author: HOFFMAN, Judge:

text:
    467 A.2d 862
    COMMONWEALTH of Pennsylvania v. Robert MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1983.
    Filed Nov. 4, 1983.

      Thomas L. McGill, Jr., Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the legality of his arrest, several trial court rulings, and the effectiveness of counsel. We find these contentions meritless and, accordingly, affirm the order of the lower court.

Rosenwald’s Meat Market was robbed on October 25, 1976, and again on October 29, 1976, by a man wearing white painter’s pants and a stocking mask and carrying a sawed-off shotgun. Police arrested appellant at his home on November 15, 1976, pursuant to a warrant, and seized several items, including a stocking mask and white painter’s pants, from appellant’s bedroom. While in custody, appellant made an inculpatory statement. At a suppression hearing on October 3, 1977, appellant unsuccessfully moved to suppress the confession as well as the stocking mask and painter’s pants. After a jury trial on October 26, 1977, appellant was convicted of the October 29 robbery and sentenced to ten-to-twenty years imprisonment. Appellant’s notice of appeal was quashed as untimely. Following appellant’s subsequent Post Conviction Hearing Act (PCHA) petition, he was granted the right to request an appeal to this Court nunc pro tunc. This Court allowed the appeal on April 22, 1981.

Appellant contends first that his arrest was illegal because the warrant was not issued upon probable causé. Appellant relies on the two-pronged standard outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The United States Supreme Court, however, has abandoned the Aguilar-Spinelli test in favor of a “totality of the circumstances analysis.” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under the new standard, “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concludpng]’ that probable cause existed.” Id. at -, 103 S.Ct. at 2332. The court is to make “a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip[.]” Id. at ---, 103 S.Ct. at 2329-30. Our Court recently applied Gates in Commonwealth v. Price, 318 Pa. Superior Ct. 240, 464 A.2d 1320 (1983). In both Gates and Price, the affidavit was deemed sufficient when based on an anonymous informant’s tip corroborated by independent police work. Here, the arrest warrant was issued on the basis of an anonymous informant’s tip, a photographic identification, and a description of the suspect. The informant was an eyewitness to the robberies who remained anonymous out of fear of retaliation, but who was later identified and testified at trial. (N.T. October 3, 1977 at 86 and October 25, 1977 at 2.5-2.14). The photographic identification was made by the owner of the meat market who witnessed the robbery. Although the photographic identification was later suppressed on the ground that the showing was impermissibly suggestive, probable cause for arrest may be based upon illegally obtained evidence. Commonwealth v. Turner, 478 Pa. 613, 387 A.2d 657 (1978). Moreover, there was an independent basis for the identification because the owner knew appellant from the neighborhood and recognized him during the robbery. On these facts, there was probable cause for the arrest warrant.

Appellant contends next that his confession should have been suppressed as an involuntarily coerced statement. He argues specifically that he was never taken to the bathroom, told of his right to make a phone call, or asked when he had last eaten, and was surrounded by several large detectives of heavy build. Appellant’s contention lacks merit. Appellant was arrested at 10:30 a.m. on November 15, 1976, and he gave his inculpatory statement between 12:30 p.m. and 2:30 p.m.; therefore, there was no undue delay. He received Miranda warnings and waived his rights to remain silent and to have an attorney present. He was not beaten. Additionally, because we have determined the arrest was lawful, the confession cannot be suppressed as the fruit of illegality. Under these circumstances, we agree with the lower court’s conclusion that appellant’s confession was knowing, intelligent, and voluntary.

Appellant contends also that the lower court’s consolidation of the two robbery charges denied him his right to a fair trial. “It is well established that the propriety of consolidating separate indictments for trial is a matter of discretion with the trial judge, and the exercise of this discretion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant.” Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981) (citations omitted). The court must weigh the possibility of prejudice and injustice caused by the consolidation against the consideration of judicial economy. Id. Moreover, our Supreme Court has held that Pa.R.Crim.P. 219(b), which provides that two or more offenses may be charged in the same indictment if they are of similar character or arise out of the same transaction, is equally applicable to the consolidation for trial of separate indictments or informations. Id., 493 Pa. at 170, 425 A.2d at 717-18, citing Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975), and Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975). In the instant case, both robberies were perpetrated on the same meat market and were only four days apart. Both robberies involved the same modus operandi: a black male wearing white painter’s pants and a stocking mask and carrying a sawed-off shotgun. One witness identified appellant from both robberies. Appellant confessed to both crimes. Clearly, the considerations of judicial economy are considerable. On the other side, the possibility of prejudice is slight. The risk of prejudice by presenting the jury with cumulative evidence or having the jury improperly infer criminal disposition seems minimal, considering that the jury acquitted appellant of the first robbery. Under these circumstances, the trial judge did not abuse his discretion in consolidating the two robbery charges in one trial.

Appellant contends next that the lower court should have granted his motion for a mistrial because a statement made by a prosecution witness impermissibly referred to other criminal activity on the part of appellant. The prosecution cannot introduce evidence, either directly or by reasonable implication, of defendant’s prior criminal conduct. Commonwealth v. Irwin, 475 Pa. 616, 381 A.2d 444 (1977); Commonwealth v. Waters, 273 Pa. Superior Ct. 178, 417 A.2d 226 (1979). The pertinent part of the testimony is as follows:

Q. [PROSECUTOR]: What makes you so sure that Robert Moore is the man that walked into the store October 29?
A. [MR. Rosenwald]: I had dealings with him before. That is not the first time. I am sorry I can’t bring up the other stuff. He also lives around the neighborhood right there.

(N.T. October 24, 1977 at 1.86-1.87). The above testimony does not suggest prior criminality, but only prior familiarity with appellant. The jury could have reasonably concluded that the other dealings referred to were commercial or personal. Accordingly, appellant’s contention is meritless.

Finally, appellant alleges ineffectiveness of trial counsel for failing to file pre-trial motions challenging his allegedly illegal arrest and to request a pre-trial lineup. Counsel is deemed ineffective if the issue not raised is of arguable merit and counsel had no reasonable basis for failing to assert it. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). We have already determined that there is no merit to appellant’s claim of illegal arrest and therefore trial counsel had a reasonable basis for not challenging the arrest. Similarly, counsel had a reasonable basis for not requesting a pretrial lineup. First, there is no constitutional right to a lineup. Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975). More significantly, all three prosecution witnesses knew appellant from the neighborhood and had observed him during the robberies. They could have, therefore, easily identified him at any lineup, thereby strengthening the Commonwealth’s case. Accordingly, counsel might have been deemed ineffective had he requested a lineup.

Because all of appellant’s contentions lack merit, we must affirm the order of the lower court.

Affirmed.

      . Other physical evidence seized on November 15, i.e. a notebook, letters, and appellant’s personal identification, was suppressed. A photographic identification was also suppressed as impermissibly suggestive because the photographs shown to witnesses were Philadelphia Police Department photographs containing identifying legends.

      . The Aguilar-Spinelli standard for determining the validity of a warrant requires that the affidavit set forth some of the “underlying circumstances” necessary to enable the magistrate independently to judge (1) the validity of the informant’s conclusions, and (2) the credibility of the informant and the reliability of his information. Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A.2d 510, 512 (1971), citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . Appellant’s additional contention that the painter’s pants and stocking mask should have been suppressed as the fruit of an illegal arrest is clearly meritless because we have determined that the arrest was lawful and the evidence was seized in plain view pursuant to that arrest.
      We recognize that Commonwealth v. Price, supra, is the first Pennsylvania appellate court case addressing the new standard and that our Supreme Court has not yet officially adopted Illinois v. Gates, supra. However, even under the Aguilar-Spinelli test, we believe there was probable cause for the arrest warrant in the instant case. The reliability and credibility of the informant derives from his role as an "unquestionably honest citizen” who talked to the police detective in person. The basis of his knowledge is his eyewitness observations of the robberies as they occurred and his recognition of appellant, whom he had seen many times before, as the robber.
      We also recognize that both Gates and Price dealt with search warrants whereas the instant case involves an arrest warrant. As under the Aguilar-Spinelli test, however, the new warrant standard applies equally to arrest warrants. See Gates, supra.

      . Appellant also raises several additional claims in a pro se brief which was attached as an Appendix to counsel’s brief. We will not address the pro se arguments. In Commonwealth v. Kibler, 294 Pa.Superior Ct. 30, 439 A.2d 734 (1982), we stated that “[a]s a matter of policy this Court will not consider separate briefs filed by counsel and pro se briefs filed by the appellant[,]” and remanded the case to the lower court to determine whether appellant wished in his appeal to act on his own behalf or through counsel. Id., 294 Pa.Superior Ct. at 33, 439 A.2d at 736. We believe, however, that the facts of the instant case are sufficiently distinguishable from Kibler as to not warrant a remand. In Kibler, because the defendant and his counsel filed separate briefs alleging entirely separate issues, the court was unable to determine whether counsel considered the issues that the defendant raised in his pro se brief or how the defendant wanted to proceed on appeal. In the instant case, however, appellant’s pro se brief was filed as an appendix to counsel’s appellate brief and contained several of the same issues. Appellant also listed counsel’s name as the "Attorney for Defendant” on the cover of his pro se brief. Therefore, unlike Kibler, we can determine that appellant chooses to appeal through counsel and that counsel considered the extra issues raised in the pro se brief. Accordingly, a remand would result in an unnecessary duplication of effort since the same issues would be addressed.
      Furthermore, our position is supported by Commonwealth v. Almeida, 306 Pa. Superior Ct. 197, 452 A.2d 512 (1982), (Concurring and Dissenting Opinion by SPAETH, J.), in which three out of seven members of the en banc Court joined. In Almeida, Judge SPAETH, unlike the majority, addressed the issue of whether the Court should consider an appellant’s supplemental pro se arguments on appeal. He concluded that the Court should not because to do so would encourage the submission of pro se briefs and thus “creat[ej a shadow docket of hundreds of appeals," 306 Pa. Superior Ct. at 216, 452 A.2d at 521 (citation omitted), and noted that, although not considering pro se briefs might result in PCHA petitions alleging counsel’s ineffectiveness for failing to raise the pro se arguments, “on balance, [refusing to consider supplemental pro se briefs] will result in a more orderly and therefore more efficient administration of justice[.]" Id.

