author: POPOVICH, Judge:

text:
    517 A.2d 1318
    Jason LANSDOWNE, a Minor, by Debra LANSDOWNE, His Guardian v. G.C. MURPHY COMPANY, a Corporation; and Miracle Equipment Company, a Corporation. Appeal of Debra LANSDOWNE, Natural Guardian of Jason Lansdowne, a Minor.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1986.
    Filed Nov. 12, 1986.

      Richard Audino, New Castle, for appellant.
    Nancy McRandal, Beaver, for G.C. Murphy, appellee.
    Monica Maghrak, Pittsburgh, for Miracle Equip., appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Lawrence County granting a motion to strike the complaint of the plaintiff/appellant, Jason Lansdowne. We affirm.

The facts are not in dispute and reveal that in October of 1979, the minor-plaintiff fell off a merry-go-round said to have been manufactured by Miracle Equipment Company and located, at the time, in G.C. Murphy Company’s New Castle store.

Suit against G.C. Murphy Company and Miracle Equipment Company was commenced on behalf of the minor-plaintiff by his guardian, Debra Lansdowne, by the filing of a praecipe for a writ of summons in October of 1981. The summonses were served on each defendant. Correspondence between counsel for G.C. Murphy Company and the plaintiff’s counsel then ensued. The first of the communiques was in the form of a letter dated February 22, 1982 from counsel for the plaintiff advising counsel for G.C. Murphy Company that further evaluation by medical specialists concerning the extent of his client’s injuries and future prognosis were necessary and continuing. When the medical evaluation was received, a copy would be sent to G.C. Murphy Company along with a formal complaint in the matter. However, when no action was forthcoming almost a year later, counsel for G.C. Murphy Company, by letter dated January 25, 1983, requested the filing of a complaint.

With the apparent inaction of the plaintiff, counsel for G.C. Murphy Company again wrote to opposing counsel on June 17, 1983. This time a rule to file a complaint within 20 days of the receipt of the rule was sought, as permitted by Pa.R.Civ.P. 1037(a). Nonetheless, the plaintiff took no action. Counsel for G.C. Murphy Company wrote a second time on August 9, 1983 informing the plaintiff’s counsel that he “intend[ed] to take a judgment on this matter within the next 10 days.” The return receipt indicated that notice of the intention to seek a judgment of non pros was received on August 11, 1983.

Even with the passage of more than the allowed for 10 days, counsel for G.C. Murphy Company received no response from the plaintiff and, as a result thereof, submitted a “Praecipe For Entry Of Judgment Of Non Pros” to the prothonotary on Friday, September 16, 1983 at 9:29 a.m. Curiously enough, at 2:30 p.m. of the same day, counsel for the plaintiff filed a complaint with the prothonotary. However, of interest here is the fact that the prothonotary did not enter judgment in the official docket — Appearance Docket — until the following Monday, the 19th day of September, 1983.

On February 13, 1985, a praecipe to reinstate the complaint was filed and obtained by plaintiff’s counsel. Interestingly enough, it was not until February 14 that G.C. Murphy Company was served with the complaint, and it was not until February 20 that Miracle Equipment Company received the complaint in the regular mail. In response thereto, counsel for G.C. Murphy Company filed preliminary objections in the nature of a Motion To Strike Complaint on March 8. On April 15, counsel for Miracle Equipment Company also filed a Petition For Judgment Of Non Pros, along with a praecipe to place the Petition upon the next argument list.

The Petition and Motion were consolidated for argument. By opinion and order dated August 8, 1985, the lower court, after listening to all sides, entered a ruling that read: “Complaint stricken, as of date of filing same for failure to comply with RCP 1037(a).” (Lower Court Opinion at 5) This dispensed with the need to address Miracle Equipment Company’s request for a non pros since, as put by the lower court, “Once the complaint is stricken, nothing remains on which to act.” Id. The present appeal was filed thereafter.

Before reaching the merits of the appellant’s claim, we deem it appropriate to decide, as is our right and obligation, the appealability of the order sua sponte. See Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981); MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976).

As has been stated on numerous occasions, the finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. See, e.g., Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). It has also been said that if the practical consequence of the order of the lower court is effectively to put an appellant “out of court” the order will be treated as final. See Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). Likewise, an order is “final” if it precludes a party from presenting the merits of his claim to the lower court. See Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

Instantly, the lower court entered an order striking the appellant’s complaint in trespass for failure to comply with Pa.R.Civ.P. 1037(a). Therefore, with the dismissal of the complaint, no one would dispute that the appellant was “out of court” with his trespass action so as to be foreclosed from presenting the merits of his case before a tribunal authorized to hear the same. See, e.g., Woolard v. Burton, 345 Pa.Super. 366, 498 A.2d 445 (1985).

We can now turn our attention to the sole question raised by the appellant in his brief to us; namely:

Was it proper, under the circumstances of this case, for the court to strike a complaint which was filed prior to the entry of a judgment of non pros per Pa.R.C.P. 1037(a)?

The appellant would have us hold that, although G.C. Murphy Company filed its praecipe for judgment of non pros prior to his filing his complaint (by five hours), the requirements of Rule 1037(a)’s “entry” of a judgment of non pros having not been complied with by the prothonotary before the filing of his complaint renders the actions of the lower court improper. This procedural issue appears to be one that has heretofore not been decided by an appellate court.

We start our discussion by observing that, in Pennsylvania, the prothonotary has been held to be merely the clerk of the Court of Common Pleas. Smith v. Safeguard Mutual Insurance Co., 212 Pa.Super. 83, 86, 239 A.2d 824, 826 (1968). He retains no judicial powers nor does he have power to act as attorney for others by virtue of his office. Id. As prothonotary, it is his duty to record all judgments entered by the court or confessed by parties before the court.

It has also been said that his power is derived from the instrument under which he acts and not from his office, see Swarb v. Lennox, 405 U.S. 191, 195, 92 S.Ct. 767, 769, 31 L.Ed.2d 138 (1972), and that his entry of judgment is a ministerial act. Id., citing Lenson v. Sandler, 430 Pa. 193, 197, 241 A.2d 66, 68 (1968).

The aforesaid is in accordance with a treatise on the subject, i.e., Corpus Juris Secundum, which reads:

... the great weight of authority is that the entry of judgment is a ministerial or clerical act, required to be done by the clerk of the court, ... and consists of placing a judgment previously rendered on the record, by which enduring evidence of the judicial act is afforded. While the term “entry of judgment” is sometimes used in a general sense so as to include rendition of judgment, it is most often used in a more limited and precise sense as meaning the ministerial act of spreading the judgment at large on the record as distinguished from the judicial act of giving or pronouncing judgment. There must be a compliance with statutes or rules of court regulating the entry of judgments.
* * * * * *
A judgment is entered when it is spread at large on the record, and under some statutes not until then.
* * * * * *
Under some statutes, however, a judgment is entered when a signed copy of it is delivered to the clerk and filed by him, although not actually transcribed on the record, or when the judgment is duly signed and filed by the clerk. So it has been held that a judgment is in law entered, at least for some purposes, at the time a proper entry thereof is formulated and given to the clerk to be entered of record.
* * * * * *
As a general rule, the decisions of all courts must be preserved in writing in some record provided for that purpose. Where a statute so requires, judgments should be entered, and for many purposes a judgment is not complete, perfect, and effective until it has been duly entered. Thus it has been broadly held that judgments take effect only from the date of entry, and that there is no judgment until it is entered of record.
* * * * * *
As between the parties, a judgment duly rendered may be valid and effective, although not entered, that is, the neglect or failure of the clerk to make a proper entry of the judgment, or his defective or inaccurate entry of it, at least in the absence of statute to the contrary, will not deprive it of the force of a judicial decision. The enforcement of a judgment does not depend on its entry, or docketing, ...; and, as discussed in Executions § 9 if the judgment has been duly rendered, a valid execution generally may be issued and levied, without either entry or docketing of the judgment, unless specially required by statute.
In the entry or record of a judgment, a clerical error, misdescription, irregularity, omission, or other defect not going to the jurisdiction of the court will not vitiate the judgment or give it an effect which it would not have had if correctly entered provided there is enough in the entry or record to constitute a judgment.
* * * * * *
As a general rule, entry of a judgment must be made in the judgment book, journal, or other designated book of record, in accordance with the statutory provisions in that respect. Where the clerk is directed by law to keep certain books for the entry of judgments, or to record judgments in a book specially designated by statute for that purpose, or to enter different kinds of judgments or decrees in different books, and deviates from the course prescribed, the validity and operation of the judgment are not impaired thereby as between the parties, although it may be otherwise as to third persons who are misled, or who fail to receive the notice which a proper entry would have afforded them, and ... entry in the wrong book may prevent the judgment from becoming a lien.

49 C.J.S. Judgments, §§ 106, 107 & 109 n. 97.

As referred to in C.J.S., supra, the obligatory aspects remain the onus of the party seeking to have an instrument recorded by seeing to it that “it is both properly recorded and properly indexed * * * entered.” Commonwealth v. Roberts, 392 Pa. 572, 586-87, 141 A.2d 393, 400 (1958). Accord Jaczyszyn v. Paslawski, 147 Pa.Super. 97, 101, 24 A.2d 116, 118 (1942). Thus, any cases holding to the contrary would be considered to be not reflective of the present day approach to the issue at hand. See cases cited by the appellee in its brief to us at page 7.

