author: ROWLEY, Judge:

text:
    466 A.2d 185
    COMMONWEALTH of Pennsylvania v. John YORKGITIS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1983.
    Filed Sept. 30, 1983.

      John Halley, Pittsburgh, for appellant.
    Joel Marc Kaufman, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

      Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

Appellant, John Yorkgitis, appeals from the denial of his “Petition for Rule to Show Cause Why a Motor Vehicle Should Not Be Returned to Owner” brought pursuant to 75 Pa.C.S. § 7105(b). We affirm in part and reverse in part.

The procedural background of this case is as follows. On October 3, 1979, John Yorkgitis was arrested and charged with violating 75 Pa.C.S. § 7103(a) and (b), i.e., dealing in vehicles with removed or falsified numbers. The vehicle seized by the Commonwealth from appellant’s possession was a reconstructed Ford truck consisting of a 1974 Ford truck body and a later-model Ford truck chassis. Although the truck body contained a proper vehicle identification number, the number on the chassis had been welded and ground smooth so as to be totally obliterated. The case proceeded to trial, and at trial appellant’s demurrer to the evidence was sustained. Thereafter, counsel for appellant filed a “Petition for Return of Motor Vehicle” pursuant to 75 Pa.C.S. § 7105(b). A rule was issued upon the Commonwealth to show cause why the truck should not be returned to appellant. A hearing on the same was held on July 21, 1980, which resulted in the following order:

AND NOW, this 21st day of July, 1980, upon consideration of the foregoing Petition, it is hereby ORDERED, ADJUDGED AND DECREED that Detective Lennon of the Pittsburgh Police Auto Squad, or his alternate, shall return a certain 1974 Ford Truck bearing serial number SF25YCV07228PA to John Yorkgitis, together with the title, owner’s card and insurance card, upon approval of the Pa. State Police. No towing & poundage to be charged.
By the Court—
O’Brien, J.

In accordance with the trial court’s order, the vehicle was inspected by the Pennsylvania State Police who advised appellant by letter that the vehicle did not qualify for a reconstructed vehicle title because appellant had failed to produce the necessary indicia of ownership. Furthermore, the police informed appellant, because no reconstructed vehicle title could be issued, the truck could not be returned to him. After receiving this letter, appellant again petitioned the trial court for relief, this time entitling his petition as a “Petition for Rule to Show Cause Why a Motor Vehicle Should Not be Returned to Owner.” A rule was issued, and a hearing held on February 5, 1981. At the conclusion of that hearing, the trial court indicated that it would take the matter “under advisement.” On March 11, 1982, the trial court issued an order denying appellant’s second petition. This appeal followed.

On appeal, appellant raises two issues:

I. Whether the trial court erred in concluding that appellant had not met the requirements for the return of a vehicle under 75 Pa.C.S. § 7105(b)?
II. Whether the trial court’s order of July 21, 1980, directing return of the seized vehicle constituted a final, conclusive order which foreclosed relitigation of the matter?

I.

A petitioner who seeks the return of a seized vehicle under 75 Pa.C.S. § 7105 must prove his right to possession by a preponderance of the evidence. Petition of Allstate Ins. Co., 289 Pa.Super. 329, 433 A.2d 91 (1981). Except as provided for in 75 Pa.C.S. § 1002, all vehicles in the Commonwealth must be titled. 75 Pa.C.S. § 1001. They also must contain a vehicle identification number. 75 Pa.C.S. § 7101. In this case, the truck chassis attached to appellant’s 1974 truck body lacked both a title and an identification number. In order to support his claim that he was entitled to possession of the seized vehicle, appellant offered (1) a bill of sale showing that he had purchased a Ford truck chassis from an Edward Drozak for $800.00, and (2) testimony to the effect that he had applied for and received a replacement vehicle identification number plate from the Department of Transportation for the chassis. The Commonwealth, in rebutting appellant’s contentions, noted that the bill of sale submitted by the appellant contained no reference to any identification number, thus making it impossible to determine if the truck chassis described in the bill of sale was the truck chassis currently attached to appellant’s 1974 truck body. In addition, the Commonwealth noted that the name of the purported seller, Edward Drozak, provided no basis from which a true title history could be determined, since no titles or certificates of junk for a Ford truck had ever been listed in the Bureau of Motor Vehicle’s files as having been issued to such a person. As for appellant’s contentions with respect to his receipt of the replacement vehicle identification number plate, the Commonwealth observed that such plates cannot be used for reconstructed vehicles, and that the plate which was sent to appellant was issued only in response to misrepresentations made by appellant on a prior application, and, consequently, was void ab initio. Pennsylvania State Police v. Bradley, 6 Pa.Cmwlth. 637, 297 A.2d 554 (1972).

In light of this conflicting evidence, we cannot say that the trial court erred in determining that appellant had failed to meet his burden of proof in establishing a right to possession of the truck chassis. Nevertheless, we recognize that the appellant is caught in a “catch-22” type of situation, in that, the Commonwealth currently has possession of a truck body which he undeniably owns, but which is attached to a truck chassis for which ownership cannot be established. Because we can find no authority in the law for the Commonwealth’s continued possession of the truck body, to the extent that the trial court denied appellant possession of the same, it erred. As a consequence, we would direct the trial court to hold a hearing to determine some equitable method of restoring appellant’s property, or the present value thereof, to him.

II.

As for appellant’s second contention of error, we find nothing inconsistent in the trial court’s orders of July 21, 1980, and March 11, 1982. The order of July 21, 1980, conditioned any return of the seized vehicle upon approval of the state police. That approval was not secured, therefore, the provisions found in the July 21, 1980, order concerning return of the truck were rendered void.

Order affirmed in part and reversed in part. Case remanded for proceedings not inconsistent with this opinion.

Jurisdiction is relinquished.

      . Apparently, the "title” which was referred to in the trial court’s order of July 21, 1980, as being in the possession of the police was the title appellant held for the 1974 truck body. Appellant's ownership of the truck body was never disputed. Appellant never possessed a title for the truck chassis, nor had he ever sought, prior to this litigation, a reconstructed vehicle title.

      . There is testimony found in the record indicating that Mr. Drozak had died prior to the hearing, and, thus was unable to testify. There is also some testimony found in the record that Mr. Drozak routinely purchased vehicles without having title formally assigned to him.


source: Caselaw Access Project

author: McEWEN, Judge: JOHNSON, Judge,

license: Public Domain

text:
    466 A.2d 188
    Anthony MAIORANA and Jean Maiorana, Frank Maiorana and Linda Maiorana and Pocono Futures, Inc., Appellants, v. FARMERS & MERCHANTS BANK.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1982.
    Filed Sept. 30, 1983.

