text:
    631 A.2d 1360
    Tammy J. GERACE, Appellee, v. Gregory GERACE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Oct 8, 1993.

      Stephen W. Furst, Bellefonte, for appellant.
    Carl J. Mollica, State College, for appellee.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Centre County requiring appellant to pay appellee the sum of $8,680.85. Appellant, Gregory Gerace, is appellee’s step-father. In February of 1989, appellee filed for a Protection from Abuse (“PFA”) order against appellant. On February 8, 1989, the court issued an ex parte order enjoining appellant from abusing, harassing, or threatening appellee. On March 30, 1989, upon the parties’ consent, the court ordered appellant to refrain from abusing, harassing, or threatening appellee. This order was to remain in effect for one year from February 8, 1989. On April 4, 1989, appellee filed a petition requesting the return of her personal property. The parties had been unable to resolve this matter as a part of' the consent agreement that led to the March 30th order. This property was alleged to be at appellant’s residence, the home of his mother and where appellee had lived prior to entering college. After a hearing at which appellant admitted, through his attorney, that he had disposed of some of the property and some of it was still at his mother’s Philadelphia residence, the court entered an order dated April 17, 1989, requiring appellant to make arrangements for the return of appellee’s property. On March 30, 1990, appellee petitioned the court to enter a rule and adjudicate appellant in civil contempt for failing to return her property. Appellee put the value of her unreturned and destroyed property at $8,680.85. On February 13, 1991, without specifically holding appellant in contempt, the court ordered him to pay appellee the specified amount pursuant to § 10186(a)(8), now § 6108(a)(8), of the Protection from Abuse Act. This section provides that the court may “[d]ireet[ ] the defendant to pay the plaintiff for reasonable losses suffered as a result of the abuse, including ... out-of-pocket losses for injuries sustained.” 23 Pa.C.S.A. § 6108(a)(8), Appellant filed post-trial motions, which were subsequently denied on September 4, 1991. This appeal followed.

Appellant raises three issues: whether the court properly determined “rights to tangible personal property under the Protection from Abuse Act when such determination is not necessary for the protection of a party[; whether the] petition for contempt alleging failure to comply with an Order under the Protection from Abuse Act, filed after the expiration of that Order, [is] barred by time[; and] was Appellant’s behavior contemptuous of the Trial Court?” Appellant’s brief at 6. These are issues of first impression and we address them seriatim.

I.

Appellant argues that the court’s April 17, 1989, order was invalid because the Protection from Abuse Act, 23 Pa. C.S.A. §§ 6101-6117, does not allow the court to determine the rights to personal property when such a determination is not necessary for the protection of one of the parties. We disagree. The court had issued a protective order against appellant pursuant to a consent agreement. Appellant had been arrested on criminal charges stemming from the allegations made in the PFA petition. These facts are enough to establish that adjudication of the return of appellee’s property was necessary for her protection. Appellant’s incarceration did not, as he alleges, end the threat to appellee. He could have posted bail and been released from jail at any time.

Furthermore, the PFA Act provides for broad relief. “The court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children.” 23 Pa.C.S.A. § 6108(a). The statute also provides a list of possible orders including evicting a party from the common household, ordering temporary custody of minor children, ordering temporary relinquishment of weapons to the sheriff, and directing the defendant to reimburse the plaintiff for reasonable losses incurred. 23 Pa.C.S.A. § 6108(a)(l)-(8). Thus, the court may order a defendant to return a plaintiffs personal property where procuring it herself would potentially subject her to danger. Appellant also argues that he should not have been ordered to return appellee’s property because he was not in control of the premises where the property was since it was in his mother’s house and he was in jail. Appellant had been living with his mother prior to his arrest and had exercised control over appellee’s property while he lived there. In fact, appellant admitted disposing of a majority of the property prior to his arrest. In addition, the order provided that he was to make arrangements to have the property returned; this could be accomplished by a telephone call. As a result, appellant cannot now claim that he does not have control over the property in order to invalidate the order. We affirm the court’s order mandating the return of appellee’s property.

II.

Next, appellant alleges that “a petition for contempt alleging failure to comply with an order under the Protection from Abuse Act, filed after the expiration of that order, is barred by time.” Appellant’s brief at 10. We cannot afford appellant relief on this basis. First, we must note that the court order of February 13, 1991, did not hold appellant in contempt of court. It was an order to pay appellee the value of her property that appellant destroyed and failed to return. This order was made pursuant to § 6108 of the PFA Act. The fact that the order was made in response to a petition for rule and adjudication of civil contempt does not mean appellant was actually adjudged in contempt of court. The order merely modified the April 17, 1989, order requiring the return of appellee’s personal property and recognized that the property was unrecoverable. Appellant is therefore “responsible for the loss and destruction of the personal property of the [appellee] valued at $8,680.85.” Opinion and order, February 13, 1991, at 2.

Second, appellant claims that this petition was time-barred because it was filed after the expiration of the protective order. This petition, however, was in response to appellant’s failure to comply with an affirmative order to return her property, not due to his noncompliance with the protective order. The April 17, 1989, order provided that the property was to be returned on April 19, 1989. Appellant did not comply with this order. Approximately 11 months after this failure to comply, appellee filed her petition requesting relief. This cannot be considered untimely. Appellant would have us believe that he may ignore a court order with impunity by requiring the adverse party to immediately petition the court for further relief. There is no statute of limitations for obeying a court order or requesting the enforcement of a court order. We can, however, analogize this case to an action upon a judgment or decree which has a four-year statute of limitation. 42 Pa.C.S.A. § 5525(5). Thus, this petition was not time-barred, and the court properly ordered appellant to reimburse appellee for the value of her property. Due to our disposition of this issue, we need not reach appellant’s third issue.

Order of court affirmed. Jurisdiction relinquished.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    632 A.2d 309
    COMMONWEALTH of Pennsylvania, Appellee, v. Alan BORGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 2, 1993.
    Filed Oct. 12, 1993.
    William P. Wismer, Asst. Public Defender, Allentown, for appellant.
    Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

In this appeal we are asked to determine whether a trial court retains discretion to reinstate the post-verdict motions of a defendant whose motions were dismissed after he became a fugitive, once he is returned to the jurisdiction of that court before an appeal is filed. After a careful review of precedent, we find that the trial court retains such discretion. Thus, we reverse and remand.

The facts of the present case are simple and undisputed. A jury convicted Appellant of first degree murder. Immediately thereafter, it imposed a sentence of life imprisonment. Timely post-verdict motions were filed, and the court ordered a transcript of the proceedings. Before a hearing was held on these motions, Appellant escaped from the county prison and committed the additional offenses of robbery, theft, and criminal conspiracy. While Appellant was still at large, the Commonwealth filed a motion to quash the appeal, which the trial court treated as a petition to dismiss Appellant’s post-verdict motions, and the trial court granted the motion, thereby dismissing Appellant’s post-verdict motions with prejudice. Subsequently, Appellant was apprehended and returned to the trial court’s jurisdiction. He then filed a motion requesting the court to reinstate his post-verdict motions. Counsel for the Commonwealth and Appellant entered into a written stipulation of facts. Citing recent cases decided by this Cour]t and our Supreme Court, the trial court denied Appellant’s petition. This appeal followed. I

Appellant concedes that our Supreme Court has stated: A defendant’s voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant has forever forfeited his right to appeal.

Commonwealth v. Jones, 530 Pa; 536, 541, 610 A.2d 439, 441 (1992). This Court has also recently reiterated the principle that a trial court must dismiss a defendant’s post-verdict motions once he becomes a fugitive from justice. See generally, Commonwealth v. Lines, 415 Pa.Super. 438, 609 A.2d 832 (1992), affirmed, 532 Pa. 662, 616 A.2d 983. Appellant nevertheless contends that a trial court retains discretion to reinstate the post-verdict motions which it had dismissed while a defendant was a fugitive, once that defendant is apprehended and an appeal had not been taken. Appellant then claims that, because the trial court in the present case believed it was powerless to reinstate the motions, this Court should either reinstate his post-verdict motions or remand the matter to the trial court for reconsideration. We are constrained to agree with Appellant’s claim and therefore remand the matter for the trial court to consider, in the exercise of its discretion, whether Appellant’s post-verdict motions should be reinstated.

In the present case, the trial court overlooked the distinction between the forfeiture of appellate rights and the reinstatement of post-verdict motions. In Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976), a panel of this Court held that a trial court may, in an exercise of its discretion, refuse to reinstate post-trial review where the motions originally filed on a defendant’s behalf were dismissed in his absence. In Commonwealth v. Clark, 300 Pa.Super. 315, 446 A.2d 633 (1982), cert. den., 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990), this Court likewise affirmed the trial court’s refusal to reinstate post-trial motions as a proper exercise of discretion.

Most recently, in Commonwealth v. Chopak, 532 Pa. 227, 615 A.2d 696 (1992), the defendant failed to appear for a scheduled psychiatric evaluation and argument on post-verdict motions. Thus, the post-verdict motions were denied without further consideration. Upon defendant’s return to the court’s jurisdiction, he was required to undergo the psychiatric evaluation. As a result of the evaluation, the defendant was diagnosed as suffering from a paranoid personality disorder. Thereafter, he petitioned for a reinstatement of his post-verdict motions nunc pro tunc, claiming that that disorder was the sole reason he absconded. The motion was denied, and an appeal was taken to this Court. This Court reversed, in a memorandum opinion, and, among other things, ordered the defendant’s post-verdict motions reinstated. Our Supreme Court reversed this determination, finding that the trial court did not abuse its discretion in refusing to reinstate the defendant’s post-verdict motions once he was returned to the jurisdiction of the court.