      . The Commonwealth argues that we should quash appellant's appeal as untimely. We disagree. Appellant was granted the right to request an appeal nunc pro tunc on September 8, 1980, and filed a petition on January 29, 1981. Although appellant filed after the expiration of the thirty day limit, see 42 Pa.C.S.A. § 5571(a) and Pa.R.A.P. 903(a), this Court allowed the appeal nunc pro tunc on April 22, 1981, per order requiring the parties to argue in their briefs the issue of the timeliness of the petition to appeal. Both parties have done so. Appellant has explained in his Reply Brief that the five month delay in filing was due solely to “counsel’s inadvertence.” After the September 8 order, appellant’s counsel moved his office and the file, including the completed petition, was misfiled. Appellant’s file was not discovered until five months later and, upon discovery, the petition was immediately filed. Because this Court did allow the appeal nunc pro tunc and the parties have briefed the issues, we need not quash the appeal as untimely where appellant was not at fault in causing the delay.


source: Caselaw Access Project

license: Public Domain

text:
    467 A.2d 867
    Stephen HARMER v. David HULSEY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1983.
    Filed Nov. 4, 1983.
    Petition for Allowance of Appeal Denied March 22, 1984.

      Jon Auritt, Media, for appellant.
    David J. Otis, Media, for appellee.
    Before CERCONE, President Judge, and MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in holding his counterclaim barred by the statute of limitations. We find this contention without merit and, accordingly, affirm the lower court’s order.

On August 24, 1981, appellee instituted suit against appellant to recover for injuries received in a September 21, 1979 motor vehicle accident. Appellant was served with the complaint on September 8, 1981. On September 30, appellant filed an answer and a counterclaim alleging damages resulting from his own injuries sustained in the accident. Appellee replied, asserting in new matter that appellant’s counterclaim was barred by the two-year statute of limitations. Appellant then filed a reply to the new matter averring that the limitations period was tolled because appellee filed his complaint so late in the two-year period. Appellee subsequently filed a Motion for Judgment on the Pleadings on appellant’s counterclaim. The motion was granted and the counterclaim dismissed. This appeal followed.

The appropriate statute of limitations, found in 42 Pa.C.S.A. § 5524, provides that an action must be commenced within two years “to recover damages for injuries to the person____” Id., § 5524(2). Here, appellant’s counterclaim seeking to recover for his injuries, was raised two years and nine days after the automobile accident. Appellant maintains that the statute of limitations should have been tolled pending the filing of his counterclaim because appellee waited until a short time before the two-year period ran to serve him with the complaint. Our Court has held that “when a demand arising from the plaintiff’s negligence ... is set up by the defendant as a counterclaim ... [it is] ... subject to the bar of the statute.” Enterline v. Miller, 27 Pa.Superior Ct. 463, 470 (1905); see Woodland Oil Co. v. A.M. Byers & Co., 223 Pa. 241, 72 A. 518 (1909). Our research reveals no Pennsylvania Appellate Court case since the early part of this century restating the above premise. We reiterate, therefore, that a counterclaim provoked by the plaintiff’s alleged negligence must be raised within the time allotted for an action under the appropriate statute of limitations.

Appellant’s argument that his action was hindered and prejudiced because appellee chose to file his complaint late in the two-year period is patently meritless. Appellant was entitled to the same two-year period as appellee in which to bring an action for damages for his own injuries arising from the accident. That appellant was either unaware of his potential claim or the two-year limitation, or chose not to bring an action until appellee sued, does not suffice to toll the statute of limitations. A cause of action raised as a counterclaim may be potentially as stale as a cause of action asserted in an original complaints. See Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971) (“The purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims.”).

In support of his argument, appellant erroneously relies on the distinction between a counterclaim that is a recoupment and one that is a set-off. A recoupment involves only the claim averred by the plaintiff and raises no possibility of affirmative relief for the defendant. A set-off, on the other hand, “will permit an affirmative judgment for defendant.” Stulz v. Boswell, 307 Pa.Superior Ct. 515, 521, 453 A.2d 1006, 1008 (1982). Counterclaims asserted as recoupments have traditionally been permitted, even if raised after the limitations period has run, whereas set-offs will not be permitted if late because a set-off, in effect, raises a new cause of action. Id., 307 Pa.Superior Ct. at 521, 453 A.2d at 1009; see also Household Consumer Discount Co. v. Vespaziani, 490 Pa. 209, 415 A.2d 689 (1980); Woodland Oil Co. v. A.M. Byers & Co., supra, 223 Pa. at 247, 72 A. at 520. In Stulz, a panel of our Court permitted the portion of defendant’s counterclaim that sought only “to reduce the award obtained by [the] plaintiff ... notwithstanding ... the defendant's] failure to assert [it] before the statute of limitations ha[d] run.” Stulz v. Boswell, supra, 307 Pa.Superior Ct. at 521, 453 A.2d at 1008. Similarly, in Household Consumer Discount Co. v. Vespaziani, supra, our Supreme Court determined that the counterclaim at issue, based on the Truth in Lending Act, 15 U.S.C.A. § 1601 et seq., constituted a recoupment and could, therefore, be raised after the statute had run. Here, however, appellant’s counterclaim must clearly be characterized as a set-off because it raises the possibility of affirmative relief for appellant. As such, it should have been raised before the end of the two-year statute of limitations period.

Accordingly, finding no merit in appellant’s contention, we affirm the order of the lower court.

Affirmed.

      . Gumienik v. Lund, 314 F.Supp. 749 (W.D.Pa.1970), involved a situation similar to the present one. An accident occurred on February 6, 1968. A suit was filed on January 29, 1970. The defendant then filed a separate action on February 17, 1970 and, in addition, counterclaimed on the original action on April 27, 1970. The District Court noted, “[w]e find the general rule in Pennsylvania to be that a cause of action which would be barred as an original action because of the statute of limitations, may not be asserted as a counterclaim after the expiration of the statutory period.” Id. at 751.
      Several lower courts have recently addressed this issue. See, e.g., Baker v. Pittman, 19 Pa. D & C 3d 169 (1981) (disallowed untimely counterclaim that if brought as an original claim after the statute of limitations had ran would not have been permitted); Guerrio v. Probst, 15 D & C 3d 625 (1980) (same); but see, Maragine v. Campolongo, 3 Pa. D & C 3d 735 (1977) (permits untimely counterclaim arising from same accident as original claim).

      . A counterclaim is a "claim presented by a defendant in opposition to, or deduction from, the claim of the plaintiff,” and may include a set-off and/or a recoupment. 6 Standard Pennsylvania Practice 2d § 29:2.


text:
    467 A.2d 870
    John R. MORRIS and Elaine J. Morris, his wife v. BENSON & BENSON, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued May 3, 1983.
    Filed Nov. 4, 1983.

      James G. Gillespie, Philadelphia, for appellant.
    David M. MacFarlan, Horsham, for appellees.
    Before McEWEN, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal involves several challenges to the lower court’s assessment of damages resulting from contracts entered into by appellant, a builder, and appellees, contractors. We find no merit in appellant’s contention that the lower court erred in failing to consider payments already made to appellee; however, we must remand for findings of fact in order to review appellant’s remaining contentions.

In February and March 1974, the parties entered into two agreements whereby appellees, owners of JRM Construction Co., would perform plumbing, heating and air conditioning work at both a condominium complex, Benson House, and a shopping center, Willowbrook, being built by appellant, Benson & Benson. In addition to these base contracts, the parties entered into an oral supplemental agreement for additional work to be done on three stores at Willowbrook. Finally, apart from the formal agreements, appellees allegedly performed work in excess of that required by the contracts. Appellees, not having been compensated for the extra work, filed a complaint in assumpsit asking for $42,-401.87 above the $558,924.68 previously paid by appellant. Appellant denied liability for the extra work and counterclaimed for costs incurred in finishing work on the condominiums left uncompleted by appellees. Following a non-jury trial, the lower court entered a verdict ultimately awarding appellees $21,318.83 after deducting approximately $5,500 awarded on appellant’s counter-claim. Exceptions to the trial court’s order were heard by the lower court en banc and denied. This appeal followed.