      Ronald Jay Smolow, Bensalem, for appellants.
    Edward B. McDaid, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge:

Appellants have taken this appeal from an order that (1) granted the petition of appellee to strike the default judgment upon which the Prothonotary had, pursuant to the praecipe of appellants, assessed damages in the amount of $225,800.00 or, (2) in the alternative, in the event that the order striking the judgment would be reversed during appellate review, granted the petition to open that default judgment. We affirm.

Appellee, in 1973 loaned, to appellant Pocono Futures, Inc., the sum of $45,000.00 which was partially secured by a mortgage on certain real estate situate both in Wayne County and Pike County, Pennsylvania, and which was further secured by the agreement of the individual appellants to serve as surety. Appellee proceeded to foreclosure and to execution upon the real estate, a proceeding that apparently had become the subject of intense litigation that was not concluded at the time of the entry of the order that is the subject of this appeal. Attorney M.E. Jones, a partner in a Wilkes-Barre law firm retained by appellee, represented appellee in the foreclosure proceeding, while Attorney H.M. Biglan of Susquehanna County represented appellants.

Attorney Biglan filed on March 16, 1977, in the Common Pleas Court of Philadelphia County, the complaint upon which the default judgment we here study was entered. That complaint is aptly described in the opinion of the hearing judge, as follows:

The Complaint, while captioned as one in assumpsit is on examination of its contents manifestly a Complaint sounding in trespass. It alleges vaguely that the unspecified ‘entire interests of the plaintiffs including a second mortgage in the sum of $200,000.00’ were ‘placed in jeopardy’, because of various fraudulent acts and misrepresentations by the Bank which is the defendant in the Philadelphia action. The Complaint accuses the defendant of malicious interference of contract, conspiracy, and other tortious conduct, including the allegation that the defendant and others’ ... tortiously and criminally removed the recorded documents from the Courthouse to conceal records from the defendants (in the Wayne County action) in order to prevent plaintiffs from learning that a default judgment was illegally entered against them.’
While the Complaint alleges various tortious acts by the defendant arising out of the Wayne County mortgage transaction and other alleged written and oral agreements, the written agreements are without explanation not annexed to the Complaint. There is absolutely nothing in the Complaint which would permit anyone to discern or compute the sum of the alleged damages. Moreover, the claim for relief at the end of the Complaint is the usual ad damnum clause used in trespass actions, “Wherefore plaintiffs hearby (sic) demand judgment in excess of $10,000.00.”

Appellee filed on April 18, 1977, preliminary objections to the complaint which asserted, in summary: a demurrer, a motion to strike, a motion for a more specific pleading and a motion to dismiss by reason of the pendency of the identical claim in a prior suit, specifically, a counterclaim that had been asserted by appellants in the Wayne County proceeding. The preliminary objections did not, however, comply with the requirements of the Rules of the Common Pleas Court of Philadelphia County, as a result of which the preliminary objections were dismissed by a routine order of the motion judge entered on July 6, 1977. The order of dismissal was docketed one week later on July 13, 1977, with the notation that notice of the entry thereof had, pursuant to Pennsylvania Rule of Civil Procedure 236, been given by ordinary mail to all counsel of record, which would include Attorney Biglan for appellants and Attorney Jones for appellee. The docket reflects that no action was taken on behalf of either party for the following twenty-five (25) months until new counsel for appellants filed a praecipe for the entry of a default judgment, a praecipe for the assessment of damages in the amount of $225,800.00, and a praecipe to commence execution. The record indicates that new counsel did not file a praecipe for entry of his appearance, did not file a praecipe for the withdrawal of the appearance of Attorney Biglan and did not advise Attorney Jones, who was counsel of record, of his intention to proceed to a default judgment; in fact, at the time of the entry of the default judgment, approximately twenty-eight (28) months had elapsed since any counsel for any party to the suit had taken any action of any type. Appellants also garnished on September 5, 1979, the assets of appellee in the Provident Bank. Appellee proceeded to file a petition to open the default judgment on September 20, 1979, and thereafter also filed a petition to strike the judgment.

It is well established that the Prothonotary, in entering a default judgment, acts in a ministerial, and not a judicial capacity, and unless a default judgment is clearly authorized by the Pennsylvania Rules of Civil Procedure, the default judgment is a nullity and will be stricken from the record. Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d 423 (1949); P.L.E.Judgment § 103. See generally N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 456 A.2d 1377 (1983). The Prothonotary here, pursuant to the praecipe of appellant, directed that “judgment [be] entered in favor of the plaintiff and against the defendant and damages assessed in the amount of $225,800.00 and costs”. Pennsylvania Rule of Civil Procedure No. 1037(b), 42 Pa.C.S.A., provides:

RULE 1037. JUDGMENT UPON DEFAULT OR ADMISSION. ASSESSMENT OF DAMAGES
(b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant’s pleadings. The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages.

An examination of the complaint reveals that the assessment of damages directed by the Prothonotary was not authorized by Rule 1037(b) since the complaint did not express a claim for a sum certain or a sum which could be made certain by computation. Appellants themselves so indicate since the ad damnum clause of the complaint prays: “Wherefore plaintiffs hereby demand judgment in excess of $10,000.00”. As the learned Judge Francis A. Biunno noted in his able opinion:

[W]e must agree that the Complaint in none of its allegations sets forth a sum certain or facts upon which the sum claimed could be calculated.
The plaintiffs contend that the amount of the judgment is supported by the allegation in paragraph 13 of the Complaint which avers that:
‘13. Plaintiffs’ entire interests were placed in jeopardy including the $200,000 second mortgage referred to in paragraph 9.’ (emphasis provided).
It is clear that an allegation that a certain amount was ‘placed in jeopardy’ is not tantamount to either an allegation that the same amount was lost, or an allegation that the plaintiffs suffered damages in that amount.
Since the Complaint does not specify a sum certain upon which the prothonotary could enter judgment or facts from which the prothonotary could calculate the damages, as required by Pa.R.C.P. 1037(b), the entry of judgment in the amount of $225,800.00 by the prothono-tary was done erroneously.

While the Prothonotary was unauthorized to assess damages, it does not appear that the entry of the default judgment itself was unauthorized. The hearing judge correctly noted:

[W]e note that the Complaint, if viewed as a Complaint in Assumpsit, is by and large, incomprehensible. It is a conglomeration of legal conclusions and disjointed factual assertions which, however, would, if liberally construed, support a trespass action. There are some contractual allegations, however, and in light of these the proper remedy would be to file preliminary objections rather than striking the judgment on the grounds that no answer was required.