This, of necessity, renders nugatory the lower court’s reliance upon the phrase out of Holliday v. Foster, 221 Pa.Super. 388, 292 A.2d 438 (1972) that a defendant, by filing a praecipe in accordance with Rule 1037(a), can “automatically obtain a judgment of non pros.” 221 Pa.Super. at 390, 292 A.2d at 439. We would point out that in Holliday, the word “automatic”, read in context, was not meant to be interpreted with regard to the speed with which a judgment of non pros is to be entered in the judgment docket (or, as in this case, the Appearance Docket) by the prothonotary. Rather, it relates to the dispensation of the need of having to obtain an order of court to secure the granting of a judgment of non pros by the prothonotary. See 49 C.J.S. Judgments, § 108 at 232-33 (“... the clerk is authorized, and it is his ministerial duty, to enter on the record all judgments rendered by the court, and certain judgments authorized by statute in specified cases where judicial action is not necessary, such as judgments by confession, default, consent, offer, or admission____” (Footnote omitted)). Accord 46 Am.Jur.2d, Judgments, §§ 54, 157.

However, the caveat to the onus being placed on the party seeking to have an instrument recorded arises, and the validity and operation of the judgment are not impaired thereby, as between the parties. See Coral Gables, Inc. v. Kerl, 334 Pa. 441, 444, 6 A.2d 275, 277 (1939); 49 C.J.S. Judgments, §§ 110, 126; 10 P.L.E. Courts, § 43 at 57-58; 46 Am.Jur.2d, Judgments, § 158 at 417.

Accordingly, under settled law, an omission on the part of the prothonotary in delaying in entering the praecipe for judgment of non pros by “spreading it on the record”, albeit the obligation of the petitioner to monitor, is vitiated so as not to impair the relationship of the parties (G.C. Murphy Company and the appellant) to each other, in a legal sense. Therefore, G.C. Murphy Company’s praecipe being prior in time to the appellant’s complaint, the lower court properly struck it as violative of Rule 1037(a).

Alternatively, we wish to add that the appellant’s unexplained delay in waiting five and one-half years to file the complaint would be reason enough, notwithstanding the time sequence in which the praecipe and complaint were presented for the entry and filing, respectively, to the prothonotary, to deny him relief. See Nath v. St. Clair Memorial Hospital, 251 Pa.Super. 361, 380 A.2d 820 (1977) (Three years is enough to conclude that the plaintiff did not move with “reasonable promptness” to avoid grant of motion for non pros); see also Kennedy v. Warminster Township, 243 Pa.Super. 46, 52 n. 7, 364 A.2d 442, 445 n. 7 (1976); Holliday, supra. In other words, the presence of no reasonable excuse for the delay cannot be overcome on the barren record that is before us. Thus, the appellant has fallen woefully short of proving that he is entitled to the relief requested. Compare Iole v. Western Auto Supply Co., 352 Pa.Super. 528, 508 A.2d 600 (1986). This default in action afforded the court below with the authority to act as it did. See Pa.R.Civ.P. 1037(c).

Order affirmed.

ROWLEY, J., concurs in the result.

       A note of concern that, given the proximity in time and the fortuitous nature of the complaint filing, the circumstances conjure up in one's mind, viewing the facts in a common sense fashion, the unpleasant thought that the praecipe’s entry into the Appearance Docket was delayed until the responding party could act to “beat the filing clock”, to use a euphemism. This type of scenario, if indeed this was the case (and we pray that it was not here), should not and will not be tolerated.

      . Rule 1037(a) reads:
      (a) If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.

      . We note that the striking of the complaint gave legitimacy to and let stand the judgment of non pros filed by and entered in favor of G.C. Murphy Company by the prothonotary. However, the same cannot be said for Miracle Equipment Company. See generally McCelland v. West Penn Appliance Co., 132 Pa.Super. 471, 473-75, 1 A.2d 491, 492 (1938). No record evidence appears that a judgment has ever been entered in favor of Miracle Equipment Company. See Pa.R.App.P. 301(a) & (c). Thus, parenthetically, inasmuch as the lower court did not rule on the merits of Miracle Equipment Company’s judgment of non pros when it struck the appellant’s complaint as untimely, the dispute between these two litigants would appear to be in esse. This is so since the record reveals that the praecipe for judgment of non pros rendered retroactively effective by the lower court’s order striking the complaint was filed only on behalf of G.C. Murphy Company by its counsel, and did not list Miracle Equipment Company as a party petitioner. See generally Penn-Clair Construction Co. v. Eden Roc Country Club, 333 Pa.Super. 516, 482 A.2d 991 (1984).
      We need not dwell on this any further since it does not affect our determination to uphold the lower court’s actions in striking the appellant’s complaint as violative of Rule 1037(a) & (c). This is the only question posed for our consideration by the appellant and not whether its claim against Miracle Equipment Company is still viable.

      . See the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended April 28, 1978, P.L. 202, No. 53, § 10(23), 42 Pa.C.S. § 2737. As for the clerk of court’s powers and duties see and compare 42 Pa.C.S. § 2757.

         Pa. — Coral Gables v. Kerl, 6 A.2d 275, 334 Pa. 441, 122 A.L.R. 903 — Casey Heat Service Co. v. Klein, Com.Pl., 46 Lack.Jur. 257.

      . Albright v. Lehigh Coal & Navigation Co., 203 Pa. 65, 52 A. 33 (1902); Cake v. Cake, 156 Pa. 47, 26 A. 781 (1893); Ihmsen v. Monongahela Navigation Company, 27 Pa. 267 (1856).

      . The former law on the matter did make reference to the instrument to be filed to be "forthwith” indexed by the prothonotary. See Act of April 22, 1856, P.L. 532, § 3, 17 P.S. § 1922 (repealed). The present law on the subject is dispersed, according to the dispositional table preceding the Judiciary Act Repealer Act in volume 42 of Purdon’s, throughout 42 Pa.C.S. §§ 2737, 4301, 4302 and, especially as is relevant here, 4303. In none of the cited sections is there any mention of the language hereinbefore referred to in prior Section 1922.

      . The tenor of the appellant’s brief centered on the timeliness issue, with no mention made as to a(ny) reason(s) for his delay in filing a complaint. Those who stand mute when given the opportunity to speak will not be heard to complain later.


source: Caselaw Access Project

author: ROBERTS, Judge:

license: Public Domain

text:
    517 A.2d 1324
    COMMONWEALTH of Pennsylvania v. Gerald RYAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 31, 1986.
    Filed Nov. 18, 1986.

      Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com.
    Before BROSKY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

Appellant was convicted of driving while intoxicated and of driving while under suspension. He contends that the trial court erred by dismissing his omnibus pre-trial motion, that 75 Pa.C.S.A. § 3731 is unconstitutional, that the court erred in failing to compel appellant’s admission into accelerated rehabilitative disposition (ARD), and that the evidence was insufficient to sustain his conviction for driving while under suspension. The judgment of sentence is affirmed.

Appellant was arrested in the early morning hours of December 10, 1983 when police observed him erratically operating an automobile through Brookhaven Borough in Delaware County. At the time of his arrest, appellant could not produce a driver’s license or registration card. He identified himself as Pat Ryan, a name he later claimed to be his wife’s. He refused to submit to a breathalyzer test, and when informed that the refusal would lead to a twelve-month suspension of his driver’s license, boasted that he had been driving without a license for 10 years.

On March 6, 1984, appellant appeared at his arraignment and pleaded not guilty to driving while intoxicated, driving while under suspension and reckless driving. Pre-trial motions were filed on May 10, 1984, seeking to compel ARD, to vacate a license suspension imposed under 75 Pa.C.S.A. § 1547, to suppress the statement made when appellant was arrested, and challenging the constitutionality of the ARD rules, Pa.R.Crim.P., Rules 175-185 and of 75 Pa.C.S.A. § 3731. The court dismissed the pre-trial motions on the ground that they were not timely filed. In its post-verdict opinion, the trial court reached the merits of two questions, upholding the constitutionality of § 3731 and holding that the District Attorney has sole discretion to determine placement in ARD.

It is well-settled that issues which are not timely raised in the trial court are foreclosed for purposes of appellate review, Commonwealth v. Griffin, 271 Pa.Super. 228, 236, 412 A.2d 897 (1980). Rule 307 of the Pennsylvania Rules of Criminal Procedure requires pre-trial motions to be filed within 30 days after arraignment. Here, the motions were filed over 60 days after arraignment, more than 30 days after they were due. Nevertheless, appellant argues that compliance with the “omnibus” requirement in Pa.R. Crim.P., Rule 306 in the 30 days required by Rule 307 was impossible to achieve in this circumstance. Specifically, he contends that to file within 30 days would have required omission of the motion to compel ARD, and, as such, would have violated Rule 306. We reject this analysis. Both Rules 306 and 307 clearly provide for the situation where grounds for additional motions come to light beyond the thirty days. Accordingly, proper procedure would have been to file motions the bases of which were clear within 30 days after arraignment. Since appellant did not follow this procedure, his claims relating to suppression of the statement, suspension of the operator's license, and the constitutionality of the ARD rules and the nonsentencing portions of § 3731 were not timely filed and are waived. See Griffin, supra. His motion to compel ARD, the grounds for which were not available within 30 days, is preserved, but is without merit. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The challenge to the mandatory sentencing provisions of § 3731 deals with a post-trial aspect of the case, but was included in a pre-trial motion. Accordingly, it was timely filed and is preserved.

Appellant contends that the mandatory sentencing provisions violate equal protection, since individuals who are not included in the ARD program are subject to a mandatory sentence, while those who are included in ARD are exempt from such a sentence. This argument overlooks the simple notion that only individuals who have been convicted of driving while intoxicated are subject to the mandatory penalty. Since those who have been placed in ARD have not been convicted of this offense, see Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016 (1982), the predicate for imposing the penalty has not been established. Appellant is thus not entitled to equal protection relief, since by virtue of the fact that he was convicted of the driving while intoxicated charge, he is not similarly situated to the class of ARD participants. See Smith v. City of Philadelphia, 512 Pa. 129, 136-139, 516 A.2d 306, 310-11 (1986).

