text:
    448 A.2d 18
    COMMONWEALTH of Pennsylvania v. Anthony FRISON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed July 2, 1982.

      Richard M. Lovenwirth, Pottstown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for robbery and theft. Finding none of appellant’s arguments persuasive, we affirm.

On December 1, 1978, Michael Zipkin, a 68 year old man, parked his car near a Pantry Pride grocery store in the Cedarbrook Mall in Cheltenham Township, Montgomery County. He went to a savings bank in the mall, where he deposited one check and cashed another. At about 4:00 p. m. he left the bank with some $100 in cash. At about 5:00 p. m. he told a Pantry Pride cashier, “I was just robbed in the parking lot.” He was directed to an attendant, and told the attendant that he had been robbed by a black male in his early twenties who stood approximately five feet six or seven inches and carried a small package or brief case. The attendant notified the police. While awaiting their arrival, Mr. Zipkin collapsed and shortly thereafter died from a heart attack. According to the physician who performed the autopsy, the attack was in part brought on by the emotional stress of the robbery and by the impact of a blow to the chin and neck.

Later that evening, Mr. Zipkin’s car was taken to a township parking garage, where it was dusted for fingerprints. Three prints were identified as appellant’s. Also, Mr. Zipkin’s personal possessions were inventoried; no cash was found.

On December 30, 1978, the Cheltenham Township police were notified that appellant had been arrested in Philadelphia. When questioned by Montgomery County detectives, appellant denied any involvement in the Zipkin robbery. Appellant was questioned a second time in January 1979 and again denied any involvement, stating that he knew nothing about the robbery and was “finished” talking about it. N.T. 8/4/82 at 47.

On March 1, 1979, in response to charges arising from the Philadelphia arrest, appellant pleaded guilty to assaulting a postal employee and was sent to a federal penitentiary in Missouri. In August 1979 appellant asked to be sent to Montgomery County, pursuant to the Interstate Agreement on Detainers, so that an outstanding charge of fraudulent use of a credit card might be resolved, and in December 1979 he was brought to the Montgomery County jail. On March 3, 1980, while awaiting disposition of the credit card charge, he was again questioned about the Zipkin robbery. This time, after a formal waiver of his Miranda rights, he gave a detailed statement. The gist of the statement was as follows: On December 1, 1978, appellant had been at the Cedarbrook Mall, “making a couple dollars helping peoples with their packages to the cars.” He helped a white male [Mr. Zipkin] with his packages. When Mr. Zipkin took out an envelope to give him a tip, appellant saw that the envelope contained a lot of money: “[I]t looked like there was containing about $85-$90.00 and it wasn’t no singles in it. So, I guess he was looking for some singles—you know— something just to give me.” Appellant “just snatched [the envelope] out of [Mr. Zipkin’s] hand as he went to open up the [car] door and [appellant] closed the door back and .. . took off running.”

-1-

Appellant argues that the evidence was insufficient to sustain his conviction. This argument is without merit, for the evidence included appellant’s confession. Appellant, however, would have us review his sufficiency claim without considering the confession because, he contends, the confession was invalid; therefore not properly admitted; therefore not properly part of the record. Brief for Appellant at 13.

This reasoning reflects a misunderstanding of the scope of our review. If we conclude that evidence should not have been admitted, we do not discharge the defendant but at most remand for a new trial. See Commonwealth v. Fiume, 292 Pa. Superior Ct. 54, 436 A.2d 1001 (1981). The Commonwealth may have other evidence, which we know nothing about, that if produced at a new trial might prove what had been improperly proved at the first trial. To discharge the defendant would penalize the Commonwealth for using evidence held by the lower court to be admissible.

-2-

Appellant offers several arguments in support of his contention that his confession should have been suppressed.

(a)

Appellant argues that his confession should have been suppressed because the corpus delicti of the theft and robbery had not been established.

It has long been the rule that the corpus delicti of a crime must be established before a confession by the accused may be admitted in evidence. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978) (opinion in support of affirmance); Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Gray v. Commonwealth, 101 Pa. 380 (1882). To establish the corpus delicti the evidence must show the occurrence of a specific injury or loss, and that criminal conduct was the cause of that injury or loss. See Commonwealth v. Tallon, supra; Commonwealth v. Ware, supra; Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973); Commonwealth v. Rhoads, 225 Pa.Superior Ct. 208, 310 A.2d 406 (1973). See also, 7 Wigmore, Evidence, § 2072 (3d ed. 1940), Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U.Pa.L.Rev. 638 (1955). The evidence does not have to show that the accused was the person who engaged in the criminal conduct. Wigmore, Evidence, supra.

To establish the corpus delicti of the theft of Mr. Zipkin’s money the Commonwealth had to show that a person “unlawfully [took] or exercise[d] unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). To establish the corpus delicti of the robbery, the Commonwealth had to show that in the course of committing the theft a person did one of the following:

(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
18 Pa.C.S. § 3701(a).

The evidence of the corpus delicti of the theft consisted of Mr. Zipkin’s statement that he had been robbed and of the evidence that when his personal possessions were inventoried, they included no money despite the fact that he had been shopping and had recently cashed a check. While “robbery” is a statutorily defined offense, “to be robbed” is commonly understood to mean that one has had something “stolen” or “unlawfully taken.” Oxford American Dictionary. Mr. Zipkin’s statement that he had been robbed therefore indicated that something had been taken from him. The fact that no money was found among his personal possessions indicated that what was taken from him was money. The corpus delicti of the robbery was established by the additional evidence of injury to Mr. Zipkin’s neck and chin, indicating that his money had been taken by force.

-(b)-

Appellant further argues that his confession should have been suppressed because when the police questioned him about the Zipkin robbery, on March 3,1980, his attorney was not present, and also, because in January 1979 he had told the police that he was “finished” talking about the robbery. Brief for Appellant at 25-26.

It will be recalled that in October 1979 appellant was brought to Montgomery County so that an outstanding charge against him of fraudulent use of a credit card might be resolved. With respect to that charge appellant was represented by counsel—Jeffrey Kroberger. Over Mr. Kroberger’s advice, appellant pleaded guilty to the charge. N.T. 8/4/82 at 42. Appellant had not yet been charged with the Zipkin robbery, and Mr. Kroberger was not providing legal counsel to appellant with respect to the robbery.

In these circumstances we are unable to find any merit in appellant’s argument that Mr. Kroberger should have been present when the police questioned him about the Zipkin robbery, on March 3, 1980. Mr. Kroberger had not been retained to represent appellant with respect to the robbery, and the matter with respect to which he had been retained had culminated in a guilty plea. Furthermore, before being questioned, appellant was told that if he wished, he could have counsel present, and he did not ask that Mr. Kroberger be present.

It is clear from our review of the record that the police initiated the questioning of appellant on March 3, 1980, about the Zipkin robbery. However, it is also clear that appellant had no objection to being questioned, and in fact wished to discuss the robbery with the police. Id. at 48-54. It is true that in January 1979 appellant had said that he did not wish to be questioned about the robbery any further, but by March 1980 appellant had had a change of heart. Thus, appellant testified on cross-examination:

Q. Mr. Frison, in the beginning of 1980, maybe the end of 1979, did you undergo some changes in your lifestyle? Specifically did you discover religion? .... I think the word is reborn.
A. Reborn? I discovered religion. I was raised in religion as a Christian. My self-confidence of my religion, I grew away from it. Since I’ve been incarcerated I picked up my religion.
Q. You picked up your religion in the latter part of 1978 or the beginning of 1979 after you had spoken with the police on those two occasions Mr. Lovenwirth [defense counsel] talked to you about, is that correct?
A. No.
Q. Do you remember you spoke with the police in December of 1979 at Broad and Champlost, I guess it was?
A. Yes.
THE COURT: December of 1978.
MR. SELIG: 1978.
Q. And in January of 1979, is that correct?
A. Yes.
Q. Then it was after that that you rediscovered religion. Is that correct?
A. Afterwards?
Q. Yes. You were incarcerated right after that.
A. I had made bail after that. After April 10,1979 when I was sentenced by the United States Federal District, I was down for about three months and I started looking ahead for things. I started to pick back up on what I was raised and born with.
Q. Isn’t it true that you wished to wrap up matters in this jurisdiction of Montgomery County back in February and March of 1980?
.... The credit card case—
A. Yes.
Q. And you wanted to get all that behind you. Isn’t that correct?
A. Yes.
Q. With that in mind you spoke with Detective Vance about this robbery, is that correct?
Q. Mr. Frison, I believe my question was, with this in mind, your desire to wrap things up, you spoke with Detective Vance of the Montgomery County Detectives’ Office. Is that correct?
A. Yes.
N.T. 48-52 (Objections and legal argument omitted).

Once an individual is given his Miranda warnings and indicates that he wishes to exercise those rights, all interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975); Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973). If an interrogation continues without the presence of an attorney. and a statement is taken, the Commonwealth has a heavy burden of demonstrating that the defendant knowingly and voluntarily waived his privilege against self-incrimination and his right to counsel. Commonwealth v. Scarborough, supra.; Commonwealth v. Nahodi, supra; Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973). Thus, a defendant’s initial exercise of his Miranda rights does not foreclose a later waiver of them so long as the waiver is preceded by a complete explanation of those rights and it is clear from the record that the defendant’s decision to forgo those rights was not induced by coercion, however subtle, or promises of leniency but was voluntary. See, Common wealth v. Youngblood, supra; Commonwealth v. Grandison, 449 Pa. 231, 296 A.2d 730 (1972); Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971); Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970).

