which is required to prove constructive possession.” Commonwealth v. DeCampli, supra, 243 Pa.Super. at 75, 364 A.2d at 456. Accord: Commonwealth v. Luddy, supra 281 Pa.Super, at 548, 422 A.2d at 605; Commonwealth v. Bentley, supra, 276 Pa.Super. at 46, 419 A.2d at 87. The lower court, which as fact finder, was free to believe all, part or none of the evidence, Commonwealth v. Allen, supra 287 Pa.Super. at 94-95, 429 A.2d at 1116; Commonwealth v. Thomas, 284 Pa.Super. 375, 386, 425 A.2d 1151, 1156 (1981), found that the gun had been on the floor below and within the clear view of appellant while the car was being driven and when it was stopped. The court inferred, therefore, that appellant had been aware of the presence of the gun and that the gun had been within the area of his immediate control. The evidence, as found by the fact finder, also established that none of the other occupants of the vehicle had had an opportunity in the period between the stop and the discovery of the gun to place the gun on the floor. Moreover, the evidence of appellant’s behavior after the car was stopped—bending down to reach the floor and temporarily failing to respond to the police officer’s directions to place his hands on the windowshield—provided an additional circumstance adding weight to the trial court’s conclusion that appellant had either placed the gun on the floor while bent over, or, at least, was aware of its presence and intended to exercise control over it. The evidence, therefore, was sufficient to support the trial court’s determination that appellant had been in constructive possession of the gun and guilty of violating Sections 907(b) and 6106 of the Crimes Code.

We agree with appellant, however, that the evidence was insufficient to show a conspiracy with other occupants of the vehicle to possess the .25 caliber pistol. “An unlawful agreement or an agreement to do a lawful act in an unlawful manner is an essential element of a conspiracy, and the agreement among coconspirators is the nexus which makes each member criminally responsible for acts of the others in furtherance of the conspiracy. Thus, a necessary ingredient of evidence sufficient to support a conspiracy conviction is proof beyond a reasonable doubt of a conspiratorial agreement.” Commonwealth v. Dolfi, 483 Pa. 266, 271, 396 A.2d 635, 637 (1979). This, too, can be shown by circumstantial evidence. Commonwealth v. Dolfi, supra, 483 Pa. at 271, 396 A.2d at 638; Commonwealth v. Holmes, 482 Pa. 97, 105, 393 A.2d 397, 401 (1978); Commonwealth v. Smith, 289 Pa.Super. 356, 367, 433 A.2d 489, 495 (1981); Commonwealth v. Walton, 289 Pa.Super. 411, 414, 433 A.2d 517, 518 (1981); Commonwealth v. Young, 280 Pa.Super. 393, 397-398, 421 A.2d 779, 781 (1980). “However, ‘a conviction based solely on inference, suspicion and conjecture cannot stand’.” Commonwealth v. Frey, 264 Pa.Super. 212, 215, 399 A.2d 742, 743 (1979) quoting Commonwealth v. Rothman, 226 Pa.Super. 319, 322, 310 A.2d 353, 354 (1973).

In this case, the evidence was insufficient. The mere fact that other persons were present in the car was insufficient to show that they knew appellant had a pistol in his possession or that they were a part of a conspiracy to carry it in violation of law. Mere presence at or near the scene of an offense, it has been held repeatedly, is insufficient to establish that one is part of a conspiracy. Commonwealth v. Sadusky, 484 Pa. 388, 392, 399 A.2d 347, 349 (1979); Commonwealth v. Emmi, 290 Pa.Super. 86, 93, 434 A.2d 142, 145 (1981); Commonwealth v. Knox, 273 Pa.Super. 563, 566, 417 A.2d 1192, 1193 (1980); Commonwealth v. Jefferson, 271 Pa.Super. 199, 203, 412 A.2d 882, 884 (1979); Commonwealth v. Manlin, 270 Pa.Super. 290, 293, 411 A.2d 532, 534 (1979). Thus, while the evidence and reasonable inferences therefrom were sufficient to permit the fact finder to conclude that appellant had been in constructive possession of the gun, there was no evidence that a conspiracy to possess the gun had existed with other occupants of the car. See and compare: Commonwealth v. Hamm, supra.

The trial court imposed only one sentence following three separate convictions. It is impossible to ascertain from the record whether the sentence for possessing an instrument of crime was influenced by the improper conviction for conspiracy. Therefore, we will vacate the judgment of sentence and remand for resentencing on the convictions for possession of an instrument of crime and for possession of a firearm without a license. See: Commonwealth v. Conrad, 285 Pa.Super. 571, 578, 428 A.2d 192, 196 (1981); Commonwealth v. Bollinger, 214 Pa.Super. 112, 124-125, 418 A.2d 320, 326-327 (1979); Commonwealth v. Miller, 269 Pa.Super. 589, 592, 410 A.2d 857, 859 (1979); Commonwealth v. Grant, 235 Pa.Super. 357, 365-366, 341 A.2d 511, 515 (1975).

It is so ordered.

      . 18 Pa.C.S. § 907(b).

      . 18 Pa.C.S. § 6106.

      . 18 Pa.C.S. §§ 903; 907(b).


author: McEWEN, Judge:

text:
    450 A.2d 145
    COMMONWEALTH of Pennsylvania v. Donald L. GLENN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1981.
    Filed Sept. 10, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      Mark E. Kogan, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

We here consider a direct appeal from the judgment of sentence following a jury trial in which appellant was convicted of three counts of robbery, rape, burglary and criminal conspiracy for which appellant was sentenced to serve a term of imprisonment of from twenty to forty years. We affirm.