As a result, however inartfully the claim of appellant has been pleaded, it does not appear from the record that the judgment is irregular on its face and we cannot agree that it should be stricken. Township of Middletown v. Fried & Gerber, Inc., 308 Pa.Super. 161, 454 A.2d 71 (1982); J.F. Realty v. Yerkes, 263 Pa.Super. 436, 398 A.2d 215 (1979).

We next consider the issue of whether the default judgment should be opened. The law of the Commonwealth is clear that, in order to open a default judgment, the petitioner must demonstrate (1) the petition to open was filed promptly, (2) the failure to act on the original complaint can be reasonably explained, and (3) a meritorious defense to the underlying claim exists. Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982); Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971). There can be no dispute but that appellee proceeded to file the petition to open in prompt fashion and that appellee has a meritorious defense to the claim of appellants. We share, as well, the conclusion of the trial court that the fact that counsel for appellee did not receive notice of the dismissal of the preliminary objections together with the following equitable considerations satisfies the requirement that appellee provide a reasonable explanation or excuse for the failure to act:

While appellee took no steps for over two years to ascertain the status of the case following the filing of preliminary objections, counsel for appellant was satisfied to permit the action to remain dormant while pursuing the pending case in Wayne County.
The failure of the appellee to act in no way impeded the appellants in establishing their claims.
The failure of appellants’ counsel to warn appellee or its counsel of an intention to proceed to default, after so prolonged a lull that was apparently acquiesced in by, if not satisfactory to, appellants, was a failure to comply with the customary standard of courtesy between and among members of the Bar in the Philadelphia area. This customary standard of courtesy became a procedural requirement when, within four months of the default judgment here entered, Pennsylvania Rule of Civil Procedure 237.1 was adopted on December 14, 1979.

A reviewing court will not reverse a trial court’s decision to open judgment unless there was an error of law or a manifest abuse of discretion. Kennedy v. Frank F. Black, Jr., Inc., 492 Pa. 397, 424 A.2d 1250 (1981); Balk v. Ford Motor Company, supra. There was no error of law and we conclude the decision of the court to open the judgment was a proper exercise of discretion. In fact, an examination of the complaint of appellants prompts the thought that it would have been an abuse of discretion not to open a judgment entered upon so misshapen a pleading.

The order opening the judgment is affirmed. Case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge,

dissenting:

The majority holds that “[wjhile the Prothonotary was unauthorized to assess damages, it does not appear that the entry of the default judgment itself was unauthorized.” At 344. The opinion then proceeds to address the petition to open judgment. I must respectfully disagree with such an analysis, and therefore I respectfully dissent.

Once we determine, from the face of the record, that the prothonotary was without authority to enter such judgment, we should uphold the order striking the judgment. See Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972). Instead, the majority bifurcates the judgment into one for liability and one for the assessment of damages. Finding that the judgment as to liability was valid, the majority proceeds to consider the petition to open. However, I believe that we must strike the judgment because of the defect pertaining to damages, without referring to the question of liability. Compare, Leomporra v. American Baking Co., 198 Pa.Super. 545, 178 A.2d 806 (1962) (judgment in excess of monetary jurisdiction stricken without reference to the merits), vacated on other grounds, 198 Pa.Super. 545, 182 A.2d 917 (1962).

While Rule 1037, Pa.R.C.P. provides for bifurcation before the trial court when the prothonotary is unable to assess damages from the face of the complaint, I do not believe that it is proper on the appellate level to do likewise. When faced with a fatally defective judgment, we should not attempt to salvage a portion for further review.

I would affirm the order striking the default judgment.

      -. I also question the validity of the trial court’s alternate order opening judgment. Once it had stricken the judgment, was there anything left to open?


author: CIRILLO, Judge: HOFFMAN, Judge,

text:
    466 A.2d 192
    COMMONWEALTH of Pennsylvania v. Juan MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1983.
    Filed Sept. 30, 1983.

      Daniel Paul Alva, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

We are called upon to consider defense counsel’s request to withdraw from further representation in this case.

On December 7, 1979, following a bench trial before the Honorable Thomas N. Shiomos, the appellant, Juan Martinez, was convicted of possession of a controlled substance (heroin) with intent to deliver. After a presentence investigation and the denial of post-verdict motions, the appellant was sentenced to a..term of imprisonment of not less than 6 months nor more than 23 months. On March 25, 1980, a notice of appeal to the Superior Court was filed. Thereafter, a copy of a brief was filed by counsel for the appellant along with counsel’s petition for leave to withdraw. A copy of the brief was served upon the appellant with notice of his right to retain new counsel or raise any additional arguments or points. Counsel maintains that there are no properly preserved issues on which he could reasonably base an argument to secure appellate relief for the appellant. The evidence adduced at trial indicated that on the evening of January 1, 1979, an officer in plain clothes knocked on the door of the residence at 2933 North Mutter Street in Philadelphia. The appellant opened the door, permitted the officer to enter, and asked what he wanted. The officer stated that he wished to purchase two bags of heroin and the appellant responded that they would cost $20.00 each. Afterward, the appellant walked over to a pile of laundry, picked up a banlon sock, took out several white packets, and gave two of the packets to the police officer. The officer then gave the appellant $40.00 in marked bills which he put in his pocket. The appellant was subsequently arrested. The appellant denied selling heroin to the officer for he knew the alleged buyer to be a policeman. The appellant also testified that he was not the owner of the aforementioned residence, the marked money was not found on his person, but rather was under a laundry bag, and that the money had been given to him by an unknown female to whom he had sold heroin at the instructions of the owner of the residence.

Before counsel may be allowed to withdraw in this instance, he must determine that the appeal is frivolous after a thorough examination of the record. Then he must, 1) request permission of the court to withdraw; 2) accompany his request with a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of such brief to the client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968); Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982).

Counsel had requested permission to withdraw. He also has submitted a proper Anders brief which evidences a profound effort to uncover grounds to support the appeal. Furthermore, counsel has also met the requirements of notifying the appellant of his request to withdraw, furnishing him with a copy of the brief, and advising the appellant of his right to retain new counsel or raise any points that he may deem worthy of consideration.

Once appellate counsel has met all the requirements attendant to his request to withdraw, “[a]t that point it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is wholly frivolous.” Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981). After an exhaustive review of the record, we agree with counsel’s conclusion that the appeal is in fact wholly frivolous.

The only issue preserved by post-verdict motions is whether or not the evidence was sufficient to support the conviction. The test for sufficiency of the evidence is whether, accepting as true all evidence and all inferences therefrom, which if believed, the fact finder could have based the verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime for which he has been convicted. Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982); Commonwealth v. Gray, 297 Pa.Super. 123, 443 A.2d 330 (1982). It is the province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded to the evidence produced. The fact finder is free to believe all, part or none of the evidence. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979). Absent a “manifestly erroneous” result, such a determination must remain undisturbed. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); Commonwealth v. Daniels, 281 Pa.Super. 334, 422 A.2d 196 (1980).