Here appellant’s interrogation was preceded by a complete explanation of his Miranda rights, and we are satisfied that appellant’s decision to forgo those rights was not induced by coercion or promises of leniency but was voluntary. Cf. Commonwealth v. Reynolds, 300 Pa.Superior Ct. 143, 446 A.2d 270 (1982). As shown by the testimony we have quoted, between'January 1979, when he availed himself of his right to remain silent, and March 1980, when he decided to waive that right, appellant had experienced a change of heart. His decision to discuss the Zipkin robbery was prompted by his desire to admit responsibility for his past misdeeds so that he could get a fresh start on life. While we will not permit a confession produced by coercive police conduct to be considered by a jury, we will not shield an accused from a confession brought about by his own conscience.

-(c)-

Appellant further argues that his confession, and also his fingerprints, should have been suppressed as obtained in violation of the Interstate Agreement on Detainers, 42 Pa. C.S. § 9101. Appellant relies on Article V(d):

The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
42 Pa.C.S. § 9101 (emphasis added).

Appellant contends that because he was extradited only for the credit card charge, he could not be questioned about the Zipkin robbery. Brief for Appellant at 23-25.

We agree that the Commonwealth may not extradite an accused on one charge for the purpose of questioning him on another. Here, however, appellant was extradited, not to be questioned about the Zipkin robbery, but, at his own request, to resolve the outstanding credit card charge. Thus, when appellant was questioned about the Zipkin robbery, and then fingerprinted, he was being properly held on the credit card charge. Nothing in the Interstate Agreement on Detainers precludes the interrogation of someone on unrelated crimes so long as that interrogation is not the basis of his being detained or brought into the receiving state.

Appellant also argues that since he was not brought to Pennsylvania to stand trial for his involvement in the Zipkin robbery, the lower court lacked jurisdiction to try him. Brief for Appellant at 20-22. This argument may be summarily dismissed. Although brought to Pennsylvania on the credit card charge, once here, appellant formally requested, in accordance with the Interstate Agreement on Detainers, to be allowed to remain in Pennsylvania so that “a final disposition” could be rendered on the charges arising out of the Zipkin robbery. See Commonwealth Exhibit “C”, Habeas Corpus 5/12/80.

Affirmed.

      . Appellant is required to state in the conclusion to his brief “the precise relief sought.” Pa.R.App.P. 2111(a)(7). In his conclusion, appellant requests only that we discharge him; he does not request that we grant him a new trial. Nonetheless, most of his arguments, if accepted, would entitle him only to a new trial and not an arrest of judgment. However, since appellant moved below for either a new trial or an arrest of judgment, and since his arguments suggest that he is in fact requesting a new trial, we shall despite the conclusion to his brief assume that he is seeking either a new trial or an arrest of judgment. Pa.R.App.P. 105(a).

      . Appellant’s remaining arguments have been adequately disposed of by the lower court. These arguments are that the lower court erred in admitting Michael Taraborrelli’s statement that Zipkin told him “he had just been robbed;” in admitting evidence of appellant’s fingerprints on Zipkin’s car; in permitting the Commonwealth to re-examine two excused witnesses; in failing to hold a de novo hearing following appellant’s habeas corpus petition; and in trying appellant more than fifteen months after the commission of his offense and more than 120 days from the day he was brought into Pennsylvania.


source: Caselaw Access Project

author: SPAETH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    448 A.2d 25
    In the Interest of Melissa MILLER, Dependent. Appeal of Melissa MILLER and Edward Christoph.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed July 2, 1982.

      Carmela R. M. Presogna, Assistant Public Defender, Erie, for Melissa Miller, appellant.
    Dennis Y. Williams, Erie, for Edward Christoph, appellant.
    Stephen A. Tetuan, Erie, for mother, participating party.
    Dana S. Jones, Assistant District Attorney, Erie, for Commonwealth, participating party.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from an order declaring appellant’s common law marriage invalid and adjudging her a dependent child. We reverse.

At the time the events in question occurred, appellant was fourteen years old and a student in the eighth-grade. She lived with her mother in Erie. Her English teacher was one Edward Christoph, who was thirty-six years old. Early in the fall of 1980, appellant and Mr. Christoph became romantically involved. Sometime in October of 1980, appellant’s mother found two letters from Mr. Christoph to appellant; they were affectionate in nature, saying “I love you” and “[tjhings of that nature.” N.T. 8/4/81, 48. Appellant’s mother confronted appellant with the letters and forbade her to see Mr. Christoph. She also discussed the matter with the school authorities, and appellant was later transferred from Mr. Christoph’s English class. However, appellant continued to see Mr. Christoph, by sneaking out of the house from time to time.

During this time, appellant’s relationship with her mother became turbulent, and on April 10,1981, appellant ran away and was placed by Children’s Services of Erie County at the home of her aunt and uncle. In July, appellant ran away from their home and was later found at Mr. Christoph’s home. On July 17, after a brief stay in a foster home, appellant returned to her mother’s home to live. On July 21, 1981, at about 3:00 a. m., appellant met Mr. Christoph and entered into a common law marriage with him at the home of his sister and brother-in-law, who served as witnesses to the marriage.

Appellant’s mother is opposed to the marriage. On July 22, 1981, she filed a petition alleging that appellant was a dependent child. The lower court ordered appellant detained at a foster home, and on August 4, after an adjudication hearing, adjudged her dependent and ordered that she “not have contact in any manner” with Mr. Christoph. This appeal is from that order.

During the adjudication hearing the lower court correctly stated that

[i]f in fact there is a marriage [of appellant and Mr. Christoph], then she [appellant] would no longer be under the responsibility and care of the mother. Therefore, the basis for the [dependency] petition would fail.
N.T. 60.

In its opinion, filed in response to this appeal; the lower court did not question the testimony that appellant and Mr. Christoph had by words in the present tense expressed their intent to marry one another, as required if parties are to enter into a common law marriage. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979); Stauffer Estate, 372 Pa. 537, 94 A.2d 726 (1953). The court held, however, that appellant’s marriage to Mr. Christoph was invalid because “one of Mr. Christoph’s express motives in marrying Melissa Miller [appellant] was to avoid criminal prosecution.” Slip op. at 3-4. Said the court:

Mr. Christoph testified that at the time the alleged marriage occurred, he was aware that the District Attorney’s Office was contemplating filing criminal charges against him based on his sexual involvement with the minor, Melissa. (Tr. 65). Upon learning that he was the subject of a criminal investigation, Mr. Christoph consulted an attorney who advised him of the requisites for a common law marriage (Tr. 73-74).
Virginia Byers, Mr. Christoph’s sister and a witness to the alleged marriage ceremony, testified that one of Mr. Christoph’s express motives in marrying Melissa Miller was to avoid criminal prosecution (Tr. 84r-86).
The Court finds it abundantly clear that Mr. Christoph’s purpose in uttering the words “I will marry you” was to prevent Melissa from appearing as a witness against him in a criminal proceeding. And, this Court will no more condone fraudulent behavior of this sort in a common law marriage than it would in any other marriage.
Slip op. at 3-4.

The court also said that Mr. Christoph’s “sole purpose [in getting married] was to perpetrate a fraud upon this Court and Melissa Miller.” Slip op. at 4.

When we review a decision by a lower court, we must accept findings of fact supported by the evidence, for the lower court is in a much better position than we are to resolve conflicts in the evidence and issues of credibility. However, we are not bound to accept findings not supported by the evidence; nor are we bound to accept the lower court’s inferences from the evidence, or its conclusions of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981); Hankin v. Hankin, 279 Pa. Superior Ct. 179, 420 A.2d 1090 (1980).

Here, we have encountered some difficulty in accepting the lower court’s statement of Mr. Christoph’s motive in entering into the marriage. Although the court stated that it found it “abundantly clear” that Mr. Christoph’s motive was “to prevent [appellant] from appearing as a witness against him in a criminal proceeding,” slip op. at 4, the evidence is, at the least, equivocal.

Mr. Christoph testified that his motive was that appellant should “be my wife” and that his understanding, when he told her this, was that no criminal charges were going to be brought against him:

Q. What did you say to Melissa before the persons present at the Byers’ home on that occasion?
A. I said, “I marry you, Melissa.”
Q. You say, I marry her?
A. Yes.
Q. And what did you intend when you said you married her?
A. I intended that she be my wife.
Q. And as your wife what was your intention towards her?
A. To take her home to live with me as my wife.
Q. Did you recognize any responsibility when you said those words?
A. Yes.
Q. What were the responsibilities that you recognized?
A. To take her, provide a home and all the necessities that you would normally provide for your wife.
Q. Mr. Christoph, at the time this alleged marriage is to have taken place between you and Missy, do you know—were you aware of the fact that the police were investigating you?
A. I had talked to the police at the time, yes.
Q. Were you afraid that charges would be filed against you by the police as a result of your involvement with Missy?
A. No.
Q. You were not afraid of that?
A. No.
Q. The crime, corrupting the moral[s] of minors, have you ever heard of that at the time you got married to Missy?
A. Yes, I did.
Q. Did you have any concerns at the time this alleged marriage is to have taken place with you being charged by the police?
A. No.
Q. Why not?
A. Because when I talked to Detective Slupski he said no charges would be brought.
Q. Isn’t it a fact you got married to Missy to prevent her from testifying against you and as a result you wouldn’t have to face criminal charges?
A. No.
Q. Isn’t that a fact?
A. No, it is not.
* * * * * *
THE COURT: As far as the police investigation, you were aware of that because you talked to a police officer?
THE WITNESS: Yes, I did.
THE COURT: And you spoke to him about the charge of corrupting the morals of a minor?
THE WITNESS: Yes, I did.
THE COURT: And how did that come about?
THE WITNESS: I don’t understand the question. THE COURT: How did you speak to him? Did you go down to speak to him?
THE WITNESS: He said he wanted to talk to me at a certain time.
THE COURT: What happened?
THE WITNESS: We discussed the charges and he asked me questions about what had happened and at the end of the conversation he said he was going to recommend to the D.A. that no charges be brought.
THE COURT: When did this occur?
THE WITNESS: I really don’t know the day. It was a week maybe a week and a half before we got married.
N.T. 63-64, 65-66, 72-73.