Appellant contends first that the lower court erred in failing to consider the amounts already paid on the initial contracts. The issues to be addressed at trial must be framed in the parties’ pleadings. See Pa.R.Civ.P. 1019 (contents of pleadings). Here, appellees’ complaint sought compensation for extra work performed beyond the requirements of the original contracts. Paragraph five of the complaint averred that the parties agreed that all extra work on the condominium project would be paid for on a time and materials basis. Paragraph sixteen dealt with extra work on the shopping center. In answer to paragraph five, appellant agreed to be liable for extra work approved by appellant as per specifications of the contract. The answer also noted that, “extra work was to be paid for by an agreed upon sum, prior to commencement of the work.” (Answer at paragraph 5). The answer to paragraph 16 admitted that extra work was performed on the shopping center. Moreover, the evidence offered at trial focused on the specific work done by appellees that warranted additional payment. Appellee John Morris testified as to each of his company’s actions that constituted extra work. For example, one extra for which the lower court credited appellees was preparation of the ground for the condominium’s health club and sauna. Morris testified that, “[t]ime and material billed, with 20 percent profit and overhead, $412.40. Mr. Shields [appellant’s agent] agreed to it.” Counsel then asked, “Did you receive any objection to this billing?” Morris replied, “none.” (N.T. at 13). The proof at trial consisted of many similar exchanges on each of the items for which appellees claim money is due and owing. Accordingly, we cannot say the lower court erred in disregarding the base contracts in making its award. Those contracts had already been paid and neither their interpretation nor construction were disputed or raised in the pleadings. Appellant would have us believe that payment for the extra work performed was somehow contingent or dependent on the base contracts. We, however, agree with the lower court that the obligation pursuant to those contracts had already been performed and that claims for payment for extra work were separate and apart from the original contracts. Accordingly, we find no merit in appellant’s contention.

Because the lower court failed to provide findings of fact in support of its verdict, we cannot satisfactorily review appellant’s remaining contentions. Appellant contends that the lower court (1) failed to consider the supplemental contract for the shopping center; (2) erred in finding appellees justified in refusing to complete the condominium contract; and (3) applied an incorrect standard of damages. The lower court opinion, instead of offering the basis of its conclusions, simply reiterates its verdict and states its ultimate conclusions as to the parties’ actions. Because the opinion fails to address appellant’s specific contentions, we have no basis upon which to review appellant’s claims. See Builders of Sanitary Sewers, Inc. v. Tamaqua Borough Authority, 307 Pa.Superior Ct. 459, 453 A.2d 674 (1982) (remanded for specific consideration of appellant’s contentions).

Accordingly, we remand for consideration of whether appellant’s contentions are sufficient to require relief be granted.

It is so ordered. Jurisdiction retained.


author: CERCONE, President Judge: WIEAND, Judge, CIRILLO, Judge,

text:
    467 A.2d 871
    COMMONWEALTH of Pennsylvania v. Harry MULLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1983.
    Filed Nov. 4, 1983.

      Ronald A. Turo, Assistant Public Defender, Carlisle, for appellant.
    Theodore B. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH, WIEAND, CIRILLO, POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   CERCONE, President Judge:

On May 11, 1981, appellant, Harry Mullen, entered a plea of guilty to the charge of incest. A pre-sentence report was prepared and submitted to the lower court. At a sentencing hearing on July 16, 1981, appellant’s attorney summarized the contents of the pre-sentence report on the record. Immediately afterwards, the sentencing court entered the following order.

AND NOW, June 16, 1981, at 9:56 a.m., the defendant, Harry Mullen, having previously appeared before the Court and tendered a plea of guilty, and now appearing for sentence with the Public Defender, Taylor P. Andrews, Esquire, the Court being in receipt of a pre-sentence investigation report,
Sentence of the Court is that the defendant pay the costs of prosecution, undergo imprisonment in a State Institution for not less than one nor more than three years. The defendant to be given credit for fifty-nine days previously spent in the Cumberland County Prison.
The reason for the above sentence is that the Court believes that any lesser sentence would depreciate the seriousness of the offense.
The Court having been informed that there is a possibility that the defendant does wish to file the motions within the ten-day period, pending the filing of said motions, he is continued on existing bail.

Less than a month later, after appellant had filed a Motion for Reconsideration of Sentence, the sentencing court entered this order.

AND NOW, July 9, 1981, the court having considered the Motion for Reconsideration of Sentence* adds the following to the Order of Court dated June 1.6, 1981:
Prior to the imposition of sentence, the court did consider the alternatives and guidelines under the sentencing code and the facts of the incident as set forth at the time of entry of the guilty plea.
The main facts considered were as follows:
1) The defendant was thirty-six (36) years old and the niece was sixteen (16) years old at the time of the incident.
2) The incident took place on March 15, 1981, about seventeen (17) days after he was released from State Parole on a previous State sentence of one to three years which involved an Unlawful Delivery of Schedule II, Controlled Substance.
The Motion therefore to reconsider is refused.

Now, on appeal, appellant argues that his original sentence should be vacated and the case remanded because the trial court did not state at the time of sentencing sufficient reasons on the record for the sentence it imposed, and further, the reconsideration of sentence procedure, because it involved only the lower court’s entry of an order without the benefit of a supplemental proceeding on the record in the presence of appellant, could not correct the initial inadequate sentencing.

The question for our disposition is whether an order containing reasons supplementing the sentencing transcript, entered pursuant to an appellant’s Motion for Modification of Sentence, Pa.R.Crim.P. 1410, will serve to satisfy the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Pa.R.Crim.P. 1405(b) when defendant was not present at said reconsideration proceedings. We find that, because of the importance of having the defendant present when the judgment of sentence is pronounced against him, that the vacation of the judgment of sentence is warranted and that it should be remanded for resentencing.

No case specifically holds that the reasons be recorded during a sentencing hearing, and that they be made within the presence of the defendant. However, a review of Riggins and its progeny indicates such a requirement. In Riggins, our Supreme Court listed eight benefits to its requirement that the sentencing court place its reasons for the sentencing it imposes on the record at the time of sentencing. Among these were that

[i]t will minimize the risk of reliance upon inaccurate information contained in the presentence report____
and
[it] may aid correction authorities if the sentence results in a commitment, and may have therapeutic value if the judge explains his or her reasons to the defendant. Riggins, supra, 474 Pa. at 129-130, 377 A.2d at 147-148.

Thus, part of the significance of the requirement which the Court set forth in Riggins was that the defendant would be present at the time the reasons were enumerated. Our court addressed a similar question in Commonwealth v. Young, 272 Pa.Superior Ct. 82, 414 A.2d 679 (1979). There, although several reasons for the sentence appeared in the court’s opinion filed some time after the sentence, we held that the reasons must be given on the record at the time sentence is imposed, in order to comport with Commonwealth v. Riggins, supra, and Pa.R.Crim.P. 1405(b). There we said:

One compelling reason for Riggins’ requirement is that without a statement of reasons at the time of sentencing, the defendant lacks an opportunity at that time to bring to the court’s attention any erroneous facts or conclusions upon which it may have relied and is unable thereafter to file a petition for resentencing challenging the court’s reasons for imposing sentence. Young, supra, 272 Pa.Superior Ct. at 84, 414 A.2d at 681.

Additionally, in our Concurring Opinion to Young, we noted four major policy reasons of American Bar Association Standards, Appellate Review of Sentences, for the holding in Riggins.

First, the requirement will force the trial judge to focus on the exact issues involved and improve the rationality of the sentence imposed. Second, a statement of the reasons will be of value to the correctional institution to which defendant is committed. The statement can help the administration place a particular person in the proper program as far as possibilities for rehabilitation are concerned. Third, the statement of reasons may be therapeutic to the defendant. Although such a statement should not be bitter or berating, the defendant should be advised of why a judge has decided upon a certain course of conduct in his sentencing procedure. Fourth, a statement of reasons on the record is essential for our appellate review of the case. Id. § 2.3, Comment e, pp. 44-47 (1967), in Young, supra, 272 Pa.Superior Ct. at 86, 414 A.2d at 681-2.

Thus, confining our review of the lower court’s reasons for imposing sentence to those on the record at the Sentencing Hearing, we are left with the Court’s statement that “any lesser sentence would depreciate the seriousness of the offense.” While this is one of several considerations for the imposition of total confinement (42 Pa.C.S.A. § 9725), this court has previously held that upon imposing a sentencing of total confinement, rather than partial confinement, a sentencing judge may not merely state that a lesser sentence would depreciate the seriousness of the crime. Rather, the judge must state, with reference to the record, why he believed that would be so, for only then will the appellate court be able to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information. Commonwealth v. Farrar, 271 Pa.Superior Ct. 434, 413 A.2d 1094 (1979).

Therefore, because the reason given for the lower court’s imposition of sentence does not comport with Commonwealth v. Riggins, we are constrained to vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated and case remanded for resentencing. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

CIRILLO, J., files a dissenting opinion in which WIE-AND, J., joined.

WIEAND, Judge,

dissenting:

I agree with the majority that perfect compliance with the mandates of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Pa.R.Crim.P. 1405(b) can be achieved if the sentencing court will place a full statement of the reasons for its sentence on the record at the time when sentence is pronounced. However, sentencing proceedings are not concluded irrevocably when sentence is initially imposed; they continue even through appellate review. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982). Thus, Pa.R.Crim.P. 1410 provides for a written motion to modify sentence and is intended to provide the sentencing court with an opportunity to correct mistakes in its orders prior to review by an appellate court. The means by which errors can be corrected by the sentencing court have not been rigidly limited or narrowly defined by substantive or procedural rule of law.