The trial judge chose to believe the testimony of the police officer rather than the appellant. Such a determination was patently reasonable. This testimony, we conclude, was clearly sufficient to convict the appellant of possession of a controlled substance with intent to deliver.

Having found from our independent study of the record that the appeal was wholly frivolous, we grant counsel’s request to withdraw. Because of our conclusion that the appeal is entirely without merit and there being no basis for the relief sought, we also affirm the judgment of sentence. See: Commonwealth v. McClendon, supra.; Compare: Commonwealth v. Bradley, 311 Pa.Super. 160, 457 A.2d 544 (1983) (WIEAND, J., dissenting).

Request to withdraw is granted.

Judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

I disagree with the majority’s finding that counsel “submitted a proper Anders brief which evidences a profound effort to uncover grounds to support the appeal.” (At 194.) Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), requires that counsel wishing to withdraw submit an advocate’s brief that refers to “anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. at 1400. See Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Counsel here, discussing the sufficiency of the evidence, the only issue he had preserved, demonstrated only the record’s support for appellant’s conviction, concluding that appellant’s claim was without arguable merit. Counsel neither looked for nor found any support in the record for appellant’s claim of insufficiency, nor explored any other possible grounds for appeal. To call this “an advocate’s brief would be to make a travesty of the appellate process.” Commonwealth v. Baker, supra, 429 Pa. at 213, 239 A.2d 201. Accordingly, I would remand for counsel to submit a brief complying with the Anders requirements.

      . As amended, the Act of December 30, 1974, P.L. 1041, No. 340, § 1, 35 P.S. 780-113(a)(30).


author: JOHNSON, Judge:

text:
    466 A.2d 195
    COMMONWEALTH of Pennsylvania v. Paul COOPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed Sept. 30, 1983.

      Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This appeal presents the question of whether a sentencing court may order a defendant to make restitution of the costs and expenses related to the death of an accident victim when the defendant has not been found criminally responsible for the act which resulted in the accident victim’s death. We think not and therefore vacate that portion of the judgment of sentence providing for restitution, and affirm the sentence of imprisonment.

On September 8, 1981, Paul J. Cooper, Sr., appellant herein, entered a counseled plea of guilty to a charge of Accident Involving Death or Personal Injury following the death of a twelve-year-old boy who was struck by appellant’s automobile on January 28, 1981 in Newport Township, Luzerne County. The offense of Accidents Involving Death or Personal Injury is defined in the Motor Vehicle Code as follows:

§ 3742. Accidents involving death or personal injury
(a) General rule.—The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid.) Every stop shall be made without obstructing traffic more than is necessary.

75 Pa.C.S.A. § 3742. Following the acceptance of appellant’s guilty plea, he was sentenced to undergo imprisonment in the Luzerne County Prison for a minimum of six (6) months and a maximum of twelve (12) months. In addition, appellant was ordered to pay the costs of prosecution and to “pay the family of the victim all costs and expenses incurred by them directly connected with the death of [the victim].”

As support for the imposition of restitution, the sentencing court relied upon Section 1321(c) of the Sentencing Code which provides:

(c) Restitution.—In addition to the alternatives set forth in subsection (a) of this section the court may order the defendant to compensate the victim of his criminal conduct for the damage or injury that he [sic] sustained.

In interpreting the authority to impose restitution found in the Sentencing Code, we are guided by the Crimes Code provision that further defines the sentencing court’s power to impose restitution. In pertinent part, it provides:

(a) General rule—Upon conviction for any crime ... wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefore.

18 Pa.C.S.A. § 1106(a) (1982 Supplement) (emphasis added).

The difficulty we have with the restitution imposed by the sentencing court is that the death of the victim was not the result of the actions for which appellant has been held criminally responsible. The summary of facts at the guilty plea hearing indicated that appellant struck the victim and inflicted fatal injuries. In pleading guilty appellant admitted only that he violated the law when he left the scene of the accident without rendering aid or providing the information required by 75 Pa.C.S.A. § 3744. He did not admit that he was in any way criminally responsible for having struck the accident victim. Nor was appellant charged with any offense purporting to hold him criminally responsible for the victim’s death. Indeed a review of the guilty plea record suggests that such charges may well have been considered and found unsupportable. Thus, the death of the victim stemmed from the collision itself, not appellant’s act of leaving the scene of the accident, and appellant was not charged or convicted of any crime holding him criminally responsible for having struck and killed the victim.

In other jurisdictions where this problem has arisen, it has been held that restitution is permissible only as to losses flowing from the conduct for which the defendant has been held criminally accountable. See e.g. Fresneda v. State, 347 So.2d 1021 (Supreme Court of Fla.1977); People v. Becker, 349 Mich. 476, 84 N.W.2d 833 (1957); State v. Barnett, 110 Vt. 221, 3 A.2d 521 (1939). In the Michigan case of People v. Becker, supra, a case similar to the instant case, the defendant pled guilty to unlawfully leaving the scene of an accident involving personal injury to two pedestrians. As a condition to the probation imposed by the court, it was ordered that defendant make restitution of $1,244.48 to the injured pedestrians. On appeal the Supreme Court of Michigan describing the facts before it related that “the criminal has been convicted of one charge, but his freedom from incarceration [i.e. the restitution condition attached to his probation] is related to another act, precedent in time, with respect to which neither criminal nor civil complaint has been made.” The court vacated the restitution holding that:

[E]ven where imposition of the restitution requirement is held to be proper under the circumstances of the particular case before the court, it can be imposed only as to loss caused by the very offense for which defendant [sic] was tried and convicted. As to other crimes or offenses there has been no fixing of his liability therefore in a constitutional sense.

Id. at 486, 84 N.W.2d at 838. The holding of the Becker court is grounded upon the rationale that a defendant is denied due process of law when the losses for which restitution has been imposed did not arise from the action for which defendant has been held criminally accountable. We share the constitutional concern of the Becker court as to the restitution before us, because appellant has not been held criminally accountable for the actions which resulted in the death of the accident victim.

We are convinced that the holdings in Becker and similar cases from other jurisdictions are consistent with our Crimes Code provision authorizing a sentencing court to impose restitution when the injuries to the victim “directly [result ] from the crime.” We therefore are constrained to vacate that portion of judgment of sentence which commanded appellant to pay restitution to the family of the victim.

As a second issue raised on this appeal, it is alleged that the sentence of imprisonment was “excessive and without regard to the circumstances of the offense and the character of the defendant.”