It is true, as the lower court states in its opinion, that Mr. Christoph’s sister, Virginia Byers, who was a witness to the marriage ceremony, testified that “one of Mr. Christoph’s express motives in marrying Melissa Miller was to avoid criminal prosecution.” Slip op. at 3-4. However, the sister also testified that another of Mr. Christoph’s motives was that he loved appellant:

Q. [on cross-examination by counsel for appellant’s mother]: Did that strike you as strange that he [Mr. Christoph] wanted to marry such a young girl that use[d] to be a student of his?
A. A little bit, but he said he loved her, so—
Q. Was there any more of a discussion than that, other than the fact that he loved her and wanted to take her as his wife?
A. What do you mean, sir?
Q. Was there any discussion as to any other reasons or any other motives as to why he wanted to marry her, other than love?
A. Well, I think there were some legal problems.
Q. What legal problems?
A. Her—Melissa’s mother didn’t approve of the situation.
Q. What other legal problems?
A. I don’t know. Possibly that—I guess, maybe, he would go to jail.
Q. Go to jail for what?
A. Let me think of what the term is.
Q. Corrupting the morals of minors?
A. Yeah, that’s what I’m trying to think of—say.
Q. Is that what you are talking about?
A. That crossed his mind.
Q. Did he think Melissa—
A. A little bit.
Q. How?
A. I guess if they were married, you know—
Q. Did he express that in words?
A. That he thought they would do that?
Q. Yes. Did he express that by marrying Missy, he would avoid criminal prosecution?
A. Yes.
Q. When was this discussed with your brother?
A. About the criminal charges? That would—
Q. Yes.
A. —that would have been Saturday morning.
Q. That would have been two or three days prior to the marriage?
A. That is correct.
Q. And in discussing these things with him, what was first mentioned as for his reasons for wanting to get married?
A. His first reasons—uh—
Q. Did he give a priority?
A. No, not really.
REDIRECT EXAMINATION
BY MR. KOWNACKI:
Q. This was a general discussion with you?
A. Right.
Q. Did he appear sincere in his stated reasons for love?
A. Yeah. I was surprised, but yeah, he was serious.
Q. You have known your brother for how long?
A. Twenty-five and a half years.
Q. You had a relation—good close relationship with him?
A. Yes.
Q. You feel you know your brother well?
A. Very well.
Q. Therefore, you know him when he is sincere and insincere?
A. Yeah.
Q. He indicated he loved Melissa and wanted to marry her, you felt he was sincere?
A. Yes, I did.
N.T. 84-87.

The lower court does not mention this portion of the sister’s testimony. It seems to us that the fairest inference to be drawn from the evidence is that Mr. Christoph may have had at least two motives for marrying appellant—his love for her, and his desire to avoid criminal prosecution for his relationship with her. We find no support in the record for the lower court’s assignment of priority to the second of these motives.

We may, however, put aside any difficulty with the inferences drawn by the lower court. Accepting the lower court’s finding that Mr. Christoph married appellant to avoid criminal prosecution, still, we are unable to uphold its order. For contrary to the court’s opinion, such a motive does not invalidate a common law marriage.

The controlling decision is Estate of Gower, 445 Pa. 554, 284 A.2d 742 (1971). In Gower, as here, the parties had by words in the present tense expressed their intent to marry one another. The lower court nevertheless held the marriage invalid because the appellant’s motive in entering into the marriage was to avoid conscription for military service. Reversing, the Supreme Court held that “[t]he reason or motive underlying a decision to marry is not relevant to a finding of the intention to marry.” Id., 445 Pa. at 557, 284 A.2d at 744. (emphasis in original). Therefore, the appellant’s motive to avoid conscription could not “render[ ] invalid his otherwise valid common law marriage.” Id.

The record here establishes—and the lower court did not question—appellant’s and Mr. Christoph’s intention to marry. The fact-—as the lower court found it to be—that Mr. Christoph’s motive was to avoid prosecution could not render invalid their otherwise valid common law marriage.

There is one further aspect of the lower court’s decision that requires consideration. Having held—erroneously, as we have just discussed—that Mr. Christoph’s motive invalidated the marriage, the court went on to say:

Which brings us to the next issue—whether the validity of this marriage can only be challenged by one of the parties in an action for divorce in annullment.
Invalid marriages are of two types: void and voidable. A void marriage is subject to collateral attack and its validity may be challenged in any legal proceeding wherein it is pertinent. Faivre v. Faivre, 182 Pa.Super. 365, 128 A.2d 139 (1957). See, also, 23 P.S. Section 204(b).
Under the new Divorce Code, 23 P.S. Section 204(a)(3) where one party to the marriage lacks the requisite assent the marriage is void. We find that Mr. Christoph lacked the requisite intent to assent to a valid marriage and that his sole purpose was to practice a fraud upon this Court and upon Melissa Miller. Thus, this Court holds that it had the power to adjudicate the validity of Melissa Miller’s common law marriage in the course of adjudicating her status as a juvenile.
Slip op. at 4.

We cannot agree with this reasoning.

It is true that there is a distinction, in both the common law and the Pennsylvania Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq., between a void marriage and a voidable marriage. The Code provides the following grounds for annulment or invalidity of void marriages, in Section 204:

(a) Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of any person shall be deemed void in the following cases:
(1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce, except where such pérson had obtained a decree of presumed death of the former spouse.
(2) Where the parties to such marriage are related within the prohibited degrees of consanguinity, which degrees are as follows:
A man may not marry his mother.
A man may not marry his father’s sister.
A man may not marry his mother’s sister.
A man may not marry his sister.
A man may not marry his daughter.
A man may not marry the daughter of his son or daughter.
A woman may not marry her father.
A woman may not marry her father’s brother.
A woman may not marry her mother’s brother.
A woman may not marry her brother.
A woman may not marry her son.
A woman may not marry the son of her son or daughter.
(3) Where either party to such marriage was incapable of consenting by reason of insanity or serious mental disorder, or otherwise lacked capacity to consent or did not intend to assent to such marriage,
(b) In all such cases of marriages which are void, the marriage may be annulled as set forth in section 203, or its invalidity may be declared in any collateral proceeding.

The Code provides the following grounds for annulment of voidable marriages, in Section 205:

§ 205. Grounds for Annulment of Voidable Marriages
(a) The marriage of any person shall be deemed voidable and subject to annulment in the following cases:
(1) Where either party to such marriage was under 16 years of age, unless such marriage was expressly authorized by a judge of the court.
(2) Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not subsequently ratified such marriage upon reaching the age of 18 and such proceeding for annulment is commenced within 60 days after the marriage ceremony.
(3) Where either party to such marriage was under the influence of intoxicating liquor or drugs and a proceeding for annulment has been filed within 60 days after the marriage ceremony.
(4) Where either party to such marriage still is and was naturally and incurably impotent at the time of such marriage, unless the condition was known to the other party prior to the marriage.
(5) Where one party was induced to enter into such marriage due to the fraud, duress, coercion, or force attributable to the other party, and there has been no subsequent voluntary cohabitation after knowledge of such fraud or release from the effects of fraud, duress, coercion, or forces.
(b) In all such cases of marriages which are voidable, either party thereto may seek and obtain an annulment of such marriage, but unless and until such decree is obtained from a court of competent jurisdiction, such marriage shall be valid and subsisting. The validity of such a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties thereto or if either party has died.

Section 203 of the Code authorizes a proceeding for the annulment of both void and voidable marriages:

In all cases where a supposed or alleged marriage shall have been contracted which is void or voidable under this act or under applicable law, either party to such supposed or alleged marriage may bring an action in annulment to have it declared null and void in accordance with the procedures provided for under this act and the Rules of Civil Procedure.

By its citation of Section 204(a)(3) of the Code the lower court blurred the statutory distinction between void and voidable marriages. That section makes a marriage void only where one of the parties “lacked capacity to consent or did not intend to assent” to the marriage. Since here neither party lacked capacity and both intended to assent, the section is inapplicable. The lower court’s finding that “[Mr. Christoph’s] sole purpose was to practice a fraud upon this Court and upon [appellant]” does not bring the marriage within Section 204(a)(3). For marriages induced by fraud are dealt with explicitly in Section 205(a)(5), which concerns voidable marriages.

The distinction between a void marriage and a voidable marriage is not merely a matter of semantics. The Divorce Code, like the common law, provides that a voidable marriage may be annuled only by “either party thereto” and is “valid and subsisting” “unless and until” challenged by one of them. Section 205(b); Perlberger, Pennsylvania Divorce Code § 3.2.3. (1980) (“the legislature has expressly declared this crucial distinction between void and voidable marriages by enactment of section 205(b)”). If indeed appellant was induced to enter into marriage by Mr. Christoph’s fraud, their marriage is not, as the lower court held, void, but voidable. In that event, appellant may seek to have it annuled. Not only, however, does she not make such a request; she has appealed to this court asking that her marriage be upheld.