In the instant case, the sentencing judge, who had accepted a negotiated plea of guilty to incest, while a charge of rape was nolle prossed, said that a sentence of imprisonment was necessary because “any lesser sentence would depreciate the seriousness of the offense.” The defendant filed a motion to modify the sentence in which he alleged that the court’s sentence was excessive and its reasons therefor inadequate. The trial court dismissed the post-sentencing motion, explaining that it had also considered, in determining the sentence, those alternatives and guidelines set forth in the sentencing code, including the age of the defendant and the youth of his niece-victim and also the fact that the offense had occurred “about seventeen (17) days after [defendant] was released from State Parole on a previous State sentence____” These facts have not been disputed by the defendant.

The majority holds that the additional reasons cited in the court’s order may not be considered during appellate review because they were not recited in appellant’s presence. Therefore, the majority remands so that the court may repeat its recorded reasons in appellant’s presence. After the sentencing court has done so, the majority implies, a second appeal may be filed in which this Court will then review the sentence imposed. In my opinion, the additional procedural step imposed by the majority is unnecessary in this case and attaches to Pa.R.Crim.P. 1405(b) a rigidity which exalts form over substance.

It may be, as the majority suggests, that there will be occasions when the facts relied upon by the sentencing court will be erroneous and when an appellant must be given an opportunity to correct or refute them. This is not such a case. Appellant’s concern in this case is not with the accuracy of the sentencing court’s reasons. His concern, rather, is that the court imposed a sentence of imprisonment, and he seeks to have that sentence reviewed and, hopefully, reversed. The sentencing court’s reasons for the sentence are now on the record; their accuracy is not in dispute. They are not only sufficient to achieve the goals enumerated by Riggins and by the American Bar Association Standards, but, most importantly, they are sufficient to permit appellate review of the sentence imposed. Therefore, I would conduct the sentencing review which appellant has asked us to make. Because I believe the majority’s remand serves only to delay unnecessarily an appellate review of the sentence, I must respectfully dissent.

The sentence imposed, in my judgment, was fully warranted by the facts and serious nature of the crime committed by appellant and also by his prior criminal record. Because I am unable to find any abuse of the trial court’s discretion, I would affirm the judgment of sentence.

CIRILLO, Judge,

The majority concludes that because the appellant was not present when the court gave additional reasons for the sentence imposed, the sentence must be vacated and the case remanded for resentencing. I respectfully dissent from the majority opinion. I would hold that the appellant does not have to be present when the court supplements its reasons for the sentence in response to the appellant’s Motion for Modification, Pa.R.Crim.P. 1410.

When the sentencing and post-sentencing reasons of the trial court are viewed together they are sufficient to meet the sentencing requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). The majority considers only the reasons given by the trial court at the sentencing and concludes that the reasons are insufficient. However, it is well within the discretion of this Court to consider the reasons for the sentence given by the trial judge in his denial of the defendant’s motion for modification of the sentence. Rule 1410 is designed to allow a sentencing court to correct or modify itself before the case is sent up to an appellate court.

The majority correctly states that “... no case specifically holds that the reasons ... be made within the presence of the defendant.” (At 23). The rationale in Riggins for giving the reasons for the sentence is persuasive. However, Riggins does not set up a rigid requirement that the defendant must be present when reasons are given regardless of whether there may be a more effective and efficient way to serve justice and the interests of the defendant. At sentencing it is in the best interest of justice and efficiency to have the defendant present. The same goals are not served by having the defendant present at a post-sentence supplementation of the reasons.

At first glance it would seem that one could make the same arguments for requiring the defendant to be present during the reconsideration procedure as could be made for requiring the defendant to be present during the sentencing. However, at sentencing the defendant must be present so that he can exercise his right to allocution and so that the court may advise the defendant of his various post-sentence rights. Since the defendant must be present for other related sentencing reasons, it is sensible to require the court to give the reasons for the sentence in order to promote both the efficient and direct resolution of the case in a just manner. No such additional reasons exist for requiring the defendant to be present during a post sentence supplementation of the reasons. Requiring the defendant to be present when the court supplements its reasons would produce additional expense in transporting the defendant to the courthouse and in holding another hearing. It would also consume valuable court time and would generally hinder the court’s resolution of the case.

It would be more sensible to have the additional reasons for the sentence filed and a written copy given to the defendant and his attorney. The defendant would have the opportunity to examine the judge’s reasons outside of the courtroom setting and would certainly not be precluded from correcting any mistaken information used in determining the sentence. Moreover, having a written copy of the reasons for sentence given to the defendant would also serve the same therapeutic effect as having the reasons read to the defendant.

In the present case there is no reason why the appellant should have been present nor why the sentence should be vacated and remanded for resentencing. The appellant’s challenge to the sentence is based solely on the legality of the sentence. The appellant argues that: 1) the sentence was illegal; 2) the sentence was excessive; and, 3) there were insufficient reasons given for the sentence, all of which are issues appropriate for review by this Court. See Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970); Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981); Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980). The appellant does not challenge the facts upon which the sentence was based. Considering that the judge was provided with all of the pertinent facts before he sentenced the appellant, and that he placed sufficient reasons for the sentence throughout the record, a remand for resentencing would be a useless gesture. As Judge Hester has succinctly stated:

... a remand is not necessary whenever it is apparent from the record that such would be “a mere procedural exercise.” [Commonwealth v.] Grant [235 Pa.Super. 357, 341 A.2d 511 (1975)], supra, i.e., no change in the sentence would result. See also, Commonwealth v. Senyszyn, [266] Pa.Super. [480], 405 A.2d 535 (1979); Com monwealth v. Guenzer, 255 Pa.Super. 587 fn. 2, 389 A.2d 133 fn. 2 (1978).

Commonwealth v. Thomas, 278 Pa.Super. 39, 50, 419 A.2d 1344, 1350 (1980).

Therefore, since the legislature and the Supreme Court of Pennsylvania do not specifically require the defendant to be present when the trial court, subsequent to sentencing, supplements its reasons for the sentence imposed, I would not burden the court with this added procedure which hinders the prompt rendering of justice.

WIEAND, J., joins in this dissenting opinion.

      . 18 Pa.C.S.A. § 4302. In exchange for appellant’s plea, the charge of rape was nolle prossed.

      . This appeal was certified by a panel of our court as involving a question of such importance as to merit consideration by the Court En Banc.

      . A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

      . At the time of sentencing, the judge shall ... state on the record the reasons for the sentence imposed.

      . See also Commonwealth v. Giles, 303 Pa.Superior Ct. 187, 449 A.2d 641 (1982), Commonwealth v. Aldinger, 292 Pa.Superior Ct. 149, 436 A.2d 1196 (1981), Commonwealth v. Taylor, 290 Pa.Superior Ct. 362, 434 A.2d 794 (1981), and Commonwealth v. Cappiello, 284 Pa.Superior Ct. 476, 426 A.2d 146 (1981).

      . The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
      (1) there is undue risk that during a period of probation or partial confinement that defendant will commit another crime;
      (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
      (3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

      . Thus, we are not able to address appellant’s contention that the sentencing judge abused its discretion in imposing a sentence that was excessive.


author: LIPEZ, Judge:

text:
    467 A.2d 877
    John Marion ADKINS v. EMPIRE KOSHER POULTRY, INC. and Red-White Mills, Inc. Appeal of RED-WHITE MILLS, INC.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Filed Nov. 4, 1983.

      Arthur Berman, Harrisburg, for appellant.
    Fred T. Cadmus, III, West Chester, for appellee.
    Before PRICE , WIEAND and LIPEZ, JJ.

       PRICE, J., did not participate in the consideration or decision of this case.

   LIPEZ, Judge:

Defendant Red-White Mills, Inc. filed this appeal from an order dismissing preliminary objections to personal jurisdiction. While an order dismissing preliminary objections is clearly interlocutory, this appeal could properly be taken if the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, were applicable. City of Philadelphia v. Franklin Smelting and Refining Company, 303 Pa.Super.Ct. 393, 394-95, 449 A.2d 745, 745-46 (1982), petition for allowance of appeal denied. However, insofar as it dealt with questions of personal jurisdiction, the 1925 Act was repealed and supplanted when new Rule of Appellate Procedure 311(b) became effective on April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978); see DiSanto v. Dauphin Consolidated Water Supply Company, 291 Pa.Super.Ct. 440, 442-43 n. 1, 436 A.2d 197, 198 n. 1 (1981). This appeal was taken long after the effective date of Rule 311(b), and none of the requirements of Rule 311(b) has been satisfied. The interlocutory order is therefore nonappealable, and the appeal must be quashed. 42 Pa.C.S. § 704(b)(2); City of Philadelphia v. Franklin Smelting and Refining Company, supra.

Appeal quashed.