A sentencing judge in Pennsylvania is vested with broad discretion in determining an appropriate sentence for a defendant. This court will not reverse a judgment of sentence unless a manifest abuse of discretion is shown. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Michenfelder, 268 Pa.Super. 424, 408 A.2d 860 (1979). In imposing confinement, the sentencing judge must consider whether his sentence is the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Martin 466 Pa. 118, 351 A.2d 650 (1976); 42 Pa.C.S.A. § 9721.

We have examined the sentencing record. Evidence was presented to the sentencing judge concerning appellant’s health, character, employment status, contrition, and the circumstances of the offense. A pre-sentence report was considered by the sentencing judge. From this evidence, the sentencing judge concluded that appellant should receive a sentence of imprisonment. The reasons expressed by the sentencing judge for the sentence were that a life had been taken as a result of the occurrence, the pre-sentence report, the gravity of the offense, and that appellant was in need of correctional treatment. These reasons are sufficient to justify the sentence imposed on appellant. That the sentencing judge did not assign weight to appellant’s character evidence and mitigative arguments regarding the circumstances of the offense, does not require the conclusion that the sentence was manifestly excessive.

That portion of the judgment of sentence ordering restitution to the family of the victim is vacated. The sentence of imprisonment of six to twelve months is affirmed.

      . See note 5 infra.

      . Sentencing Transcript, October 14, 1981 at 9.

      . Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended, 42 Pa.C.S.A. § 9721(c) (formerly 18 Pa.C.S.A. § 1321(c)).

      . Act of December 6, 1972 P.L. 1482, No. 34, § 1; 18 Pa.C.S.A. § 101 et seq., as amended by the Act of June 18, 1976, P.L. 394, No. 86, § 1; 18 Pa.C.S.A. § 1106 et seq.

      . Section 3744 provides in pertinent part:
      § 3744. Duty to give information and render aid
      (a) General rule.—The driver of any vehicle involved in an accident ... shall give his name, address and the registration number of the vehicle he is driving, and shall upon request exhibit his driver's license and proof of insurance ... and shall render to any person injured in the accident reasonable assistance, including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if requested by the injured person.
      (b) Report of accident to police.—In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (a) and no police officer is present, the driver of any vehicle ... shall forthwith report the accident to the nearest office of a duly authorized police department and submit to the police department the information specified in subsection (a).

      . At the guilty plea hearing, the Court inquired of Officer Materewicz, the complainant, and Assistant District Attorney William Keller as follows:
      THE COURT: Are you saying that your investigation indicated that these are the charges that should be brought and nothing else?
      OFFICER: Yes, sir. We couldn’t find any other charges, Your Honor, Any violations [sic].
      THE COURT: Anything else connected with it? Any intoxication or any—...
      MR. KELLER: As far as the Officers [sic], there are no violations of any traffic laws at all, Your Honor.
      Guilty Plea Transcript, September 8, 1981, at pages 8 and 9.

      . Compare Thompson v. State, 557 S.W.2d 521 (Tex.Cr.App.1977).

      . In light of the principles laid down in Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982), the order of restitution to the family of the accident victim could not be sustained even if it is proven that appellant was criminally responsible for the death of the accident victim. In Galloway, we held that an insurer was not a "victim” for purposes of receiving restitution from a defendant since its reimbursement of its insureds under a contract of insurance was not a "loss” within the contemplation of Section 1106(h) of the Crimes Code. That principle is equally applicable where the family of a victim may have voluntarily assumed to pay the costs and expenses related to the victim’s death.


author: JOHNSON, Judge: SPAETH, Judge,

text:
    466 A.2d 198
    COMMONWEALTH of Pennsylvania v. Stephen M. BOONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1983.
    Filed Sept. 30, 1983.

      Daniel H. Greene, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant appeals his convictions for rape, involuntary deviate sexual intercourse and conspiracy. He was sentenced to IV2 to 15 years imprisonment on the rape conviction, IV2 to 15 years on the involuntary deviate intercourse conviction, and 1 to 5 years for conspiracy, to run consecutively to the rape sentence.

The facts indicate that on October 2, 1980, the victim, aged 14, was waiting for a bus to transport her to school when she encountered her former boyfriend, Maurice Bus-sey, who invited her to the home of Parnell Canaday, also a former boyfriend. Bussey and the victim watched television until the arrival of Canaday, who, along with Bussey, convinced the victim to engage in a game of strip poker with them. Upon losing several hands of poker and while nearly naked, she was told to either remove the blanket she was using to cover herself or go down into the basement with one of the boys. The victim reluctantly agreed to go to the basement with Bussey. Bussey then asked the victim to engage in intercourse, which she refused.

A short time later, Canaday brought Appellant and three other males to the basement, who, along with Canaday, repeatedly raped and sodomized the victim, while those not immediately participating shouted their approval. Another man eventually arrived and anally raped the victim. After approximately four hours, the- males permitted the victim to leave, but threatened her with further harm if she told any one about the assaults.

Approximately two weeks later, Bussey and Canaday, accompanied by several other people, went to the victim’s home and threatened the victim, her mother and sister concerning the incident. The victim reported the incident to the police the following day.

Appellant, who was tried jointly with co-defendants Rodney Hope and Robert Henderson, was found guilty on April 28, 1981 and following denial of post-verdict motions, was sentenced. This appeal followed.

Appellant raises three issues on appeal, viz.: (1) did the trial court err in refusing to ask prospective jurors, during voir dire examination, five questions prepared and submitted by Appellant, (2) did the trial court err in refusing to allow Appellant to cross-examine the victim with respect to her prior sexual activity with two of the co-conspirators and (3) was the evidence sufficient to support the verdict.

Upon a review of the record, briefs of the parties and the opinion of the Honorable Angelo A. Guarino, we find that the trial court has adequately disposed of issues one and three. We therefore adopt that portion of the trial court’s opinion for purposes of allocatur.

The remaining issue concerns the trial court’s refusal to permit counsel for Appellant to cross-examine the victim with respect to her prior sexual activity with Bussey and Canaday, who were adjudicated in a separate proceeding as juveniles.

Counsel for Appellant submitted a written motion and offer of proof to the trial court, as required by the Rape Shield statute, 18 Pa.C.S.A. § 3104 which states:

§ 3104. Evidence of victim’s sexual conduct
(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

Appellant’s offer of proof alleged that the victim had had a prior sexual relationship with both Bussey and Canaday and that because of this relationship, the evidence of such prior activity should be permitted at Appellant’s trial, as Bussey and Canaday were co-conspirators, albeit tried in a separate juvenile proceeding.

At trial, counsel for Appellant alleged further that the victim had volunteered this information at a preliminary hearing in connection with one of the defendants in the instant case. The trial court ruled that this evidence was inadmissible to show either the reputation of the victim or consent, as to Appellant.

