author: HOFFMAN, Judge:

text:
    480 A.2d 1188
    COMMONWEALTH ex rel. Akili S. TAYLOR and Zalika A. Taylor, By and Through their next of friend (sic) their mother, Evonne R. TAYLOR v. Anthony W. TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed July 27, 1984.

      Robert E. Hernán, Philadelphia, for appellant.
    Frank W. Hayes, West Chester, for appellees.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order which declared appellant-father to be in contempt of a custody order of the Chester County Court of Common Pleas and directed him to return the parties’ two children to appellee-mother. Because we find that the contempt order was erroneously entered, we reverse.

The parties were married in 1969 and parented two children: Akili Sule, born on May 9, 1974, and Zalika Aisha, born on August 9, 1976. The family resided in Chester County, Pennsylvania, until December of 1980, when appellee left the marital home with the children and moved to Newark, Delaware. On May 29, 1981, the parties entered into a separation and property settlement agreement, whereby appellee was to retain custody of the children and appellant received visitation rights. On June 2, 1981, the Chester County Court of Common Pleas granted the parties a divorce and, on June 5, entered a custody order which conformed to the terms of the parties’ settlement agreement. In November, 1981, appellant, a citizen of Bermuda, returned to Bermuda while appellee and the children moved from Delaware to Washington, D.C., to live with appellee’s parents. In June, 1982, appellee and the children moved to Baltimore, Maryland.

In June, 1982, pursuant to the court-ordered agreement, appellant took the children to his home in Bermuda for the summer. At the end of the summer, however, he failed to return the children to Baltimore. After consultation with various counsel, appellant instituted ex parte proceedings in Bermuda to obtain interim custody of the children. On September 3, 1982, the Bermuda Supreme Court granted appellant interim custody. Appellee then filed a summons in Bermuda on November 12, 1982, to have the interim custody order set aside and the children returned to her. Appellant also petitioned the Chester County court on February 2, 1983, to (1) find appellant in contempt, (2) issue a bench warrant for his arrest, and (3) have custody returned to her. Appellant moved to dismiss appellee’s petition, claiming that Pennsylvania no longer had jurisdiction over the matter. Following an evidentiary hearing, the lower court, on July 7, 1983, entered an order finding appellant in willful contempt of the Pennsylvania June 5, 1981 custody order and requiring appellant to return custody of the children to appellee “or be subject to imprisonment in the Chester County Prison for a period not to exceed thirty (30) days or until such time as he purges himself of the contempt by returning the children to their mother and [makes] his application for custody in a court of competent jurisdiction.” This appeal followed.

Appellant argues first that, because the lower court did not have jurisdiction of the underlying custody matter, the court had no authority to find him in contempt. We disagree. Although it is undisputed that the lower court lost its jurisdiction to modify the 1981 custody order under the Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S.A. §§ 5341 et seq., we find that it did not, thereby, lose its jurisdiction to enforce the prior decree. “There can be no question that courts have the inherent power to enforce compliance with their lawful orders through civil contempt.” Simmons v. Simmons, 232 Pa. Superior Ct. 365, 369, 335 A.2d 764, 766 (1975); accord, Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968) (courts have inherent power to enforce their orders and decrees). See generally 4 McCahey, Kaufman and Kraut, Child Custody & Visitation Law and Practice § 25.05 (proceedings to enforce prior custody-visitation directives). We do not believe that the UCCJA has altered this enforcement power. The key provision of the UCCJA expressly applies only to a court’s jurisdiction to enter an initial custody order or to modify an existing custody order:

(a) General rule. -A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has beén subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded have found it to be satisfactory for the welfare of the child.

42 Pa.C.S.A. § 5344 (emphasis added). Under § 5344, when appellant commenced the interim custody proceedings in Bermuda in the instant case, Pennsylvania had lost its jurisdiction to modify its prior order: Pennsylvania was no longer the “home state” of the children; neither the children or their parents had any significant contacts with this Commonwealth; and the children were not physically present or abandoned in Pennsylvania.