      . Pennsylvania Rule of Appellate Procedure 311 provides in pertinent part:
      (b) Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter of jurisdiction over the person or over real or personal property if:
      (1) the plaintiff, petitioner or other party benefiting from the order files of record within ten days after the entry of the order an election that the order shall be deemed final; or
      (2) the court states in the order that a substantial issue of jurisdiction is presented.
      Pa.R.A.P. 311.


text:
    467 A.2d 878
    Walter JONES v. Joyce SEYMOUR, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1982.
    Filed Nov. 4, 1983.

      Irv Ackelsberg, Philadelphia, for appellant.
    William Lee Akers, Philadelphia, for appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal from an order denying appellant’s “Petition to Vacate Void Judgment.” We reverse, strike the judgment, and remand for further proceedings.

The litigation underlying the judgment involved a dispute over division of property in the wake of the annulment of the marriage between appellant Joyce Seymour and appellee Walter Jones. Jones brought this trespass action, alleging that Seymour had absconded with property to which he was entitled. The matter went to compulsory arbitration, resulting in a $2,008 award for Jones. Seymour filed an appeal for trial de novo in common pleas court, filing at the same time a certificate of readiness for trial. On July 12, 1979 Seymour withdrew the certificate of readiness. The docket entries from this point to the entry of judgment read as follows.

JUL 12 1979 By order of atty for deft. Seymour the Certificate of Readiness filed along with deft appeal from arbitration is hereby withdrawn — filed.
Jul 30, 79 Deposition notice filed.
Sep 28, 79 Rule on Walter Seymour Jones & Brenda Jones to Show Cause why they should not be compelled to appear and depositions scheduled by def Joyce Seymour Ret Oct 25 1979 10:30 A.M. RM 9079 P.C.
Eo die Petition filed
Oct 22, 79 Stipulation of counsel and approval of Court that Walter and Brenda Jones will appear and testify at depositions to be held Oct 30, 1979, at 2:30 P.M., or in the event of a continuance, at such time to which counsel agree, filed.
Eo die By the Court — Greenberg, J. — 10-10-79
Eo die NOTICE GIVEN UNDER RULE 236
NOV 16 1979 Judgment on the award in favor of Plft [sic] and against the deft in the amt of 2,008.00
Eo die NOTICE GIVEN UNDER RULE 236

There was no further activity in the case until May 19, 1981, when Seymour’s “Petition to Vacate Void Judgment” was filed. The Court below denied the petition, holding that judgment could not be stricken because Seymour had failed to show a fatal defect apparent on the face of the record, as required for a petition or motion to strike. See, e.g., Fox v. Gabler, 282 Pa.Super.Ct. 490, 495-96, 423 A.2d 351, 354 (1980).

Seymour contends the judgment should have been stricken, because the prothonotary’s lack of authority to enter judgment on the arbitration award is apparent on the face of the record. We agree. The prothonotary’s authority to enter judgment could only derive from construing the July 12, 1979 docket entry as representing a withdrawal of the entire appeal, and not just withdrawal of the certificate of readiness. It is clear that only the certificate of readiness was withdrawn, because the docket entries after July 12 indicate a continuation of discovery procedure, including a stipulation on October 22, 1979, involving counsel for both sides and court approval as well. Since only the certificate of readiness was withdrawn, the appeal from the arbitration award was still properly pending in common pleas court, and the prothonotary had no authority to enter judgment on the award.

Seymour also argues that denial of her petition cannot be justified on the basis of her 18-month delay in filing the petition. We must agree, because our Supreme Court has unanimously held that unauthorized entry of judgment by the prothonotary renders the judgment void, and that such a judgment must be stricken without regard to the passage of time, if its defectiveness is apparent on the face of the record. Romberger v. Romberger, 290 Pa. 454, 139 A. 159 (1927). We must therefore reverse the lower court’s refusal to strike the judgment.

Order reversed, judgment stricken and case remanded. Jurisdiction relinquished.

      . The problems engendered by the rule that laches cannot run against a "void” judgment has been the subject of much thoughtful commentary by Judge (now President Judge) Spaeth. See Tice v. Nationwide Insurance Company, 284 Pa.Super.Ct. 220, 228-38, 425 A.2d 782, 787-92 (1981) (concurring opinion); Strickler v. United Elevator Company, 257 Pa.Super.Ct. 542, 551-55, 391 A.2d 614, 619-20 (1978) (concurring Opinion); see also Provident Credit Corporation v. Young, 300 Pa.Super.Ct. 117, 127, 446 A.2d 257, 262 (1982) (majority en banc opinion finding it unnecessary to reach issue of whether laches can run against void judgment). We note that while there are recent cases in which this court applies the rule, e.g., Graham v. Kutler, 275 Pa.Super.Ct. 188, 191, 418 A.2d 676, 677 (1980), the Supreme Court cases which fashioned the rule are fairly old. The time may be ripe for the Supreme Court to review whether the rule is still appropriate.


text:
    467 A.2d 880
    V.B., Appellant v. M.L.T.B.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1982.
    Filed Nov. 4, 1983.

      Robert I. Whitelaw, Philadelphia, for appellant.
    Alvin J. Bello, Philadelphia, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

V.B., the father of four-year-old Y.D.B., appeals from the trial court’s order awarding primary custody of his son to the child’s mother and giving him custody only on alternate weekends and six weeknights per month. We find that the record developed by the lower court was inadequate to have enabled it to determine the best interests of the child in this case and we therefore vacate the order and remand for further proceedings.

Appellant and appellee were married on February 26, 1977 and their one child was born on October 31, 1978. When the parties separated on September 10, 1981, appellee and the child moved into her mother’s home while appellant remained in the marital residence. The child has lived with his mother and maternal grandmother since that time. Pri- or to these proceedings, appellant had physical custody of the child, under an agreement between the parties, every Wednesday night and at least part of every weekend, alternating an entire weekend with Saturday night to Sunday night only.

On November 10, 1981, appellant filed a petition for Writ of Habeas Corpus, seeking custody of his son. At the hearing on this petition, appellant testified that he is 27 years old and is employed as a plumber with working hours from 7:00 a.m. to 4:00 or 4:30 p.m. Monday through Friday. He stated that if he had custody of the child, the child would stay with his paternal grandmother during the week at the grandmother’s home, where he would have his own bedroom. Appellant would be with him there in the evenings and would be able to stop to see him during the day since the shop where he works is only a few blocks away. On weekends, the child would stay at the marital residence with appellant. Appellant expressed a great deal of love and concern for the child and indicated that he wishes to have a more active role in the child’s upbringing. He also stated that appellee has a very good relationship with their son. His only disagreement with her care of the child was in the matter of discipline. He felt that both appellee and her mother are too lax with the child and that they deal with behavior problems by distracting or bribing him. Appellant testified that he would be stricter and would discipline the child when it was called for. Appellant’s only objection to the maternal grandmother’s home, where the child now lives, was that the child has no bedroom of his own and must sleep with his mother. He said, however, that he believed the child would eventually have his own room when one of the spare bedrooms has been cleaned out. Appellant also testified emphatically that he does not want to take the child away from his mother, that he knows the child loves and needs both parents, and that he would allow liberal visitation if he were awarded custody.

Appellant’s evidence also included the testimony of three witnesses: a child psychologist, a neighbor, and appellant’s mother. Dr. Merrill David Paletz, a clinical psychologist specializing in children and families, testified that he had observed appellant and the child during a two-hour scheduled visit to the marital residence. He stated that he had observed a very close relationship between appellant and his son and that appellant had participated with the child in play activities as well as getting him his meals and disciplining him when necessary. He also testified that the child appeared to be functioning normally for his age. He stated that, in his opinion, appellant is a “very adequate parent in terms of all aspects of child rearing” and is capable of handling either sole custody of the child or a shared custody arrangement. He also gave his opinion that a shared custody situation in which the child spent a week with each parent in alternation would be a good arrangement for the child while alternate weekends and one night a week with appellant would not provide the child with sufficient contact with his father. The psychologist had not met or observed appellee, however, nor had he met either of the child’s grandmothers or visited their homes.

Carmen Carangi, a neighbor of the marital residence, testified that he is a friend of both parties and that both are very good parents. He stated, however, that he felt that the child’s mother is reluctant to correct the child when it is needed.

Appellant’s mother testified that she was 55 years old and a housewife. She stated that she would be willing and available to take care of her grandson all day on weekdays if custody were awarded to her son, and that she felt that she was able to care for him adequately. She also testified that she thought that both parties were good parents and that the child loved them both.

The only evidence presented by the appellee was the testimony of appellee herself. She stated that she lives with her mother and son in her mother’s four-bedroom home. She is employed as a computer processor and works from 9:00 a.m. to 5:00 p.m. on Tuesdays, Wednesdays and Thursdays. She is at home with her son on Mondays and Fridays. Her mother, who is 60 years old, cares for the child on appellee’s work days and works two or three days a week on the days that appellee is at home. Appellee stated that her son does not have his own room, but that she is in the process of getting furniture so that he will eventually have a bedroom to himself. She expressed love and concern for the child, acknowledged that he loves and needs his father, and stated that appellant has been a good father. She stated, however, that she felt that the custody arrangement that she and appellant had previously agreed on was unfair because appellant had the child every weekend. She felt that since she works during the week, she should also have the opportunity to spend some entire weekends with her son. She testified that she felt she should have primary custody because she had always assumed the main role in caring for the child, but that she would be willing to let appellant have custody on alternate weekends and one or two evenings a week.