We have not overlooked the arguments of counsel for appellant’s mother, urging that we re-examine the doctrine of common law marriage, and either abolish it or align the age of consent to that required for statutory marriage. However, we have declined previous opportunities to abolish or modify the doctrine of common law marriage. See e.g., Buradus v. General Cement Products Co., supra note 4. Past efforts in the Legislature to abolish common law marriage have failed. Freedman, 1 Law of Marriage and Divorce in Pennsylvania, § 50a (2d ed. 1957). The Marriage Law, Act of August 22, 1953, P.L. 1344, 48 P.S. § 1-23, explicitly preserves the right to contract a common law marriage, providing that “[njothing herein shall be construed to change the existing law with regard to common law marriage.” This remains the legislative intent, as may be seen from the fact that the Divorce Code of 1980 did not repeal this provision of The Marriage Law, although it did expressly repeal another provision. See Perlberger, Pennsylvania Divorce Code § 2.5 (1980). For us to ignore so clear an expression of legislative intent would be an abuse of judicial power. If common law marriage is to be abolished, or the requirements for entering into it changed, it must be done by the Legislature, not the courts.

In conclusion, we wish to note that neither have we overlooked the anguish that this marriage has caused appellant’s mother. We may hope that her fears are unfounded, as they may be, for the most devoted mother is sometimes mistaken about what is good for her child. But if we knew that the marriage would prove unhappy and short, that would not deflect us from our decision. Our responsibility is to interpret and apply the law. If a marriage is lawful, that is the end of our inquiry. For as judges, we are agents of the State, and whether a lawful marriage is happy or unhappy is none of the State’s affair.

Reversed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

The majority opinion would reverse the order of the lower court, which declared an attempted common law marriage void and adjudged Appellant to be a dependent child based upon evidence of the Appellant’s incorrigibility and her refusal to submit to parental control. Since I agree with the majority that our responsibility is to interpret and apply the law, and since I find that the facts appearing on the record in this juvenile proceeding clearly support the findings and disposition of the trial judge, I must respectfully dissent.

Although this matter arises as a dependency proceeding, and although the lower court’s order adjudging Appellant dependent and further ordering her detention in a foster home is the ultimate decision for review on this appeal, I note that Appellant has not directly challenged the trial judge’s findings as to incorrigibility either in her brief or on oral argument before this court. I will assume for purposes of this dissent that Appellant does not challenge the findings of the lower court as to her behavior up to the time of the bizarre ceremony by which Appellant seeks to escape the jurisdiction of the Erie County Common Pleas Court, Juvenile Division.

The learned trial judge is perfectly correct in observing that this case presents a troubling, but fortunately rare, situation. The facts appear from the record as follows.

Melissa Miller, Appellant, was born October 15, 1966, and had not yet reached her fourteenth birthday when the events leading up to the dependency hearing began to unfold. Edward Christoph, a professional employee of the School District of Erie, first knew Melissa about two years prior to the time of his testimony in these proceedings on August 4, 1981. Melissa was a student of Christoph’s in the eighth grade at the Wilson School where Christoph was employed to teach English. Unfortunately, Christoph did not limit his contacts with the minor Appellant to matters properly included in an eighth grade English class curriculum or directed towards the improvement of her formal public school education.

In October or November of 1980, Melissa’s mother discovered two letters on the kitchen table of her home sent by Christoph to Melissa. The letters contained phrases such as, “What we had was beautiful”, “You gave yourself fully”, and “I love you”. When confronted with the letters, Melissa first denied any knowledge of them and then admitted that they had been written to her by Christoph. The mother immediately went to her sister’s house and discussed the matter with her sister and brother-in-law. When she later returned to her residence, the letters were missing from her purse. The mother promptly brought the matter to the attention of the Erie public school officials, who took steps to transfer Melissa out of Christoph’s class and expressly forbade the teacher, in writing, to have any contact whatsoever with Melissa. Unbeknownst to the mother or school officials, Christoph continued to see the minor Appellant. While admitting to the hearing judge that he had received a letter from his school principal saying that at no time was he to talk to, or have any dealings with, Melissa, he claimed to have honored that order, if at all, only during school hours since, in his view, “that’s as far as the school district has any rights.”

Melissa’s mother testified that her problems with control of Melissa began early in the fall of 1980. Melissa would sneak out of the house through her bedroom window in the early morning hours and be away for three or four hours. At the dependency hearing, it was established through Melissa’s testimony that a meretricious relationship had begun between Melissa and Christoph as early as November 1980, when Christoph, who was married at the time, would have been at least 35 years old and Appellant barely 14. The troubles which the mother was experiencing with Melissa continued, as hindsight would lead us to suspect, until Melissa ran away from her mother’s home on April 10, 1981. Christoph had secured a divorce from his wife on December 8,1980 and took custody of his two children who, at the time of Melissa’s dependency hearing, were only 12 and 13 years of age.

In April 1981, in an attempt to gain control over her daughter, Melissa’s mother had Melissa placed in the custody of her aunt and uncle through the Children’s Services of Erie County. While in their custody the aunt became concerned when, one day, Melissa had not traveled to the place to which she had been given permission. The aunt notified the mother who, while out searching for Melissa, observed her daughter coming out the front door of Christoph’s home. The mother entered the home and confronted Christoph, who was in the residence with his 13-year-old daughter. As a result of that incident, the mother signed a voluntary entrustment agreement by which Melissa was placed in a foster home. After a brief stay, Melissa was returned to her mother’s home.

Early on the morning of July 17, 1981, Melissa again slipped out of her home, through a bedroom window, and rendezvoused with a 13-year-old friend. They walked to Rosary School where Christoph picked the two minor girls up, following a telephone call by Melissa to him. Christoph transported both children to the residence of his sister and brother-in-law where, at 3:00 a.m., in the presence of the sister, brother-in-law and the 13-year-old friend of Melissa, Christoph and Melissa exchanged words which we are asked to dignify by finding them to be marriage vows. Within thirty minutes, Melissa left the home of Christoph’s sister and, according to the sister, returned, alone, to her mother’s home. At 5:00 a. m. the same morning, Melissa returned, by herself, and remained at the home of Christoph’s sister who left for work at about 8:00 a. m. leaving Melissa alone in the residence. The following day, a dependency petition was filed by the mother and Melissa was picked up by the Erie police and removed to the James Cooney Foster Home. A detention hearing was held two days later and Melissa was remanded back to the Foster Home, pending the dependency hearing on August 4, 1981.

While it is clear from the record that Christoph had sexual relations with the 14-year-old Melissa on more than one occasion both during and after his marriage to another person, it is far from clear that either Melissa or Christoph sought to “consummate” their 3:00 a. m. “marriage” or even expressed any intention of assuming any relationship as husband and wife, prior to the discovery by the mother of this last instance of incorrigibility and the arrest of Melissa by the Erie police following the detention order of July 22, 1981.

In December, 1980, following his divorce from his wife under the statutory laws of this Commonwealth, Christoph consulted with his divorce lawyer about the elements of common law marriage in Pennsylvania. He again consulted with his lawyer about common law marriage “the following day after we [Melissa and he] were married to make sure that I had the instructions correct.” The Erie police had talked to Christoph “several times from April until July” 1981 about his relationship with Melissa and his alleged corruption of the morals of Melissa. Although Christoph testified that two weeks before his attempted marriage he was assured that no charges would be brought against him, three days before the 3:00 a. m. “marriage” he told his sister that he believed his marrying Melissa would result in his avoiding criminal prosecution.

On July 16,1981, Melissa had given a written statement to Detective Sergeant William Serafini of the Erie police which presumably detailed her sexual relationship with Christoph going back at least as far as November 1980. Melissa never discussed this statement with Christoph. Christoph never discussed with Melissa his consultations with his attorney regarding common law marriage and avoidance of prosecution other than to provide Melissa with “what you had to say [to perfect a common law marriage] and that’s it”.

It is on these facts that we are asked to overturn the lower court’s finding that the 3:00 a. m. colloquy between a 14-year-old girl and a 36-year-old man did not rise to the stature of a valid common law marriage.

The majority focuses on Gower Estate, 445 Pa. 554, 284 A.2d 742 (1971) in concluding that once the intention to marry is established, one may not consider motivation in evaluating whether a valid common law marriage has been consummated. I view the facts in Gower to be at great variance with the facts in the instant case. In Gower, our supreme court was reviewing the lower court’s orders confirming an auditor’s recommendations that denied claims by the appellant seeking to elect to take against the will and secure a family exemption in his alleged wife’s estate. The appellant and the decedent had begun living together in 1930, while decedent remained married to her first spouse. Two years later, the decedent had secured a divorce, and from 1932 to 1942 they [appellant and decedent] continued to live together. In 1942, both of them had executed a Selective Service form for the purpose of establishing marriage status, which status, if accepted by the Selective Service Board, would result in a deferred classification under the military draft laws. The parties continued to live together another twenty years following the execution of the Selective Service form and until decedent’s death in 1962. The supreme court, in Gower, found the Selective Service form to contain sufficient language in the present tense, uttered with a view and for the purpose of establishing the relationship of husband and wife, to overcome the presumption of invalidity arising from the meretricious relationship, the obstacle of which had been removed some ten years earlier by virtue of decedent’s divorce. The Gower decision, which involved the review of a relationship lasting over thirty years following the wife’s divorce, affords little support, in my view, for the decision of the majority in the instant case.