The brief of the Commonwealth accurately summarizes the events upon which the convictions of appellant are based:

The instant case arises from an attack on three University of Pennsylvania students by three armed intruders, during which the victims’ apartment was plundered and their goods were stolen. One student was raped, while the other two were bound and gagged, helpless to interfere. The Commonwealth’s evidence established the following. On February 25,1979, at about 5:00 p. m., Perry Sobel and Marian Sussman were entering the apartment building at 4300 Spruce Street in Philadelphia (N.T. 112). Mr. Sobel lived there with two other roommates and Ms. Sussman was visiting them that evening. As Mr. Sobel prepared to put his key in his door, he and Ms. Sussman were approached from behind by three black males who, after a brief inquiry, grabbed Mr. Sobel by a chain around his neck, put a gun to his head and forced both him and Ms. Sussman into the lobby of the building (N.T. 112-113, 150-151). They demanded to be taken to Sobel’s apartment where they were let in. One of Sobel’s roommates, Neil Unger, was at home. When he heard the door open, he left his room and entered the apartment’s hallway. However, Unger was immediately confronted by a gunman who forced him to aboutface (N.T. 118). Unger, Sobel and Sussman were then led to the bathroom and forced to lie down on the floor (N.T. 118). At all times, they were instructed not to turn around and the intruders took precautions to preclude any subsequent identification by placing bandaids and masking tape placed over the victims’ eyes (N.T. 118, 119, 152, 164). Marian Sussman was then dragged from the bathroom, placed in a nearby bedroom, undressed, and raped consecutively by two of the robbers. Meanwhile, both Sobel and Unger could hear her cries and pleas but were powerless to come to her aid (N.T. 120, 165-166). The robbers took their victims’ wallets, money, any checks and valuables found around the apartment and then began to ransack and empty the premises. By this time, Marian Sussman, still naked, had been shoved back into the bathroom and all three victims were tied together with wire from the telephone which had been pulled out of the wall (N.T. 121, 135, 155). For approximately forty (40) minutes or more, the three students could hear the sounds of the apartment being dismantled. Nearly everything of value was taken including the stereo system, numerous items of clothing, appliances, cameras, jewelry and watches (N.T. 129, 154, 171). Finally, the men demanded the keys to Sobel’s car, ascertained its location and sent one of their number to get it. When he returned, the loot was loaded into the car and the assailants fled, leaving Sobel and Unger and Sussman still bound together (N.T. 123,124,155,168-169). After several minutes, the three managed to untie themselves and Unger found an operable phone in a friend’s apartment and called the police (N.T. 169). At approximately the same time, defendant and co-defendant, Joseph Woolfolk, were observed driving Sobel’s car, which was loaded with the items stolen from the rape/robbery, and were apprehended. (Brief of Appellee at pp. 2—4)

The brief of appellant presents the following Statement of Questions Involved:

1. Did the learned trial court err in denying appellant’s motion to suppress all physical evidence?
2. Was the evidence sufficient as a matter of law to sustain appellant’s conviction for rape?
3. Did the court commit a reversible error entitling appellant to a new trial when it admitted over objection the report of a seminal stain on appellant’s underwear?

We have carefully reviewed the briefs of the parties, as well as the entire record, and conclude that the distinguished Judge Joseph P. Braig provided for a proper determination of the case and has done so in such able fashion that we need only discuss the initial question. Appellant there contends that since there was no probable cause for his arrest, the arrest was unlawful and the evidence seized in that arrest became thereby inadmissible. We do not agree.

The record reflects that Officer Alexander Schulke testified at the suppression hearing that before arresting the appellant, he and his partner, Officer Michael Ziegler, saw the silver Mercury Cougar in which the appellant was a passenger, make an illegal lefthand turn through a red light. The police officers followed in their vehicle. When the car failed to stop for a stop sign at the next intersection, the officers signaled the vehicle to halt with the patrol car’s dome light and spotlight. The accomplice of appellant pulled the car to the curb and appeared to have stopped the vehicle, but when the patrol car stopped, the accomplice immediately sped away and went through another stop sign at the next intersection. The police continued to pursue the vehicle for several blocks until it hit the curb and came to a complete stop when the accomplice failed to negotiate a right turn. Joseph Woolfolk, the accomplice of appellant and operator of the vehicle, stepped out of the car and took several steps toward the police car, concealing his hand in his coat; after exiting the patrol car, Officer Schulke drew his gun fearing that Woolfolk was armed. Woolfolk suddenly spun around and fled with Officer Ziegler in pursuit. When Woolfolk made a motion as he ran down the street as if he were going to fire a gun, the police officer jumped between two cars. Woolfolk then fled the scene successfully and was observed discarding various items of clothing as he did so.

Meanwhile appellant, seated in the passenger seat and in the presence of Officer Schulke, had opened his door in an attempt to leave the car but was unable to do so since the antenna from a large portable television set which was on his lap had become entangled with the dashboard, effectively pinning him to his seat. Officer Schulke, his gun drawn and pointed in the direction of appellant, repeatedly ordered him to remain still. Appellant, despite these orders, continued to move about and reached behind the seat with his left hand to the rear of the car—where a gun was later recovered. As a result of the resistance of appellant, Officer Schulke called for the assistance of his partner and appellant was, thereafter, forcibly removed from the car.

As Officer Schulke approached the passenger side of the car and while removing defendant from the vehicle, he observed a highly suspicious assortment of goods in the rear seat of the vehicle which included such items as stereo speakers, suitcases and a number of bags, some of which contained the names of Unger and Sobel as well as out-of-state addresses.