In reaching its determination, the high court stated that the decision to grant or deny a nunc pro tunc motion lies within the sound discretion of the trial court. Thus, because the trial court fully considered the defendant’s legal responsibility for having fled the jurisdiction and his competency to stand trial, our Supreme Court found that the trial court did not abuse its discretion in refusing to. reinstate the defendant’s post-verdict motions.

In his concurring opinion in Chopak, Justice Larsen states that the recent Supreme Court decisions in Jones, supra, and Commonwealth v. Judge, 530 Pa. 403, 609 A.2d 785 (1992), expanded and broadened the holding in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984) by unequivocally stating that the defendant’s voluntary escape operates as a per se, irrevocable forfeiture of the right to appeal if the defendant absconds at any time after post-trial proceedings commence. While these cases may be read as stating that Appellant has forfeited his right to appeal to this Court, their holdings do not state that Appellant has likewise automatically forfeited his right to request the trial court to reinstate and consider post-verdict motions. As precedent establishes, this decision rests within the sound discretion of the trial court. Commonwealth v. Boyd, supra; Commonwealth v. Clark, supra; Commonwealth v. Chopak, supra.

In the present case, Appellant had originally filed post-verdict motions in arrest of judgment and for new trial raising two boilerplate sufficiency claims and fifty-four alleged bases for new trial. Because the trial court based its decision to dismiss Appellant’s petition for reinstatement of post-verdict motions, without further consideration, upon case law involving forfeiture of appellate rights, and we cannot discern that the trial court realized it had discretion to reconsider them, we remand so that the trial court can exercise its discretion to determine whether or not Appellant’s motions should be reinstated and determined on their merits.

Order reversed. The matter is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellant does not challenge the propriety of this dismissal of his post-verdict motions.

      . We note that we are without authority to reinstate Appellant’s post-verdict motions.

      . We note that Appellant refers to the rationale of the United States Supreme Court in Ortega-Rodriguez v. United States, — U.S.-, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), as providing various factors that the trial court should use when reconsidering his petition to reinstate post-verdict motions. Appellant himself concedes that Ortega discusses the appellate quashal of an appeal of a former fugitive, that is, a defendant who, like Appellant, had escaped and was recaptured prior to invoking the jurisdiction of the appellate tribunal. While this recent decision seemingly conflicts with current state precedent, see e.g., Commonwealth v. Lines, supra, this argument is premature since the instant case does not involve an appeal.


author: WIEAND, Judge.

text:
    632 A.2d 312
    COMMONWEALTH of Pennsylvania v. Barry Lee FLUHARTY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 29, 1993.
    Filed Oct. 21, 1993.

      Jon Auritt, Media, for appellant.
    William R. Toal, III, Asst. Dist. Atty., Havertown, for Com., appellee.

      Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge.

On February 4, 1987, Barry Lee Fluharty entered pleas of guilty to charges of aggravated assault on a police officer and carrying a firearm without a license. He waived the preparation of a pre-sentence report and was immediately sentenced to serve concurrent terms of imprisonment for not less than twenty-nine (29) months nor more than five (5) years for aggravated assault and not less than seventeen (17) months nor more than five (5) years for carrying a firearm without a license. A pro se motion to modify sentence was denied on February 26, 1987. Fluharty filed no other post-verdict motions, and did not take a direct appeal from the judgment of sentence. However, on March 13, 1991, Fluharty filed a petition under the Post Conviction Relief Act (P.C.R.A), in which he sought to withdraw his pleas of guilty and alleged, inter alia, that an insufficient factual basis had existed to support his plea of guilty to the charge of aggravated assault. Because his counsel had advised him to plead guilty, he alleged, counsel had been constitutionally ineffective. Following an evidentiary hearing, the P.C.R.A. court denied Fluharty’s petition for post-conviction relief. This appeal followed.

On appeal from the order denying his P.C.R.A petition, appellant continues to assert that his guilty plea counsel was ineffective for advising him to enter a plea of guilty when there was no factual basis shown for the offense of aggravated assault. Specifically, appellant contends that, during the guilty plea colloquy, he denied any intent to cause sérious bodily injury to a police officer, an intent which is essential to the crime of aggravated assault. He also contends that the averments relied upon by the Commonwealth to establish a factual basis for the pleas were insufficient to establish any intent on appellant’s part to cause serious bodily injury to the police officer. Under these circumstances, appellant argues, the trial court should not have accepted his pleas of guilty, and his counsel was ineffective for advising him to plead guilty to the charge of aggravated assault.

The standard for evaluating claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 188 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989) . Under the Post Conviction Relief Act, “a petitioner must not only establish ineffective assistance of counsel, [but] must also establish that the ineffectiveness was of a type “which in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.’ ” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) , quoting 42 Pa.C.S. § 9543(a)(2)(h). Where an allegation of ineffective assistance of counsel is made in connection with the entry of a plea of guilty, such allegation “will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.” Commonwealth v. Chumley, 482 Pa. 626, 641, 394 A.2d 497, 504 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). A similar standard is applicable to all post-sentence attempts to withdraw a guilty plea, where the defendant must demonstrate a manifest injustice by showing that his plea was involuntary or was entered without knowledge of the charges. See: Commonwealth v. McClendon, 403 Pa.Super. 467, 469-470, 589 A.2d 706, 707 (1991) (en banc).

“It is a long established principle of constitutional due process that the decision to plead guilty must be personally and voluntarily made by the accused.” Commonwealth v. Hines, 496 Pa. 555, 559, 437 A.2d 1180, 1182 (1981). As such,

Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understanding^ tendered. See: Pa. R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understanding^ tendered.

Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206 (1989) (en banc). The Pennsylvania Supreme Court has explained:

Pa.R.Crim.P. 319 requires that a guilty plea be offered in open court, and sets a procedure to determine voluntariness and whether the defendant is acting knowingly and intelligently. As noted in the comment to Rule 319, the minimum to be determined is:
(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Under this rule, beside determining whether the plea is voluntary, knowledgeable and intelligent, the court must

also determine whether there is a factual basis for the plea: i.e., whether the facts acknowledged by the defendant constitute a prohibited offense. This salutary requirement is to prevent a plea where in fact the legal requirements have not been met; and, to name and define the offense, supported by the acts, so the defendant will know the legal nature of the guilt to which he wishes to plead. No more than these inquiries are required.

Commonwealth v. Anthony, 504 Pa. 551, 558-559, 475 A.2d 1303, 1307 (1984) (footnote omitted).

“In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences.” Commonwealth v. Broadwater, 330 Pa.Super. 234, 244, 479 A.2d 526, 532 (1984). This determination is to be made “by examining the totality of the circumstances surrounding the entry of the plea.” Id. See: Commonwealth v. Shaffer, 498 Pa. 342, 350-351, 446 A.2d 591, 595-596 (1982); Commonwealth v. Klinger, 323 Pa.Super. 181, 194-195, 470 A.2d 540, 547 (1983). Thus, even though there is an omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea. See: Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982). See also: Commonwealth v. Iseley, 419 Pa.Super. 364, 377-378, 615 A.2d 408, 415 (1992).

“It is clear that before accepting a plea of guilty, the trial court must satisfy itself that there is a factual basis for the plea.” Commonwealth v. Maddox, 450 Pa. 406, 409-410, 300 A.2d 503, 505 (1973). However, “the ‘factual basis’ requirement does not mean that the defendant must admit every element of the crime.” Commonwealth v. Ingram, 455 Pa. 198, 202, 316 A.2d 77, 79-80 (1974). In this respect, the United States Supreme Court has held:

[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. .
Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.

North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160,167, 27 L.Ed.2d 162, 171 (1970). See: Commonwealth v. Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969) (“[WJhere there is significant evidence of guilt ... and the accused, after adequate consultation with his counsel, decides to plead guilty, that plea is not rendered invalid merely because the accused is unable or unwilling to detail the occurrence in court.”).

It would appear, therefore, that a defendant may knowingly and voluntarily enter a guilty plea as a matter of strategy or expedience even though he or she is unable or unwilling to admit guilt. Commonwealth v. Ingram, supra at 202-203, 316 A.2d at 80. See also: Commonwealth v. Shaffer, supra at 352-353, 446 A.2d at 596. Nevertheless, the Pennsylvania Supreme Court has observed that “if a defendant pleads guilty to a criminal charge, and in the next breath contravenes the plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of no effect and should be rejected.” Commonwealth v. Roundtree, 440 Pa. 199, 202, 269 A.2d 709, 711 (1970). See also: Commonwealth v. Thompson, 466 Pa. 15, 20-21, 351 A.2d 280, 283 (1976); Commonwealth v. Robinson, 452 Pa. 316, 320-321, 305 A.2d 354, 356 (1973); Commonwealth v. Blackman, 446 Pa. 61, 63-64, 285 A.2d 521, 522 (1971). Compare: Commonwealth v. Sampson, 445 Pa. 558, 562-563, 285 A.2d 480, 482-483 (1971) (plurality opinion).