However, there is a great difference between modification jurisdiction, which involves holding an evidentiary hearing on the best interests of the child in order to determine custody, and enforcement jurisdiction, which is limited to determining whether the prior custody order can be enforced, i.e., whether the decree was valid when entered and never modified. We find support for this distinction in the law of habeas corpus enforcement of custody decrees. In Adriance v. Adriance, 329 Pa. Superior Ct. 168, 478 A.2d 16 (1984), the mother challenged the father’s custody of their two children by filing a habeas corpus petition in a Pennsylvania court. Because all of the parties had moved out of Pennsylvania since the entry of the initial custody order, the lower court ruled that it could not hold an evidentiary hearing with respect to the best interests of the children because it lacked subject matter jurisdiction under the UCCJA. The court, however, did enforce its prior custody decree granting custody to the father because that decree had been validly entered and never modified. On appeal, this Court affirmed, holding that the lower court correctly determined that it had jurisdiction to enforce its prior custody decree pursuant to the habeas corpus action, even though UCCJA jurisdiction had been lost, and also recommended that modification proceedings be commenced in a state with proper UCCJA jurisdiction. In so holding, we relied on Wolf v. Weymers, 285 Pa. Superior Ct. 361, 427 A.2d 678 (1981) (habeas corpus jurisdiction requires presence, residence or domicile of child in state; UCCJA “expanded] the number of ways in which the courts of this state will have jurisdiction in a child custody case”), and Brocker v. Brocker, supra. See also P. Hoff, Interstate Child Custody Disputes and Parental Kidnapping: Policy, Practice and Law 8-11 (1982) (“[I]n cases in which a party resorts to habeas corpus to enforce an already existing decree, UCCJA ... jurisdictional requirements need not be met for the court to grant the requested enforcement remedy.”). Therefore, we hold that the lower court retained its enforcement jurisdiction.

Appellant argues, alternatively, that the lower court wrongly refused to recognize the jurisdiction of the Bermuda Supreme Court which had granted appellant interim custody. Having found that the lower court retained its enforcement jurisdiction, we must now decide whether the initial custody order rendered in Pennsylvania was validly modified by the Bermuda interim custody order. If it was validly modified, then the courts of this Commonwealth cannot enforce the initial custody order. On the other hand, if it was not validly modified, then we can enforce the initial order. It is undisputed that the June 5, 1981 Pennsylvania order was valid when entered. Therefore, under § 5353 of the UCCJA, that order is binding on the parties “unless and until that determination is modified pursuant to law, including the provisions of this subchapter.” 42Pa.C.S.A. § 5354. On September 3,1982, the Bermuda Supreme Court granted interim custody to appellant. Under §§ 5354 and 5365, this modification order can be recognized and enforced by the courts in this Commonwealth only if Bermuda “assumed jurisdiction under statutory provisions substantially in accordance with this subchapter or [the order] was made under factual circumstances meeting the jurisdictional standards of this subchapter.” See 42 Pa.C.S.A. §§ 5354 and 5365. In other words, Bermuda must have satisfied one of the jurisdictional criteria outlined in § 5344 at the time it entered its interim custody order. At that time, Bermuda was not a “home state” of the children because they had been in Bermuda only about three months. See 42 Pa.C. S.A. § 5344(a)(1). However, no other state qualified as the “home state” either. Appellee had moved with the children to Washington, D.C., in November, 1981, and then to Baltimore, Maryland, in June of 1982. Therefore, the children had not lived in any one place for at least six months immediately preceding the Bermuda custody proceedings. Accordingly, it would seem that Bermuda properly assumed jurisdiction under § 5344(a)(4) (where no other state would have jurisdiction and it is in the child’s best interest that the court assume jurisdiction). Another basis for Bermuda’s assuming jurisdiction would be § 5344(a)(2) (significant connection with state and substantial evidence available). Although we find the children’s “significant connection” with Bermuda — apart from the father’s residing there — questionable, there arguably would be available in Bermuda “substantial evidence concerning the present or future care, protection, training and personal relationships of the children].” See 42 Pa.C.S.A. § 5344(a)(2). In any event, it is reasonable to conclude that the children’s interests were best served by Bermuda’s assuming jurisdiction at that time.