After defendant was removed from the car the officers patted him down and discovered a wallet, wires and a can opener in the pocket of his coat. Although appellant had previously identified himself to police as Joseph Williams, the name on the license in the wallet was Perry Sobel. Appellant tried to explain the discrepancy by saying that the wallet belonged to the operator of the car.

Some minutes later- Woolfolk, the driver of the car reappeared on the scene acting as though he were a spectator. Both police officers immediately recognized him despite his attempt to conceal his identity by the removal of some of the clothes he wore at the time he fled. Both appellant and Woolfolk were then transferred to police headquarters where the officers learned of their connection with the instant crimes. A full scale search of the vehicle at the police station revealed the loot from the robbery committed at the Spruce Street apartment.

In Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981) we set forth the standards applicable to an arrest based upon probable cause:

A legal arrest without a warrant depends upon probable cause. Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967). Probable cause exists if the facts and circumstances which are within the knowledge of the police at the time of arrest, and of which they have reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that a suspect has committed or is committing a crime. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Culmer, 463 Pa. 189, 195, 344 A.2d 487, 490 (1975); Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974); Commonwealth v. Garvin, 448 Pa. 258, 262, 293 A.2d 33, 35-36 (1972); Commonwealth v. Holton, 432 Pa. 11, 14-15, 247 A.2d 228, 230 (1968). The standard of probable cause, however, must be applied to the totality of the circumstances facing the police. Facts insufficient to justify an arrest if considered separately may in combination supply probable cause. Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976). In Commonwealth v. Tolbert, 235 Pa.Super. 227, at p. 230, 341 A.2d 198 at p. 200 (1975), this court said ‘When we examine a particular situation to determine if probable cause exists, we consider all factors and their total effect, and do not concentrate on each individual element .... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might . . . Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).

Id., 287 Pa.Superior Ct. at 102, 429 A.2d at 1119-1120 (quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 523-25, 410 A.2d 822, 824-25 (1979), allocatur denied (1980)).

When we apply these principles to the instant facts, it is clear that the police officers had probable cause to arrest appellant. The officers were faced with the following circumstances: (1) the vehicle in which appellant was riding committed several traffic violations; (2) the vehicle did not stop when signaled by police officers; (3) it thereafter attempted to elude the officers; (4) once the car finally was stopped after it ran into a street curb, the operator, appellant’s accomplice, fled on foot while shedding clothes and making movements as though armed; (5) defendant also made efforts to escape which were thwarted by the entanglement of the television with the dashboard; (6) appellant made furtive movements and reached into the back seat of the car in defiance of the police order for him to remain still; (7) as the officers approached the vehicle to remove appellant, they noticed a suspicious assortment of goods including the T.V. on appellant’s lap, stereo speakers, stereo components, suitcases and numerous bags labeled with different names and out-of-state addresses which, under the circumstances, a trained police officer would suspect were stolen goods.

We conclude that, under all of these circumstances, the officers had probable cause to arrest appellant at the time they removed him from the automobile. The totality of circumstances faced by the officers provided a sufficient and justifiable basis for a conclusion that some crime had been or was being committed by the occupants of the vehicle. Indeed, “the police officers would have had to shut their minds to a number of circumstances which indicated criminal activity to avoid making an arrest. This [a reviewing court] will not ask them to do.” Commonwealth v. DeFleminque, 450 Pa. 163, 166, 299 A.2d 246, 248 (1973).

We reject the assertion of appellant that the Terry standards applicable to an investigatory stop and frisk are relevant to our determination. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant contends that the wallet seized by police from his coat pocket following his removal from the vehicle should have been suppressed since the examination of its contents exceeded the authority of the police in an investigatory stop and frisk. This contention is specious. It is clear that probable cause to arrest appellant ripened on the basis of the totality of the above mentioned circumstances even before the officers frisked him and retrieved and examined the wallet belonging to one of the victims. Since the argument challenging the validity of his arrest on the basis of probable cause fails, so too does his argument that the evidence seized from the vehicle should be suppressed on the grounds that it was fruit of the primary illegality. Therefore, we conclude that the Common Pleas Court properly denied the motion to suppress the items seized as a result of the arrest.

Judgment of sentence affirmed.


author: CIRILLO, Judge:

text:
    450 A.2d 149
    Milton BELL, Appellant, v. JEFFERSON REPUBLICAN CLUB and The Second Floor, Inc. and Wayne Geftman and Barry Geftman and Raymond Housepian.
    Superior Court of Pennsylvania.
    Argued June 4, 1982.
    Filed Sept. 10, 1982.

      Lee Meredith Herman, Philadelphia, for appellant.
    Edward McCandless, Philadelphia, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting a petition to open a default judgment. For the reasons' which follow, we reverse and remand for further proceedings.

This case arose out of a trespass dram shop action brought by appellant on May 6, 1980. Appellant/plaintiff sought damages for injuries sustained when he was allegedly pushed through a plate glass window at “The Second Story” by a patron, Tony Canale. Named as defendants were Jefferson Republican Club, liquor licensee; The Second Floor, Inc., operator of the private club; and three individuals who are allegedly officers and/or directors of the above.