This is so because in Gower one has no difficulty in finding not only the words in praesenti but, of equal importance, the clear intention and purpose of establishing the relationship of husband and wife. I agree with the majority that, in the instant appeal, Melissa and Christoph satisfied the law’s requirement that words in praesenti be exchanged in order to create a common law marriage. This is not surprising, given the fact that Christoph had consulted with his lawyer before the ceremony, and again the day following, to make sure his “instructions” had been correct. Marriage, even common law, requires more than that, however.

The lower court correctly listed the three elements necessary for judicial recognition of a common law marriage: (1) express agreement by the parties; (2) by words in praesenti; (3) uttered with a view and for the purpose of establishing the relationship of husband and wife. Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). And a meretricious relationship, as in the instant case, is presumed to continue until a change to a legal status is proved by clear and convincing evidence. Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346, 348 (1946); Wagner v. Wagner, 152 Pa.Super.Ct. 4, 8, 30 A.2d 659, 661 (1943),

An examination of the facts in the record below leaves me unconvinced that the minor Appellant, Melissa, has support for either the first or the third element set forth above. On the issue of the express agreement between the parties, the record is devoid of any testimony concerning meaningful discussions or conversations between the parties regarding the marriage prior to the ceremony itself. The record does establish that Melissa had conversations with the police about her illicit sexual relationship with Christoph and kept those conversations from Christoph right up to the time of the dependency hearing. The record further establishes that Christoph had extended conversations with his counsel about marriage but, according to his intended child bride, he only shared with her the magic words necessary to complete the charade. This writer need not reach the serious question of whether an otherwise incorrigible minor possesses the capacity to enter into a contract of marriage, since the record does not, in my view, contain any manifestation of a mutual agreement freely entered into between the parties.

I am equally unconvinced that the Appellant can establish by clear and convincing evidence that the words were uttered with a view and for the purpose of establishing the relationship of husband and wife. As the majority opinion cites from the transcript, Christoph indicated that his intention, at the time of the marriage was “to take [Melissa] home to live with me as my wife.” Yet, immediately following the 3:00 a. m. incident, Melissa returned to her mother’s home, where she stayed without her “new husband” and returned later that morning, not to her “new husband’s” abode, but to the home of one of the “witnesses” to the incident. While I have no difficulty in accepting the rule that a contract made by words in praesenti may amount to a valid marriage even though not consummated by cohabitation, the reviewing court may examine all the facts in a case in seeking to determine what the true intent and purpose of the parties may have been at the time of the purported marriage agreement.

Where, as here, a thirty-six-year-old man picks up an incorrigible minor girl of tender years at 3:00 a. m. in the morning, after having sought legal advice on means by which he might avoid prosecution for corrupting the morals of a minor, and where, immediately following a ceremony, with witnesses, the parties go their respective ways, it is impossible for me to conclude that the furtive ceremony was entered into with a view and for the purpose of establishing the relationship of husband and wife.

In reaching my conclusion that Appellant has not established by clear and convincing evidence that the words uttered early that morning were pronounced with the sincere and solemn view and for the purpose of establishing the relationship of husband and wife, I have attempted to focus on both the actions and the words of the parties. Every teacher employed to teach in the public schools of this Commonwealth must be a person of good moral character. Public School Code of 1949, Act of March 10, 1949, P.L. 30, art. XI, § 1109, 24 P.S. § 11-1109. Both Melissa’s mother and the Erie public school officials had every right to expect that the fiduciary relationship between the school and Melissa’s family would not be violated. In fact, however, Christoph used the mandatory attendance provisions of our school laws and his position as a teacher to prey upon one of his charges, and when ordered to cease and desist from his advances to Melissa, he took the position that what he did with one of his fourteen-year-old pupils after school hours was the proper concern of neither the school officials nor the child’s mother. Given his attitude and conception of his relationship to his employer and the young charges entrusted to his care, I am not prepared to conclude that his mere recitation of five or six words, spewed forth while he was fully aware of potential criminal charges, constituted the kind of bona fide purpose or intention to enter into a lawful marriage which this court must recognize. Neither the majority opinion nor the briefs of the multiple appellants refer me to any case law which holds otherwise.

I would agree with the majority that for this court to seek to abolish the doctrine of common law marriage would be an abuse of judicial power. Recognizing the proper role of the legislature in this area, however, does not require us to abdicate our responsibility in deciding cases which reach us sui generis. And, as Gower Estate, supra, this case is, indeed sui generis.

More than forty years ago, this court stated that:

The law of Pennsylvania recognizes common law marriages. But they are a fruitful source of perjury and fraud, and, in consequence, they are to be tolerated, not encouraged; the professed contract should be examined with great scrutiny, and it should plainly appear that there was an actual agreement entered into, then and there, to form the legal relation of husband and wife: .... [citation omitted; emphasis in original].

Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super.Ct. 541, 551, 345 A.2d 914, 918 (1975), quoting Baker v. Mitchell, 143 Pa.Super.Ct. 50, 54, 17 A.2d 738, 741 (1941).

Whether one person has been legally married to another is not a pure question of fact. It is a mixed question of fact and law. Baker v. Mitchell, 143 Pa.Super.Ct. at 55, 17 A.2d at 741. We know that a license to marry could not be issued to Melissa on the facts of this case unless a judge of the orphans’ court should decide that it is to the best interest of the Appellant and should authorize the clerk of the orphans’ court to issue the license. Act of August 22,1953, P.L. 1344, § 5, 48 P.S. § 1-5(b). I am not prepared to accept that the legislature’s preservation of common law marriage in Pennsylvania had included in its purposes the desire to permit Christoph in this case to accomplish, at 3:00 a. m. in the morning, that which he did not, and would not, submit to the courts, whose laws he now seeks to use, in the light of day.

I find the words of Mr. Justice Kephart, speaking for our supreme court in Stevenson’s Estate, 272 Pa. 291, 296, 116 A. 162, 164 (1922) applicable in the instant case:

“Marriage exists not only for the happiness of the parties, but for the welfare of society. It is the most important engagement that man and woman can enter into. It is the basis of civilized society, of the home, of the family, of sound morals, and of the domestic affection.” When it is attempted to establish marriage without the usual formalities, we should examine the professed contract with great scrutiny, and be entirely satisfied this solemn undertaking has been entered into by the voluntary assent of both parties.

It is precisely because I view a marriage without civil or religious ceremony as still valid under the common law of Pennsylvania that I feel compelled to resist what, in this case, constituted a mockery of this respected institution. The question here is whether we may give effect to mere words in praesenti where the surrounding proofs of marriage are, at best, questionable. We are not faced here with the typical situation found in the prior cases involving orphans’ court or workmen’s compensation disputes where a review of alleged cohabitation or reputation evidence existing over a period of months or years might assist the court in determining the issue. Here, the so-called marriage had existed for less than forty-eight hours before called to the attention of the proper authorities. We therefore must look at the activities of the parties up to the time of the ceremony, and immediately following, to ascertain the purpose of establishing the relationship. When this is done, I have no difficulty in concluding that Melissa and Christoph were never married in the eyes of the law.

The institution of marriage has become fragile enough in modern times without this court accelerating its decline and fall by sanctioning the actions of the parties in this case. Our ancestors could not have conceived that a concept born of the exigencies of pioneer life would one day be used to attempt to thwart the purposes of the Commonwealth in preserving the unity of the family whenever possible and in providing for the care, protection, and wholesome mental and physical development of children. The Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6301(b).

In this case, the distinguished lower court judge had before him a petition for dependency arising from the alleged incorrigibility of the minor Appellant. The record is clear that Appellant committed specific acts of habitual disobedience of the reasonable and lawful commands of her mother and her aunt. The lower court found her to be in need of care, treatment or supervision.

But for Appellant’s final act of disobedience involving her early morning flight and subsequent return to her mother’s home, this case would not be before this court on appeal.

The alleged marriage was raised as a bar to the court’s authority to proceed with the dependency petition. It was therefore incumbent upon the minor respondent to establish through clear and convincing evidence that all of the elements of a valid common law marriage were present. While the lower court may have unnecessarily focused on Christoph’s intent, which the lower court found to be fraudulent, I cannot say that the court abused its discretion in failing to find a valid marriage which might have thereby prevented the court from proceeding further. In my view, the facts before the lower court amply support a finding that the purpose of the surreptitious ceremony was something other than to establish the solemn and permanent relationship of husband and wife. The marriage, which from the record does not appear to have been confirmed by cohabitation, is void. Melissa and Christoph were never married in the eyes of the law.

The order of the lower court adjudging the minor Appellant to be dependent and further prohibiting contact in any manner between Appellant and Edward Christoph until further order of the lower court should be affirmed.

      . As the dissent points out, appellant is not directly challenging the lower court’s findings as to her incorrigibility and we, therefore, do not decide this issue. However, we are unable to agree with the dissent that appellant is “otherwise incorrigible,” Dissenting Opinion at 36, and that she committed acts of “habitual disobedience,” id 38. On the contrary, the record demonstrates that appellant’s behavior related entirely to her desire to see Mr. Christoph, and that all of the rules she disobeyed concerned him. Appellant’s mother testified:
      THE COURT: Is it your contention that all the problems you have had with Melissa have incurred [sic] because she has been involved with Mr. Christoph, is that correct?
      THE WITNESS: Yes.
      N.T. 23.
      Her mother also testified that an example of one of the rules appellant broke was “not to meet him.” Id. 21-22. Appellant’s frequent disappearances from her home and her aunt’s home also were due to her meetings with Mr. Christoph, as was the lying associated with these meetings. Id. 12-16. Thus, the record does not support the dissent’s view that appellant was “otherwise incorrigible” or “habitually]” disobedient.