Based on this record, the trial judge entered his order awarding primary custody to appellee and shared custody on alternate weekends and six evenings a month to the appellant. We think it clear that appellee’s evidence, which consisted only of her testimony and covered fewer than 25 pages of the 134-page hearing transcript, was inadequate to enable him to compare the living situations offered by the two parties and to accurately determine the best interests of the child.

It is settled that the paramount concern in a child custody proceeding is to determine the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super.Ct. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super.Ct. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super.Ct. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record[] Scarlett v. Scarlett, 257 Pa.Super.Ct. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super.Ct. 225, 363 A.2d 1242 (1976) .... In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super.Ct. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to máke a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super.Ct. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super.Ct. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and a full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super.Ct. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.

Lewis v. Lewis, 267 Pa.Super.Ct. 235, 240-41, 406 A.2d 781, 783-84 (1979). See also, J.F.G. v. K.A.G., 278 Pa.Super.Ct. 25, 419 A.2d 1337 (1980).

This record is incomplete in several ways. It lacks the crucial testimony of appellee’s mother, with whom the child would live and who would assume the care of the child a good deal of the time if custody were awarded to appellee. Without this testimony, the court was unable to assess properly her attitude toward the child and her willingness and ability to share in his care. J.F.G. v. K.A.G., supra, 278 Pa.Superior Ct. at 29, 419 A.2d at 1339, citing Summers v. Summers, 273 Pa.Super.Ct. 285, 294, 417 A.2d 651, 655-56 (1979); Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977). Also lacking was testimony by disinterested witnesses, social workers or investigators as to the child’s relationship with his mother, his relationship with his maternal grandmother or either of his paternal grandparents, his living conditions at the home shared by his mother and maternal grandmother and his living conditions at the home of his paternal grandparents, where he would spend his weekdays and at least some nights if custody were awarded to his father. In the face of these omissions, we are unable to accept the lower court’s conclusions as to where the child’s interests lie. We will therefore vacate its order and remand for further proceedings.

In light of the delays which have already occurred in the disposition of this appeal and the fact that there is no prior custody order which will go into effect when we vacate this order, the lower court is directed to conduct the necessary hearings and to make disposition of this case on remand as expeditiously as possible.

Order vacated; case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Neither the order nor the opinion of the lower court makes it clear whether the father’s rights were to be to shared physical custody only or to both shared physical custody and shared legal custody. See 23 P.S. § 1003. (defining terms) If, after further proceedings, shared custody continues to appear appropriate, see In re Wesley J.K., 299 Pa.Super.Ct. 504, 445 A.2d 1243 (1982) (delineating four factors which, if present, militate in favor of ordering shared custody), the court should specify which type of shared custody is being awarded.
      We also note our agreement with the lower court’s statement that shared custody does not necessarily mean equal time. The definition of shared custody in the Custody and Grandparents Visitation Act, Act of Nov. 5, 1981, P.L. 322, No. 115, 23 P.S. §§ 1001 ff, is, “[a]n order awarding shared legal or shared physical custody or both of a child in such a way as to assure the child ... of frequent and continuing contact, including physical access, to both parents." 23 P.S. § 1003 [emphasis supplied]. It is clear that frequent and continuing contact may be assured by many custody arrangements other than that which gives each parent an equal number of days or hours with the child. As in any custody case, however, the hearing judge must support his order with a comprehensive opinion which contains a specific analysis of the testimony and the law and specific reasons for his ultimate decision. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 245, 447 A.2d 630, 633 (1982). In a shared custody case, this opinion should also include reasons for the specific division of custody ordered by the court.

      . We recognize that the issue of the proper scope of review to be applied in custody cases is presently before our en banc court in the case of In re Donna Williams, 674 Pittsburgh, 1981, argued May 10, 1983. The record here, however, whether reviewed under an abuse of discretion standard or under a broader standard of review, is insufficient to enable the judge to determine the child’s best interests and enter a proper custody order. Thus a different scope of review could not affect the result in this case.

      . Appellant contends that the lower court supplied information missing from the record by applying the discredited tender years presumption. The record is far from clear on this issue, and, in light of our disposition of this case, we need not decide whether the presumption was in fact employed by the trial court. We do note, however, that reliance on that doctrine in deciding this case on remand would constitute reversible error. J.F.G. v. K.A.G., supra, 278 Pa.Super. at 30, 419 A.2d at 1339-40, citing Sipe v. Shaffer, supra.

      . In light of the incomplete state of the record, we are, of course, unable to reverse the lower court’s order and enter our own, as appellant requests. Moreover, we see no indication in the record that the hearing judge was so biased as to be incapable of rendering an impartial adjudication of this case. The conduct of the hearing judge here is far from demonstrating the type of prejudice shown by the judge in Milligan v. Davison, 244 Pa.Super.Ct. 255, 367 A.2d 299 (1976), which caused a minority of this court to call for assignment of that case to a different judge on remand.


author: PER CURIAM:

text:
    467 A.2d 884
    COMMONWEALTH of Pennsylvania v. Clifton Leroy BLACK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Nov. 4, 1983.

      John D. Finchbaugh, Assistant Public Defender, York, for appellant.
    William Scott Sandusky, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   PER CURIAM:

Appellant robbed Thomas Schmuck of $204 by holding a knife to Schmuck’s throat and threatening his life. Appellant was charged with robbery and pled nolo contendere. York County Judge Joseph E. Erb refused to accept the plea bargain appellant had worked out with the district attorney. Appellant stood on his plea, and on June 6, 1980, Judge Erb sentenced him to serve three to six years in a state penitentiary. Appellant challenges the judgment of sentence.

It is well settled that Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980); Commonwealth v. Ellison, 293 Pa.Super. 329, 439 A.2d 136 (1981). In order to constitute an abuse of discretion, a sentence must either exceed statutory limits or be manifestly excessive. Commonwealth v. Casuccio, 308 Pa.Super. 450, 454 A.2d 621 (1982); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982).

Since appellant’s sentence does not exceed statutory limits for the offense of robbery, we must decide whether the sentence is for some other reason manifestly excessive. Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981).

Appellant argues that Judge Erb did not adequately take into account several factors militating in favor of a lighter sentence than the one imposed. Appellant mentions his background of abuse from an alcoholic father; the fact that appellant himself has alcohol and drug problems which he has taken steps to alleviate; his prior criminal record involving only three relatively minor offenses; his good institutional record; and his rehabilitative needs.

We believe the record amply demonstrates that Judge Erb did take all these factors into account; in addition, the judge considered appellant’s recent embracement of the Moslem faith, and the salubrious effect this could be expected to work on appellant’s rehabilitation. However, Judge Erb was more impressed with the violent and precarious nature of the crime committed. The judge stressed appellant’s extreme intoxication at the time of the robbery, and how appellant’s holding a knife to Schmuck’s throat in such a state could easily have resulted in far graver injury than the cuts to the hand that Schmuck actually suffered.

Judge Erb sufficiently stated his reasons for the sentence on the record, and we can find no abuse of discretion. We add that the sentence comports with the general principle of the Sentencing Code, “that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b).

Affirmed.


author: CERCONE, President Judge:

text:
    467 A.2d 886
    COMMONWEALTH of Pennsylvania v. Muhammad K. EL-AMIN, a/k/a Quintin A. Wigfall, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed Nov. 10, 1983.

      James Lee Goldsmith, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Muhammad K. El-Amin a/k/a Quintín A. Wig-fall, takes this appeal from the dismissal without a hearing of appellant’s second Post Conviction Hearing Act (PCHA) petition. Appellant now argues that the court erred in dismissing his petition without a hearing. We agree and, accordingly, we remand for a hearing.

On May 18, 1978, appellant pleaded guilty to charges of aggravated assault, recklessly endangering another person and theft by receiving stolen goods. Pursuant to a plea agreement, appellant received a sentence of one and one-half to five years on the aggravated assault charge and two concurrent terms of one to two years on the remaining charges. No appeal was taken from these sentences.

Subsequently, on November 20, 1978, appellant filed a pro se PCHA petition, and the court appointed counsel to represent appellant in this matter. Whereupon, counsel filed an amended PCHA petition, but the court dismissed the petition without a hearing. An appeal was taken but was discontinued by appellant on March 14, -1980.

On March 20, 1981, appellant filed a second pro se PCHA petition. Court again appointed counsel to assist appellant, and counsel filed the herewith petition alleging then, as now, that appellant’s first PCHA counsel was ineffective because counsel coerced appellant into dropping his appeal by telling appellant that he would receive a harsher penalty if his guilty plea were withdrawn and appellant were convicted at trial. The Commonwealth attempts to refute this argument, contending that it was appellant who initiated the discontinuance of his appeal by sending a letter to his attorney to that effect. The Commonwealth further claims that prior counsel contacted appellant to confirm the letter and as a result petitioned the Superior Court to discontinue the appeal. To substantiate its argument, the Commonwealth refers this Court to “Exhibit 1.” The record, however, does not contain a copy of “Exhibit 1.”

In relevant part, the Post Conviction Hearing Act then provided:

To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 and must prove the following:
(d) That the error resulting in his conviction and sentence has not been finally litigated or waived.

The Act of January 25, 1966, P.L. (1965) 1580, § 3, 19 P.S. § 1180-3.