Another consideration, relevant to our discussion, is the fact that the children’s continued presence in Bermuda resulted from appellant’s failure to return them to appellee at the end of the summer in violation of the 1981 custody order. Under § 5349 of the UCCJA, even if Bermuda had modification jurisdiction, it should not have exercised such jurisdiction because appellant improperly retained the children after visitation. See 42 Pa.C.S.A. § 5349. The rationale is that the UCCJA seeks to discourage child-snatching and forum-shopping. Warman v. Warman, 294 Pa. Superior Ct. 285, 294, 439 A.2d 1203, 1208 (1982). However, § 5349 contains an exception: Despite the parties’ wrongful conduct, a court may still assume jurisdiction if “required in the interest of the child[ren].” 42 Pa.C.S.A. § 5349. We believe that that exception applies to the instant case because of the unusual circumstances, i.e., no other forum would have been more appropriate under the UCCJA. Additionally, the children’s initial presence in Bermuda was pursuant to the parties’ visitation agreement. Therefore, Bermuda properly assumed jurisdiction under the UCCJA when it entered its interim custody order modifying the initial custody order and the lower court should have recognized it.

Because we find that the 1982 Bermuda interim custody order validly modified the 1981 Pennsylvania custody order, we hold that the lower court wrongly adjudged appellant in contempt.

Accordingly, we reverse the contempt order.

Reversed. Jurisdiction is not retained.

McEWEN, J., concurs in the result.

      . The, notice of appeal to this Court was filed on July 15, 1983. On August 26, 1983, the Bermuda Supreme Court granted appellant final custody of the children.

      . “Home state” is defined in 42 Pa.C.S.A. § 5343 as follows:

        ... The state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, or in an institution, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

      . Under this holding, the courts of this Commonwealth have the power to decide whether or not to enforce the prior custody order, even if the Bermuda court had been correct in assuming jurisdiction.

      . Because of our disposition of this case, we need not reach appellant’s third contention that the lower court failed to comply with the requirements of law before finding appellant in contempt of court.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    480 A.2d 1192
    COMMONWEALTH of Pennsylvania v. Richard MILLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed July 27, 1984.

      Michael R. Kostelansky, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   HESTER, Judge:

On November 10, 1980, appellant was adjudged guilty of robbery, theft and conspiracy. Timely post-verdict motions were filed and denied, and appellant was sentenced to a period of incarceration of not less than five nor more than ten years on his robbery conviction. Regarding his conspiracy and theft convictions, appellant received a cumulative seven year probationary term which was to be consecutive to his robbery conviction. This probationary sentence was apportioned as a five year period on his conspiracy conviction and a two year term on his theft conviction. It is from this judgment of sentence that appellant has appealed.

The Commonwealth’s evidence is as follows:

On July 8, 1980, at approximately 1:15 a.m., Thomas Fontana was awakened by pounding upon the door of his room at the Imperial Motor Inn in Wilkes-Barre, Pennsylvania. Upon opening the door to investigate the origin of the noise, he found appellant pointing a knife at him in a menacing fashion. Fontana immediately moved back into his room, whereupon appellant and his co-conspirator, Lisa Nelson, entered and forced Mr. Fontana back to the side of his bed. Appellant then demanded, “Where’s your money? Where’s your wallet?” In response to this threat, Fontana pointed to his wallet which was in his trouser’s pocket. At this juncture, appellant made several thrusts toward Fontana with the knife, making threats to the effect that he “would really like” to stab Fontana. While appellant continued to threaten Fontana, Ms. Nelson placed the wallet containing $46.00 and the victim’s keys into her purse. Appellant then said to Fontana, “Come on, I know you have more. Where is it?” So as to force the issue, appellant kicked Fontana in the stomach. At this point, Fontana pleaded to both appellant and his co-conspirator, “Please, leave me alone. If I had any more money I’d give it to you, but I don’t. So take what is there and leave, please.” Appellant and Ms. Nelson subsequently left the room.

Appellant raises several issues on appeal: 1) whether the evidence was sufficient to sustain his convictions for robbery, theft and conspiracy; 2) whether his trial counsel was ineffective for not calling his co-conspirator, Lisa Nelson, to testify on his behalf; 3) whether the trial court erred in allegedly not providing an adequate basis for his sentence, and also whether appellant’s sentence was illegal and excessive; and 4) whether his convictions for robbery and theft should have merged for sentencing purposes.

Regarding appellant’s sufficiency arguments, our Supreme Court has stated:

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975). Commonwealth v. Boyd, 461 Pa. 17, 24, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975). Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Robson, supra; Commonwealth v. Murray, supra; Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Robson, supra; Commonwealth v. Smith, supra.