The apparent conflict in the reasoning of these cases has been explained by the Superior Court in the following manner:

The cases holding that a guilty plea should not be accepted if the defendant asserts facts that might constitute a defense, Commonwealth v. Blackman, 446 Pa. 61, 285 A.2d 521 (1971); Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970), are based on the principle that a person cannot intelligently plead guilty if he is unaware that he has a defense. “It is axiomatic that for a plea of guilty to be constitutionally valid, it must be the voluntary and intelligent act of the maker”. Commonwealth v. Cottrell, 433 Pa. 177, 178, 249 A.2d 294, 295 (1969).
It does not follow from these cases, however, that an accused must admit his guilt before his guilty plea may be accepted. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the court upheld a guilty plea accompanied by an assertion of innocence when there was substantial independent evidence of guilt; and Commonwealth v. Reagen, 447 Pa. 186, 290 A.2d 241 (1972), has followed Alford in holding that a guilty plea is acceptable even if solely motivated by the appellant’s fear of the death penalty. As observed in Commonwealth v. Sampson, supra, 445 Pa. at 563, 285 A.2d at 483, a distinction must be drawn: “... it is readily apparent that a guilty plea coupled solely with a flat denial of responsibility is entirely separate and distinct from a guilty plea accompanied by an assertion of facts establishing an affirmative defense; in the latter situation, it is error to accept the guilty plea”.
Thus, what must be decided in each case is whether the defendant understands what he is doing; and on review the appellate court will look to the colloquy to determine whether he did.

Commonwealth v. Shank, 224 Pa.Super. 484, 486-487, 306 A.2d 925, 926-927 (1973) (en banc). Thus,

when a guilty plea is accompanied by the assertion of facts which make out a defense to the crimes charged, the plea may not be accepted unless the discrepancy is resolved. The defendant must be aware, and the record must show that he is aware, that his defense cannot be considered when he enters a guilty plea. The record must affirmatively demonstrate that he knows that by pleading guilty he waives the opportunity to assert facts which may establish the defense____

Commonwealth v. Rodgers, 465 Pa. 379, 383, 350 A.2d 815, 818 (1976).

In the instant case, appellant entered a plea of guilty to aggravated assault, as defined at 18 Pa.C.S. § 2702(a)(2), which then provided as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer making or attempting to make a lawful arrest____

18 Pa.C.S. § 2702(a)(2). Because the charge of aggravated assault to which appellant pleaded guilty was based upon his attempt to cause serious bodily injury to a police officer, rather than the actual causing of such injury, the offense was a specific intent crime. See: Commonwealth v. Flemings, 421 Pa.Super. 110, 117, 617 A.2d 749, 752 (1992) (“Attempted aggravated assault is a specific intent crime.”). See also: Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991); Commonwealth v. Anthony, 376 Pa.Super. 623, 630, 546 A.2d 1122,1126 (1988). Therefore, in order for a factual basis to have been established to support appellant’s guilty plea to the charge of aggravated assault, it was necessary for the Commonwealth to establish that appellant intended to cause serious bodily injury to the police officer who was attempting to place him under arrest.

At appellant’s guilty plea hearing it was stipulated by and between counsel that the affidavit of probable cause, which was contained in the criminal complaint filed against appellant, would serve as the factual basis for the pleas of guilty. The affidavit of probable cause provided, in pertinent part, as follows:

Police responded to 1703 Liberty Rd. Bromley residence for two subjects kicking in the rear door and one subject armed with a knife. Upon Officer Palo’s arrival he was informed that Barry Fluharty and another subject had come to the Bromley house and Fluharty had a knife and they stated they were going to kill Mrs. Bromley. They went to the rear door where they tried to force their way into the Bromley home. When they discovered the door was locked they attempted to kick it in. Mrs. Bromley stated that Fluharty was in the rear of the property. Palo went to the rear and observed Fluharty and told him to halt. With this Fluharty started to run west in the parking lot of the mainteance [sic] shed on Constitution Ave. with Palo in pursuit. Fluharty then hid behind a tree and Palo told him to come out from behind the tree with his hands up. Fluharty then started to run west through the high rise apartment complex parking lot. When Fluharty reached the middle of the parking lot he stopped, turned toward Palo and pulled out a handgun. Palo then fired at Fluharty and Fluharty dropped the gun and fled west onto Constitution Ave. Palo continued to pursue Fluharty to the construction site along MacDade Blvd. where Fluharty had run down an embankment and at the bottom of the embankment he stopped and turned toward Palo and reached into his waist band. Palo told him to put his hands in the air and Fluharty refused to do so and Palo fired striking Fluharty in the leg area. Palo then went to Fluharty who had fallen to the ground and Fluharty jumped up and started to fight with Palo. Sgt. McNichol arrived and both officers had to subdue and handcuff Fluharty.

Thereafter, the following exchange took place betweeh the trial court and appellant as a part of the colloquy:

BY THE COURT:
Q. Barry, when you were arrested, you got a copy of the criminal Complaint which had on it the Affidavit of Probable Cause, in essence a statement of what the police officer said. Do you remember that?
• A. Yes, I do.
Q. Okay, Now Mr. DiMatteo has agreed with Mr. Gold-stein that those facts may be considered a part of the factual basis for this plea with the additions that he’s just mentioned. Is that agreeable to you?
A. In all honesty, all of the facts stated in that are not true. I realize what I’ve agreed to here and I intend to agree to that but I can’t sit here in all honesty and say that I willfully tried to harm that police officer cause I did not.
Q. Do you agree that if the officer came here' and testified, all right?
A. Yes.
Q. That that’s what he would say?
A. Yes. Yes, he would.
Q. All right. And I trust that what you’re not admitting to here today is your state of mind, is that right? Namely an intent to injure him? i
A. Yes.
Q. But you do admit the rest?
A. Yes. That’s right.
Q. And of course, a jury could infer from that evidence, what your state of mind was, do you understand that?
A. Yes.
Q. Okay. And you are satisfied that this is what Officer
Palo would say if he testified?
A. Yes. I’m sure he would.
Q. All right.
# ‡ :{« s¡* H* H*
THE COURT:
Is that satisfactory to you, sir?
MR. GOLDSTEIN [Assistant District Attorney]:
Yes, sir.
MR. DIMATTEO [Defense Counsel]:
Yes, sir.
THE COURT:
All right.

N.T. February 4, 1987 at pp. 14-15.

After careful review, we are satisfied that appellant’s denial that he intended to injure the police officer did not render his plea of guilty invalid. Although he denied that he had intended to injure the officer, appellant also said that he understood what he was agreeing to by pleading guilty and intended to be bound by that agreement. Appellant also conceded that a jury could infer the necessary intent from the testimony that would be given by the officer if he went to trial. Appellant was fully informed of and indicated that he understood the elements of the offenses, the potential penalties therefor, and the rights he would be surrendering by pleading guilty. Our review of the record of the extensive guilty plea colloquy, both written and oral, leads us to conclude that appellant’s decision to plead guilty was a knowing and voluntary one, made with full appreciation of the consequences thereof. Therefore, we reject appellant’s argument that his failure to admit all elements of the charge of aggravated assault rendered his plea of guilty to that charge unknowing and invalid.

Appellant has also argued that the affidavit of probable cause, which served as the factual basis for his pleas, was insufficient to establish that he committed the crime of aggravated assault. Specifically he contends that the allegations in the affidavit that he “pulled out a handgun,” “reached into his waist band,” and that he “jumped up and started to fight with” the officer, did not establish that he intended to cause serious bodily injury to the police officer who was attempting to arrest him. In support of this contention, appellant relies upon cases which have held that the mere pointing of a gun at another person does not constitute an aggravated assault, but, rather, simple assault as an attempt to put another in fear of serious bodily injury by physical menace. See: Commonwealth v. Savage, 275 Pa.Super. 96, 102-103, 418 A.2d 629, 632 (1980). See also: Commonwealth v. Paige, 287 Pa.Super. 133,140, 429 A.2d 1135, 1139 (1981); Commonwealth v. Bryant, 282 Pa.Super. 600, 606-608, 423 A.2d 407, 410-411 (1980). Compare: Commonwealth v. Sanders, 426 Pa.Super. 362, 369-370, 627 A.2d 183, 186-187 (1993); Commonwealth v. Chance, 312 Pa.Super. 435, 442-443, 458 A.2d 1371, 1374-1375 (1983). Therefore, appellant asserts, he was permitted by the trial court to plead guilty to a crime which he did not commit and that his counsel was ineffective for advising him to enter the plea.