Appellant alleges on appeal that the evidence of the victim’s past sexual conduct with Bussey and Canaday should not have been prohibited at Appellant’s trial because of Bussey and Canaday’s status as juveniles tried in separate proceedings from Appellant and his co-defendants. According to Appellant, such a prohibition violates his right to equal protection under the Constitution by imposing an unreasonable classification between criminal actors tried in adult court and those tried as juveniles.

Initially, we note that Appellant’s proffer of evidence concerning prior sexual conduct between the victim and Canaday and Bussey was barred by the statute. See Commonwealth v. Majorana, 299 Pa.Super. 211, 215-16 n. 7, 445 A.2d 529, 531 n. 7 (1982). Also, in Commonwealth v. Duncan, 279 Pa.Super. 395, 398, 421 A.2d 257, 259 (1980) this court held that evidence of past sexual conduct by the victim with third persons is not admissible for any purpose.

Such evidence has been determined to be of little relevance to the issue of consent between the victim and a defendant who has not personally engaged in prior sexual conduct with the victim. As stated in Commonwealth v. Quartman, 312 Pa.Super. 349, 353-54, 458 A.2d 994, 996-7 (1983):

As with other evidentiary rules, the state’s interest must be balanced against the fundamental right of the accused to a fair trial. Here, the state’s interest in shielding the complainant from undue harassment in a rape prosecution must be balanced against appellant’s right to confront his accuser by presenting evidence of the complainant’s prior sexual conduct. Appellant’s sole purpose in introducing evidence of the victim’s alleged prior sexual relations with others was to create an inference for the jury connecting the victim’s purported consent on earlier occasions with his consent to relations with appellant. “A rape victim’s previous sexual conduct with other persons has very little probative value about [his] consent to intercourse with a particular person at a particular time.” State v. Green, 260 S.E.2d 257, 261 (W.Va., 1979). Evidence of. a rape victim’s prior relations with other persons is generally only slightly relevant to the issue of consent with the accused and absent extraordinary circumstances fails to shift the balance between the state’s interest in shielding the rape victim and the defendant’s right to confrontation in favor of the defendant.

(citations omitted) (brackets in original).

It has also been held that the limited exclusion of the victim’s past sexual conduct with parties other than the defendant to prove consent no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion evidence and privileged communications. People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864 (1976).

We therefore hold that Appellant was barred by 18 Pa.C. S.A. § 3104 from introducing evidence of prior sexual conduct between the victim and Canaday and Bussey.

The alternate issue raised concerns whether this determination violates Appellant’s right to equal protection under the Constitution. Appellant argues that he is similarly situated to other defendants accused of gang rape whose co-conspirators have had prior sexual contact with the victim. The equal protection violation, according to Appellant, occurs with regard to the age of the co-conspirators. In the first class, an adult co-conspirator may be tried jointly with the defendant. The defendant would then be permitted, according to Appellant, to cross-examine the victim regarding evidence of prior sexual conduct between the victim and co-conspirator if the co-conspirator properly requests the introduction of such evidence. In the second class, a juvenile co-conspirator must be tried separately from the defendant, thereby denying defendant the benefit of the evidence of prior sexual conduct between the co-conspirator and victim.

The concept of equal protection requires that uniform treatment be given similarly situated parties. Commonwealth v. Kramer, 474 Pa. 341, 378 A.2d 824 (1977). However, Appellant’s argument is flawed with respect to his allegation that a defendant, whose adult co-conspirator has had prior sexual conduct with the victim, will necessarily be permitted to benefit from this evidence at a joint trial.

As Appellant has not alleged prior sexual contact between himself and the victim, the Rape Shield statute clearly disallows Appellant’s introduction of such evidence. We have previously quoted language indicating that any such evidence is only slightly relevant to the issue of the victim’s consent with Appellant. At p. 201 supra. We note that severance of Appellant’s trial from that of Bussey and Canaday, had they been adults, would have been proper under the circumstances. This conclusion is supported by Commonwealth v. Morris, 493 Pa. 164, 174, 425 A.2d 715, 720 (1981) where the supreme court stated:

When it is concluded that the evidence of the one crime would not be admissible in the separate trial for the other, we are in effect saying that the evidence is irrelevant and prejudicial in the second trial. To allow irrelevant and prejudicial evidence to influence a verdict in the name of judicial economy is abhorrent to our sense of justice. Additionally, defendants in joint trials are treated differently from those who receive separate trials as a result of the lack of uniformity in the admission in the joint trial of evidence which would have been inadmissible in one of the single trials had there been no joinder.

See also Pa.R.Crim.P. 1128.

Therefore, there is no difference in treatment of defendants with respect to their co-conspirators who have had prior sexual contact with the victim, as those defendants cannot be guaranteed the benefit of their co-conspirators’ evidence of prior sexual conduct with the victim, regardless of the age of the co-conspirators. We therefore hold that no equal protection violation occurred in the instant case.

Finally, Appellant alleges that the holding in Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979) supports his claim that the statute allows the introduction of evidence of consensual sex between the victim and a co-conspirator. We disagree. Green involved a rape conviction completed prior to the effective date of section 3104. Also, the decision in Green was nondeterminative, as two justices concurred and one dissented to the majority opinion, with one justice not participating. See Commonwealth v. Covil, 474 Pa. 375, 380-81, 378 A.2d 841, 844 (1977).

Therefore, we find no merit to this argument.

Judgment of sentence is affirmed.

SPAETH, J., files a concurring statement.

SPAETH, Judge,

concurring:

I should resolve appellant’s equal protection argument somewhat differently than does the majority.

I acknowledge that since appellant was tried separately as an adult, he was at a disadvantage as compared with his co-conspirators, for he could not cross-examine the victim as to her prior sexual contact with the co-conspirators. Nevertheless, the classification is consistent with the equal protection clause, for it is rationally related to the state’s legitimate interest in administering the criminal law in a manner responsive to the special needs of the young. I therefore agree with the majority’s conclusion that appellant’s equal protection argument lacks merit. At. 365-66.

      . 18 Pa.C.S.A. § 3121.

      . Id. § 3123.

      . Id. § 903.

      . Maurice Bussey and Parnell Canaday were tried as juveniles.

      . The proposed questions stated:
      1) Does the fact that many boys and young men had sexual relations with a young girl during a four hour period so affect your sensibilities, morality, ethics and values that you could not function as a fair and impartial juror in this case?
      2) Does the concept of a “gang bang” or multiple acts of various types of sexual contact with a young girl suggest to you that the participants must be guilty of some crime?
      3) Because a girl is young and engages in repeated sexual acts with a group of boys and young men, do you feel such boys and young men should be punished because the girl is so young?
      4) If you heard testimony regarding a young girl sucking a boy’s or young man’s penis, would that suggest to you that the boy or young man was guilty of a deviate sexual act?