Commonwealth v. Rose, 463 Pa. 264, 267-78, 344 A.2d 824, 825-56 (1975). Having summarized the evidence using the Rose standard, we will now apply the law as it pertains to this issue.

Robbery is defined in 18 Pa.C.S.A. § 3701 as follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(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.
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

Appellant contends that the Commonwealth did not prove that he threatened or put Mr. Fontana in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a)(1)(h). We disagree. The evidence indicates that appellant made several thrusts with his knife toward the victim and in the process of making these thrusts, he used several threats that he “would really like” to stab the victim. We find this argument to be meritless.

As to appellant’s conspiracy conviction, in order for appellant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy. 18 Pa.C.S. § 903. In Commonwealth v. Henderson, 249 Pa.Super. 472, 483, 378 A.2d 393, 398 (1977), we stated that:

[although the evidence must show more than a mere association, “(a) conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958).

Certainly, the evidence in the present case inferentially establishes a conspiracy between appellant and Ms. Nelson. First, appellant, after severely damaging Fontana’s motel room door, entered the room brandishing a knife followed closely by Ms. Nelson. Appellant then demanded, “Where’s your money? Where’s your wallet?” At this point, while appellant held Fontana at bay, Ms. Nelson took Fontana’s wallet and his keys and put them in her purse. This claim is meritless.

Appellant challenges his theft conviction under 18 Pa.C.S. § 306(f)(2) which states:

(f) Unless otherwise provided by this title or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
(2) the offense is so defined that his conduct is inevitably incident to its commission.

Appellant specifically alleges that since the elements of his alleged theft by unlawful taking are the same elements involved in his robbery conviction, the above section applies so that appellant should not have been charged with both theft and robbery. Appellant’s argument is a misinterpretation of this statute in that appellant can be convicted as an accomplice of both theft and robbery even though they are based upon the same factual situation, but can only be sentenced on the greater offense. Appellant’s argument is really an argument of merger.

The proper interpretation of 18 Pa.C.S. § 306(f)(2) is found in our decision, Commonwealth v. Brown, 245 Pa.Super. 134, 135, 369 A.2d 329, 330 (1976). The facts therein are as follows:

[0]ne Louella MacNeil testified that she and appellant had planned the robbery of a store and on February 4, 1975, she carried out the robbery armed with a knife she had taken from appellant’s home. Fleeing the scene, she returned directly to appellant’s house where she and appellant sat down to count the proceeds of the job. When the police arrived at the house, MacNeil fled upstairs and followed appellant’s instructions to change her clothes while appellant took steps to hide the money.

We stated the following interpretation of 18 Pa.C.S. § 306(f)(2) in ruling that Ms. MacNeil was not an accomplice in the offense of hindering apprehension:

An accomplice is one who could be indicted and punished for the crime with which the accused is charged. Commonwealth v. Hopkins, 165 Pa.Super. 561, 564, 69 A.2d 428, 430 (1949). Commonwealth v. Staudenmayer, 230 Pa.Super. 521, 525, 326 A.2d 421, 423-24 (1974). Under the new Crimes Code a person is expressly not an accomplice when “the offense is so defined that his conduct is inevitably incident to its commission” unless otherwise provided by the Crimes Code or the law defining the offense. Act of December 6, 1982, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 306(f)(2). In the present case the existence or participation of an individual suspected of criminal conduct is clearly a necessary component of the accused’s offense of hindering the apprehension of another for crime. Because Section 5105 makes no provision for finding those inevitably involved in the accused’s conduct culpable as accomplices, they fall within the exception stated in Section 306(f)(2) and cannot be considered accomplices.
We must conclude, therefore, that Louella MacNeil was not an accomplice in the offense of hindering her own apprehension.

Id., 245 Pa.Super. at 136-37, 369 A.2d at 330-31. Based upon this interpretation of Section 306(f)(2), we find appellant’s argument meritless.

Appellant next claims that his trial counsel was ineffective for not having his co-conspirator testify on his behalf at trial. Appellant contends that Ms. Nelson would have testified that he merely entered Mr. Fontana’s room to rescue Ms. Nelson from an assault by Fontana. Our Supreme Court first enunciated the standard against which trial counsel’s actions are to be judged in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967), where the court stated:

Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s inter-
ests. (Emphasis in original). The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. Also, Maroney continues that:
for relief to be granted appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice.
******
Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives, not chosen offered a potential for success substantially greater than the tactics actually utilized. Id., 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8.