We reject this argument and agree with the trial court that the affidavit of probable cause stated an adequate ba,sis on which to base a plea of guilty to aggravated assault on a¡ police officer. Whatever may have been hidden within the recesses of appellant’s mind, the objective facts and circumstances were sufficient to permit a fact finder to infer an intent to inflict serious injury on the police officer. Moreover, counsel’s advice to enter a plea of guilty was eminently reasonable. Both appellant and counsel were aware that Officer Palo had. given a more detailed description of events during his testimony at appellant’s preliminary hearing. There, Palo had testified that in response to his commands that appellant halt and put his hands up, appellant turned to face the officer, drew a loaded gun and pointed it directly at the officer. It was only when the officer fired first that appellant dropped his gun and continued to flee. Under these circumstances, it could have been inferred that appellant intended to do more than merely threaten the officer with serious bodily injury and had been prevented from shooting Palo only because Palo had been able to fire his gun first. Cf. Commonwealth v. Sanders, supra. Thus, even if appellant believed he would not have shot the police officer, his counsel could reasonably conclude that, had appellant gone to trial, the Commonwealth would have been able to prove beyond a reasonable doubt that he was guilty of aggravated assault. This was confirmed by his subsequent fight with Palo who was attempting to place him under arrest.

Where counsel is able to negotiate a favorable plea bargain, and where the defendant understands the bargain and is satisfied with and accepts it rather than go to trial, the decision by counsel not to object to a defective guilty plea colloquy will be deemed a reasonable one. Under such circumstances, counsel will not be found to have been ineffective. See: Commonwealth v. Johnson, 355 Pa.Super. 123, 137-139, 512 A.2d 1242, 1249-1250 (1986); Commonwealth v. Burno, 310 Pa.Super. 564, 456 A.2d 1080 (1983); Commonwealth v. Weiss, 289 Pa.Super. 1, 432 A.2d 1020 (1981). See also: Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979).

Instantly, in exchange for pleas of guilty to charges of aggravated assault and carrying a firearm without a license, it was agreed that appellant would receive concurrent sentences for his crimes. It was also agreed that the Commonwealth would nolle pros additional charges of recklessly endangering another person, making terroristic threats, possessing an instrument of crime, former convict not to own a firearm, resisting arrest and criminal conspiracy. Had appellant elected to go to trial under these circumstances, he faced a substantially longer term of imprisonment, if convicted, than he received as a result of the guilty pleas which he entered. Indeed, even appellant conceded at the P.C.R.A. hearing that his principal reason for pleading guilty was because he was worried about receiving a longer sentence if he went to trial and was found guilty. The record of the guilty plea colloquy establishes that appellant fully understood the bargain which counsel negotiated -with the Commonwealth and that he was satisfied to accept it. Under these circumstances, we agree with the P.C.R.A. court that counsel was not ineffective for advising appellant to enter the guilty plea. Appellant received the benefit of a favorable plea bargain negotiated by counsel and knowingly and voluntarily decided to accept that bargain.

The order denying appellant’s petition for post-conviction relief is

AFFIRMED.

      . As a result of pleading guilty in this case, Fluharty was found to be in violation of his parole on a prior conviction for involuntary manslaughter. For this, his parole was revoked, and he was required to serve an additional period of imprisonment.

      . 42 Pa.C.S. § 9541 et seq.

      . 18 Pa.C.S. § 2702(a)(2) has since been amended and now provides, in pertinent part, as follows:
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      (2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer ... in the performance of duty____
      At the time appellant pleaded guilty to this offense it was graded as a felony of the second degree. The offense is currently graded as a felony of the first degree.

      . In fact, the sentences received by appellant were at the low end of the mitigated range of the Sentencing Guidelines.

      . It would appear that appellant was satisfied with his decision to plead guilty for more than four years, for he did not file his P.C.R.A. petition until March 13, 1991, only months before a civil lawsuit, which he had filed in connection with his being shot by Officer Palo, was scheduled for trial. :


author: HOFFMAN, Judge:

text:
    632 A.2d 319
    COMMONWEALTH of Pennsylvania, Appellant, v. Elias TORRES. COMMONWEALTH of Pennsylvania, Appellant, v. Moises CRUZ.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed Oct. 28, 1993.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Kathleen E. Martin, Philadelphia, for Torres, appellee.
    Peter C. Bowers, Philadelphia, for Cruz, appellee.
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is a consolidated appeal, by the Commonwealth* from an order granting appellees’ motion to suppress physical evidence resulting from a warrantless search. The Commonwealth, presents the following issues for our review:

1. Did the lower court err in holding that police needed a warrant to walk onto commercial property open to the public?
2. Did the lower court err in holding that the officers’ inspection of an auto body shop was not consensual, where the record shows that one officer waited at the garage door while the other officer asked defendant whether they could look around inside, and that, when defendant granted them permission, the three men then entered the garage together?
3. Did the lower court err in holding 75 Pa.C.S.A. § 6308 unconstitutional, where the lower court’s ruling as premised on case law which was not precedential when written and has since been expressly rejected by the Pennsylvania Supreme Court, and where correct analysis under both state and federal case law compels the conclusion that the statute is constitutionally valid?

Appellant’s Brief at 3. For the reasons set forth below, we reverse.

In reviewing an order granting a motion to suppress, an appellate court may consider:

only the evidence of the defendant’s witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Marconi, 408 Pa.Super. 601, 607, 597 A.2d 616, 619 (1991) (citations omitted), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992).

Applying this standard of review, the relevant facts are as follows. On or about October 24, 1991, at approximately 10:17 a.m., police officers Frederick Hale and Francis Green investigated a report of a stolen vehicle outside the premises of 3517 North 7th St. in Philadelphia. At that location they found a 1984 Buick Regal which had previously been reported stolen. Five car lengths away, the officers saw a 1985 Oldsmobile Cutlass which had also been reported stolen. The engine was still warm, the steering column had been broken and the doors locked. (N.T. 1/30/92 at 11).

In the driveway of 3545 North 7th Street, Officer Green noticed five men, including appellees, Elias Torres and Moisés Cruz, congregated around a red Camaro which was attached to a tow truck. The men were attempting to remove the windshield of the Camaro. Officer Green spoke with the men and walked up the driveway where he peered into the garage. (N.T. 1/30/92 at 41).

Officers Green and Hale conferred and agreed to pursue the matter further. Officer Hale inquired if the garage was an autobody shop. Appellee-Torres, stated that it was and that he was in charge. Torres gave the officers permission to look around. The officers then entered the garage with Torres. An inspection of the Vehicle Identification Numbers (VINs) revealed that some of the cars had been stolen. Subsequently, a warrant was executed, the vehicles were seized and all five men were arrested. However, only appellees, Torres and Cruz, were kept in custody. (Trial opinion 1-3).

Pre-Trial motions were filed. Subsequently, appellees motion to suppress evidence for lack of probable cause to justify the search was granted. This timely appeal followed.

Appellant first contends that the trial court erred in holding that police needed a warrant to walk onto commercial property that was open to the public. We agree.

The fourth amendment protects individuals against unreasonable searches and seizures. See Commonwealth v. Cihylik, 337 Pa.Super. 221, 226, 486 A.2d 987, 989 (1985). This protection extends to commercial as well as private property. See Commonwealth v. Buckman, 393 Pa.Super. 453, 461, 574 A.2d 697, 701 (1990). However, an individual must first demonstrate that he had a legitimate expectation of privacy in the area being searched. Commonwealth v. Oglialoro, 525 Pa. 250, 255-56, 579 A.2d 1288, 1290 (1990). An expectation of privacy is present when the individual, by his conduct, “ ‘exhibits an actual (subjective) expectation of privacy’ and the subjective expectation ‘is one that society is prepared to recognize as “reasonable”’. Oglialoro, at 256, 579 A,2d at 1290-91. The challenger must protect his right to privacy from the view of others. Oglialoro, at 257, 579 A.2d at 1291. “The mere looking at that which is open to view is not a search.” Id. (finding no expectation of privacy where windows left open so that “any passerby might peer into one’s dwelling”) (citations omitted). Furthermore, “the mere observation of evidence from a lawful vantage point is generally deemed not to invade a reasonable expectation of privacy and therefore not constitute a search.” Commonwealth v. Carelli, 377 Pa.Super. 117, 132, 546 A.2d 1185, 1192 (1988), appeal denied 521 Pa. 609, 557 A.2d 341 (1989).

In the instant case, appellees did not have a legitimate expectation of privacy in the driveway, nor were their privacy rights offended by the officer’s peering through the garage’s open door. The location in question was, a small autobody shop, which was open to the public. The officers had arrived at the shop during regular business hours. There was no indication given that Officer Green was trespassing. We cannot proscribe officers from entering business premises, during business hours, in a manner expected of the public. Buckman, 393 Pa.Super. at 469, 574 A.2d at 705 (“a business man does not possess a reasonable expectation of privacy in commercial premises to the extent that he knowingly exposes the premises to the general public”). Consequently, Officer Green was properly on the driveway when he peered through the garage door. Moreover, as the garage door was open, Officer Green did not infringe any privacy rights by looking into the garage. Oglialoro, 525 Pa. at 259, 579 A.2d at 1291 (“[a]s long as the police have the right to be where they are, and the activity is clear and visible, the fact that they were peering into curtilage is of no significance”).

Appellant next contends the trial court erred in finding that Officer Green entered the garage before the officers had received valid consent from Torres. We agree.