Nor can we accept the somewhat related contention that the mandatory sentence punishes an individual’s exercise of his right to trial. The crux of appellant’s argument in this respect is that the greater likelihood of a favorable result encourages a defendant to accept ARD rather than risk conviction at trial. Whatever substance this claim might have, it is far from clear that the mandatory sentence threatens the exercise of the right to trial. If the possibility of the imposition of sentence upon a finding of guilt inhibits a defendant from choosing to stand trial, we doubt that the inhibition is appreciably greater merely because the sentence is mandated by the legislature, rather than selected by the trial judge.

Appellant also contends that the evidence is insufficient to sustain the guilty verdict of driving while under suspension, 75 Pa.C.S.A. § 1543. Appellant’s driver’s license was suspended indefinitely in April, 1973 under 75 P.S. §§ 1413-14, which authorized suspension for failure to pay a judgment. The license expired in 1974 and was never renewed. The arrest on these charges took place in December, 1986. Appellant argues that the Commonwealth must prove the existence of a valid driver’s license to sustain a verdict for driving while under suspension. Without such proof, he contends, there is nothing to suspend. He submits that since there was no valid driver’s license here, the evidence does not support the guilty verdict.

The driving while under suspension prohibition, 75 Pa.C.S.A. § 1543(a) authorizes conviction of “any person who drives a motor vehicle ... when their operating privilege is suspended, revoked or recalled.” The term “operating privilege” is defined as “[t]he privilege to apply for and obtain a license to use as well as the privilege to use a vehicle on a highway as authorized in this title,” 75 Pa.C. S.A. § 102. Thus, suspension of one’s “operating privilege” removes not only the privilege of driving, but also the privilege of seeking a license to drive, for the length of the suspension. On this record, then, the only facts which are relevant are that the privilege was lawfully suspended and that the period of suspension had not yet expired. The fact that appellant’s license expired after the suspension is thoroughly insignificant, since he was statutorily incapable of renewing it until the term of suspension had expired, a term which appellant alone controls. Commonwealth v. Parfitt, 286 Pa.Super. 279, 428 A.2d 991 (1981), a case in which the term of suspension had indeed expired, is thus inapposite.

Appellant also contends that the original suspension is a nullity because the statute on which it is based is unconstitutional and has been repealed. However, statutes suspending licenses for failure to pay judgments have been upheld as reasonable exercises of the police power. See Kestler v. Utah Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962); Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941). Cf. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (suspension of a driver’s license for failure to pay money judgment vacated on procedural due process grounds). Moreover, the subsequent repeal or amendment of a statute extinguishes no rights or liabilities which accrued while the statute was in full force, Albert Einstein Medical Center v. Pennsylvania Labor Relations Board, 17 Pa.Cmwlth. 91, 96-97, 330 A.2d 264 (1975); Rebel v. Standard Sanitary Manufacturing Co., 340 Pa. 313, 318-19, 16 A.2d 534 (1941). Assuming that the recodification of this statute constitutes a repeal, see n. 2 supra, it would have no effect on this suspension, which occurred while the statute was fully effective.

Finally, appellant submits that the evidence was insufficient to sustain the verdict because the Commonwealth failed to prove the legitimacy of the judgment which led to the original suspension. Clearly, prior judgments are presumed to be valid and may not be collaterally attacked in a subsequent proceeding. See Chapman v. Board of Probation and Parole, 86 Pa.Cmwlth. 49, 56, 484 A.2d 413 (1984); Commonwealth Department of Transportation v. Granito, 70 Pa.Cmwlth. 123, 452 A.2d 889 (1982); Mangold v. Newman, 371 Pa. 496, 500, 91 A.2d 904 (1952).

Judgment of sentence affirmed.

      . Cf. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (constitution prohibits trial court from considering defendant’s decision to stand trial as aggravating factor in imposing sentence).

      . The authorization for indefinite suspension of an operating privilege for failing to pay judgments is now codified at 75 Pa.C.S.A. §§ 1772-73.


author: HOFFMAN, Judge:

text:
    517 A.2d 1327
    COMMONWEALTH of Pennsylvania v. William WHITING, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Nov. 18, 1986.

      Dennis J. Cogan, Philadelphia, for appellant.
    Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for burglary and conspiracy. Appellant contends that (1) the trial court erred in denying his request for new counsel and (2) trial counsel was ineffective in failing to (a) object to the trial court’s questioning of appellant; (b) object to the trial court’s missing witness instruction; (c) object to the Commonwealth’s introduction of hearsay evidence; and (d) call a police detective to impeach Commonwealth witnesses through the use of prior inconsistent statements. For the reasons that follow, we remand to the trial court for an evidentiary hearing on three of appellant’s ineffectiveness claims, and direct the trial court to file a supplement to its opinion addressing appellant’s contention that his request for new counsel was improperly denied.

On August 1, 1980, Marion Geisz surprised two men as they were burglarizing her home. The two men fled through a side window. Geisz and some of her neighbors chased the men. Appellant was later arrested and charged with the burglary. Prior to his trial by jury, appellant requested that new counsel be appointed to represent him. This request was denied and appellant went to trial represented by an assistant public defender. At trial, the Commonwealth presented the testimony of several witnesses, including Geisz and her neighbor, both of whom identified appellant as one of the men they saw leaving through the side window of Geisz’s home. Appellant testified on his own behalf, denying any involvement in the burglary, and stated that he was not the subject of the chase, but a participant in chasing the true offenders. On December 14, 1983, appellant was found guilty of burglary and criminal conspiracy. On November 13, 1985, appellant was sentenced to ten-to-twenty years imprisonment on the burglary charge, and five-to-ten years imprisonment on the conspiracy charge, sentences to run concurrently. This appeal followed.

Appellant first contends that the trial court erred in denying his request to appoint new counsel. The decision whether to appoint new counsel rests in the discretion of the trial court. See Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 619 (1976); Commonwealth v. Bell, 328 Pa.Superior Ct. 35, 47, 476 A.2d 439, 446 (1984). Although an indigent defendant is entitled to free counsel, he is not entitled to free counsel of his choice, Commonwealth v. Tyler, supra 468 Pa. at 197, 360 A.2d at 619, and he may reject appointed counsel only “for good cause shown.” Id. (quoting Commonwealth v. Johnson, 428 Pa. 210, 213, 236 A.2d 805, 807 (1968)); Commonwealth v. Bell, supra. A “mere dissatisfaction” with appointed counsel is inadequate to establish “good cause shown.” Commonwealth v. Bell, supra. If the defendant can show that irreconcilable differences exist between his counsel and himself, however, a trial court’s refusal to appoint new counsel is an abuse of discretion and the defendant is entitled to a new trial. Commonwealth v. Tyler, supra 468 Pa. at 197-98, 360 A.2d at 619; Commonwealth v. Bell, supra.

Although the lower court filed an opinion in this matter, it neither addressed this contention in its opinion nor indicated the place in the record where the reasons for its denial could be found. Pa.R.A.P. 1925(a) mandates that:

Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

Id. The purpose of Rule 1925(b) is to provide the appellate court with the lower court’s reasoning in support of its determination, thereby insuring meaningful appellate review. See Commonwealth v. Mueller, 341 Pa.Superior Ct. 273, 278, 491 A.2d 258, 261 (1985); Commonwealth v. Coda, 283 Pa.Superior Ct. 408, 411, 424 A.2d 529, 530-31 (1981). Here, we do not have the benefit of a discussion by the trial court of the reasons for its decision. Moreover, we have carefully reviewed the record and find conflicting evidence regarding whether irreconcilable differences existed between appellant and his trial counsel. Because we find it difficult to determine whether the court abused its discretion absent its express findings on the issue, we are compelled to remand to the trial court with a direction to supplement its opinion with its reasons for denying appellant’s request.

Appellant next raises four claims of ineffective assistance of trial counsel. In evaluating ineffective assistance of counsel claims, a reviewing court must first determine whether the issues underlying the claim are of arguable merit. Commonwealth v. Pierce, 345 Pa.Superior Ct. 324, 327, 498 A.2d 423, 425 (1985) (en banc), allocatur granted 510 Pa. 244, 507 A.2d 368 (1986). If the claim has merit, the court must then determine “whether the course chosen by counsel had some reasonable basis aimed at promoting the defendant’s interests.” Id. When a claim has arguable merit, and there has been no evidentiary hearing below to determine if a reasonable basis exists for counsel’s actions, this court will remand for an evidentiary hearing. Commonwealth v. Spotts, 341 Pa.Superior Ct. 31, 33, 491 A.2d 132, 134 (1985). Additionally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, supra 345 Pa.Superior Ct. at 329, 498 A.2d at 426. In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa.Superior Ct. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa.Superior Ct. 199, 205, 444 A.2d 729, 732 (1982).

Here, there has been no evidentiary hearing on appellant’s ineffectiveness claims. We must therefore examine each of appellant’s claims, determine whether it has arguable merit and has prejudiced appellant, and, if so, remand for an evidentiary hearing to determine whether counsel had a reasonable basis for her actions.