        5) If you heard testimony regarding a boy or young man attempting to put his penis in a young girl’s anus, would that suggest to you that the boy or young man was guilty of a deviate sexual act?

      . The trial court, in its opinion, states that Appellant failed to file these pleadings with the court. The certified docket entries support this conclusion. However, subsequent to oral argument before this court, counsel for Appellant submitted a copy of these pleadings to this panel and filed them with this court. Counsel’s accompanying affidavit states that he had filed the pleadings with the trial court and had provided the prosecutor with a copy at trial.
      The transcribed argument at trial concerning these pleadings is unclear as to whether they were, in fact, filed with or submitted to the trial court. In any event, in order to further judicial economy, we shall presume that the pleadings were properly filed.

      . Appellant has not specified which preliminary hearing contains this information, nor does the record in the instant case contain such information.

      . Pa.R.Crim.P. 1128, which became effective subsequent to Appellant's conviction, sets forth:
      Rule 1128. Severance of Offenses or Defendants
      The court may order separate trials of offenses or defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.

      . Perhaps there may be some doubt as to whether age is a constitutionally protected class. See E.E.O.C. v. Wyo., 460 U.S. 226, 260, 103 S.Ct. 1054, 1073, 75 L.Ed.2d 18 (1983) (BURGER, J., dissenting). But to the extent that age classifications are constitutionally protected, the classifications need only be rationally related to a legitimate governmental interest. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).


author: MONTEMURO, Judge:

text:
    466 A.2d 203
    COMMONWEALTH of Pennsylvania v. Eric V. SCHREIBER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1983.
    Filed Sept. 30, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Paul Bogdon, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, submitted a brief on behalf of Commonwealth, ap-pellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is a pro se appeal from an Order of Court denying the appellant, Eric Schreiber’s, petition to withdraw his guilty plea entered in the Court of Common Pleas, Allegheny County.

Three informations were filed against the appellant. Under Information No. CC8001983 (hereinafter No. 1983), he was charged with seven (7) counts of Misapplication of Entrusted Property, seven counts of Securing Execution of Documents by Deception, and two counts of Theft by Failure to Make Required Disposition of Funds Received. At Information CC8001984 (hereinafter No. 1984), the appellant was charged with four counts of Theft by Unlawful Taking or Disposition, four counts of Receiving Stolen Property and two counts of Misapplication of Entrusted Property. At Information No. CC8004719 (hereinafter No. 4719), the appellant was charged with one count of Default in Required Appearance. All of these charges arise out of the appellant’s employment as Controller and Financial Affairs Vice President of Vision Service Plan of Pennsylvania, Incorporated.

Appellant pled guilty to all sixteen counts under No. 1983 and to the one count under No. 4719. With regard to No. 1984, the appellant pled guilty to counts one, four, seven and nine all charging Theft by Unlawful Taking. The remaining counts under this information merged with one, four, seven and nine, and, therefore, were dismissed by the District Attorney. The appellant was sentenced at No. 1984 to three and one-half (3V2) to seven (7) years imprisonment for each of counts one, four and seven, to be served consecutively, and seven years probation for count nine, to be consecutive to the sentence at count seven. The appellant’s petition to withdraw his guilty plea nunc pro tunc was denied.

On appeal, it is argued that the appellant’s guilty plea was not voluntarily entered. More specifically, the appellant contends, (1) that the guilty plea was invalid because there was no on-the-record explanation of the elements of the crimes charged and (2) that the court below misinformed him of the maximum penalty for these offenses. The appellant further argues that counsel was ineffective in failing to ensure that the court explain to him the elements of the crimes charged and the correct maximum possible sentences for those crimes. Finally, it is contended that the court below imposed an illegal sentence.

The appellant attempted to withdraw his guilty plea after the court below imposed sentence. When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, “a showing of prejudice on the order of manifest injustice” is required before withdrawal is properly justified. Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982), quoting Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Manifest injustice exists, for example, when the guilty plea was entered without knowledge of the charges. Commonwealth v. Shaffer, supra.

In his first argument the appellant contends that at the time he entered his guilty plea, the court did not provide him with a technical recitation of the legal elements of the crimes charged. He claims that such a recitation was necessary in order to ensure that he understood these charges. In Shaffer, the supreme court emphasized that while lack of knowledge of the charges constitutes manifest injustice, an esoteric explanation of the elements of the crime is not necessarily a prerequisite to the constitutional validity of the guilty plea. See also, Commonwealth v. Martinez, 499 Pa. 419, 453 A.2d 940 (1982). “The true constitutional imperative is that the [appellant] receive ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process’ ”. Shaffer, supra 498 Pa. at 350, 446 A.2d at 595, quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976).

The appellant relies heavily on Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), which reversed a conviction on the ground that a guilty plea was entered without benefit of an on-the-record explanation of the legal elements. However, Shaffer, makes it clear that, in determining whether notice of the charges has been adequately imparted, the appellate courts may look to the totality of the circumstances surrounding the entry of the plea.

In the instant case the court conducted an extensive colloquy which included the age and educational background of the appellant, whether the appellant was under the influence of drugs or alcohol at the time, the rights waived by pleading guilty including the presumption of innocence, the right to a jury trial by members of the community and the need for a unanimous verdict. The court also gave a painstakingly detailed explanation of the nature of each charge including all of the facts that the Commonwealth would have to prove in order to establish appellant’s guilt. After each charge was explained, the appellant was asked whether he understood the court’s explanation. Each time, the appellant answered in the affirmative. The District Attorney subsequently summarized the factual bases giving rise to the charges. At no time during this colloquy did the appellant ask any questions or make any comments that might have indicated that he was confused at the time he entered his plea. Under these circumstances we find that the appellant, upon pleading guilty, was fully apprised of the charges against him.

The appellant also claims that his guilty plea was not voluntary because the court below did not properly inform him of the possible maximum sentence at the time he entered his plea. In Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978), the supreme court held that the decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct.

The appellant contends that the merger of certain offenses would have reduced the maximum sentences from an aggregate of 109 years as stated by the court below to twenty-six (26) years. We disagree with this contention.

For two crimes to merge, one must necessarily involve the other. Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). In order for one crime to involve the other, essential elements of one must be essential elements of the other and the crimes must be part of the same act. Id.

Appellant claims that each and every count under No. 1983 merges with another charge under No. 1983, or with a charge under No. 1984 such that these mergers would have precluded the imposition of sentence on any counts charged at No. 1983.