In the instant case, there is no testimony to support the inference that Officer Green entered the garage before Torres permitted the search. See Commonwealth v. Lagamba, 418 Pa.Super. 1, 6, 613 A.2d 1, 3 (1992) (in reviewing a motion to suppress, an appellate court is not bound by factual findings which are not supported by the record). To the contrary, the testimony reveals that Officer Green accompanied Torres and Officer Hale into the garage after Torres had agreed to allow them to look around. Additionally, Torres’ consent to the search was given freely and intelligently. See Commonwealth v. Bagley, 408 Pa.Super. 188, 201, 596 A.2d 811, 817 (1991), appeal denied, 531 Pa. 637, 611 A.2d 710 (1992). Torres had informed the officers that he was in charge of the garage. He further indicated his authority by granting them permission to search the garage. His authority was not challenged by any of the four men present, including appellee Cruz. He accompanied and aided the officers in their search and presented documents to them at their request. Commonwealth v. Elliot, 376 Pa.Super. 536, 553, 546 A.2d 654, 662 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721 (1989), and Elliot appeal of, 521 Pa. 621, 557 A.2d 724 (1989) (consent obviates the need for a search warrant if given by someone who has the authority to do so). The officers had therefore received valid consent to search the garage.

Finally, appellant contends that the trial court erred in ruling that 75 Pa.C.S.A. § 6308 is unconstitutional.

In the instant case, the trial court had determined that the officers’ search of the garage had violated the Fourth Amendment. That court, therefore, properly decided to address the issue of the constitutionality of 75 Pa.C.S.A. § 6308. As we find the officers’ search of the garage was lawful, there is no need to determine the constitutionality of 75 Pa.C.S.A. § 6308.

Accordingly, we reverse the order granting the motion to suppress the evidence.

Order to suppress the evidence reversed.

      . The Commonwealth asserts that this order substantially handicaps its prosecution of this case. See Appellant's Brief at 1. The appeal is therefore properly before this court. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . Appellees, failure to object to this court's jurisdiction on or before the last day for the filing of the record operates to perfect this court’s jurisdiction. Pa.R.A.P. 741. See, e.g., Commonwealth v. Buckman, 393 Pa.Super 453, 574 A.2d 697 (1990). Additionally, as the determination of the constitutionality of 75 Pa.C.S.A. § 6308 is not dispositive of this case, and we do not address this issue, this appeal is properly before this court. See Commonwealth v. Dunn, 478 Pa. 35, 385 A.2d 1299 (1978) (that the constitutionality of a statute is raised as an issue on appeal, does not necessarily confer appellate jurisdiction to the Supreme Court).


text:
    632 A.2d 322
    Grace P. Brown CANN, v. Charles CANN, II, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed Oct. 28, 1993.

      Sherry A. Schwalbach, Hazletown, for appellant.
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This appeal is from a December 3, 1993 decree granting a divorce to Grace P. Brown Cann and Charles Cann, II. Appellant, Charles Cann, II, presents the following issues for our review: First, appellant argues that the trial court erred in dismissing his petition for summary judgment on the issue of whether there was a common law marriage, as appellant’s first wife was not declared to be presumed dead by the court. Second, appellant argues that the trial court erred in finding that a valid common law marriage existed between the parties. See Appellant’s Brief at 2. For the reasons that follow, we affirm.

The relevant facts are as follows. In 1968, appellant married Ilonka Cann. The couple had one child. In 1970, Ilonka disappeared and has not been heard from since. In 1971, appellant began a relationship with appellee, who was fully aware of appellant’s marriage and his wife’s disappearance. In late 1971, appellee moved into appellant’s home where she lived until 1987.

On April 30, 1987, appellee commenced an action in which she sought a divorce, alimony, alimony pendente lite, equitable distribution, and counsel fees and costs. In appellee’s complaint she alleged that the parties were married on June 9, 1972. Appellant, however, denied that he was ever married to appellee. On October 10, 1989, a motion for summary judgment was filed by appellant, which was granted on February 7, 1990. Subsequently, the order of February 7, 1990 was vacated, to give the parties an opportunity to take additional depositions on the issue of common law marriage.

On August 1,1990, the trial court found that the parties had entered into a common law marriage on June 19, 1982 and ordered that the parties proceed with the divorce action. On December 3, 1992, the trial court entered a decree of divorce. This timely appeal followed.

Appellant first argues that the trial court erred in dismissing his petition for summary judgment and finding that a common law marriage existed when appellant’s preexisting wife was not declared to have been presumed dead by the court. We disagree.

The Rule governing motions for summary judgment provides in pertinent part that:

The judgment sought 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 a judgment as a matter of law.

Pa.R.C.P. 1035. Thus, summary judgment will only be granted in the clearest of cases. Kotwansinski v. Rasner, 436 Pa. 32, 37, 258 A.2d 865, 867 (1969). The moving party has the burden of proving the nonexistence of any material fact., Kent v. Miller, 222 Pa.Super. 390, 393, 294 A.2d 821, 823 (1972). Furthermore, all doubts as to the existence of a genuine issue of a material fact must be resolved in favor of the nonmoving party. Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 573 (1971).

Appellant contends that because of the existing impediment of a prior marriage the relationship between himself and appellee was meretricious. This argument is without merit. We agree that a valid prior marriage will invalidate any subsequent marriage. Madison v. Lewis, 151 Pa.Super. 138, 145, 30 A.2d 357, 360 (1943). However, a valid marriage continues only until death of one of the parties (actual or presumptive) or a divorce. In re Watt’s Estate, 409 Pa. 44, 53, 185 A.2d 781, 785 (1962).

This court has long held that where a spouse from a prior marriage has been missing for a period of seven years, she is presumed dead for the purposes of the validity of a prior marriage. Appellant argues that since an interested party never petitioned the court to declare Ilonka Cann dead, the presumption is not applicable. However, in these instances the court has upheld this presumption, regardless of whether the court acted upon a petition. See, e.g., Schaefer v. Schaefer, 189 Pa.Super. 120, 149 A.2d 578 (1959) (court recognized the validity of second marriage where appellant’s husband had been missing for ten years); In re Estate of D’ippolito, 420 Pa 541, 218 A.2d 224 (1966) (court recognized the validity of second marriage where 24 year period elapsed between the time decedent was deserted by her first husband and the second marriage); Madison, 151 Pa.Super. at 138, 30 A.2d at 357 (court refused to recognize the validity of a second marriage where there was no divorce and first wife was still alive). See also 1 A. FREEDMAN & M. FREEDMAN, LAW OF MARRIAGE AND DIVORCE IN PENNSYLVANIA § 85 (1957) (where second marriage takes place seven years after first spouse was last heard of, presumption of death arises and second marriage is valid).

In the present case, appellant’s wife disappeared in 1970 and has not been seen nor heard from since. In 1971, appellant entered into a meretricious relationship with appellee. As appellant’s wife had been missing for a period exceeding seven years, the trial court held that appellant’s wife was presumed dead as of 1977. To overcome the presumption, the burden is on appellant to prove that his first spouse was alive at the time of the second marriage. Schaefer, 189 Pa.Super. at 120, 149 A.2d at 578. As appellant offered no evidence to the contrary, the impediment to marriage was removed in 1977. Accordingly, we find appellant’s first argument to be without merit.

Appellant next argues that the evidence did not support the trial court’s findings that there was a valid common law marriage between the parties. In Pennsylvania, a common law marriage is a marriage by express agreement of the parties without ceremony, and usually without a witness, and verba de praesenti, uttered with the purpose of establishing a relation of husband and wife. In re Manfredi’s Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). However, common law marriage will still be recognized without use of verba de praesenti, where the intention of the parties as expressed by their words, is that they were married. In re Estate Stauffer, 504 Pa. 626, 632, 476 A.2d 354, 357 (1984). While cohabitation and reputation alone will not suffice to establish a common law marriage, they are relevant factors which a court may consider in determining whether the parties have entered into a common law marriage. Canute v. Canute, 384 Pa.Super. 60, 63, 557 A.2d 772, 774 (1989).

However, “[wjhere a relationship is meretriciousj at its inception, there must be clear evidence of a change in status to rebut the presumption that the non-marriage continued after the impediment to the marriage was removed.” Steadman v. Turner, 357 Pa.Super. 361, 365, 516 A.2d 21, 23 (1986). In making this determination, the court may only look to instances occurring after the impediment to the marriage was removed in finding a common law marriage.

Appellee testified that on June 19, 1982, five years after the impediment was removed, the couple formally exchanged vows. At that time the couple expressed a present intention to marry. In addition there is corroborative evidence introduced by appellee that supports a finding that the parties were married in 1982.

A trial court’s findings will not be disturbed if it is supported by the record. Madison, 151 Pa.Super. at 140, 30 A.2d at 358. Here there was directly supporting and corroborating evidence for the trial court’s finding that after 1977 appellant entered into a contract per verba de praesenti with the purpose of establishing a marriage. Accordingly, we affirm.

Affirmed.

      . A meretricious relationship is defined as a "relation sustained by persons who contract a marriage that is void by reason of legal incapacity.” See, Black’s Law Dictionary. ‘

      . See 20 Pa.C.S. § 5701 (1972).

      . In the presence of appellee’s parents, appellant asked appellee to marry him and appellee responded affirmatively.