Appellant first argues that trial counsel was ineffective for failing to object to the court’s extended questioning of appellant. In particular, appellant maintains that the court assumed the prosecutor’s role by continuously questioning him with the result that the jury concluded that the court believed appellant to be guilty. A trial judge has the right and sometimes the duty to examine a witness for the purpose of clarifying or making more certain important points. See Commonwealth v. Seabrook, 475 Pa. 38, 44, 379 A.2d 564, 567 (1977) (quoting Commonwealth v. Myma, 278 Pa. 505, 507-08, 123 A. 486, 487 (1924)); Commonwealth v. Miller, 234 Pa.Superior Ct. 146, 154, 339 A.2d 573, 578 (1975), aff'd 469 Pa. 24, 364 A.2d 886 (1976). The questioning, however, should not show bias or feeling nor should it be unduly protracted. Commonwealth v. Seabrook, supra 475 Pa. at 45, 379 A.2d at 567 (quoting Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81, 83 (1948)); Commonwealth v. Green, 315 Pa.Superior Ct. 564, 578, 462 A.2d 736, 742 (1983). “A major reason for the restrictions on a trial judge’s questioning is the concern that his conduct may lead the jury to conclude that the court has made up its mind on the question of the defendant’s guilt, and that the jury should follow the judge’s opinion.” Commonwealth v. Seabrook, supra. It is therefore “better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court.” Commonwealth v. Seabrook, supra 475 Pa. at 44, 379 A.2d at 567 (quoting Commonwealth v. Myma, supra). Ultimately, “the question is whether the trial court has abused its discretion” in interrogating the witness. Commonwealth v. Seabrook, supra, 475 Pa. at 45, 379 A.2d at 567.

Here, the lower court did not address this argument in its opinion. A review of the record reveals, however, that the trial court engaged in an extensive cross-examination of appellant in front of the jury. Half of the court’s questions were asked during the Commonwealth’s cross-examination of appellant and were obviously designed to clarify testimony. See N.T. December 14, 1983 at 132, 138, 141, 143. The court’s other questions were asked after the Commonwealth finished cross-examining appellant. See id. at 153-56. We have carefully reviewed the court’s examination of appellant and find no error. Appellant’s testimony in response to the court’s questioning was consistent with his testimony on direct examination. Indeed, the examination by the court provided the jury with a concise summary of appellant’s testimony. Moreover, the questions did not display bias or feeling on the court’s part. On these facts, we conclude that, although the court’s questioning was somewhat longer than desired, it did not abuse its discretion. Accordingly, appellant’s claim that trial counsel was ineffective for failing to object to the questions has no merit, and we need not remand for an evidentiary hearing.

Appellant next argues that trial counsel was ineffective for failing to object to the court’s missing witness instruction. Generally, when an accused raises an alibi defense and names a person who can support that defense, yet fails to call that person as a witness, the jury may infer that the absent witness’s testimony would have been unfavorable to the accused. See Commonwealth v. Leonard, 499 Pa. 357, 364-65, 453 A.2d 587, 590 (1982). If the missing witness is the spouse of the accused, however, such an inference is impermissible. Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973). The rationale for the latter rule is that the “evidentiary inference comes directly into conflict with the common law and the Pennsylvania statutory rule on incompetency of spouses.” Id., 453 Pa. at 306, 309 A.2d at 570. To allow the inference to operate would erode completely the spousal protection. Id., 453 Pa. at 307, 309 A.2d at 571.

Here, the trial court instructed the jury as follows:

As I recall the defendant’s testimony, he testified that he accompanied his wife to the area of the crime, and she went into an apartment house to make some kind of an arrangement for the purpose of viewing and/or renting an apartment. His wife was available as a witness for trial, but did not testify.
It is a principle of law that if a person is a potential witness — and one would expect that witness to give favorable testimony for the defendant — and it was determined that that person would not be called as a witness, you, the jury, may infer that had the witness been called, she would have given testimony unfavorable to the defendant.

N.T. December 14, 1983 at 206. This instruction was clearly erroneous, as the trial court later recognized at sentencing. See N.T. November 13, 1985 at 3. Thus, appellant’s claim that trial counsel was ineffective in failing to object to the instruction is meritorious.

The Commonwealth nevertheless contends that, even if the instruction was erroneous, it was constitutionally harmless in light of the overwhelming evidence of appellant’s guilt. Couched in ineffectiveness terms, the Commonwealth’s claim is that appellant was not prejudiced by the instruction, and thus trial counsel was not ineffective for failing to object. An error, whether involving state law or federal constitutional law, “can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 405-06, 383 A.2d 155, 162 (1978). An error is harmless only if the appellate court determines that the error “could not have contributed to the verdict.” Id., 476 Pa. at 409, 383 A.2d at 164. “Whenever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” Id. (citations omitted). An error may be harmless if the “properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Id., 476 Pa. at 412, 383 A.2d at 166. This analysis is closely tied to the facts of the case and requires an examination of the entire record. Id., 476 Pa. at 413 n. 24, 383 A.2d at 166 n. 24. For an error to be harmless because of overwhelming evidence, “the untainted evidence relied upon must be uncontradicted.” Id., 476 Pa. at 413, 383 A.2d at 166 (footnote omitted). “Unless the evidence is uncontradicted a fair minded juror may well choose to credit the defendant’s, rather than the Commonwealth’s evidence.” Id., 476 Pa. at 415-16, 383 A.2d at 167. The requirement that evidence be uncontradicted derives from the function of appellate courts: “An appellate court is ill equipped to resolve conflicts in the evidence or make findings of fact.” Id., 476 Pa. at 416, 383 A.2d at 168. Were the appellate court to resolve such conflicts, it would usurp the fact-finder’s function. Id. Accordingly, courts have been reluctant to find errors harmless on the basis of overwhelming evidence. Id., 476 Pa. at 413, 383 A.2d at 166.

Here, a review of the record convinces us that the erroneous missing witness instruction was not harmless beyond a reasonable doubt. The Commonwealth relied primarily on the testimony of two witnesses, Marion Geisz and Charles Wolpert, each of whom identified appellant as one of the men seen leaving the scene of the burglary. Both witnesses, along with other neighbors, chased the men, and appellant was subsequently arrested. Appellant took the stand in his own behalf, and disputed this version of events. Appellant’s theory was mistaken identity. Appellant testified that he was sitting in his car when a man ran by and dropped a radio. N.T. December 14, 1983 at 126. Appellant picked the radio up and ran after the man. Id. Shortly thereafter, Mr. Wolpert drove up in a car, pulled a gun on appellant and forced him to stop. Id. at 126-27. Appellant was later arrested. In addition to presenting his mistaken identity theory, appellant challenged Wolpert’s identification. On cross-examination, Wolpert admitted that he did not have his glasses on when he saw the men leaving the scene, N.T. December 13, 1983 at 86, and that he had discussed the case with Mrs. Geisz and other neighbors. Id. at 85. Thus, even if the Commonwealth’s evidence was overwhelming, it was not uncontradicted.

The jury was left to choose between the two versions of the burglary, chase, and arrest. In these circumstances, and particularly because appellant’s testimony was uncorroborated by other defense witnesses, the missing witness instruction was especially damaging, as it gave the jury a presumptive basis for discrediting appellant’s testimony. Because the Commonwealth’s evidence was not uncontradicted, and because we believe that there is a reasonable possibility that the jury may have relied on the instruction in choosing to disbelieve appellant’s testimony, the error was not harmless beyond a reasonable doubt. We thus conclude that appellant was prejudiced by his counsel’s failure to object to the instruction, and accordingly, remand for an evidentiary hearing on the question whether trial counsel had a reasonable basis for failing to object.

Appellant next argues that trial counsel was ineffective for failing to object to the Commonwealth’s introduction of inadmissible hearsay evidence. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Cassidy, 315 Pa.Superior Ct. 429, 433, 462 A.2d 270, 272 (1983).

When a statement is offered in evidence to prove the truth of a fact asserted therein, the speaker’s credit and the circumstances of the utterance become basic to a proper evaluation of the statement. Therefore, the hearsay rule generally excludes such evidence unless the speaker is on hand to personally testify.

Commonwealth v. DiSilvio, 232 Pa.Superior Ct. 386, 391, 335 A.2d 785, 787-88 (1975). The rationale behind the rule extends to indirect as well as direct attempts to introduce out-of-court statements. Commonwealth v. Farris, 251 Pa.Superior Ct. 277, 282, 380 A.2d 486, 489 (1977). Thus, “[i]f the apparent purpose of offered testimony is to use an out-of-court statement to evidence the truth of facts stated therein, the hearsay objection cannot be obviated by eliciting the purport of the statements in indirect form.” Id., 251 Pa.Superior Ct. at 282-83, 380 A.2d at 489 (quoting McCormick on Evidence § 249, at 593-94 (Cleary ed. 1972)).

Here, the Commonwealth called Officer Nieckoski, who testified that on August 1, 1980, he received a radio call, on the basis of which he proceeded to the area where appellant was being chased by another officer. N.T. December 14, 1983 at 160, 162, 165. When the Commonwealth asked the witness, “[w]hat was the substance of that [radio] call,” appellant timely objected, and his hearsay objection was sustained. Id. at 160. At the ensuing sidebar conference, the Commonwealth made clear that the purpose of the question was to “specifically rebut” appellant’s testimony on direct. Id. at 161. Appellant had testified that, after Wolpert pulled a gun on him, he told an onlooker to call the police, because Wolpert had a gun but was not a police officer. Id. at 127-28. Nieckoski’s testimony would show that the radio call reporting the incident made no mention of a gun. Id. at 161. The court, recognizing that testimony regarding the substance of the radio call would be inadmissible hearsay, ruled that the Commonwealth could not ask about the substance of the call, but could ask:

When you arrived there, were you looking for a gun? Id. Despite the court’s instruction, the Commonwealth later asked:

During the course of this incident, did you ever receive information to be on the lookout for a man with a gun?
A: Not that I recall, no, ma’am.

Id. at 167.