On May 8, 1980, the complaint was served on all named defendants. On May 29, 1980, a ten day notice of intention to take default judgment was sent, pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure. On June 9,1980, Howard M. Girsh, Esquire entered his appearance on behalf of all of the defendants except The Second Floor, Inc. (hereinafter “appellee”). Thereafter, he contacted appellant’s counsel, advising him that he did not represent appellee and requesting an extension of time to file an answer on behalf of the other defendants. On June 16, 1980, default judgment was entered against appellee only, for their failure to enter an appearance or answer the complaint. On June 30, 1980, Mr. Girsh contacted appellant’s counsel and informed him that appellee was covered by defendant’s insurance policy and, therefore, he was going to represent them. He asked appellant to voluntarily open the judgment, but appellant refused. Two weeks later, on July 14, 1980, appellee filed a petition to open the default judgment. The petition was granted on October 1, 1980 and it is from that order that this appeal is taken.

Appellant contends that the lower court erred in opening the default judgment where no depositions were taken and where there were contested issues of fact.

Appellee’s petition to open judgment avers that the defendant’s insurance policy was ambiguous as to the coverage of appellee and, therefore, the default was reasonably explained as an error of the insurance company. The petition further alleges that the Jefferson Insurance Company initially examined the policy of insurance it had issued and determined that it owed a defense to all named defendants except appellee. The insurance company’s records showed only the Jefferson Republican Club, as the insured. On June 13, 1980, after notifying appellant that appellee was not covered by the policy, Mr. Girsh requested further verification from the insurance company on the question of appellee’s coverage. On June 28,1980, the insurance company notified Mr. Girsh that contact with the insured’s agent established that the policy was meant to include coverage for appellee. Appellant’s answer to the petition denied these factual allegations and demanded strict proof thereof. The pleadings thus disclose one or more disputed issues of fact.

It is well settled that when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa.Super. 84, 235 A.2d 435 (1967). Pa.R.Civ.P. 209 provides the procedure for establishing such proof.

Pursuant to Rule 209, the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. See Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979); Zinck v. Smashy’s Auto Salvage, Inc., 250 Pa.Super. 553, 378 A.2d 1287 (1977). Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer. See America Corp. v. Cascerceri, 255 Pa.Super. 574, 389 A.2d 126 (1978).

Appellee’s failure to take depositions does not automatically trigger Rule 209, to operate as an admission of all averments of fact in the answer. Only when the petitioner himself orders the cause for argument on the pleadings or, when the petitioner ignores a rule absolute to move for depositions, can the factual averments of a responsive answer be taken as true against the petitioner. See Getzik v. Spiegel, 280 Pa.Super. 175, 421 A.2d 462 (1980); Instapak v. S. Weisbrod Lamp & Shade Co., Inc., 248 Pa.Super. 176, 374 A.2d 1376 (1977).

In Instapak, supra, this court faced a similar situation and found the lower court had acted prematurely:

Here, appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and the answer, the lower court granted the petition. That decision was premature. The dispositive issue is whether appellee’s counsel did or did not have a mistaken belief about the date by which an answer had to be filed, and on that issue the court had before it no evidence, only contradictory pleadings. Such being the case, the court had no proper basis for preferring one party’s version to the other party’s.

Id., 248 Pa.Superior Ct. at 181-182, 374 A.2d at 1379.

In the more recent case of Shainline, supra, this court again found the lower court’s action premature:

. . . Instead of waiting for either party to take action under the rule [209], the court decided the petition on petition and answer alone. The court stressed in its opinion that appellant had “failed to present any evidence whatsoever in support of its various allegations”. . . . This conclusion was clearly premature under Rule 209. The rule places no time limits on either petitioner or respondent to take action and thus, at the time the court injected itself into the proceedings, either party had the option to take a rule on the other to proceed under Rule 209. Until one of the parties took action under Rule 209, or until some other force spurred matters along, the court should not have acted.

Id., 266 Pa.Superior Ct. at 137, 403 A.2d at 581.

In the instant case, there was no evidence, only contradictory pleadings before the lower court on the issue of whether the defendant’s insurance policy was ambiguous as to the coverage of appellee. Neither party took action under Rule 209, and the court decided the petition on the pleadings alone. Thus, the court’s decision was premature, and we hereby remand this case for further proceedings consistent with Pa.R.Civ.P. 209. Jurisdiction is not retained.

Reversed and remanded.

      . Pa.R.A.P. 311(a)(1) provides for the interlocutory appeal as of right from orders opening default judgments.

      . We note that appellee admitted, in its Supplemental Memorandum in support of its petition, that there were issues of fact to be resolved under Rule 209.

      . Pa.R.Civ.P. 209 provides:
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

      . Though neither party took action under Rule 209, the appellee in its Supplemental Memorandum in support of its petition, stated that since there were issues of fact in dispute that it was within the scope of Rule 209 and that depositions ought to be ordered, by the judge, pursuant to Rule 140 of the local rules of the Court of Common Pleas of Philadelphia. Rule 140 provides, in pertinent part:
      (E) When a matter is filed in the Motion Court, it shall be referred to a judge for decision, except those set forth in Section (F) thereof. The assigned judge shall initially review the filing and response to determine whether any disputed issues of fact exist. Where it appears that disputed issues of fact exist which must be resolved under Pa.R.C.P. 209, the judge shall enter a rule upon the parties to proceed in accordance with Rule 209. Any filings pursuant to Rule 209 shall be made directly with the assigned judge. Thus, it is evident that appellee did not proceed under-Rule 209 because it was the court’s duty under the local rules to order that depositions be taken.


author: WATKINS, Judge: SPAETH, Judge, dissenting:

text:
    450 A.2d 152
    COMMONWEALTH of Pennsylvania v. Sheldon DORIAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1981.
    Filed Sept. 10, 1982.
    Petition for Allowance of Appeal Granted March 3, 1983.