      . Appellee demonstrated that the parties filed joint income tax returns for the years 1982-1985; that each party designated the other as the beneficiary of an IRA account in the years 1984 and 1985; that appellant purchased life insurance for himself and his son in 1985, naming appellee as the primary beneficiary on his policy and the contingent beneficiary on his son’s policy; that appellant listed appellee’s relationship on the policy as his wife and mother of his son; and finally, that appellant made two claims as appellee's husband on her Blue Cross/Blue Shield policy. \


author: JOHNSON, Judge:

text:
    632 A.2d 325
    COMMONWEALTH of Pennsylvania v. Gregory Lee JORDAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Oct. 19, 1993.
    John Marshall, New Bethlehem, for appellant.
    William M. Kern, Dist. Atty., Clarion, for Com., appellee.
    Before CIRILLO, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

A jury convicted Gregory Lee Jordan of one count each of inmate possessing any weapon and inmate possessing an implement for escape, 18 Pa.C.S. § 5122(a)(2) and (3). The Honorable Paul B. Greiner, S.J., sentenced Jordan to serve a term of imprisonment of thirty (30) to sixty (60) months on the count of possessing weapons, and a concurrent sentence of six (6) to twelve (12) months on the charge of possessing implements for escape. On this direct • appeal, we are asked to determine whether a hacksaw blade, broken in two pieces, is a weapon per se, for purposes of prosecution and conviction under Section 5122(a)(2), a first degree misdemeanor. We conclude that it is not and, accordingly, we reverse that conviction.

Jordan was an inmate at the Clarion County Jail.! He persuaded a friend, Michele Johnson, to bring a pair of running shoes to him at the jail. Johnson obtained the shoes and a hacksaw blade. She broke the blade in half and concealed one half under the insole of each running shoe prior to taking them to the jail for delivery to Jordan. Acting on a tip, the jail officials conducted a search and discovered the two pieces of hacksaw blade concealed in one of the shoes. Hidden under the insole of the other shoe was a $100 bill which, at another time, had also been delivered by Johnson to Jordan during a jail visit by Johnson.

At trial, Johnson testified for the prosecution. She admitted to taking the hacksaw blade, bending it in half, breaking it and placing one half of the blade in each shoe. She testified that Jordan had asked her to “bring him the shoes and put a hacksaw blade in them for him to get out, to use to get out.” Transcript of Proceedings, April 3, 1992 (N.T.), page 5.

The deputy warden, Stan Dolby, testified to discovering two hacksaw blades inside one shoe at the time of the search. He did not further describe the blades. A deputy sheriff,, who had participated in the search, also testified to seeing two pieces of a hacksaw blade and believing that it looked like one blade that was broken into two pieces. A fourth witness, Clarion County Sheriff Vern Smith, testified to observing a hacksaw blade that was in two pieces in one shoe, and what appeared to be money folded up in the other shoe. Sheriff Smith described the blades as “having the word NAPA stamped on them. And they are approximately ten inches in length total, which broken approximately half.” Id. at 63.

Immediately after the discovery of the hacksaw blade pieces and the $100 bill in the running shoes, both the contraband and the shoes were turned over to Sheriff Smith and held as evidence for trial. There was no evidence that either the blades or the money were ever used, or attempted to be used, by Jordan between the time he received the goods from his friend, Michele Johnson, and the confiscation of the goods by the sheriff.

In considering whether Jordan was properly convicted of inmate possessing a weapon, we look first to the statute involved. In pertinent part, it provides:

§ 5122. Weapons or implements for escape (a) Offenses defined.™
(2) An inmate commits a misdemeanor of the first degree if he unlawfully procures, makes or otherwise provides himself with, or unlawfully has in his possession or under his control, any weapon.
(b) Definitions —
(2) As used in this section the word “weapon” means any implement readily capable of lethal use and shall include any firearm, knife, dagger, razor, other cutting or stabbing implement or club, including any item which has been modified or adopted so that it can be used as a firearm, knife, dagger, razor, other cutting or stabbing implement, or club....

To sustain a conviction on this charge, the Commonwealth must prove that Jordan (1) in violation of prison regulations (2) possessed or had in his control (3) a weapon. There is no dispute on this appeal that Jordan violated prison regulations both in possessing the pieces of hacksaw blade and the $100 bill. The only issue to be resolved is whether the two pieces of a ten-inch hacksaw blade constitute, either singly or together, a weapon.

This Court has previously held that a hacksaw blade in a wooden frame is an implement for escape. Commonwealth v. Jackson, 281 Pa.Super. 310, 312, 422 A.2d 184, 185 (1980). In Jackson, we were called upon to decide whether the hacksaw blade was in the inmate’s possession or under his control where it had been discovered by a corrections officer inside a locked locker inside the inmate’s cell. The only keys to open the locker were in the possession of the accused inmate and the officer in charge of the cell block. We there assumed, without analysis, that the mounted hacksaw blade was an implement for escape and found the necessary control to sustain the conviction.

In deciding whether a hacksaw blade may be construed to be a weapon per se under § 5122(b)(2), above, we are mindful that the statute is penal in nature. Therefore, all of its provisions and its application must be strictly construed against the party seeking enforcement and in favor of the defendant. 1 Pa.C.S. § 1928(b)(1). Commonwealth v. Dickerson, 533 Pa. 294, 300, 621 A.2d 990, 993 (1993); Commonwealth v. Harner, 533 Pa. 14, 20, 617 A.2d 702, 705 (1992); Commonwealth v. Baker, 531 Pa. 541, 579, 614 A.2d 663, 682 (1992) (Cappy, J., concurring and dissenting); Commonwealth v. Iafrate, 527 Pa. 497, 501, 594 A.2d 293, 295 (1991). The statute defines “weapon” as “any implement readily capable of lethal use”. It includes any “cutting or stabbing implement ... which has been modified or adopted so that it can be used as a ... knife, dagger, razor, [or] other cutting or stabbing implement ...”

No testimony was presented on this prosecution to support a reasonable conclusion that the broken pieces of the hacksaw blade were “readily capable of lethal use” nor are we prepared to so conclude. Moreover, we can only understand the legislature to have been referring to the cutting or stabbing of human flesh in its reference to “other cutting or stabbing implement or club.” While a hacksaw blade is, in fact, a cutting instrument, it is manufactured and designed to cut metal or other hard materials, not human flesh. Without any testimony or other evidence on this record to support a conclusion that the unmounted, five-inch pieces of hacksaw blade could readily have been used to kill some person, we will not assume that the contraband presented here qualifies, without more, as a weapon.

In Commonwealth v. Hargrove, 15 Pa.D. & C.3d 604 (1980), the distinguished trial judge, the Honorable Harold E. Sheely, was required to determine whether an eight and one-half inch long metal sink stem with a knob on one end should be found to be a weapon within the meaning of § 5122(b)(2). In that case, the defendant had testified that he removed the sink stem from his cell, attached a pair of undershorts to it and concealed it in his prison jumpsuit so that he could use it as a weapon. Judge Sheely reasoned, we believe correctly, that since the defendant testified that the implement had been created by himself as a weapon, the sole question for the jury was whether it met the Crimes Code definition of an “implement readily capable of lethal use.” The court determined that a jury could reasonably conclude that a heavy metal sink stem could be used to club a person to death. Such a conclusion does not readily flow from the facts presented on this appeal.

We are inclined to follow the reasoning of our sister state, Illinois, which has considered a similar issue in People v. Morissette, 225 Ill.App.3d 1044,168 Ill.Dec. 30, 589 N.E.2d 144 (1992). There, the inmate had been indicted for attempt (escape), unlawful possession of contraband, and unlawful possession of a weapon. On appeal from an order dismissing the indictment, the Appellate Court of Illinois, Fourth District, held that the mere allegation of possession of a hacksaw blade would not satisfy the requirements to charge unlawful possession of either contraband or weapon, where the relevant statute defined a weapon not specifically included in the statutory list of items as “any other dangerous weapon or instrument of like character.”

In refusing to find a hacksaw blade a dangerous weapon, the Morissette court stated:

Dangerous weapons are divided into two categories: weapons which are dangerous per se and those which become dangerous because of the way they are used. The trial court noted, for example, a firearm is a dangerous weapon per se, but a common object such as a fingernail clipper is not considered dangerous unless it is used with the point of the fingernail file, a part of the clipper, pressed against a victim’s throat. The court did not consider a hacksaw blade, which is a common tool, to be dangerous per se, and in the absence of allegations of use which would make it a dangerous weapon, there was no criminal offense stated.
The State maintains that the purpose of the statute is to prohibit even the innocent possession of items that are likely to be hazardous in a penal setting. (People v. Ryan (1987), 117 Ill.2d 28, 32-33,109 Ill.Dec. 162,163, 509 N.E.2d 1001, 1002.) The State argues that a hacksaw blade is clearly likely to be hazardous in a penal setting and, contrary to the trial court’s statements, is not a common tool in a prison.
In Ryan, the defendants were inmates at Menard Correctional Center and were charged with possession of homemade weapons fashioned from a metal rod and sharpened into what was described as a dagger, dirk or pick. One defendant was charged with possession of two homemade knives, each about seven inches long and made from pieces of Plexiglas. The supreme court noted that the informations in each case described the weapon that was found and characterized it as “ ‘a dangerous weapon or deadly instrument.’ ” The court found this to be sufficient notice of that element of the offense. ¡
Here, however, the indictment did not describe the hacksaw or allege it was a dangerous weapon or deadly instrument. Thus, absent the allegations of such description or use, an indictment listing a tool which is not dangerous per se is insufficient. The trial court properly dismissed count II of the indictment.