We have no doubt that the purpose of this question was to show that appellant was lying when he testified that he told an onlooker to call the police. Indeed, information that the officer was not told to be on the lookout for a gun was of no possible relevance — except to show that appellant lied on direct examination. The issue then becomes whether the form of the question saves it from the hearsay proscription. We think not, as the case falls squarely within the teaching of Commonwealth v. Farris, supra. Had the officer testified that: “I received a radio call reporting a burglary and chase and that call made no mention of a man with a gun,” the testimony would clearly have been hearsay: it would have been a negative assertion by someone not in court (the radio dispatcher), offered for its truth (that there was no report of a man with a gun), and “thus depending for its value upon the credibility of the out-of-court asserter.” See id., 251 Pa.Superior Ct. at 282, 380 A.2d at 489. The out-of-court asserter did not testify, and therefore was not subject to cross-examination to determine, for example, who reported the incident to the police. The Commonwealth cannot avoid the proscription against such testimony by having the officer “testify obliquely rather than flat-out.” Id. Appellant’s contention that his trial counsel was ineffective for failing to object to the question, therefore, is meritorious. Moreover, the question and answer obviously prejudiced appellant. Again, the evidence of appellant’s guilt, even if overwhelming, was contradicted by appellant’s testimony and his cross-examination of Wolpert. The hearsay evidence introduced above, like the missing witness instruction, provided the jury with an improper basis to discredit appellant’s version of events. Because there is a reasonable possibility that the evidence could have contributed to the jury’s verdict, the error was not harmless beyond a reasonable doubt. See Commonwealth v. Story, supra. Accordingly, we remand to the trial court for an evidentiary hearing on the question whether trial counsel had a reasonable basis for failing to object.

Appellant finally argues that trial counsel was ineffective for failing to impeach a Commonwealth witness through use of a prior inconsistent statement. In particular, appellant maintains that trial counsel should have called the detective assigned to the case. Based upon the police report that he prepared, the detective could then have testified that Mr. Wolpert made a statement to him on the day of the burglary that conflicted with Wolpert’s trial testimony.

In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.

Commonwealth v. Abney, 465 Pa. 304, 309, 350 A.2d 407, 409 (1976) (quoting Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975)). See also Commonwealth v. Guerrisi, 297 Pa.Superior Ct. 245, 250, 443 A.2d 818, 821 (1982). Although Abney and Twiggs involved the failure to call known eyewitnesses who could provide favorable testimony, the principle applies to favorable demonstrative evidence, documentary evidence, and expert testimony. Commonwealth v. Guerrisi, supra. Thus, where credibility is a crucial issue, a contention that counsel failed to employ evidence which “would have been helpful ... to impeach the Commonwealth’s witnesses and was available to counsel at the time of trial” possesses arguable merit. Id., 297 Pa.Superior Ct. at 251, 443 A.2d at 821.

Here, a review of the record convinces us both that introduction of Wolpert’s prior statement would have helped to impeach him and would have corroborated appellant’s testimony, and that trial counsel was aware both of the existence of this statement and of its importance. At trial, Wolpert testified that, after seeing appellant jump out of Geisz’s window, he chased appellant on foot, and was present when appellant was arrested. N.T. December 13, 1983 at 81, 83-84. On cross-examination, Wolpert was asked whether he had in fact entered the car of another neighbor, Sullivan, and pursued appellant while in the car. Id. at 93-94. Wolpert answered that he did not get into Sullivan’s car, and that he did not remember telling the detective who interviewed him that he did. Id. at 94. This testimony contradicted appellant’s version of his arrest. Appellant testified that Wolpert and a second man pulled up alongside him in a car, as appellant was chasing the man who dropped the radio. N.T. December 14, 1983 at 126. Wolpert then pulled a gun on appellant and told him to put his hands up against the wall. Id. at 126-27. The police arrived a few minutes later. Id. at 128. In the Police Investigation Report, the assigned detective wrote that:

[Wolpert] stated that during the chase of this male another neighbor identified as John Sullivan ..., who was waterin[g] his lawn at the time, seeing the pursuit jumped into his auto chasing the male and picking up Volpert [sic] in his auto and he and Sullivan cornered the male ... as uniformed police personnel arrived with a plain clothes Policeman and placed the male under arrest----

Police Investigation Report August 1, 1980 at 2. This statement would have impeached Wolpert’s testimony as to the particulars of the chase and arrest, and would have corroborated appellant’s version.

Trial counsel was aware of the prior statement, as evidenced by her attempts to get Wolpert to admit that he told the police that he had chased appellant while in Sullivan’s car. When Wolpert said he did not remember making the statement to police, however, counsel made no further attempt to introduce the evidence. Because credibility was crucial here, this evidence could have caused the jury to disbelieve the Commonwealth witnesses and to believe appellant’s theory that he was mistaken for the true culprit. See Commonwealth v. Guerrisi, supra. We thus conclude that appellant’s claim that trial counsel was ineffective for failing to call the detective to testify to Wolpert’s prior statement is meritorious. Moreover, appellant was clearly prejudiced by this failure, because introduction of the evidence would have given the jury a basis to credit appellant’s version of events independent of his trial testimony. Because there is a reasonable possibility that the evidence could have caused the jury to acquit appellant, the error was not harmless beyond a reasonable doubt. See Commonwealth v. Story, supra. Accordingly, we remand to the trial court for an evidentiary hearing on the question whether counsel had a reasonable basis for failing to introduce evidence of Wolpert’s prior statement.

For the foregoing reasons, we affirm in part and remand for an evidentiary hearing on trial counsel’s effectiveness and direct the trial court to file a supplement to its opinion addressing appellant’s contention that his request for new counsel was improperly denied.

Affirmed in part and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

ROBERTS, J., concurs in the result.

      . For example, appellant testified, that among other differences, his attorney refused to ask questions he wanted her to ask, N.T. December 13, 1983 at 11, 18, refused to let him see discovery materials, particularly the police report, id. at 21-22, and that "all we [appellant and his attorney] do is argue____ We haven’t gotten along since we met.” N.T. December 12, 1983 at 46, 51. Appellant’s attorney corroborated their differences, stating that: “I would have asked to be removed. There was an inexcusable breakdown in how he has treated me, et cetera.” N.T. December 13, 1983 at 12. Conversely, appellant was aware that his attorney had a great deal of experience, id. at 16, and his attorney stated that she was familiar with the case and was prepared to go to trial. N.T. December 12, 1983 at 47. Moreover, appellant admitted that he had been interviewed at length by somebody from the defender’s office. Id. at 49.

      . Appellant also contends that his trial counsel was ineffective for failing to object when both the court and the prosecutor commented on his invocation of his rights to silence and to counsel. In support of this contention, appellant cites the following two exchanges:
      THE COURT: I want to make sure I understand your testimony.
      When you were arrested, you told the police that you were there with your wife looking for an apartment?
      THE WITNESS [Appellant]: I tried to tell the guy with the gun: "Go right around the corner, my wife is around there.” He kept me against the wall.
      ******
      BY MS. WRIGHT [ADA]: Did you tell Lieutenant Geisz this when he came in to see you?
      THE WITNESS: I wasn’t saying nothing no more. I was smacked around and all. I told them that I wanted to see a lawyer. N.T. December 14, 1983 at 148, 149.
      Reference to an accused’s silence or his request for counsel at the time of arrest is a violation of the accused’s fifth amendment rights and constitutes reversible error. Commonwealth v. Gwaltney, 497 Pa. 505, 510, 442 A.2d 236, 239 (1982); Commonwealth v. Haideman, 449 Pa. 367, 370, 296 A.2d 765, 766 (1972). If the accused himself opens the door to what otherwise might be objectionable testimony, however, "the Commonwealth may probe further to determine the veracity of the trial statement.” Commonwealth v. Bey, 294 Pa.Superior Ct. 229, 236, 439 A.2d 1175, 1178 (1982).
      Here, appellant testified on direct examination that, after he was arrested and taken to the police station, he "tried to explain to [the detective who handled the case] what had happened____” N.T. December 14, 1983 at 128. Later, on cross-examination, the following exchange occurred:
      Q [by Ms. Wright]: They took you up to Northeast Detectives?

        A [by appellant]: Yeah, they took me to the police station.
      Q: The assigned detective beat you up, and Lieutenant Geisz and his wife—
      A: Well, the detective asked me questions first: "Who was the other guy?”
      I just explained to him that my wife was up there inside the apartment building. He said, "I don’t want to hear that bullshit; just tell me who this other guy was. This woman’s father is a judge. If you don’t start talking, you’re in big trouble.”

        Id. at 137. We note that the prosecutor did not ask appellant whether he told the police anything; instead, appellant volunteered the information. We are satisfied that the later questions posed by the court and the prosecutor were attempts to probe deeper into appellant’s own testimony regarding what he told the detective at the police station. Because appellant opened the door to these questions with his own testimony, the questions are not impermissible comments on his exercise of his fifth amendment rights. Accordingly, appellant’s claim that trial counsel was ineffective for failing to object to the questions is meritless, and we need not remand for an evidentiary hearing.

      . In Commonwealth v. Pierce, supra this Court, sitting en banc, held that the standard for determining whether counsel’s ineffectiveness prejudiced her client is whether the error is harmless beyond a reasonable doubt. 345 Pa.Superior Ct. at 335, 498 A.2d at 429.

      . Although the Commonwealth presented other witnesses, none claimed to have seen appellant at the scene of the burglary, and thus their testimony contributed nothing to the central issue of identity.

      . The inference that appellant apparently would draw from this last fact is that Geisz and Wolpert manufactured their identification testimony only after appellant was arrested, when they learned of his prior record. See N.T. Motion to Suppress, December 13, 1983 at 44. Appellant claims that Wolpert’s testimony was further undercut by an inconsistent statement that he gave to police, and that trial counsel was ineffective in failing to call the police detective to introduce evidence of the inconsistency. See infra at 483-484.

      . The Commonwealth concedes as much in its brief: "the officer’s testimony was offered to show only whether such information had been given to police in order to rebut defendant’s claim that he had sought such aid.” Brief for Commonwealth at 13. Of course, the officer’s own observations regarding whether he saw anybody with a gun at the scene would be admissible, and would tend to impeach appellant’s testimony. And, indeed, the officer did testify to his own observations as follows:
      Q: Do you remember seeing any civilian with a gun?
      A: No.
      THE COURT: When the defendant was apprehended, if there was a civilian holding a gun on him, do you think you would have seen it?
      MS. PURNELL: Objection.
      THE COURT: Overruled.
      THE WITNESS: Oh, yeah.
      N.T. December 13, 1983 at 167. The contrast between the effect of the legitimate question (to introduce the witness's on-scene observations) and the disputed question (to introduce information the officer received from out-of-court sources) more clearly demonstrates that the latter question was designed solely to introduce hearsay.