Under No. 1983, at counts No. 2, 4, 6, 8, 10, 12 and 14, the appellant was charged with Securing Execution of Documents by Deception, 18 Pa.C.S.A. § 4114. The appellant argues that these counts merge with either count 15 of No. 1983 which is Theft by Failure to Make Required Distribution of Funds Received, 18 Pa.C.S.A. § 3927, or count 4 of No. 1984 which is Theft by Unlawful'Taking or Disposition, 18 Pa.C.S.A. § 3921. The seven counts charging Securing Execution of Documents by Deception arose out of seven separate incidents wherein the appellant, through deception, caused bank officials to execute loan approval papers, documents or instruments in obtaining seven different loans.

An element of the crime of Securing Execution of Documents by Deception is “to execute any instrument ... likely to affect the pecuniary interest of any person.” Neither Theft by Failure to Make Required Disposition of Funds Received, the crime charged at count 15 of Information No. 1983, nor Theft by Unlawful Taking or Disposition, the crime charged at count 4 of Information No. 1984, requires proof of the executing of a document. “Securing Execution of Documents by Deception” is a distinct offense from the theft offenses charged and therefore we find no merger.

At counts 1, 3, 5, 7, 9, 11 and 13 of Information No. 1983, the appellant was charged with Misapplication of Entrusted Property, 18 Pa.C.S.A. § 4113. These offenses arise from the appellant’s activities in seven times taking money entrusted to him as Controller of Vision Service Plan of Pennsylvania, Inc., (hereinafter V.S.P.), transferring these monies into unauthorized savings accounts or purchasing unauthorized certificates of deposit and then pledging these assets as collateral against unauthorized loans. Appellant argues that these offenses likewise merge with count 15 of No. 1983 or count 4 of No. 1984.

Contrary to what the appellant contends, the crime of Misapplication of Entrusted Property does not constitute a lesser included offense of Theft by Failure to Make Required Disposition of Funds Received because not all elements of the former are elements of the latter. For instance, to be guilty of Misapplication of Entrusted Property, a person must dispose of property in a manner that he knows is unlawful and involves a substantial risk of loss or detriment to the owner of the property. This element is not contained in the crime of Theft by Failure to Make Required Disposition of Funds Received. Similarly, no merger occurs with count 4 of No. 1984 charging Theft by Unlawful Taking or Disposition for the reason that this theft offense does not necessarily involve misapplication of entrusted property.

Appellant argues, next, that counts 15 and 16 of Information No. 1983, charging Theft by Failure to Make Required Disposition of Funds Received merge with count 4 of Information No. 1984, charging Theft by Unlawful Taking a Disposition. The offenses charged here stem from two different transactions made by the appellant. Counts 15 and 16 are premised upon appellant’s failure to repay seven different loans and count 4 of No. 1984 involved appellant’s disbursement of funds by check from an authorized account belonging to V.S.P. to several services, for his own benefit. We, therefore, find no merger of these offenses.

Appellant next argues that the court below misinformed him of the maximum possible sentence when it failed to disregard those counts (2, 3, 5, 6, 8 and 10 at No. 1984) which the prosecution indicated would be dismissed as lesser involved offenses. Hence, the maximum sentence would have been 75 years and not 109 years. We do not believe, however, that the appellant was misinformed since the appellant was present when the charges were dismissed and was made aware of the maximum possible sentence for each of the dismissed charges. We agree with the court below that the appellant, having had two years of college education and having been controller and financial affairs vice president for the corporation that he defrauded, was capable of making the necessary calculation so as to understand the full range of his permissible sentence and enter a knowing and intelligent plea.

We find the appellant’s guilty plea was voluntarily entered.

In light of the foregoing determinations we find that the appellant’s arguments pertaining to ineffectiveness of counsel likewise to be unfounded. Appellant maintains that counsel was ineffective in failing to ensure that the elements of the crimes and maximum possible sentence were explained to him at the time he entered his plea.

In determining whether counsel was ineffective, this court must first determine whether the claim that counsel failed to assert was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Once the foregone claim is determined to be of arguable merit, the court then examines counsel’s reason for failing to assert the claim. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Hubbard, supra.

In the instant case, counsel’s objection to the guilty plea colloquy, on the ground of an insufficient explanation of the charges and maximum possible sentence, for the reasons stated earlier in this opinion, would have been a meritless claim. We, therefore, find that counsel was not ineffective.

In his final argument, the appellant claims that the sentence imposed at count 9 of information No. 1984, charging Theft by Unlawful Taking of Property in the amount of $1000.00, is illegal. He asserts that the court erred in categorizing this charge as a felony, thereby sentencing the appellant to seven (7) years probation. We agree with the appellant that because of the dollar-amount involved, this offense would have been graded as a first degree misdemeanor, 18 Pa.C.S.A. § 3903, carrying a maximum sentence of five (5) years. We, therefore, remand this case solely for the purpose of making this necessary adjustment to the appellant’s sentence.

The Order of the court below denying appellant’s Petition to Withdraw Guilty Plea is affirmed. This case is remanded for resentencing. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 4113

      . 18 Pa.C.S.A. § 4114

      . 18 Pa.C.S.A. § 3927

      . 18 Pa.C.S.A. § 3921

      . 18 Pa.C.S.A. § 3925

      . 18 Pa.C.S.A. § 5124

      . Appellant further argues that the elements of the crimes charged were not explained until after the guilty plea was accepted by the court. This argument is patently without merit for the reason that the appellant is confusing the tender of his plea with the court’s formal acceptance of it. The court did not formally accept the plea until after the lengthy guilty plea colloquy.

      . § 4114. Securing execution of documents by deception
      A person commits a misdemeanor of the second decree if by deception he causes another to execute any instrument affecting or purporting to affect or likely to affect the pecuniary interest of any person.

      . This case is defined as follows:
      § 3927. Theft by failure to make required disposition of funds received
      (a) Offense defined.—A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

      . § 3921. Theft by unlawful taking or disposition
      (a) Movable property.—A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
      (b) Immovable property.—A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

      . § 4113. Misapplication of entrusted property and property of government or financial institutions
      (a) Offense defined.—A person commits an offense if he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the government or of a financial institution, in a manner which he knows is unlawful and involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted.

      . See n. 9., supra.

      . See n. 10., supra.

      . It is apparent from the record that the appellant plead guilty in the hope of receiving a lighter sentence. We therefore believe it to be unlikely that, had appellant been informed of a lighter maximum possible sentence i.e., 75 years, instead of 109 years, he would have wanted to withdraw his guilty plea.

      . Appellant also claims that counsel was ineffective for not explaining to him the elements of the crimes charged. However, in Commonwealth v. Shaffer, supra, it was held that during a guilty plea colloquy, such as we have here, where the appellant does not assert that he did not understand the nature of the crimes, it may be presumed that counsel explained the nature of the offenses in sufficient detail to give him notice of that which he admits by entering a plea of guilty.