Id. 225 Ill.App.3d at 1048, 589 N.E.2d at 147, 168 Ill.Dec. at 33. (Citations omitted).

We believe the conclusion of the Illinois court, that a hacksaw blade becomes dangerous only because of the way it is used, is sound. And that danger must be a danger to person, and not to property. The jury could readily conclude that Jordan had every intention to use, or attempt to use, the broken pieces of hacksaw blade for purposes of effectuating an escape. However, we find nothing in the record to support a finding that the blades had any potential for, or were readily capable of, lethal use.

We do not intend to suggest that under no circumstances may a hacksaw blade be found to be a weapon under § 5122(b)(2). It is our conclusion, however, that on the specific facts of this case, where the pieces of hacksaw blade were discovered and confiscated from the running shoes of the defendant and there was no evidence presented that the blades were intended for anything other than as implements for escape, the conviction for inmate possessing a weapon cannot stand.

We reverse judgment of sentence on the count of inmate possessing a weapon, 18 Pa.C.S. § 5122(a)(2), while affirming the conviction on possessing implements for escape, 18 Pa.C.S. § 5122(a)(3).

Judgment of sentence AFFIRMED in part, REVERSED in part.


author: CERCONE, Judge:

text:
    632 A.2d 329
    In the Interest of M.L.E., a Minor. Appeal of MONROE COUNTY CHILDREN AND YOUTH SERVICES.
    Superior Court of Pennsylvania.
    Argued June 23, 1993.
    Filed Oct. 22, 1993.

      Richard E. Deetz, Stroudsburg, for appellant.
    Before CAVANAUGH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final order which denied a request by appellant, Monroe County Children and Youth Services (“CYS”), to conduct a placement and dispositional review on behalf of a child in the agency’s custody. For the reasons set forth below, we vacate the trial court’s order and remand for further proceedings.

M.L.E. is a minor who is presently in the custody of CYS. The child was declared “dependent” by a court order entered April 18,1990. Following extensive review, and after hearings conducted before the trial court, the parental rights of the child’s natural mother and father were terminated on June 28, 1991. On that date, the trial court granted Monroe County CYS the right to proceed with the adoption of the child without further notice to the parents. See Trial Court Opinion filed July 16, 1992 at l. CYS subsequently filed a petition under the Juvenile Act seeking placement and dispositional review for the child by the Court of Common Pleas of Monroe County. The petition was dismissed by Judge O’Brien on June 29, 1992. The instant timely appeal followed which raises the following issue: whether periodic court review hearings for dependent children are required under the Juvenile Act and under Department of Public Welfare regulations even where the parental rights of children have been terminated.

As an initial matter, we note that our Supreme Court has spoken clearly and unequivocally concerning the nature of the Pennsylvania Juvenile Act and the role of the courts in upholding it. “The Juvenile Act, as reinforced by our case law, was passed for the benefit of dependent children and is based on humanitarian ideals.” In re Tameka, M., 525 Pa. 348, 358, 580 A.2d 750, 755 (1990) (emphasis in original). “The Juvenile Court maintains a continuing plenary jurisdiction in dependency cases under 42 Pa.C.S.A. § 6351 [set forth below] and has the power to review the circumstances of dependent juveniles and to question ... the legal custodian, CYS, and the foster parents concerning the condition and the needs of the dependent child.” Id. at 352, 580 A.2d at 752.

In 1984, a panel of this court had occasion to explain that individual provisions, in the Juvenile Act should not be read abstractly, but rather with a view to their place in the entire legislative structure of the Act. Commonwealth v. Davis, 330 Pa.Super. 551, 558, 479 A.2d 1041, 1045 (1984), affd, 510 Pa. 536, 510 A.2d 722 (1986). We see no reason to believe that this principal has been abrogated by the 1986 amendments to the Act. In order to effectuate the legislative intent behind the Act, we conclude that it is necessary to read the relevant statutory provisions in pari materia and not as isolated sub-sections.

Subchapter D of the Act controls the disposition of children who have been adjudicated either dependent or delinquent. See 42 Pa.C.S.A. §§ 6351-6357. The dispositional placement of dependent children who are neither mentally ill or retarded, nor delinquent, is specifically governed by section 6351, subsections a through h, reproduced below in pertinent part.

Disposition of dependent child
(a) General rule. — If the child is found to be .a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.
(3) Without making any of the foregoing orders transfer custody of the child to the juvenile court of another state if authorized by and in accordance with section 6363 (relating to ordering foreign supervision).
(e) Disposition review hearings. — Within six months of the removal of a child from the home of his parents, guardian or custodian for placement pursuant to a transfer of temporary legal custody or other disposition under subsection (a)(2), the court shall conduct a disposition review hearing for the purpose of determining whether placement continues to be best suited to the protection and physical, mental and moral welfare of the child. The court shall conduct a second review hearing not later than six months after the initial hearing, a third hearing not later than six months after the second hearing and subsequent disposition review hearings at least every 12 months until the child is returned home or removed from the jurisdiction of the court.
(f) Matters to be determined. — At each disposition review hearing, the court shall:
(1) determine the continuing necessity for and appropriateness of the placement;
(2) determine the extent of compliance with the service plan developed for the child;
(3) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;
(4) determine the appropriateness and feasibility of the current placement goal for the child; and
(5) project a' likely date by which the goal for the child might be achieved.
(g) Court order. — On the basis of the determinations made under subsection (f) and other relevant evidence, the court, in addition, shall:
(1) determine whether the child:
(i) should be returned to the parents, guardian or other custodian; !
(ii) should be continued in placement for a specified period; or
(iii) because of the child’s special needs or circumstances, should remain in placement on a permanent or long-term basis; and
(2) order continuation, modification or termination of placement or other disposition best suited to the protection and physical, mental and moral welfare of the child,
(h) Certain hearings discretionary. — At the discretion of the court, disposition review hearings need not be conducted:
(1) for a child who the court has determined should remain permanently in foster care with a specified foster family; or
(2) for a child who has been placed in an adoptive home pending finalization of adoption pursuant to 23 Pa.C.S. Part III (relating to adoption).

42 Pa.C.S.A. § 6351. When considered in its entirety, with all subsections properly read in pari materia, the plain import of section 6351 shows that placement of a dependent child is considered to be temporary for purposes of the Juvenile Act unless or until that child either has been placed in permanent foster care with a specified foster family or has been placed in an adoptive home pending finalization of adoption proceedings. Under the Act, the trial court exercises protective authority over a child while he or she is in temporary placement and must hold disposition review hearings until the child is “returned home or removed from the jurisdiction of the court.” Id. § 6351(e). The only time the trial court may exercise the discretion to decline to hold such hearings is after the child has been permanently placed either in foster care or in an adoptive home. Id. § 6351(h).

Appellant CYS avers that the juvenile in question is presently in “temporary residential placement.” Appellant’s brief at 2. CYS further states that the child is not in permanent foster care with a specified foster family, nor has he been placed in a proposed adoptive home. Id. If these assertions are correct, then it would appear that the child has not been permanently placed, but is currently in a temporary disposition and thus remains subject to the jurisdiction of the Court of Common Pleas of Monroe County.

The trial court’s opinion indicates that the child’s placement with CYS is “permanent” in the sense that the child will not be returned to his parents. However, placing a child in the care of a public agency is clearly deemed to be a “temporary” disposition under section 6351(a)(2)(iii) of the Act. We find nothing in section 6351, or in any other provision of the Act, which leads us to believe that the legislature intended the permanent consignment of children into the Limbo of unsupervised placement with a public agency.

Moreover, we find our interpretation of the Juvenile Act to be consistent with the regulations adopted by the Pennsylvania Department of Public Welfare which require county agencies to secure semi-annual placement review by a court of common pleas for all children entrusted to agency care. See 55 Pa.Code §§ 3130.71-3130.72. The only two factual scenarios under which a county agency is not required to secure dispositional review are the same as those under which the trial court may dispense with such review: when a child has been placed in a permanent foster family home with a specific caregiver acting under a court order, or when a child is legally free for adoption and has been placed in an adoptive horns pending finalization of the adoption. See id. § 3130.72(d)(1) and (2). Compare 42 Pa.C.S.A. § 6351(h)(1) and (2) (discretion of trial court to dispense with dispositional review hearings).

The record certified to this court is devoid of documentation as to the current placement status of the child. We therefore must remand the case so that the trial court may determine whether the minor is now in a permanent foster home, a permanent adoptive home, or is still in temporary care within the meaning of the Juvenile Act. Unless the child has been placed in a permanent foster home or a permanent adoptive home, the trial court is directed to conduct a dispositional review hearing on this case within thirty (30) days of the date on which this opinion is filed. If the child has been placed in a permanent foster home or a permanent adoptive home, the trial court, at its discretion, may either conduct a hearing or decline to do so. See 42 Pa.C.S.A. § 6351(h).

The order of July 16, 1992 is vacated. The case is remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . The trial court pleadings contain the child’s full name rather than his initials. However, we have changed the name to initials in the caption of this case and throughout this opinion. See Matter of Adoption of C.A.E., 516 Pa. 419, 420 n. 1, 532 A.2d 802, 803 n. 1 (1987).

      . The propriety of the termination order has not been challenged by the instant appeal.