Section 4 of the PCHA further stated, in pertinent part:

(a) For the purposes of this act, an issue is finally litigated if:
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling____
(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understandingly failed, to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act...

19 P.S. § 1180-4.

The relevant portion of section 9 read:

If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

19 P.S. § 1180-9.

With regard to appellant’s case, we first note that the issue of prior PCHA counsel effectiveness has not been finally litigated or waived since this second PCHA petition is the first time appellant could raise the issue. Whether appellant should have been allowed an evidentiary hearing, however, is a separate issue. The cases have held that a post-conviction claim of ineffective assistance of counsel does not require an evidentiary hearing absent allegation of facts sufficient to support such complaint. Commonwealth v. Oliver, 280 Pa.Superior Ct. 274, 421 A.2d 719 (1980). A review of appellant’s PCHA petition and the Commonwealth’s answer to the petition reveal a disputed issue of fact: to wit, whether it was appellant or his attorney who initiated the decision to withdraw the appeal, and what statements did counsel make in connection therewith. The Commonwealth contends that even if appellant’s attorney told him that he would get a harsher sentence if he withdrew his plea, appellant has failed to show that counsel “misstated the facts.”

Assuming arguendo that appellant’s version of the facts is accurate, it thus comes down to the oft cited test of effectiveness of counsel — whether the course of action chosen by counsel was designed to best effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The answer lies in the accuracy of counsel’s advice, assuming that counsel did tell appellant that the withdrawal of his guilty plea would result in a greater sentence.

In the case of Commonwealth v. Ward, 493 Pa. 115, 425 A.2d 401 (1981) (plurality), it was ruled that where a guilty plea, which was entered pursuant to a plea agreement, is later withdrawn, the Commonwealth does not violate double jeopardy or due process when, on retrial, it reinstates charges that previously had been dropped under the now voided agreement.

Though not cited in the Ward opinion, the same result under similar facts was reached by this Court in Commonwealth v. El, 273 Pa.Superior Ct. 1, 416 A.2d 1058 (1979). Regarding the reinstatement of charges on remand, we wrote:

The defendant successfully petitioned the lower court for permission to withdraw his guilty plea and he cannot now be heard to complain that a subsequent prosecution placed him in double jeopardy. The defendant should not be permitted to benefit from his withdrawal of his guilty plea. If he is successful in withdrawing his guilty plea, there is no reason why he should not then face trial on the original charges as was done on this case.

Id., 273 Pa.Superior Ct. at 9, 416 A.2d at 1063.

Neither El nor Ward, however, specifically addresses itself to a situation such as that presented by appellant’s case, where no charges were dropped under the original plea agreement, and the Commonwealth in its brief does not cite any cases which make such a ruling.

Thus, while it may be a possibility, it does not appear to be a certainty that appellant would get a greater sentence if he withdrew his guilty plea and went to trial. Since the record does not reveal whether it was appellant who insisted upon discontinuing his appeal or whether appellant’s prior counsel convinced appellant to do so on the basis of arguably- erroneous legal advice, appellant’s case must be remanded for a hearing on this matter.

Remanded for a hearing. This court does not retain jurisdiction.

      . The Post Conviction Hearing Act has since been substantially reenacted by the Act of 1982, May 13, P.L. 417, No. 122, § 2, 42 Pa.C.S. § 9541 et seq. (1982).

      . 42 Pa.C.S. § 9543(4).

      . Id. at § 9544(a)(1), (b)(1).

      . Id. at § 9549(a), (b).

       Appellant also argues that his guilty plea was unlawfully induced. We do not address this issue because we find this to be an issue which should have been raised in appellant’s first PCHA petition.


text:
    467 A.2d 888
    COMMONWEALTH of Pennsylvania v. Randy L. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed Nov. 10, 1983.
    Petition for Allowance of Appeal Denied March 2, 1984.

      William C. Dissinger, Marysville, for appellant.
    R. Scott Cramer, Assistant District Attorney, New Bloomfield, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Randy Smith, takes this appeal from the order of the trial court denying appellant’s pre-trial motion to dismiss on double jeopardy grounds. Appellant argues that the lower court erred in refusing this motion where appellant’s first trial, a non jury trial, was halted by the trial judge’s sua sponte order directing the withdrawal of appellant’s jury trial waiver. We find appellant’s argument to be without merit and accordingly affirm the trial court’s order dismissing appellant’s pre-trial motions.

On November 2, 1982, appellant appeared in court and waived his right to a trial by jury, whereupon on November 7, 1982, appellant’s trial commenced before the court sitting without jury. Attorneys for both the Commonwealth and the defense made their opening statements. The Commonwealth then called its first witness to the stand and began direct examination. It was during the testimony of this witness that the judge halted the proceedings and stated his intention to order the withdrawal of appellant’s jury trial waiver. In relevant part, the record contains the following statements:

THE COURT: In any criminal proceeding a person accused of a crime has numerous rights, various rights, one of which is to a trial. Now a trial is normally a trial by jury but in some circumstances that trial by jury can be waived. Until about six weeks ago the Commonwealth had a right to a jury trial. It is extremely unfortunate in my opinion but nevertheless I’m not the Supreme Court. Accordingly, the Commonwealth in this case was precluded from asking for a jury trial. Defense attempted to waive the jury trial, I accepted that waiver, and I’ll admit here and now that whenever a trial court is requested to waive a trial by jury that that frequently is looked upon favorably because jury trials are a lot more cumbersome and time consuming and difficult to manage than nonjury trials. However, there is a fundamental difference between a jury trial and a judge trial and that is that obviously there are twelve jurors that have to be convinced that the burden of proof has been carried beyond á reasonable doubt whereas in a judge trial only one person, that being the judge, needs be convinced. Now normally that’s not much of a problem but — and this is where I think I perhaps owe all you folks a degree of an apology. I think 1 should have studied this case a little more and I think had I done that I would have probably recognized the names because I certainly recognize the faces of most everybody in the courtroom here today. We’ve had a lot of experience with some of you folks, more than others and some not. I agree. Now I frankly question my ability to be objective in this case and would feel better that the matter be submitted to a petit jury. Accordingly, under Rule 1102 of the Rules of Criminal Procedure, I have the authority at any time prior to verdict to cause the withdrawal of the waiver of jury trial and direct trial by jury, and I think I’m disposed to do that. Do either counsel want to try to talk me out of it?
MR. CRAMER: The Commonwealth doesn’t.
THE COURT: You wanted a jury trial all along, is that right?
MR. CRAMER: Yes, we did, Your Honor.
MR. DISSINGER: Your Honor, we’re prepared to proceed today; however if it is your wish, and it certainly is within your discretion to cause the withdrawal of the waiver of a jury, we would then at that point request on behalf of Mr. Smith and Mr. Palmer a trial by jury, (emphasis added)

Thereupon, the court ordered a withdrawal of the waiver of jury trial and ordered the case to a new trial before a jury.

Appellant argues that the ordering of a new trial in this violates the constitutional prohibition against double jeopardy. In support, appellant cites a decision by our Court in Commonwealth v. Culpepper, 221 Pa.Superior Court 472, 293 A.2d 122 (1972). In Culpepper, the trial court, sitting without a jury, halted trial after a number of witnesses for the Commonwealth had finished testifying. The trial court indicated that it was of the opinion that certain credibility issues could better be resolved by a jury, and the court, over objection by defense counsel, ordered the withdrawal of appellant’s waiver of jury trial and the court further directed that at later time a new trial should commence before a jury. The trial court gave as it authority for so ruling Pennsylvania Rule of Criminal Procedure 1102(b), which provides, then, as now:

At any time prior to the commencement of trial the defendant may withdraw his waiver of a jury trial. Thereafter, at any time prior to verdict the trial judge on his own motion may order the withdrawal of such waiver or permit the defendant, upon motion, to withdraw his waiver.

In our opinion in Culpepper, we cited our Supreme Court’s decision in Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971), wherein the Court held that subjecting a defendant to trial after a mistrial places the defendant in double jeopardy unless the original mistrial was the result of- “manifest necessity” or was requested by the defendant under circumstances not attributal to prosecution or judicial overreaching. The Ferguson Court, in turn, relied upon the United States Supreme Court’s opinion in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 548, 27 L.Ed.2d 543 (1971), which in part said:

... in the final analysis, a judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe is favorably disposed to his fate.

Because in Culpepper it was clear that jeopardy had attached to the accused at his first, non-jury trial, we noted that the only issue before us was whether the mistrial in the defendant’s case was the result of “manifest necessity”. We pointed to the fact that case law provided that a judge is as competent to decide issues of credibility as is a jury, and for that reason we allow defendants to waive their right to trial by jury. As regarding the situation in Culpepper, we ruled that since there were doubts as to the manifest necessity of granting the mistrial at issue, these doubts must be resolved in favor of the defendant. As we wrote in Culpepper:

In light of these recent decisions concerning the constitutionality of retrial after mistrial, it is apparent that Rule 1102, insofar as it relates to a trial judge on his own motion ordering the withdrawal of a defendant’s waiver of jury trial, must be declared constitutionally invalid and of no force and effect. Rule 1102 contains no standards for a trial judge to use in determining whether a defendant’s waiver of jury trial should be ordered withdrawn. Without such standards the Rule cannot form the basis for a judge’s declaration of a mistrial upon his own motion.