      Sheldon Dorian, in pro. per.
    D. Gerald Long, District Attorney, Ebensburg, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   WATKINS, Judge:

In this appeal by the defendant-appellant, Sheldon Dorian, it is claimed that the court below erred when it dismissed his P. C. H. A. petition, without a hearing. Defendant’s petition alleged the court erred in dismissing his petition because Pennsylvania law holds that a defendant who is presently serving a valid sentence, the term of which is computed from the date he completed a constitutionally invalid sentence may contest the invalid sentence by way of a P. C. H. A. proceeding.

The defendant pled guilty to rape and assault with intent to ravish in March of 1951. He was sentenced to an indefinite term in prison up to a maximum term of fifteen (15) years as the result of his plea.

In November of 1954, the defendant pled guilty to prison breach (for which he was sentenced to two and one-half to five [2V2-5] years and auto theft (for which he received three and one-half to seven [3V2-7] years), said sentences to run concurrently.

In 1965 a federal court invalidated his 1951 plea and sentence. The case was then remanded to the lower court. In August of 1965 the defendant pled guilty to assault with intent to ravish. The rape charge was nol prossed. He was sentenced to two and one-half to five (2V2 to 5) years.

On March 9, 1981 the defendant was sentenced to six to twelve (6 to 12) years on a burglary charge. He was then serving two other sentences, viz., a seven and one-half to fifteen (7V2 to 15) year term and a concurrent sentence of six (6) months to two (2) years (effective date of which was June 22, 1977). The first charge was as a result of an Armed Robbery conviction; the second for Prison Breach.

But for the burglary conviction (for the March 9, 1981 sentence) defendant’s maximum sentence on prison breach would have expired on February 2, 1981. His maximum sentence on the Armed Robbery conviction would have expired on December 12, 1982.

The defendant argues that the sentence imposed on the 1951 rape charge was invalid and that therefore his subsequent sentences are invalid as sentences affected by the invalid one. This claim is meritless, as the federal court vacated the invalid plea and sentence in 1965 and defendant subsequently pled guilty in 1965. Thus, his subsequent sentences were not based on an invalid one and any P. C. H. A. hearing would be futile and frivolous.

Order affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge, dissenting:

I am unable to join the majority in affirming the lower court’s order denying appellant’s P. C. H. A. petition without a hearing. As transmitted to us, the record is incomplete; the lower court’s very brief opinion does not address the issues raised by appellant pro se; and counsel appointed to represent appellant has filed no brief. I should therefore remand for completion of the record and appointment of new counsel.

As the majority notes, appellant was sentenced in 1951 and 1954, and then, when the 1951 sentence was vacated, in 1965 he was resentenced on the 1951 charges. As filed on August 26, 1980, appellant’s P. C. H. A. petition challenged the legality of the sentences imposed in 1954; as amended on October 23, 1980, the petition further challenged the legality of the sentence imposed in 1965. Although the petition, the lower court’s order, and appellant’s notice of appeal all include the docket numbers of the 1954 charges, the lower court has provided us with no record pertaining to those charges. As transmitted to us, the record pertains only to the 1951 charges.

Appellant indicated on his petition that he did not wish counsel to be appointed, but after the lower court denied the petition, he asked that counsel be appointed to assist him on this appeal. On January 20, 1981, the lower court did appoint counsel. That counsel has never entered his appearance, either in the lower court or this court, nor has he filed a brief in this court. On appellant’s behalf we have only appellant’s brief pro se.

In these circumstances, I am unable to reconstruct the history of appellant’s contacts with the criminal justice system over the past 30 years. The majority’s account draws on facts contained in the briefs but not in the record. However, as best I can understand appellant’s argument, it is not as the majority states it. Instead, appellant appears to argue, first, that the length of the 1954 sentences was affected by the sentencing court’s view of what happened in 1951—a view that proved inconsistent with the findings of the federal court in 1965, and second, that the sentence imposed in 1965 was invalid because its minimum term, of two and one half years, was longer than the period he had already served, of twenty months. These arguments may have no merit. However, before dismissing them we should have the benefit of a complete record and an advocate’s brief.

I should remand for further proceedings consistent with this opinion.


author: VAN der VOORT, Judge:

text:
    450 A.2d 154
    BIGELOW-SANFORD, INC., Appellant, v. SECURITY-PEOPLES TRUST COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1981.
    Filed Sept. 10, 1982.

      Thomas J. Ridge, Erie, for appellant.
    Gregory L. Heidt, Erie, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This case requires a determination of priority of two claims to certain assets of a now-bankrupt debtor. The debtor, Carpet Warehouse, Inc., was in the business of selling floor coverings. Plaintiff-appellant, Bigelow-Sanford, Inc., was a major supplier of carpeting to the debtor. The defendant-appellee, Security-Peoples Trust Co., from time to time loaned money to Bigelow.

On April 16, 1971, the debtor executed and delivered to the Bank a security agreement and financing statements, which were properly filed with the Prothonotary and with the Secretary of State on that day. Each financing statement stated: “This Financing Statement covers the following types (or items) of property: All present and future accounts receivable submitted, including new accounts receivable whenever acquired. All cash and non cash proceeds are claimed.” On August 10, 1971, the debtor executed and delivered to Bigelow a Security Agreement and Financing Statement properly filed in Erie County and with the Secretary of State. Each Financing Statement stated: “This Financing Statement covers the following types (or items) of property: Inventory of carpet and related products now owned or hereafter acquired, and all additions and accessions thereto, and all proceeds of its sale or other disposition.” (Emphasis added). In April of 1974, the debtor and the Bank executed and filed a second set of financing statements, consolidating the notes extant. In early 1975, similarly, the debtor executed a current note to Bigelow for the balance then due of $91,165.56, endorsed personally by the debtor’s president.