      . Appellant was above the age of consent to common law marriage, which is seven. Jewett v. Jewett, 196 Pa.Superior Ct. 305, 175 A.2d 141 (1951).

      . The inquiry here is similar to that which occurs frequently in the area of labor law, where it is important to determine an employer’s “actual motivation” in firing an employee. It is unlawful to fire an employee in retaliation for his union activities, but lawful to fire him for “good cause.” The courts have struggled with this inquiry in so-called “mixed motive” cases. See Herman Brothers, Inc. v. National Labor Relations Board, 658 F.2d 201 (3rd Cir. 1981).

      . The dissent is concerned that we have focused on Mr. Christoph’s intent in entering into the marriage with appellant to the exclusion of considering appellant’s intent. Dissenting Opinion at 35. Partly for this reason, the dissent finds no express agreement between the parties to marry, and states that “the record is devoid of any testimony concerning meaningful discussions between the parties regarding the marriage prior to the ceremony itself.” Id.

      We have focused on Mr. Christoph’s intent in response to the lower court’s opinion, which questioned only Mr. Christoph’s intent to marry, and also, in response to counsel’s arguments. The lower court accepted as fact that appellant intended to marry Mr. Christoph, and until the dissent, the genuineness of her intent has not been doubted. This is not surprising, for there is more than ample proof in the record that appellant intended to marry Mr. Christoph, and that the two had discussed marriage before the ceremony. Appellant testified that she and Mr. Christoph discussed marriage from as early as December 1980, about seven months before the ceremony. N.T. 97. She also testified that marriage was “both” her idea and Mr. Christoph’s, id., and that she intended to become his wife at the ceremony, and still wished to be married to him, id. 96. Her testimony was corroborated by Mr. Christoph, who testified that “we had talked about getting married for several months.” N.T. 68. Mr. Christoph also testified that he discussed in advance his intention to marry appellant with her mother, who said “that was impossible,” N.T. 73, and that it was after this discussion that he “talked to my attorney and was advised of the laws of the state of common law marriage.” Id. 73-74.

      . The distinction between a void marriage and a voidable marriage derives from the English ecclesiastical courts. A void marriage included unions so abhorrent as to be against public policy from their inception. Into this class belonged bigamous marriages and those in which one party was insane. Void marriages could be dissolved over the objection of the parties by interested persons. In contrast, voidable marriages contained some defect that could be removed by ratification, and were dissolvable only by the injured spouse. Perlberger, Pennsylvania Divorce Code § 3.2 (1980).

      . We note that counsel for appellant’s mother urges an entirely different reason for the application of section 204(a)(3), arguing that appellant lacked the capacity to consent to the marriage because she was under sixteen, as required by The Marriage Law, Act of Aug. 22, 1953, P.L. 1344, 48 P.S. § 1-1 et seq. However, the statutory age requirement is not applicable to common law marriages. Buradus v. General Cement Products Co., 356 Pa. 349, 52 A.2d 205 (1949) (affirming on basis of Superior Court opinion at 159 Pa. Superior Ct. 501, 48 A.2d 883 (1946)). Appellant did not lack capacity to consent to a common law marriage. See footnote 1, supra.

      . See footnote 5, supra.

      . Clause (h) of Section 5 of The Marriage Law was repealed. This clause provided that no license to marry should be issued “to a person divorced by his or her former spouse on the grounds of adultery, for the marriage of such person to the person with whom the crime of adultery was committed, during the lifetime of the former husband or wife.”

      . In her Reasons for Appeal, filed September 11, 1981 pursuant to Pa.R.AP. 1925(b), Appellant sets forth three reasons for the appeal; (1) the Master erred in finding the juvenile should be detained in a foster home, when a valid common law marriage was conclusively shown; (2) the Court erred in voiding the marriage since only the parties may seek annulment under the New Divorce Act; and (3) the Court erred in finding the juvenile dependent based on incorrigibility since responsibilities to a husband are “greater than” the legal commands of a parent.

      . Included in the record transmitted to this court on this appeal is a Petition to Stay Prosecution, filed September 30, 1981 in the lower court on behalf of Edward Christoph. From the Petition, it would appear that a criminal complaint was filed against Christoph on or about August 24, 1981 charging two counts of corruption of minors. A copy of the complaint is attached to the Petition, and alleges, inter alia, that Christoph had, on August 18, 1981 received a copy of the lower court’s order of August 4, 1981 prohibiting contact between the minor Appellant and Christoph and that, thereafter, Christoph “did [on 8-19-81 & 8-21, 8-22-81] have the aforesaid minor in his vehicle and did have physical contact with her according to the minor. Accused also did attempt, on the 2nd occasion, assist the minor in attempting to flee the jurisdidtion [sic] and leave her foster home placement in Corry, being found together in his vehicle by Corry City Police with personal possessions packed and gathered.” The Petition to Stay Prosecution was refused by the Honorable Fred P. Anthony on September 30, 1981. We note that Christoph appeared as a witness, with counsel, at the August 4, 1981 dependency hearing, at the conclusion of which Judge Anthony issued his order barring contact between the parties until further order of court.


author: ROWLEY, Judge:

text:
    448 A.2d 38
    COMMONWEALTH of Pennsylvania v. Gerald COSTELLO a/k/a Jerry Costello, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1981.
    Filed July 9, 1982.

      John A. Bednarz, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before HESTER, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

On May 1, 1979, a criminal complaint was filed charging appellant, Gerald Costello, with criminal conspiracy, theft and receiving stolen property in connection with the theft of sixty-seven cases of food from a railroad car. An arrest warrant was issued on June 8, 1979 but was not served. On July 12, 1979, an information charging appellant with criminal conspiracy and theft by unlawful taking was filed by the district attorney. The information was filed without a preliminary hearing having been held. No written motion or petition was presented by the district attorney certifying that proper cause existed to file the information without a preliminary hearing. However, on the back of the information there is a stamped order, signed by the court, reciting that appellant was a “fugitive from justice”, that he could not be found after a diligent search “within the jurisdiction of [the] court”, and granting leave to the district attorney to file the information without a preliminary hearing.

Appellant filed omnibus pre-trial motions, including a motion to quash the information on the ground that amended Pa.R.Cr.P. 231, which became effective July 1, 1979, no longer provides for a procedure to bypass a preliminary hearing on the government’s claim that the accused is a fugitive from justice who cannot be found in the Commonwealth. Appellant’s motions were denied, and on October 18, 1979, he was found guilty after a jury trial. Appellant’s post-trial motions for arrest of judgment or a new trial were denied. Judgment of sentence was entered on July 10,1980, and appellant appealed to this court.

Pennsylvania Rule of Criminal Procedure 231(a) reads as follows:

“Rule 231. Presentation of Information without Preliminary Hearing.
“(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations will otherwise bar prosecution, an information is necessary in order to extradite the defendant, or a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.”

It is clear from the record that there was no statute of limitations problem in this case and that an information was not necessary to extradite appellant. Rather, the use of the bypass procedure was based on the “other good cause” provision of the rule.

Prior to July 1, 1979, Pa.R.Cr.P. 231 read as follows:
“Rule 231. Presentation of Information without Preliminary Hearing.
“When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the defendant cannot be found in the Commonwealth or that the statute of limitations will run prior to the time when, a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.”

While the trial court recognized that the amended rule eliminated the specific provision permitting a bypass procedure where the defendant “cannot be found in the Commonwealth”, it concluded that it retained the discretion to allow a bypass when the defendant was a “fugitive” under the “other good cause” provision of the amended rule.

The comment to Rule 231(a) by the Supreme Court’s Criminal Rules Committee states that the amendment was intended to limit the use of the bypass procedure to cases where “exceptional circumstances” existed. Although the committee’s comments are not binding on us, they may be considered as effective aids when interpreting the meaning of the rules and amendments thereto. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977). Additionally, Pa.R.Cr.P. 2 states that the rules shall be construed “as nearly as may be in consonance with the rules of statutory construction”. Those rules authorize us to consult the report of the committee that drafted the amendment. 1 Pa.C.S.A. § 1939.

According to the committee’s report, in view of changes in the law since Rule 231 was first adopted, an information is not necessary to obtain custody of a defendant in most cases. The committee believed that authorizing a bypass of the preliminary hearing where “the defendant cannot be found in the Commonwealth” had become overly broad. 9 Pa.B. 237. In proposing the amendment, it was the desire of the committee to “authorize bypass of the preliminary hearing only in those unusual situations where there remains, under present law, some necessity for permitting the bypass”. 9 Pa.B. 237. The propriety of retaining the open-ended provision allowing bypass for “other good cause” was debated at length by the committee. It was ultimately decided to retain the provision, since a bypass might be “necessary” in other circumstances than in the two situations specifically listed in the statute. However, it was intended that the procedure have only limited applicability. 9 Pa.B. 238. It seems clear from the committee report and the comment to Rule 231 that by deliberately deleting the provision permitting bypass when “the defendant cannot be found in the Commonwealth”, it was intended that the scope of the rule be narrowed.