      . Appellant also argues that counsel was ineffective for failing to introduce evidence of Mrs. Geisz’s statement to the detective, which he alleges was inconsistent with her trial testimony. We find this contention to be meritless. At trial, Geisz testified as follows:
      Q: When he came out of the window, where did he go?
      A: Ran across the yard, and over the little fence. Then, across another little yard, through this privacy screen, and across the next yard toward Emerson Street.
      Q: At that point in time, had you lost sight of them at all?
      A: No.
      N.T. December 13, 1983 at 45 (emphasis added). The police report states that Geisz “lost the two males" just prior to their apprehension by police. Police Investigation Report August 1, 1980 at 1. These statements are not inconsistent. At trial, the witness was never asked whether she kept appellant in sight during the entire chase. Because the two statements are not inconsistent, appellant’s claim that trial counsel was ineffective for failing to introduce evidence of the prior statement is meritless, and we need not remand for an evidentiary hearing.


text:
    517 A.2d 1337
    Robert T. COSNER, William Kneupp and Hazel Kneupp, husband and wife; Harold Bower and Bonnie Bower, husband and wife, Melvin Fulkerson and Prearat Fulkerson, husband and wife, and Gerald Gearinger and Gladys Gearinger, husband and wife v. UNITED PENN BANK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Nov. 21, 1986.

      Arthur L. Piccone, Wilkes-Barre, for appellant.
    Jack C. Younkin, Shamokin, for appellees.
    Before CAVANAUGH, HOFFMAN and ROBERTS, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of the lower court permanently enjoining appellant from failing to maintain the water and septic system that services appellees’ homes. Appellant contends that the lower court erred in permanently enjoining them from failing to maintain appellees’ water well and septic system because appellees did not meet their burden of proving all of the elements of equitable estoppel. We hold that the court below properly entered the injunction and, accordingly, affirm.

Appellees are or were owners of homes in Hillside Village, which was developed by David Fahringer. Fahringer obtained loans for the development of Hillside Village from appellant, United Penn Bank. When this action was commenced, five of the seven homes in the development were occupied. The homes are serviced by a common septic system and water well. On July 7, 1977, appellant acquired title to Hillside Village from Fahringer in lieu of foreclosure on his mortgage. Appellant continued to maintain the septic system and water well.

In 1979, the Pennsylvania Department of Environmental Resources (DER) informed appellant that the septic system was malfunctioning. After receiving this letter from the DER, appellant redesigned and constructed at its own expense, a sewage system that was supposed to accommodate seven homes. Appellant continued to maintain the new system at its own expense. On February 23, 1982, however, appellant advised appellees by letter that, “United Penn Bank will no longer operate or maintain the septic tank or water well after March 31, 1982. In addition, you will no longer be able to use the septic tank or water well after that date.” Brief and Reproduced Record for Appellant at 12a. Appellant further offered to convey to appellees the parcels of land on which the septic tank and water well are located. Appellees filed a complaint seeking a preliminary injunction to prevent appellant from failing to maintain the water and septic systems, which was granted pending a hearing. Following a nonjury trial, the lower court issued an order making the injunction permanent. The order was reduced to judgment, and this appeal followed.

Appellant contends that appellees did not prove all of the elements of equitable estoppel. “Equitable estoppel arises when a party by acts or representations intentionally or through culpable negligence, induces another to believe that certain facts exist and the other justifiably relies and acts upon such belief, so that the latter will be prejudiced if the former is permitted to deny the existence of such facts.” Straup v. Times Herald, 283 Pa.Superior Ct. 58, 71, 423 A.2d 713, 720 (1980) allocatur denied. Under this doctrine, a court may enforce an informal promise when injustice can be prevented only by such enforcement. Funds for Business Growth, Inc. v. Maraldo, 443 Pa. 281, 288, 278 A.2d 922, 926 (1971). “[Ejquitable estoppel is a doctrine of fundamental fairness intended to preclude a party from depriving another of a reasonable expectation when the party inducing the expectation knew or should have known that the other would rely to his detriment upon that conduct.” Straup v. Times Herald, supra. The doctrine protects the reasonable expectations of one who relies on another’s course of conduct and insures fair dealing. Id. Thus, the essential elements of equitable estoppel are inducement and justifiable reliance on that inducement. The inducement may be by words or by conduct and the reliance must be exhibited by a change in condition either by act or forbearance that causes a disadvantage to the one induced. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 436, 457 A.2d 502, 503-04 (1983). The party asserting estoppel has the burden of proving the elements by clear, precise, and unequivocal evidence. Blofsen v. Cutaiar, 460 Pa. 411, 417, 333 A.2d 841, 844 (1975).

Appellant first argues that appellees have not demonstrated that it induced them to expect the provision of water and sewage disposal. In support of its argument appellant asserts that the lower court erred in finding that the developer, David Fahringer, agreed to provide these services because the only evidence of this agreement was inadmissible hearsay testimony. In addition, appellant asserts that even if there had been such an agreement, Fahringer’s promise is not binding on it. We disagree. “Declarations of a prior owner against his interest made while holding legal title to the property are admissible in evidence against him and against those claiming under him.” Kovach v. General Telephone Co., 340 Pa.Superior Ct. 144, 149-50, 489 A.2d 883, 886 (1985) (quoting Brown v. McConnell, 173 Pa.Superior Ct. 94, 98, 93 A.2d 896, 898 (1953)). See also Donegal Township School District v. Crosby, 171 Pa.Superior Ct. 372, 375, 90 A.2d 341, 342 (1952) (declarations by prior owner, whether dead or alive, against his interest made while holding legal title to property admissible against owner and those claiming under him or her).

Here, one of the appellees, Robert Cosner, testified at trial that before he bought his house, Fahringer told him that he (Fahringer) would take care of water and sewage disposal for the development until seven homes were occupied. N.T. April 13, 1983 at 15-16. Additionally, Gerald Gearinger, another appellee, testified that he also spoke to Fahringer prior to purchasing his home and that Fahringer told him the same thing. Id. at 29. Fahringer’s statements to Cosner and Gearinger were made while he was holding legal title to the land. Moreover, the statements were against his pecuniary interest in that he agreed to pay all of the costs of maintaining the water well and the septic tank. Thus, the trial court properly admitted this testimony as an exception to the hearsay rule.

Appellant also argues that Fahringer’s promise to appellees was not binding on it and, thus, appellees did not prove the first element of equitable estoppel. We hold that not only was Fahringer’s promise binding on appellant, but appellant obliged itself to provide the services independent of Fahringer’s promise. Here, appellees have shown that appellant was aware of Fahringer’s promise and led them to believe that it would continue to provide water and sewage disposal services until at least seven homes in the development were occupied, as Fahringer had promised. First, Harold Bower, an appellee and former owner of a house in the development, testified that appellant’s agent told him prior to his purchase of his house that the bank would take care of water and sewage disposal. In addition, appellant in fact provided these services at no cost to appellees for five years after it acquired title to the development. There was testimony at trial that appellant spent approximately thirty thousand dollars on maintaining and repairing the water and septic systems over the course of those five years. Moreover, because appellees’ homes are serviced by a common system, originally designed to accomodate seven homes, we can only assume that Fahringer, and then appellant, intended to maintain the system at least until all of the homes were occupied. Otherwise, each family would be required to pay more than its one-seventh share of the cost of maintaining the system. Thus, we are convinced that appellant induced appellees to believe that it would provide these services.

Appellant also argues that appellees have failed to prove the second element of equitable estoppel: that they relied on this inducement to their prejudice. This argument is meritless. Appellees Cosner, Gearinger, and Bower testified that prior to purchasing their homes, they were told that these services would be provided. N.T. April 13, 1983 at 15-16, 29, 41. Appellees the Kneupps and the Fulkersons bought their homes after the bank had taken title to the development. Although neither testified that they were expressly told that these services would be provided, they were never charged for using the well and the septic tank and were permitted to use these services from the time they purchased their homes. It is apparent, even without testimony, that the provision of sewage disposal and water was a factor in appellees’ decisions to purchase their homes. As the lower court noted in its opinion, habitability is dependent on proper water and sewage disposal facilities. Lower Court Opinion at 5. Appellees were not told prior to purchasing their homes that they could or would be responsible for maintaining the sewage treatment and water facilities. Moreover, appellees do not have individual wells, septic tanks, or hook-ups to a municipal system. Thus, when they decided to purchase their homes, the only source of these services was through the developer and then appellant. We cannot believe that appellees would have bought these homes without access to these essential services. Now that appellees have bought their homes, we can prevent an injustice only by enforcing appellant’s promise. See Funds for Business Growth, Inc. v. Maraldo, supra. Without access to these services, or burdened with the obligation to repair and maintain the system, appellees would have great difficulty selling their homes. While it is unfortunate that appellant has spent a large sum of money on a system that continues to malfunction, we conclude that appellees did rely on appellant’s representation to their detriment and appellant has an obligation to maintain and repair the system.

Appellant also contends that the lower court erred in granting a permanent injunction because appellees have not shown that they would suffer irreparable harm if the injunction had not been granted. We disagree. Before a mandatory injunction will issue, a petitioner must show that irreparable harm will occur if the injunction is not granted. Robinson v. Philadelphia, 400 Pa. 80, 89, 161 A.2d 1, 6 (1960); Commonwealth, State Ethics Commission v. Landauer, 91 Pa. Commonwealth Ct. 70, 76, 496 A.2d 862, 865 (1985). An injury is deemed irreparable if it cannot be adequately compensated by an award of damages. Luckenbach S.S. Co. v. Norton, 21 F.Supp. 707, 709 (E.D.Pa. 1937).