In the spring of 1975, the debtor received a purchase order from St. Vincent Hospital for Bigelow carpeting. Bigelow required the debtor to execute financing statements covering the carpet, which statements were duly filed, and which specifically referred to the carpet to be installed in the hospital.

The carpeting was installed in the Hospital in September or October of 1975. Shortly thereafter, the debtor filed a voluntary petition for bankruptcy. The price of the carpet, less a minor adjustment to correct defects in installation (a balance of $9,484.43) was paid to the Trustee in Bankruptcy, to be held in escrow by him until the conflicting claims of Bigelow and of the Bank could be disposed of. Appellant filed suit in order to procure a determination of the question of priorities. The case was submitted to the lower court on the basis of stipulations, the deposition of the president and owner of Carpet Warehouse, and the deposition of a purchasing agent for the hospital.

The lower court ruled in favor of the bank, noting that both parties, having stipulated to the basic facts, agreed that the issue was not resolved specifically by Article 9 of the Uniform Commercial Code, or by Pennsylvania case law. The court, in essence, accepted the position of the bank that:

1) The bank’s security interest was perfected on April 16, 1971 (renewed in April, 1974), thus giving it a secured claim to the debtor’s present and future accounts receivable;

2) The amount which St. Vincent Hospital owed to Carpet Warehouse upon delivery and installation of Bigelow’s carpet was an account receivable of Carpet Warehouse and therefore subject to the bank’s security interest;

3) The Hospital’s debt to Carpet Warehouse was also subject to the Financing Statement executed by Carpet Warehouse in favor of Bigelow (filed July 9, 1975, specifically covering the 1,125 square yards of carpeting to be°installed at St. Vincent’s Hospital, worth approximately $11,000);

4) The $11,000 (adjusted later by agreement to $9,484.43) owing from the hospital comprised the “proceeds” of the resale of the carpet, as the word is used in § 9-306(1) [now § 9306(a)] of the Code;

5) Since both the Bank and Bigelow have valid recorded claims against the $9,494.43, the priority between them must be determined under § 9-312(5) [now § 9312(e)], which provides that in all cases not governed by other rules stated in this section, priority between conflicting security interests in the same collateral shall be determined in the order of filing if both are perfected by filing;

6) The Bank was the first to file, and is entitled to the money.

Recognizing that there was a conflict of opinion among writers of law review articles on the problem, the lower court reinforced its decision in favor of the Bank with this comment:

This court is persuaded that the subsequent inventory financier (in this case, the plaintiff) had at least two methods by which to protect himself: (1) By checking the filings, the plaintiff would have become aware of the defendant’s prior interest and a subrogation agreement may have been negotiated; or (2) The plaintiff, as a purchase money secured creditor, could have followed the notification procedures of Section 9-312(3) (Section 9312(c), thereby guaranteeing absolute priority of his claim.
On the other hand, if we were to adopt the reasoning of the plaintiff, there is little that the defendant could do to protect his interests, and this would frustrate the purpose of filing under the Code.

Appellant argued below, and argues now on appeal, that it is entitled to priority under the Code by reason of the cross-reference in § 9-312(1) [now § 9312(a)] to § 9-306 (now § 9306). Section 9-312 stated: “The rules of priority stated in the following sections shall govern where applicable: . . . Section 9-306 on ‘proceeds’ and repossession .. . . ” Section 9-306(1) states: “ ‘Proceeds’ include whatever is received when collateral or proceeds is sold. .. . The term also includes the account arising when the right to payment is earned under a contract right.” It should be noted at this point that § 9-306(1) to (4) provides that a creditor who has a secured interest in certain collateral, as did Bigelow in this present case, continues to have that secured interest in the proceeds of the sale of the collateral (in this case the account owing from the Hospital to Carpet Warehouse, Inc), but § 9-306(1) to (4) does not provide an order of priority as between various holders of perfected security interests. Assuming that both the Bank and Bigelow had secured claims, resolution of the conflicting claims becomes dependent, as the lower court correctly decided, by reference to § 9-312(5), and the Bank prevails.

Bigelow contends further that its interest in the proceeds of the sale of its carpet to the Hospital was a “purchase money security interest,” as that term is used in § 9-107 [now § 9107] of the Code, and, as such, under § 9-312(4), Bigelow would have priority over a conflicting security interest in the same article, if the purchase money security interest was perfected at the time the debtor received possession of the collateral, or within ten days thereafter.

Bigelow argues that it furnished to the debtor the carpet which the debtor sold to the Hospital, that this was the source of the Hospital’s debt to the debtor, and therefore that the Hospital’s debt should be allocated to Bigelow. We agree with the lower court that Bigelow cannot prevail on that theory. The security interest which Bigelow obtained under the Financing Statements filed on July 9, 1975, described the secured property as “1,125 sq. yds. of Regents Row S-3N93 to be installed at St. Vincent’s Hospital.” Bigelow’s “purchase money security interest” would be in inventory, and would therefore fall under § 9-312(3), not § 9-312(4). It would then have priority over a conflicting security interest only if Bigelow had informed the Bank, whose prior security interest was a matter of record, of Bigelow’s transaction with the Debtor, as provided in § 9-312(3)(b).

Bigelow argues that it has a strong equitable claim to receive the payment made by the Hospital, because, without delivery of Bigelow’s carpet to the Debtor, there would have been no sale and no payment. The Bank’s security interest in the debtor’s accounts receivables would then have been worth $9,484.43 less.