221 Pa.Superior Court at 477, 293 A.2d at 124. (emphasis in original.)

Turning, now to the case sub judice, we conclude that appellant’s case is distinguishable from that in Culpepper, for unlike in Culpepper, in the instant case the trial judge ordered a mistrial not because of a creditability issue but because the judge candidly questioned his ability to be objective. As the United States Supreme Court wrote on double jeopardy in Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963), “Discovery by the judge during a trial that a member or members of the jury were biased pro or con one side has been held to warrant discharge of the jury and direction of a new trial.” In appellant’s case, the trial judge sitting as the factfinder recognized that he had a bias and on that basis ruled a mistrial. In a situation such as this, a mistrial clearly was a “manifest necessity” and thus a new trial would not violate appellant’s double jeopardy rights.

Accordingly, we affirm.

      . Appellant may appeal from the above order under Pa.R.App.Pro. 311(a)(5).

      . The Commonwealth contends that appellant has waived his double jeopardy issue because defense counsel did not specifically object on double jeopardy grounds to the ordering of a mistrial. Our Supreme Court has ruled that the mere failure to state the reason for an objection or to make a correct specific objection cannot be viewed as a request for or a consent to a mistrial Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976); Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964). In appellant’s case, defense counsel did not consent to the mistrial but rather stated that the defense was ready to proceed and further stated that it was within the discretion of the trial judge to order the withdrawal of appellant’s waiver of a jury trial.


author: HESTER, Judge:

text:
    467 A.2d 891
    Blaine ATKINS and Jean Eresh Atkins, His Wife, James Balog, Jr. and Regina L. Balog, His Wife, Nicholas G. Gomarac and Pauline A. Gomarac, His Wife, John F. Gorman, Jr. and Bridget E. Gorman, His Wife, Glenn F. Jackel, Jr. and Alice J. Jackel, His Wife, Donald A. Kushner and Marilyn E. Kushner, His Wife, Richard V. Landers and Dawn Landers, His Wife, James Miller and Jean Miller, His Wife, Ronald R. Mink and Sandra M. Mink, His Wife, Richard A. Monk and Rose Marie Monk, His Wife, Robert P. Rodgers and M. Goldie Rodgers, His Wife, Shuster’s Builders Supplies, Inc., James T. Stafford and Phyllis J. Stafford, His Wife, Andrew Zurovcik and Patricia Zurovcik, His Wife, John R. Bacco and Patricia A. Bacco, His Wife, v. A.R. PORE, a/k/a Ray Pore and Mildred L. Pore, His Wife, Eugene Pore and Violet L. Pore, His Wife, Campfield and Bourke, A Partnership. Appeal of A.R. PORE, a/k/a Ray Pore and Mildred L. Pore, His Wife.
    Superior Court of Pennsylvania.
    Argued June 9, 1983.
    Filed Nov. 10, 1983.
    Petition for Allowance of Appeal Denied April 4, 1984.

      Dennis J. Gounley, Greensburg, for appellants.
    Joseph F. Cassarino, Greensburg, for appellees.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

The plaintiffs-appellees in this equity action are homeowners in the Mil-Ray Acres Plan in Sewickley Township, Westmoreland County. They consist of fourteen (14) families, thirteen (13) of whom purchased lots directly from the defendants-appellants A.R. Pore and his wife Mildred. Also named as defendants, as agents for the Pores, were their son and daughter-in-law Eugene and Violet Pore, together with the real estate brokerage firm of Campfield and Bourke. Violet Pore’s motion for summary judgment was granted as was Campfield and Bourke’s motion for a judgment on the pleadings.

This equity action for specific performance was instituted by the appellees in an effort to have the two streets in their plan, Oak Creek Drive and Circle Drive, constructed to conform to the street and road specifications of said township. Appellees allege that appellants promised to improve said streets in order to induce appellees to purchase the lots in appellants’ plan. Further, appellees asserted at trial that appellants had promised to maintain said streets until such time as their maintenance was assumed by the township.

The testimony established that the streets at the time of trial were in a virtual impassable condition. Numerous potholes, deep ruts and projecting piles of material were found to not only be existing at the time of trial but to have existed since 1973, the time some appellees had purchased their lots. Testimony was provided which demonstrated that emergency vehicles at times could not travel these streets due to their condition. Moreover, these roads had become so hazardous that the Postal Service had discontinued mail delivery to the appellees’ homes in 1979. Further, appellees presented expert testimony which indicated that the conditions of the streets did not in any manner meet the township’s street and road specifications. It is also to be noted that the Court on the first day of trial viewed the streets in question.

Upon this evidence, the court, after making appropriate findings of fact and conclusions of law, issued the following Decree Nisi:

AND NOW, this 19th day of March, 1981, it is hereby ordered that the Defendants A.R. Pore and Mildred L. Pore complete the construction and surfacing of all roads and culverts in the Mil-Ray plan of lots in Sewickley Township, Westmoreland County, Pennsylvania, in such a fashion as to fully comply with the Sewickley Township street and road specifications. It is further decreed that the Defendants complete such construction and surfacing within one hundred twenty (120) days from the date hereof. This decree shall become a final order unless exceptions are filed within twenty (20) days from this date.”

Subsequently, appellants filed timely exceptions which were denied. It is from the denial of these exceptions that the appellants have filed this appeal.

Appellants raise two issues on appeal. These are: 1) whether the lower court erred in admitting into evidence oral testimony regarding promises made by the seller of lots (appellants) in a plan to the effect that the roads to be constructed in the plan would be constructed in accordance with township specifications; and 2) whether there was sufficient evidence to find that the selling of the appellants’ lots in the plan were induced by the promises of the appellants that the roads constructed in the plan would be constructed pursuant to the township specifications.

The appellants first contention concerns whether the Statute of Frauds bars the introduction into evidence of the oral agreement between many of the appellees and the appellants providing for the construction of the streets in the plan in accordance with township specifications. We find the reasoning employed by the court in Dudek v. Bigley, 4 Pa.D. & C.3d 92, 95 (1977), and the appellate authority cited therein to be persuasive regarding the resolution of this issue:

“The promise to pave these roads is collateral to the acquisition of this easement. An agreement to pave is merely an agreement for work and labor and, of itself, creates no new privilege in the use of the land. An agreement to pave a street is not a conveyance of an interest in land, so this action is not barred by the Statute of Frauds”. Pollyanna Homes, Inc. v. Berney [56 Cal.2d 676], 16 Cal.Rep. 345, 365 P.2d 401 (1961); Becker v. Lagerquist Brothers, Inc., 55 Wash.2d 425, 348 P.2d 423 (1960); Drew v. Wiswall, 183 Mass. 554, 67 N.E. 666 (1903).

Regarding appellant’s next allegation of error, we believe the lower court has correctly resolved this issue in stating:

“The defendants’ contention that the Statute of Frauds under the Uniform Commercial Code is applicable also lacks merit. The alleged promise was for the construction of a road or street; not as the defendant suggests for the sale and delivery of paving material. The Uniform Commercial Code deals only with the sale of goods. 12A P.S. Section 2-105.”

Appellants next assert that the parol evidence rule should have precluded the introduction into evidence of testimony regarding appellants’ promises to the appellees concerning the constructing of the roads in their plan to conform to township specifications. Again, we believe the reasoning expressed in Dudek v. Bigley, 4 Pa.D. & C.3d 92, 96 (1977), to be persuasive regarding the proper resolution of this issue:

“We find that the oral promises to pave the roads are independent and collateral to the deeds themselves and, therefore, may be shown without violating the parol evidence rule: Pollyana Homes, Inc., supra; Lagerquist Brothers, Inc., supra; Roof v. Jerd, 102 Vt. 129, 146 Atl. 250 (1929); Drew v. Wiswall, supra. The oral promises were made by defendant to induce plaintiffs to purchase the lots, but the silence of the deeds on the issue of road paving does not preclude evidence of these promises. Such promises do not contradict, alter or vary the terms of the deeds.”

Also, as noted by the lower court, this conclusion is bolstered by the fact that appellants entered into a written agreement with four appellees concerning the nature of the roads to be constructed in the plan even though their deeds and agreements of sale were similar to those entered into with the other appellees.

Appellants’ final contention concerns whether appellees proved by a preponderance of the evidence that appellants promised to provide streets in conformance with township specifications. The testimony, viewed in the light most favorable to appellees clearly establishes that appellees more than met their burden of proof. Appellees first presented a number of witnesses who testified either that appellants had promised, in contemplation by appellees of purchasing lots in appellants’ plan, that appellants would construct the streets in their plan to township specifications or that the streets would be accepted by the township within two years. Also, substantial testimony was presented by appellees’ concerning promises made to them by appellants to the effect that appellants would maintain the streets in the plan until they were accepted by the township.

Therefore, we conclude that the evidence offered by the appellees was more than sufficient to meet their burden of proof.

Order affirmed.

      . In considering this issue, we agree with the lower court that it was error and violative of the parol evidence rule to permit Atkins and Zurovcik to testify to any oral understanding which they had above and beyond their written agreement of December 12, 1973 with the appellants. Thus, we, like the court below, have not considered this testimony in our adjudication of this issue.