Therefore, we must determine whether the trial court erred in concluding that the facts in this case constituted such exceptional circumstances as to justify a bypass procedure under the “other good cause” provision of Rule 231. The record merely shows that the police had been unable to locate appellant during the period of approximately five (5) weeks between the issuance of the arrest warrant on June 8, 1979, and the filing of the information on July 12, 1979. At the pre-trial hearing, Sergeant John Timko of the Plains Township Police and Joseph Bender, special agent for the Delaware and Hudson Railroad, testified to the efforts made to locate appellant. Sergeant Timko spoke with appellant’s mother and sister by phone and drove by appellant’s house on numerous occasions. However, Sergeant Timko admitted that he never knocked on the door to see if appellant was there, because he felt he “wouldn’t get cooperation there.” Nor did he speak with any of appellant’s friends. Agent Bender drove into appellant’s “backyard area” and spoke with appellant’s brother Michael and a friend who were on the back porch. Both stated they did not know where appellant was. On several occasions, he spoke with appellant’s brothers Michael and Andy about appellant’s whereabouts and received the same answer. No other efforts were made to locate appellant and nobody ever actually knocked on the door of appellant’s house to see if he was there. These facts do not constitute “good cause” under any standard. It should be noted that the statute of limitations on the offense in question would not have run until February 28, 1981. There was no reason to deprive appellant of a preliminary hearing when the information was filed on July 12, 1979.

Furthermore, it is doubtful whether a bypass procedure would have been proper in this case even under the former rule. The court could grant leave to file an information without a preliminary hearing when a defendant could not be found “in the Commonwealth”, rather than “within the jurisdiction” of that particular court, as was stated in the lower court’s order. No effort was ever made to locate appellant anywhere but in his own neighborhood. No claim was made that appellant was ever out of the State of Pennsylvania or even out of Luzerne County. Furthermore, the authorities apparently had no trouble locating the appellant after the information was filed. He was arraigned on July 20, 1979, only eight days after the district attorney certified that appellant could not be found after a “diligent search”.

We hold, therefore, that the Commonwealth failed to show the existence of “exceptional circumstances” that would constitute “good cause” under Rule 231, as amended. Where no preliminary hearing has been held and there exist none of the recognized exceptions to the holding of a preliminary hearing, the proper remedy is to quash the information. Commonwealth v. Brabham, 225 Pa.Super. 331, 309 A.2d 824 (1973).

In view of our disposition of the Rule 231 question, we do not need to reach the other issues raised by appellant in this appeal.

The judgment of sentence is reversed, appellant’s conviction is vacated, the information is quashed and appellant is discharged.

      . Vol. 9, Pennsylvania Bulletin, pp. 237 et seq.


author: CIRILLO, Judge: POPOVICH, Judge,

text:
    448 A.2d 41
    COMMONWEALTH of Pennsylvania v. Janice VISCONTO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1982.
    Filed July 9, 1982.

      Sandra Swenson, Philadelphia, for appellant.
    Melvin R. Shuster, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant, Janice Visconto, was found guilty of making false statements in order to obtain public assistance in the Municipal Court of Philadelphia County on February 20, 1980. Appellant was sentenced to one year probation and ordered to pay restitution. Appellant then appealed to the Court of Common Pleas of Philadelphia County and was convicted by a jury on October 20, 1980. Post-verdict motions were denied. Appellant was sentenced to three to twelve months imprisonment and ordered to pay restitution in the amount of $3,770.00. This appeal followed.

From June 1975 to August 1977, appellant received public assistance under the name Janice Visconto through the Elmwood district office of the Philadelphia County Board of Assistance. From August 1976 to January 1977, under the name Janice D’Amico, appellant received public assistance through the Snyder district office of the Philadelphia County Board of Assistance. Appellant also received continuous unemployment compensation under the name Janice D’Amico from July 1976 to January 1977.

Appellant raises three issues on appeal: 1) that, she was denied the right to a trial de novo in the Court of Common Pleas because the trial judge at sentencing had possession of the record of the Municipal Court proceedings, the trial court imposed a harsher sentence upon her than that imposed in the Municipal Court, and the trial judge, at sentencing, made mention of the length of the Common Pleas trial; 2) that the trial court erred in admitting Commonwealth Exhibits 9, 17 and 18 into evidence over appellant’s objections; and 3) that the trial court erred in denying appellant’s motion for a mistrial which was based on remarks made by the prosecutor in closing argument to the jury.

We find no merit in appellant’s first contention. There is no evidence in the record that the trial judge had possession of the record of the Municipal Court proceedings at trial or at sentencing.

Appellant then argues that she is entitled to another sentencing hearing because she received a harsher sentence in the Court of Common Pleas than that imposed in the Municipal Court. In Commonwealth v. Possinger, 264 Pa. Super. 332, 344-45, 399 A.2d 1077, 1083 (1979) the Court held that:

... a defendant’s constitutional rights were not violated when a Common Pleas court following a trial de novo imposed a sentence greater than the one originally imposed by Municipal Court. This was true even though the Common Pleas Court did not place upon the record facts justifying such an increase in sentence, (citations omitted)

We conclude that the increase in appellant’s sentence was proper.

Appellant argues that it was error for the trial judge to mention, at sentencing, the length of her Common Pleas trial. After sentence was imposed, defense counsel argued, on the record, that the increase in sentence was not proper and that certain Pennsylvania cases did not justify an increase in sentence. The sentencing judge stated that it had been a very long trial and he would review the record in light of the cases cited, and, if a lesser sentence was warranted, he would contact both parties. After reviewing the record, we find that this isolated comment by the trial judge, after sentence was imposed, did not prejudice appellant.

Appellant’s second contention is that the trial court erred in admitting, over appellant’s objections, Commonwealth Exhibits 9, 17, and 18.

Exhibit 9 is an overpayment referral sheet which lists the dates of the overpayment of public assistance checks to the appellant.

The Uniform Business Records Evidence Act provides:

(b) ... A record of an act, condition or event shall insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the tribunal, the sources of information, method, and time of preparation were such as to justify its admission.
(c) ... As used in this section “business” includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.

Act of 1976, July 9, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 6108. At trial, the Commonwealth presented two witnesses, Marilyn Read, supervisor of records at the Elmwood district office, and Philip Friedrich, applications supervisor at the Snyder district office, to identify Exhibit 9 and to provide information as to the circumstances surrounding its preparation. Ms. Read first met Janice Visconto in 1974 when she applied for public assistance. At trial, Ms. Read identified appellant as Janice Visconto. Mr. Friedrich also identified appellant at trial, and he testified that when appellant applied for public assistance at the Snyder district office, he knew her as Janice D’Amico. At some point later, after appellant had applied for public assistance, Mr. Fried-rich saw her at an administrative appeal hearing where she went by the name Janice Visconto.

Marilyn Read discovered the double payment of public assistance to appellant when the Claims Settlement Bureau of the Pennsylvania Department of Welfare instructed her and Mr. Friedrich to review both the Visconto and D’Amico case records to determine if the cases involved the same person.

Marilyn Read personally appeared and signed an overpayment referral shqet based upon the discovery of appellant’s receipt of double payments of public assistance from the Elmwood and Snyder district offices between the time period of August 26, 1976 to January 23, 1977.

We therefore conclude that Exhibit 9 was properly admitted into evidence under the business records exception to the hearsay rule. Marilyn Read was a qualified witness who testified to: the Exhibit’s identity, her personal preparation of the document, and, the preparation of the document in the regular course of business at the time of the discovery of the overpayment of public assistance benefits to appellant.

Exhibit 17 is a computer print-out of unemployment payments issued to appellant by the Pennsylvania Bureau of Unemployment Compensation. The trial court admitted the record as an official record of the Bureau of Unemployment Compensation. At trial, appellant objected that a proper foundation had not been laid for its admission. The applicable law provides:

(a) ... An official record kept within this Commonwealth by any court, district justice or other government unit, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made by any public officer having a seal of office and having official duties with respect to the government unit in which the record is kept, authenticated by the seal of his office. ..

Act of 1976, July 9, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 6103.

(a) ... A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.
(b) ... A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to an official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.

Act of 1976, July 9, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 6104.

In the instant case, the computer print-out was kept by the Bureau of Unemployment Compensation as an official record of unemployment compensation benefits received by appellant. Attached to the computer print-out was a certification signed by the custodian of the document, John H. Eckert, Unemployment Insurance Operations Chief, of the Office of Employment Security, Bureau of Unemployment Compensation Benefits. At trial, Oscar McBurse, an unemployment compensation supervisor of the Pennsylvania State Employment Office in Philadelphia, testified that he received the computer print-out with the certification of John H. Eckert, from Mr. Eckert, who had the legal custody of the document.

We do not find that the certification of John H. Eckert, or the presentation of the certification and testimony by Oscar McBurse at trial indicate that the computer print-out was untrustworthy as an official record. Additionally, it must be noted that the unemployment compensation checks issued to appellant were introduced into evidence (Exhibit 20). Under §§ 6103 and 6104, personal knowledge is not necessary for the admission of an official record into evidence. Therefore, based on the above discussion, the trial court did not err in admitting Exhibit 17 as an official record.

Exhibit 18 is a list of wages paid by the Pittsburgh Hilton Hotels Corporation to a group of employees, including Janice D’Amico. Pursuant to 42 Pa.C.S.A. §§ 6103 and 6104, as set forth in the discussion of the admission of Exhibit 17, this Exhibit was accompanied by a certification signed by John H. Eckert, the officer of the Bureau of Unemployment Compensation, who had legal custody of the record. At trial, Oscar McBurse presented the certification of John H. Eckert and testified that he received custody of the document from Mr. Eckert.