Here, appellees demonstrated that irreparable harm would result if an injunction did not issue. Appellant wrote appellees a letter stating that appellees could no longer use the septic tank or water well that services their homes. Moreover, their properties will not accommodate individual septic tanks. Appellees homes would become uninhabitable without the use of the water well and septic tank. This is a harm that cannot be compensated with monetary damages. Appellant also argues that it offered to deed to appellees the septic tank and water well and that, therefore, appellees have not shown that they will be irreparably harmed. We have already concluded that appellant obliged itself to maintain the facilities at least until seven homes are occupied. Appellant cannot now argue that appellees’ harm is not irreparable because they can provide for themselves what appellant is obligated to provide and we will not require appellees to pay for services for which they bargained. Thus, the permanent injunction was properly entered.

Appellant also contends that the court below erred in granting a permanent injunction without ruling on its petition to dismiss appellees Harold and Bonnie Bower from this action. The Bowers bought their home from appellant in 1978. At trial, Harold Bower testified that prior to purchasing his home one of appellant’s representatives told him that appellant would maintain the water and sewage disposal facilities at its own cost. N.T. April 13, 1983 at 41. On December 30, 1983, the Bowers defaulted on their loan from appellant and conveyed to it the deed to their property in lieu of foreclosure. Pursuant to this agreement, appellant filed a petition to dismiss the Bowers as parties to the instant lawsuit. Appellant now argues that it was prejudiced by the lower court’s failure to rule on this petition because, if dismissed from the action, appellees could not rely on Mr. Bower’s testimony to prove their right to a permanent injunction. This contention is meritless.

Mr. Bower’s testimony was cumulative to the evidence presented to prove appellant's obligation to provide water and sewage treatment facilities for appellees. In addition, whether or not a party to the suit, Mr. Bower’s testimony would be admissible as evidence tending to prove this obligation. Accordingly, appellant was not prejudiced by the lower court’s failure to rule on its petition.

Appellant last contends that the lower court abused its discretion in granting appellees’ motion to amend their complaint and in denying its motion to amend its answer. This contention is also meritless. A party may amend its pleadings at any time either by consent of the adverse party, or by leave of court. Pa.R.Civ.P. 1033. It is within the sound discretion of the trial court to permit or deny such amendment. Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Superior Ct. 311, 313, 484 A.2d 148, 150 (1984). Amendments to the pleadings are liberally allowed to secure a determination of cases on their merits. Id. Here, the court allowed appellees to amend their complaint to conform to the proof at trial. This was within the trial court’s discretion and we will not disturb that decision on appeal. Appellant has waived the second part of its argument, that the trial court erred in denying its motion to amend its answer, as it has not included it in the argument section of its brief to this Court. See Commonwealth v. Balch, 328 Pa.Superior Ct. 71, 76, 476 A.2d 458, 461 (1984) (issue deemed waived when no argument in support contained in brief).

For the above-stated reasons we affirm the judgment of the court below.

Affirmed.

      . Appellant also contends that the trial court erred in concluding that appellant breached the implied warranty of habitability. The trial court granted the injunction on the basis of equitable estoppel; the court did not hold that there was a breach of warranty. See Lower Court Opinion at 5.


author: BROSKY, Judge: DEL SOLE, Judge,

text:
    517 A.2d 1342
    COMMONWEALTH of Pennsylvania v. Michael LEONHART, Appellant.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Nov. 17, 1986.

      Jeffrey J. Jewell, Erie, for appellant.
    Douglas Wright, Assistant District Attorney, Erie, for Com., appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed after a plea of guilty and subsequent to the denial of appellant’s Motions for leave to withdraw his guilty plea and for modification and reconsideration of sentence.

Appellant presents the following issue for our review: whether the trial court erred in denying appellant’s motion for leave to withdraw his guilty plea because it was not made knowingly or voluntarily. Because we conclude that appellant’s claim has merit, we reverse.

Appellant was charged with one count of involuntary deviate sexual intercourse on a person less than sixteen years of age and one count of corruption of minors. On May 14, 1985, he entered pleas of guilty to both charges. Appellant was then sentenced on July 29, 1985, to pay the cost of prosecution and to a minimum period of five years’ and a maximum period of ten years’ incarceration on the charge of involuntary deviate sexual intercourse under the mandatory sentencing provision of 42 Pa.C.S.A. § 9718(a). On the corruption of minors charge, appellant was ordered to pay the cost of prosecution and to undergo a period of probation consecutive to the sentence imposed on the involuntary deviate sexual intercourse count.

Subsequently, appellant filed timely motions for leave to withdraw the guilty plea and for modification and reconsideration of sentence. The trial court then vacated the judgment of sentence pending review of appellant’s motions. On November 18, 1985, the trial court denied both motions. Following this denial of relief, appellant was then resentenced on November 26, 1985, to the same terms and conditions which were imposed upon him at the original sentencing of July 29, 1985.

The thrust of appellant’s argument is whether 42 Pa.C. S.A. § 9718 requires notice to appellant, prior to sentencing, of its applicability, and, whether, as a result of failing to receive such notice, appellant’s plea was involuntary and not knowingly tendered. We conclude that § 9718 requires that such notice be given prior to sentencing. Consequently, we hold that the trial court erred in not allowing appellant to withdraw his plea on that basis.

It is a well-settled rule in this Commonwealth that withdrawal of a guilty plea after sentencing will only be permitted upon a showing of prejudice on the order of manifest injustice. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Best, 332 Pa.Super. 177, 480 A.2d 1245 (1984). This more substantial burden is justified because of the recognition that post-sentencing plea withdrawal may be used as a sentence-testing device. Commonwealth v. Shaffer, supra, Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984).

The Shaffer Court delineated standards for determining when a plea rises to the level of manifest injustice: When it is entered into involuntarily, without understanding the nature of the charges, without knowledge of the factual basis of the charges, because of threats or coercion, because the prosecutor did not recommend a plea-bargained sentence or because the bargained-for sentence was not imposed or because an accused proclaims his innocence.

When a defendant enters a plea knowingly and voluntarily, it is assumed that he has weighed the alternatives of going to trial versus entering a plea. This includes consideration of the evidence which he knows or has reason to believe the prosecution has available and whether, based upon his assessment of that evidence relative to the elements of the crime(s) charged, the Commonwealth is able to meet its burden of proof at trial. Commonwealth v. Shaffer, supra.

In this Commonwealth, the test of the “totality of the circumstances” has been adopted as a measuring stick to determine whether a defendant has made a showing of manifest injustice to allow post-sentence withdrawal. This test looks beyond the technical rote recitations made to a defendant at the plea colloquy to a critical evaluation of the evidence presented against him which substantiates the elements of the crime(s) charged, as well as his own testimony concerning the criminal episode. Commonwealth v. Schultz, supra; Commonwealth v. Shaffer, supra; Commonwealth v. Muller, 334 Pa.Super. 228, 482 A.2d 1307 (1984).

In our research, we did not find any authority for the proposition that 42 Pa.C.S.A. § 9718 requires that notice of its penalty provisions be given to appellant prior to sentencing upon a plea of guilty. However, we note that three other sections in the mandatory sentencing scheme provide in their respective provisions for the same mandatory minimum sentence — i.e., five years’ total confinement. Moreover, we make the additional observation that the crime of involuntary deviate sexual intercourse is included in the list of crimes in each of the three sections previously alluded to as calling for the identical minimum mandatory penalty.

Statutes in a scheme covering the same subject matter should be construed, whenever possible, as one harmonious component of the entire statutory structure. In determining intent we look to similar legislation and the object to be attained. Royal Indem. Co. v. Adams, 309 Pa.Super. 233, 455 A.2d 135 (1983). See § 1932 of the Statutory Construction Act, 1 Pa.C.S.A. § 1932. Our initial step must be to effectuate the intent of the General Assembly, Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 464 A.2d 431 (1983), noting, of course, that the legislature is presumed not to have intended an absurd result. Lehigh Valley Coop. Farmers v. Commonwealth, Bur. of Employment Security, Dept. of Labor and Industry, 498 Pa. 521, 447 A.2d 948 (1982); Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982); Fireman’s Fund, supra. See §§ 1921 and 1922 of the Statutory Construction Act, 1 Pa.C.S.A. §§ 1921, 1922. Moreover, we must look to the practical results of any interpretation. Lehigh Valley Coop. Farmers, supra.

We find that the language in Justice Larsen’s concurring opinion in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), while addressing the use of firearms in violent crimes, echoes the legislative purpose of mandatory minimum sentencing statutes, generally.

The Commonwealth has a legitimate interest in protecting its citizens from dangerous criminals who use firearms in the commission of violent crimes. A heavier burden of proof is not constitutionally required to impose a statutorily mandated minimum sentence.

Id., 508 Pa. at 46, 494 A.2d at 365. (Larsen, J. concurring). Society can not tolerate the tyranny of armed felons. Recognizing this, the legislature wisely enacted legislation providing for a mandatory minimum five-year jail term for those who visibly use a firearm in the commission of the following serious felonies____ involuntary deviate sexual intercourse ...

Id., 508 Pa. at 42, 494 A.2d at 363. (Larsen, J., concurring).

It is intended, and it is reasonable to believe, that application of the Mandatory Sentencing Act will deter the dangerous and intimidating use of firearms by felons in the perpetration of crimes. A lengthened incarceration for felons who make visible use of firearms in the execution of their criminal deeds tends to have the effect of maintaining in the citizenry, much needed confidence in our criminal justice system.