      . Unfortunately, no copy of the order of June 28, 1991 has been placed in the certified record for this appeal. We are therefore uninformed concerning the precise terms of this order.

      . The trial court relies on our Supreme Court’s holding in the case of In re: D.K.W., 490 Pa. 134, 415 A.2d 69 (1980) for the proposition that further dependency proceedings are not necessary once parental rights have been terminated under the Adoption Act and custody has been awarded to an agency for purposes of adoption. While we agree with the trial court that further dependency proceedings need not be held in the instant case, we cannot see how this fact eliminates the requirement to hold disposition review hearings in compliance with 42 Pa.C.S.A. § 6351(e).
      The rule promulgated by In re: D.K.W. is inapposite to the present appeal because it concerns a challenge by the natural mother to an order which involuntarily terminated her parental rights and, thus speaks only to the propriety of an initial determination of dependency. The Supreme Court's ruling in D.K.W. does not in any way address a trial court’s responsibility to exercise continuing jurisdiction over a child once he or she has been placed in the legal custody of a government agency. The case therefore has no precedential value concerning the necessity to conduct disposition review hearings for the minor on whose behalf the instant appeal was filed.


author: HESTER, Judge:

text:
    632 A.2d 333
    Tammy GINTHER, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed Oct. 29, 1993.

      Edward M. Brennan, Pottsville, for appellant.
    Glenn M. Campbell, Philadelphia, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Tammy Ginther appeals from the February 9, 1993 order of the Court of Common Pleas of Schuylkill County which vacated an August 11, 1992 order of an arbitration panel awarding her delay damages in this proceeding wherein she was awarded underinsured motorist benefits from appellee, United States Fidelity and Guaranty Company. Since we find that Rule 238 does not authorize the arbitration board involved herein to award delay damages, we affirm.

The record indicates the following. On December 11, 1987, appellant was involved in a traffic accident in which she sustained a fracture and dislocation of her right wrist and facial lacerations. Her wrist was treated surgically but is affected permanently as a result of the accident, and she underwent plastic surgery for facial scarring. She received $50,000 from State Farm Insurance Company, the insurance carrier for the motorist responsible for the accident, and then made a demand for underinsured motorist coverage against appellee. The parties eventually agreed that the available underinsured motorist coverage under three applicable policies amounted to $105,000. After settlement negotiations failed, with appellee offering $45,000 and appellant demanding $75,000, the parties proceeded to arbitration. A hearing was held before a board of arbitrators, which entered an award of $65,000 in favor of appellant.

Appellant then petitioned both the court of common pleas and the arbitration panel for delay damages pursuant to Rule 238. On August 11, 1992, the board of arbitrators, with one arbitrator abstaining, entered a supplemental order awarding appellant $23,066.87 in delay damages. Appellee filed a petition to vacate the supplemental order, which was granted on February 9, 1993. This appeal followed.

In Rule 238 of the Pennsylvania Rules of Civil Procedure, our Supreme Court authorizes the imposition of damages for delay in the following circumstances only:

(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.

Pa.R.Civ.P. 238 (emphasis added) (applicable to all actions pending on November 7, 1988 in which the issue of delay damages has not been determined).

Chapter 73 of the Judicial Code defines three types of arbitration and consists of three subchapters. Subchapter A is entitled statutory arbitration; subchapter B is entitled common law arbitration; subchapter C is entitled judicial arbitration. Section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, appears in subchapter C, which consists solely of 42 Pa.C.S. §§ 7361 and 7362. 42 Pa.C.S. § 7361 is the only type of arbitration wherein delay damages may be assessed under the clear language of Rule 238. Section 7361 is the provision of the Judicial Code instituting compulsory arbitration before a board of three attorneys of all civil matters involving less than $50,000.

In the present case, the parties arbitrated this matter not as a result of section 7361 but due to the insurance contract entered between them, which provides in relevant part:

If we and an “insured” do not agree:
1. Whether that person is legally entitled to recover damages under this Part; or
2. As to the amount of damages;
either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction.

Reproduced record at 42a.

The parties voluntarily agreed to arbitrate on a nonjudicial basis by entering this contract, and section 7361 of the Judicial Code is not applicable. Instead, 42 Pa.C.S. § 7302 explicitly provides that this matter must be considered either one involving statutory arbitration or common law arbitration. That section states that an agreement to arbitrate a controversy without instituted suit in the courts is conclusively presumed to be an agreement to arbitrate pursuant to subchapter B, common law arbitration, unless the agreement to arbitrate expressly provides for statutory arbitration. In the latter case, the provisions of subchapter A apply. See Cigna Insurance Co. v. Squires, 427 Pa.Super. 206, 628 A.2d 899 (1993).

Since the agreement at issue did not provide for statutory arbitration, the parties conclusively are presumed to have agreed to common law arbitration. Id. Since the board at issue was not proceeding under the compulsory arbitration proceedings mandated in 42 Pa.C.S. § 7361, it had no power to impose delay damages under Rule 238. Accordingly, the court of common pleas was correct in vacating the order awarding them.

We now determine whether the award should be vacated under the standard of judicial review applicable in common law arbitration proceedings. Pursuant to 42 Pa.C.S. § 7341, a common law arbitration award may be vacated only when there is an irregularity that renders the award unjust, inequitable, or unconscionable. In Hade v. Nationwide Insurance Co., 349 Pa.Super. 541, 503 A.2d 980, 983 (1986), aff'd, 519 Pa. 227, 546 A.2d 615 (1988), we stated that if a common law arbitration panel exceeds the scope of the arbitration agreement, the award can be modified on this basis. We apply that reasoning to the facts in this case.

In the present casé, the arbitration clause provides for arbitration to decide whether there is coverage and if so, the amount the insured is entitled to receive. The policy does not authorize an award of delay damages or interest when it is determined that the insured is entitled to more than the insurer was willing to offer. Furthermore, Rule 238 does not authorize delay damages in common law arbitration. Accordingly, the arbitrators exceeded the scope of the powers granted by the policy and law when it imposed delay damages under Rule 238.

We do not necessarily disagree with the basic tenet that an insurer should be obligated to pay interest when it has in bad faith denied a claim or attempted to underpay a claim. However, there are other statutory provisions providing remedies for such conduct. Appellant cannot obtain damages for delayed payment against appellee based on application of Rule 238 since only trial courts and arbitrators empowered under section 7361 of the Judicial Code have this authority. Her reliance on Brennan v. General Accident Fire and Life Assurance Corp., 524 Pa. 542, 574 A.2d 580 (1990), also is unavailing. While that case granted arbitrators broad authority to decide all matters involving coverage, it does not authorize arbitrators to make monetary awards not supportable by reference to the policy of insurance or an applicable rule or statute.

Order affirmed.

      . This section authorizes voluntary arbitration on a judicial basis.

      . A copy of this policy appears in the record certified to this court as an exhibit to appellant’s answer to appellee’s petition to vacate the supplemental order of the arbitration panel.

      . We agree with appellant's contention that the court of common pleas incorrectly applied the standard of review applicable to statutory arbitration. However, we proceed to determine that the order should be vacated under the standard of review applicable to common law arbitration.


author: DEL SOLE, Judge:

text:
    632 A.2d 556
    COMMONWEALTH of Pennsylvania v. Jesse Berry GARDNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1993.
    Filed Oct. 13, 1993.

      Patrick J. Connors, Media, for appellant.
    William R. Toal, III, Asst. Dist. Atty., Media, for Com., appellee.
    Before CIRILLO, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

The defendant was charged with simple assault, terroristic threats, and possession of a prohibitive offensive weapon. As a result of negotiations, a plea agreement was reached. In compliance with that agreement, a hearing was held to accept the defendant’s guilty plea and impose sentence. Part of the sentence included a restitution order. It is with that portion of the sentence the defendant objects. He claims that the evidence was insufficient to establish the amount of restitution claimed and the defendant’s ability to pay. We affirm.

The Commonwealth first argues that the defendant’s appeal should be dismissed for failure to comply with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f) which implement 42 Pa.C.S. § 9781(b) dealing with appeals from the discretionary aspects of sentencing. However, this appeal does not involve a discretionary sentencing question. If the question on appeal was whether the trial court should have imposed a restitution requirement as part of the sentencing scheme, the Commonwealth would be correct in its view of the issue as a discretionary sentencing matter. Clearly the decision to impose or not impose restitution is within the trial court’s discretion.

However, where, as here, the issue is the sufficiency Of the evidence presented at sentencing to justify the amount of the award and the ability of the defendant to pay, the discretionary aspects of sentencing are not implicated. Therefore, there is no requirement to follow the dictates of Tuladziecki, and Pa.R.A.P. 2119(f). See Commonwealth v. Johnson, 421 Pa.Super. 433, 618 A.2d 415 (1992).

Having reviewed the record, we find that there was sufficient evidence presented through the testimony of the victim to support the court’s finding on the amount of restitution. Also, while the defendant claims that there was no evidence presented on his ability to pay, the record establishes that he had agreed to pay restitution as part of the plea agreement. The only issue was a determination of the amount. Having agreed to pay restitution, where he was aware of the maximum amount to be claimed prior to the plea, he cannot now raise the question of his ability to pay.

Judgment of sentence affirmed, jurisdiction relinquished.