Exhibit 18 verified the employment of appellant (under the name Janice D’Amico) in various hotels in Philadelphia. In order for the Pennsylvania Department of Welfare to issue unemployment payments to appellant, the Department had to have a record of her employment history. The Pittsburgh Hilton Hotels Corporation had a duty to furnish such records to the Pennsylvania Department of Welfare pursuant to 43 P.S. § 766(a) “each employer shall keep accurate employment records containing such information.” Also, pursuant to 43 P.S. § 784:

[E]ach employer shall file with the department such reports, at such times, and containing such information, as the department shall require, for the purpose of ascertaining and paying the contribution required by the act.

Additional evidence was introduced in the form of testimony in order to show that Janice Visconto, under the name Janice D’Amico, worked as a full-time and, at various times, as a banquet waitress. Mary Regan, the secretary to the general manager of the Holiday Inn in Philadelphia who prepared the payroll of that hotel, identified appellant as Janice D’Amico at trial. Mary Regan stated that appellant worked as a full-time waitress from June 13,1975 to October 8,1975 and also worked as a banquet waitress from January 1976 to May 1976 at the Hilton Hotel. Betty Sandy, in charge of payroll at the Benjamin Franklin Hotel, referred to the hotel’s employment payroll records on the witness stand. She stated that Janice D’Amico worked at the hotel on various occasions in 1975 and 1976. The testimony of these witnesses corroborated the information which is contained in Exhibit 18.

We find that the trial court did not err in admitting Exhibit 18 into evidence at trial as an official record because Mr. McBurse presented and testified to the certification of John H. Eckert, i.e., that Exhibit 18 is an official record. Additionally, there was no indication of untrustworthiness of the Exhibit, and personal participation in the preparation of the Exhibit is not required under 42 Pa.C.S.A. §§ 6103 and 6104.

Appellant’s final contention is that the trial court erred in denying her motion for a mistrial based on the prosecutor’s remarks made in his closing argument to the jury.

Prejudice has been consistently found by our judiciary only where the remarks of the prosecutor have been unsupported by any factual evidence, and thus, have merely reflected the prosecutor’s personal judgment concerning the defendant’s veracity, (citations omitted) It is well established that the prosecutor’s closing argument must be limited to the facts of the record and all reasonable inferences drawn therefrom.
Commonwealth v. Bullock, 284 Pa.Super. 601, 608, 426 A.2d 657, 661 (1981).

The failure of the trial court to grant a mistrial following the prosecutor’s closing argument to the jury is not reversible error:

[WJhere, under all the circumstances of the case, the verdict rendered is a just one, the language of the prosecuting officer which will justify a reversal must be such that its unavoidable effect would be to prejudice the jury, forming in their own minds a fixed bias and hostility toward the defendant, so that they could not fairly weigh in his behalf such circumstances of doubt, extenuation, or degree of guilt that may be present in the case, and thus make them unable to render a true verdict, (citations omitted).

Id., 284 Pa.Superior Ct. at 609, 426 A.2d at 661.

Appellant cites five alleged prejudicial remarks made by the prosecutor in his closing argument to the jury. When these remarks are read in their context, we see no merit in appellant’s contention.

I asked the question of the defendant as to where her mother lives and she said 3102 S. 13th Street. There was no question about that. I asked her the question: In all that time, did your mother ever tell you that these checks were coming into her address? Now, ladies and gentlemen, applying again your common sense, wouldn’t it stand to reason that if there was somebody else involved here, this would have been brought to her attention? The first name was the same, Janice. So these are little things in her testimony that has come in and the evidence which really shows that the stories being presented or should I say the testimony that the defendant has presented does not really hold true. When checks of this magnitude for a long time are coming to an address of a close relative, something is going to be mentioned and of course it wasn’t, (emphasis added)
Janice Villar. Who is Janice Villar? Well, the defendant admits that she used the name Janice Villar. So there really is no question about her employment at this point. (emphasis added)
You will havé to decide between Mr. Nizzardi’s testimony and the testimony of the other caseworkers and the defendant’s testimony as to who you are going to believe. You are weighing the balance and I submit to you that a balance has got to come out on the side of the caseworkers and the other people who testified, because it doesn’t make sense any other way. (emphasis added)
The failure to disclose, ladies and gentlemen, is an affirmative obligation that the defendant had and I submit to you that she was fully cognizant, just as she was fully cognizant of the other rights that she felt she had and her failure to disclose to Mr. Barnes, to Miss May, to disclose to Mr. Nizzardi, in and of itself establishes a willful misrepresentation. She withheld information. It was a fraudulent act. (emphasis added)

The prosecutor commented on appellant’s credibility on the witness stand, the discrepancies in her testimony, and the inferences which could reasonably be drawn from the facts in this case. We find that these remarks, made by the prosecutor in summation to the jury, were within the boundaries of appropriate argument and do not amount to reversible error.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

POPOVICH, J., files a concurring and dissenting opinion.

POPOVICH, Judge,

concurring and dissenting:

Based on my independent review of the record (RR. 2-3), I concur in the Majority’s conclusion that the increase in appellant’s sentence was proper. However, I dissent to the Majority’s recitation of the language in Commonwealth v. Possinger, 264 Pa.Super. 332, 334-45, 399 A.2d 1077, 1083 (1979), which is drawn from this Court’s decision in Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422 (1973), to support such conclusion.

To explicate, in Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160, this Court dealt with, inter alia, a contention concerning the legality of a Common Pleas Court judge issuing a greater sentence after an accused’s trial de novo than that entered by a Municipal Court judge. On this point, the Majority in DeCaro held that “there is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures are complied with,” (Emphasis added) (Footnote omitted) Id., 298 Pa.Superior Ct. at 42, 444 A.2d at 165. We found that such procedures were adhered to in DeCaro, but a remand was necessary to allow the accused the opportunity to file a motion for modification of sentence nunc pro tunc, since the trial court failed to inform the accused of her right to do so.

However, I wrote separately to point out that compliance with the sentencing procedures set forth in our statutory and case law, as a condition precedent to legitimizing an increased sentence, necessarily was at odds with our decision in Commonwealth v. Moore, supra. I stated the proposition as follows:

“In Moore, the question posed was:
‘whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence.’ (Emphasis added) Id., 226 Pa.Superior Ct. at 60, 312 A.2d at 422.
To start with, the Court in Moore found the Kentucky system, as discussed in Colten [v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) ], to be indistinguishable from the Philadelphia system. Consistent therewith, the Court went on to hold that, unless the appellant appealing a summary judgment to a higher court alleges error in regard to the prior summary offense and in the sentence imposed by the municipal court, the reasoning supporting Colten rather than that supporting North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1971) was applicable and governing. In other words, the Moore Court was stating that the trial judge’s reasoning for increasing a sentence after retrial was not required to ‘ “be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding[,]” ’ Commonwealth v. Moore, supra, 226 Pa.Super. at 64, 312 A.2d 423, unless, as just stated, the appellant alleged error attendant to the summary proceedings and the sentence imposed by the municipal court. In light of our Supreme Court’s ruling in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the promulgation of the Sentencing Code (42 Pa.C.S.A. § 9701 et seq. (Pamphlet, 1981)), such statement can no longer be considered to be a viable tenet in the law.
Furthermore, I find that Riggins and the Sentencing Code are sufficient safeguards to assure that any sentence imposed, regardless of whether it be entered after a trial de novo from a summary offense or following a retrial, comports with the dictates of due process and is not constitutionally infirm.” (Footnote omitted)

Commonwealth v. DeCaro, supra, 298 Pa.Super. at 49-50, 444 A.2d at 168 (POPOVICH, J., Concurring Opinion).

I have not deviated from my initial position on this subject, see Commonwealth v. Evans, 299 Pa.Super. 529, 445 A.2d 1255 (POPOVICH, J.), and I see no reason to do so now.

        . Act of 1976, July 9, P.L. 993, No. 202, § 8; Pa.Stat.Ann. Title 62, § 481 (Purdon 1981 pamphlet).

      . Appellant appealed the Municipal Court conviction to the Court of Common Pleas of Philadelphia County pursuant to 42 Pa.C.S.A. § 1123.

      . At the time of the application for public assistance at the Snyder district office, appellant listed that she had worked as a banquet waitress at the Benjamin Franklin Hotel in Philadelphia from January 1975 to June 1976.

      . After sentence was imposed by the trial court, defense counsel informed the court that appellant received a lesser sentence in Municipal Court and argued that an increased sentence was improper.

      . Ms. Read and Mr. Friedrich found numerous similarities in both files after reviewing the Visconto and D’Amico flies, including: the same birthdate of one of her children, the name of the father of one child in the Elmwood district file was the same as the name of the father of both children in the Snyder district file, the first names of appellant’s parents were the same in both files, appellant’s parents’ address in the Elmwood district file was the same as her address in the Snyder district file, appellant’s signatures were the same in both files, and her personal characteristics were the same in both files.

      . It must be noted that proof of unemployment compensation benefits received by appellant is not necessary to sustain appellant’s conviction. The testimony of Ms. Read and Mr. Friedrich in regard to the schedule of overpayment in Exhibit 9 established the double payment of public assistance to appellant. Furthermore, appellant does not challenge the sufficiency of the evidence.

      . Act of 1949, May 23, P.L. 1738, § 5.

      . Act of 1971, Sept. 27, P.L. 469, No. 108, § 12.