As the lower court pointed out, Bigelow could have taken effective steps to protect itself by notifying the Bank as provided in 9-312(3)(b), or by setting up with the Hospital and Carpet Warehouse an arrangement for payment by the Hospital to Bigelow, as was done on another order from the Hospital.

Order affirmed.

      . At approximately the same time, Carpet Warehouse procured another order for the Hospitality Shop of St. Vincent Health Center. Bigelow insisted that Bigelow be paid directly for the carpet and padding. Carpet Warehouse assented to this arrangement.

      . 12 P.S. § 9-101, et seq., now 13 Pa.C.S. § 9101, et seq.


author: PER CURIAM:

text:
    450 A.2d 157
    ERIE HUMAN RELATIONS COMMISSION ex rel. Sanford DUNSON, Appellant, v. ERIE INSURANCE EXCHANGE and H. O. Hirt, Manager.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed Sept. 10, 1982.

      Robert D. Hain, Erie, for appellant.
    Roger H. Taft, Erie, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ:
   PER CURIAM:

In 1972, Appellants filed a complaint in equity, alleging that Appellees had discriminated against Appellant Dunson by discharging him from their employment in 1971. Appellees filed a demurrer, which was sustained by the lower court. Appellants then appealed to Commonwealth Court, which held that Appellees had not followed the procedures dictated by 53 Pa.C.S.A. § 11301 et seq. (Local Agency Law). The Commonwealth Court vacated the demurrer and remanded to allow Appellees to file an answer. The Supreme Court of Pennsylvania affirmed.

On March 15, 1976, Appellees filed an answer and new matter. Approximately two and one-half years later, Appellants filed a reply to new matter and a motion for judgment on the pleadings. Appellees filed a petition for non pros, which the court granted on December 12, 1979. Appellants filed exceptions, which were denied on January 30, 1980. This is an appeal from the order dismissing exceptions. Notice of this appeal was filed on February 14, 1980. For the following reasons, we quash the instant appeal.

The Pennsylvania Rules of Civil Procedure do not provide for the filing of exceptions to a judgment of non pros. Appellants’ exceptions were similar to a petition for reconsideration. See Dellacasse v. Floyd, 332 Pa. 218, 220-21, 2 A.2d 860, 862 (1938). A petition for reconsideration will not stay the appeal period. Provident National Bank v. Rooklin, 250 Pa.Super.Ct. 194, 378 A.2d 893 (1977). Appellants should have filed an appeal within the thirty-day period following the grant of the non pros. Because Appellants did not file their appeal until after the lower court had denied their exceptions, the instant appeal is untimely.

For the foregoing reasons, the instant appeal is quashed.

      . Erie Human Relations Comm’n ex rel. Dunson v. Erie Ins. Exch., 12 Pa.Commw. 267, 315 A.2d 663 (1974).

      . Erie Human Relations Comm’n ex rel. Dunson v. Erie Ins. Exch., 465 Pa. 240, 348 A.2d 742 (1975).


text:
    450 A.2d 158
    COMMONWEALTH of Pennsylvania v. Thomas HIGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1982.
    Filed Sept. 10, 1982.

      Joseph F. Sklarosky, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   PER CURIAM:

On March 10,1981, appellant pleaded guilty to aggravated assault, 18 Pa.C.S.A. § 2702, for attacking a corrections officer. He was thereafter sentenced to six (6) to twenty-four (24) months imprisonment, the sentence to run consecutive to the sentence appellant was then serving. Following the denial of his petition to modify the sentence, on the ground that it was excessive, appellant took the instant appeal. The sole issue before us is whether the sentence imposed was excessive. However, because we cannot ascertain from the record the trial court’s reasons for the sentence imposed, the judgment of sentence is vacated and the case remanded for resentencing.

It is settled law that the imposition of sentence is a matter left to the sound discretion of the sentencing court. Commonwealth v. Cottle, 493 Pa. 377, 382, 426 A.2d 598, 600 (1981); Commonwealth v. Bryner, 285 Pa.Super. 305, 307-308, 427 A.2d 236, 237 (1981). In exercising that discretion, the court must demonstrate its consideration of the statutory guidelines for sentencing or otherwise explain on the record its reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wicks, 265 Pa.Super. 305, 313, 401 A.2d 1223, 1227 (1979).

At sentencing, the court discussed with appellant the contents of psychiatric evaluations of him done at Fairview State Hospital and then stated:

The Court: You’re sentenced to six to twenty-four months at the State Correctional Institution. This sentence to run consecutive to any sentence or sentences which the Defendant is serving. And he has a right to appeal this sentence.
If he wishes to file an appeal he would have thirty days from today to do so. If during this thirty day period he wishes to file ah appeal of this sentence and he does not have a Lawyer and cannot afford a Lawyer, he should notify this Court and a Lawyer will be provided for him free of charge.
We have imposed both of these sentences in view of the fact of the Defendants—both Defendants prior records. We have taken into consideration those records and their attitudes as they appeared in Court.
Defendants will be remanded to the State Correctional Institution. Minimum term of six months, maximum term of twenty-four months, to run consecutive.