Id., 508 Pa. at 43, 494 A.2d at 363. (Larsen, J., concurring). The Commonwealth’s countervailing interest in the imposition of a mandatory five (5) year sentence, on the other hand, is unquestionably important. The Commonwealth seeks to protect the public from armed criminals and to deter violent crime and the illegal use of firearms generally, as well as to vindicate its interest in punishing those who commit serious crimes with guns. This societal interest is at least as compelling as the defendant’s interest in lenient punishment.

Id., 508 Pa. at 41, 494 A.2d 362 (Majority Op.).

In upholding the constitutionality of § 9718, this court had occasion to comment on the legislative purpose of that section. Commonwealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985). There we said:

In imposing mandatory sentences upon those who commit any of the enumerated offenses against infant persons, the legislature was similarly concerned with the vulnerability of individuals under 16 years of age.

347 Pa.Superior Ct. at 643, 501 A.2d at 260.

Appellant complains that his plea of guilty was not knowingly and voluntarily entered because of the lack of notice, prior to sentencing, that the Commonwealth would proceed under § 9718, the mandated minimum penalty provision for the type of crime against a minor to which appellant pleaded guilty.

The record of the guilty plea colloquy is barren of any reference to or notice of the applicability of a mandatory minimum penalty, generally, or to the intention of proceeding, at sentencing, under § 9718. Likewise, the sentencing transcript reveals that the prosecutor only introduced the applicability of § 9718 near the end of the proceedings, taking appellant, his counsel and the trial court by surprise. Even appellant’s pre-sentence report is devoid of any reference to the applicability of any mandatory minimum sentencing provision.

This lack of notice deprives appellant of the right to weigh the alternatives of going to trial versus entering a guilty plea, Commonwealth v. Shaffer, supra, because of the real possibility, apparent from the instant record, that he was misled or acted pursuant to inaccurate or incorrect information. Commonwealth v. Broadwater, supra. Furthermore, our Supreme Court cautioned that:

“the sentencing process ... must satisfy the requirements of the Due Process clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute ... [he] has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.”

Commonwealth v. Wright, supra, 508 Pa. at 36, 494 A.2d at 359.

The commission of one of the offenses listed in § 9718 upon a victim under the age of 16 years is an aggravating circumstance which, if the trial court determines is proved, becomes a sentencing factor triggering the operation of § 9718 and, necessarily, mandates pre-sentence due process notice. See, Commonwealth v. Wright, supra; Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985).

The trial court correctly noted at both sentencing proceedings that, while it was not prepared to sentence appellant to the mandated minimum penalty of five years’ incarceration, notification of the applicability of § 9718 by the Commonwealth removed its discretion to impose any lesser penalty. Commonwealth v. Wright, supra; Commonwealth v. Anderson, supra; Commonwealth v. Bannister, 345 Pa.Super. 178, 497 A.2d 1362 (1985). We note, moreover, that the mandatory sentencing provisions supersede the Sentencing Guidelines. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).

Our court has held that Article II, § 1 of the Pennsylvania Constitution empowers the General Assembly to enact a legislative scheme designed to mete out particular punishments for particular crimes. In so doing, it may remove any discretion regarding the imposition of penalties without offending due process concerns. Commonwealth v. Anderson, supra; Commonwealth v. Cooke, supra; Commonwealth v. Bannister, supra. Nor does this legislative power unconstitutionally dictate the burden of proof at the sentencing hearing in contravention of the separation of powers doctrine contained in Article V, § 10 of the Pennsylvania Constitution by obliterating the trial court’s discretion. Commonwealth v. Anderson, supra; Commonwealth v. Bannister, supra.

Along this line, we have also stated that the mandatory sentencing provisions do not vest unbridled discretion in the prosecution to determine to whom and when its provisions are applicable. Commonwealth v. Anderson, supra. As noted earlier, the mandatory provision is triggered when the trial court has determined at sentencing that its conditions have been met. Only then does it operate as a sentencing factor. Id. Accordingly, due process concerns require that the prosecutor give notice of its intention to proceed prior to sentencing under the relevant mandatory sentencing statute. If the prosecution believes that it is unable to establish by a preponderance the elements of the applicable mandatory provision, it need not give notice. See id.

Having concluded that § 9718 requires notice of its applicability to appellant prior to sentencing, we now turn to the “totality of the circumstances” in the instant record to determine whether the trial court’s refusal to allow appellant’s post-sentence withdrawal of his guilty plea rises to the level of manifest injustice. Commonwealth v. Schultz, supra; Commonwealth v. Shaffer, supra; Commonwealth v. Muller, supra.

Our examination of the plea colloquy reveals that the Commonwealth was able to substantiate the elements of the crimes charged after a critical evaluation of the evidence. See id. The record of that proceeding, however, is devoid of any reference by the Commonwealth to the applicability of § 9718 or of its intention to proceed under that statute at sentencing.

Based upon the totality of the circumstances, we hold that appellant’s claim rises to the level of manifest injustice and, consequently, that the trial court’s refusal to permit appellant to withdraw his plea of guilty after sentencing was error. We therefore reverse and vacate the judgment of sentence.

Judgment of sentence vacated and case remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

I join in the result of the Majority Opinion insofar as it holds that a defendant is entitled to notice of the applicability of 42 Pa.C.S.A. § 9718 prior to entering a guilty plea. However, I dissent from the portion of the Opinion in which it is held that the trial court’s refusal to permit Appellant to withdraw his plea of guilty after sentencing amounted to manifest injustice.

The record shows that shortly after the trial court and the defendant were apprised of the applicability of § 9718, but before sentencing, a recess was taken. (S.T. 10-11). Appellant had the opportunity during the recess to consult with counsel concerning the desirability of withdrawing his guilty plea. Appellant instead returned after the break and was once again advised of the controlling provisions of § 9718. However, Appellant made no efforts to withdraw his guilty plea. (S.T. 14-15). Based upon the totality of the circumstances surrounding the sentencing hearing, I would find that Appellant had sufficient notice of § 9718 and ample time in which to withdraw his plea before sentencing, and having not done that so he now cannot claim “manifest injustice”.

      . 42 Pa.C.S.A. § 9718 provides in relevant part:
      § 9718. Sentences for offenses against infant persons
      (a) Mandatory sentence — A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
      18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) — not less than five years.

      . It is from this judgment of resentencing that this appeal is filed.

      . We recently upheld the constitutionality of § 9718 on equal protection grounds. Commonwealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985). However, appellant’s instant contention was not at issue there.

      . 42 Pa.C.S.A. § 9712. Sentences for offenses committed with firearms; 42 Pa.C.S.A. § 9713. Sentences for offenses committed on public transportation; and 42 Pa.C.S.A. § 9714. Sentences for second and subsequent offenses.

      . We also note that 42 Pa.C.S.A. § 9712 has recently withstood constitutional muster as being non-violative of due process. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub nom., McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Additionally, we recently held that creation of minimum mandatory sentences in non-capital cases is constitutionally permissible. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).

      . 1 Pa.C.S.A. § 1932 provides in relevant part:
      Statutes in pari materia.
      (a) Statutes ... are in pari materia when they relate to the same persons or things or to the same class of persons or things.

      . 1 Pa.C.S.A. § 1921 provides in pertinent part:
      Legislative intent controls.... (c) ... [T]he intention of the General Assembly may be ascertained by considering, among other matters: (1) the occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained....
      1 Pa.C.S.A. § 1922 provides in pertinent part:
      § 122. Presumptions in ascertaining legislative intent. In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: (1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable ... (3) that the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth____ (5) That the General Assembly intends to favor the public interest as against any private interest.

      . This is the original sentencing of July 29, 1985.

      . Arguably, appellant may, at some future date, petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., on the basis that his trial counsel was ineffective in not objecting to the sentencing proceeding and the action of the trial court there. Commonwealth v. Karabin, 292 Pa.Super. 374, 437 A.2d 431 (1981). We need not address this issue because it is not presently before us, nor do we speculate on appellant’s chances of success on such a claim.

      . Since the date of appellant’s resentencing preceded this Court’s decision in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985), the trial court was denied the benefit of its instruction. There we decided, in upholding the constitutionality of the recividist penalty provisions of the Drunk Driving Law, 75 Pa.C.S. § 3731(e)(1), that due process requires the Commonwealth to give notice prior to sentencing of its intention to proceed under the recividist provisions. More specifically, we noted that when a defendant decides to plead guilty, he must be advised of the applicability of the recividist statute prior to the entry of that plea. “There is no dispute that a plea entered without knowledge of not only the maximum penalty which could be imposed, but also the minimum penalty which must be imposed, would not be a valid plea.” 348 Pa.Superior Ct. at 599, 502 A.2d at 707. Thus, were we to hold Reagan applicable to the instant case, we note that the Commonwealth would have had to apprise appellant of its intention to proceed under § 9718 even before appellant’s plea had been entered of record at the plea proceeding.
      Our decision in Reagan was based upon a comparison of similarities in both the recividist provisions of 75 Pa.C.S. § 3731 and the notice provisions of the mandatory sentencing statutes, 42 Pa.C.S.A. §§ 9712 and 9714. Most notably, we observed that the recividist statute and the mandatory sentencing provisions provide for minimum mandated sentences which do not alter the grade or nature of the offense charged or enlarge the maximum penalty which could be imposed if the mandatory provisions did not otherwise apply. Moreover, these statutes removed the trial court’s discretion in imposing any lesser penalty.

      . Of course, if it was the belief of the Commonwealth at the time of plea that it would be unable to meet the preponderance standard at sentencing, it would not be obligated to give any notice. See Commonwealth v. Anderson, supra, in the text. Since the Commonwealth did proceed under § 9718 at sentencing, albeit without prior notice, we assume that it anticipated that no problems of proof would arise at sentencing.