That was the complete statement of reasons for imposing sentence. The court utterly failed to consider, inter alia, sentencing alternatives other than total confinement, Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979), factors individual to appellant, Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) or the guidelines set forth in The Sentencing Code, 42 Pa.C.S.A. § 9701 et seq. Commonwealth v. Walton, 289 Pa.Super. 411, 433 A.2d 517 (1981); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979). Moreover, merely discussing the contents of psychiatric evaluations done on appellant cannot constitute a statement of reasons; rather that is only the beginning of the process by which the court formulates the appropriate sentence. Commonwealth v. Wicks, 265 Pa.Super. at 313, 401 A.2d at 1227 (pre-sentence reports). Finally, we note that the lower court never filed an opinion pursuant to Pa.R.A.P. 1925(a).

In light of the paucity of facts supporting appellant’s sentence, we cannot address appellant’s claim that the sentence imposed was excessive. Commonwealth v. Cruz, 291 Pa.Super. 486, 490 n.3, 436 A.2d 220, 222 n.3, (1981); Commonwealth v. Bryner, 285 Pa.Super. at 309, 427 A.2d at 238; Commonwealth v. Wicks, 265 Pa.Super. at 314 n.8, 401 A.2d at 1227 n.8. We, therefore, must remand for resentencing in accordance with the requirements of Riggins, supra, and the Sentencing Code. See, e.g., Commonwealth v. Taylor, 290 Pa.Super. 362, 434 A.2d 794 (1981); Commonwealth v. Walters, 287 Pa.Super. 53, 429 A.2d 716 (1981). Any further appeal must be from the new sentence imposed.

Judgment of sentence vacated , and case remanded for resentencing.


author: PER CURIAM: WIEAND, Judge, dissenting:

text:
    450 A.2d 159
    COMMONWEALTH of Pennsylvania, Appellant, v. Earl Howard LYLES, Jr.
    Superior Court of Pennsylvania.
    Argued March 31, 1982.
    Filed Sept. 10, 1982.

      John T. Kalita, Deputy Attorney General, Philadelphia, for Commonwealth, appellant.
    Michael C. Shields, Norristown, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from an order requiring the Commonwealth to pay for the rehabilitative therapy of appellee, Earl Howard Lyles, Jr. Mr. Lyles, a former inmate of the State Correctional Institution at Graterford, is a paraplegic now serving a modified sentence of thirty years probation. The Commonwealth, through the office of the Attorney General, contends that the lower court was without authority to require the Commonwealth to pay for the medical treatment of one no longer incarcerated.

Since this dispute necessarily involves the Commonwealth’s Department of Public Welfare, which has received bills for payment for appellee’s therapy, and the Bureau of Corrections, whose medical treatment capabilities are in question, we are transferring this case to the Commonwealth Court. See Pa.R.A.P. 752.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge, dissenting:

I respectfully dissent. The instant appeal is properly before this court, and I would decide it on its merits.

The appeal has been filed from an order modifying a sentence entered in a criminal case. Appellate jurisdiction in such cases has been vested in the Superior Court. See: Commonwealth v. Bender, 251 Pa.Super. 454, 380 A.2d 868 (1977); Goldsborough v. Burk, 4 Pa.Commonwealth Ct. 513, 288 A.2d 555 (1972); 42 Pa.C.S. §§ 742, 762. Cf. Commonwealth v. Sensi, 287 Pa.Super. 452, 430 A.2d 691 (1981).

Moreover, even if there were a jurisdictional defect, neither party has raised the issue; and, therefore, our right to decide the merits of the appeal is clear. See: 42 Pa.C.S. § 704; Pa.R.App.P. 741. See also: Commonwealth v. Guinther, 290 Pa.Super. 441, 443 n.2, 434 A.2d 834, 835 n.2 (1981); Schrecengost v. Armstrong School District, 289 Pa.Super. 292, 295 n.1, 433 A.2d 72, 73 n.1 (1981); Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 465-466 n.1, 406 A.2d 1133, 1135 n.1 (1979).

Whether a trial judge, in the form of an order modifying a criminal sentence and placing a prisoner on probation (or parole), can direct the Commonwealth to pay for rehabilitative therapy for such prisoner is a difficult and complex issue which has been extensively briefed and argued by the parties. I would not send them away without a decision.


text:
    450 A.2d 161
    COMMONWEALTH of Pennsylvania v. Willard HERTZOG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed Sept. 10, 1982.

      Lawrence D. MacDonald, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   PER CURIAM:

This is an appeal from the summary dismissal of a pro se Post Conviction Hearing Act petition. Appellant, Hertzog, requested the appointment of counsel for assistance in his hearing, alleging that he was financially unable to employ counsel himself. The trial court did not reach the issue of appellant’s financial need for counsel, but dismissed the petition as “patently frivolous.” Counsel was not appointed and no leave was given to amend the petition. We reverse the dismissal and remand for rehearing subsequent to the appointment of counsel and with leave to amend the petition.

Two circumstances will allow the non-appointment of requested counsel. One, the lack of authentic financial need, was not addressed in this dismissal. The other exception arises when the same issues have been adjudicated previously in a petition with assistance of counsel. Commonwealth v. Blair, 470 Pa. 598, 369 A.2d 1153 (1977). This is appellant Hertzog’s first appeal from this conviction, so this exception does not apply here.

This case is entirely on point with a case decided by this court last year, Commonwealth v. Johnson, 285 Pa.Super. 158, 426 A.2d 1190 (1981). We note that even the Commonwealth’s representative in this appeal, the Luzerne County District Attorney, agrees with the applicability of Johnson to the case before us. In Johnson, a legally identical set of facts were presented and the same result obtained as we decide here.

Order reversed, remanded for rehearing (subsequent to appointment of counsel and with leave to amend the petition).

      . 19 P.S. § 1180-1 et seq.

      . We also note that the trial court did not have the benefit of Johnson, which came down more than three years after his dismissal.