The United States Supreme Court recently held in Strickland v. Washington, — U.S. —, —, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692 (1984), that to succeed with a claim of counsel’s “actual ineffectiveness” a criminal defendant must show that:

considering all the circumstances, his attorney’s performance fell below an objective standard of reasonableness and so prejudiced him as to result in the denial of a fair trial. This degree of prejudice requires a demonstration of the existence of a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different____ The benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The problem in this case, as in most cases where the claim of ineffectiveness is raised on direct appeal, is that we have before us no record of any hearing at which is delineated trial counsel’s reasons for taking the steps later chailenged. See Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976). Where, as here, it is impossible to tell from the record why Ms. Nelson was not called to testify, we must remand for an evidentiary hearing, at which time trial counsel may state his reasons for having chosen this particular course if, in fact, it was his decision. Commonwealth v. Turner, supra. By doing this, we in no way are asserting that counsel was ineffective for not calling Ms. Nelson to testify. Only the trial court can determine that, since the issue here is one of credibility between Fontana, appellant and Ms. Nelson. Further, at the ineffectiveness hearing, the lower court can itself hear Nelson’s testimony, observe her, and decide whether her testimony would have offered appellant a potential for success substantially greater than not calling her. Moreover, the court, by hearing counsel’s reasons, will be able to determine whether appellant’s trial counsel’s strategy had some reasonable basis.

Appellant next advances several arguments that his sentence was illegal and invalid. First, appellant contends that his counsel was not allowed to present mitigating evidence on his behalf. We find no merit in this allegation. The lower court simply stated that it disagreed with trial counsel’s argument that appellant’s involvement in the criminal episode was relatively minor.

Appellant next asserts that the lower court failed to properly enunciate its reasons for sentencing him. We have stated that the sentencing court’s reasons may not be of such “brevity and conclusory quality [that] they do not manifest a consideration of the statutory guidelines imposed.” Commonwealth v. Wicks, 265 Pa.Super. 305, 313, 401 A.2d 1223, 1227 (1979). See Commonwealth v. Rig-gins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Stafford, 313 Pa.Super. 231, 459 A.2d 824 (1983). These reasons “should reflect the judge’s consideration not only of those sentencing criteria enumerated in the Sentencing Code [42 Pa.C.S.A. § 9701, et seq.~\ ... but also the circumstances of the offense and the character of the offender ... [citations omitted].” Commonwealth v. Aldinger, 292 Pa. Super. 149, 156, 436 A.2d 1196, 1199 (1981).

Judge (now President Judge) Spaeth has characterized the sentencing judge’s responsibilities as being two-fold:

The first responsibility is a fact-finding responsibility: the judge must be sure he has enough information. The second responsibility is an application-and-explanation responsibility: the judge must apply to the information he has gathered the guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and explain how the sentence he has selected is responsive to, and reflects the standards embodied in, those guidelines. If the judge fails to fulfill these responsibilities, we must vacate the sentence and remand for resentencing.

Commonwealth v. Edward, 303 Pa.Super. 454, 472, 450 A.2d 15, 23-24 (1982) (citations omitted).

The policy underlying the requirement that the sentencing judge state of record the reasons for the sentence is found in the need to make public “the thought process by which he arrives at a particular appropriate sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 895 (1980); See also Commonwealth v. Stafford, supra. By affording appellate courts some basis upon which to fully comprehend and fairly review the actions of the sentencing court, this directive acts as a shield against arbitrary sentencing decisions while, at the same time, discourages the entertainment of improper or irrelevant factors. Commonwealth v. Kraft, 294 Pa.Super. 599, 602, 440 A.2d 627, 630 (1982); Commonwealth v. Stafford, supra.

Although our courts have never required that the statement of reasons cite to specific language of the Sentencing Code, Commonwealth v. Wicks, supra, it should, nonetheless, evince the court’s reflection on the standards mentioned in the Code and should contain “some explanation of how consideration of those guidelines affected the determination of sentence.” Commonwealth v. O’Brien, supra, 282 Pa.Superior Ct. at 197, 422 A.2d at 896, quoting Commonwealth v. Wareham, 259 Pa.Super. 527, 534, 393 A.2d 951, 954 (1978).

The lower court’s statement of reasons for its sentence is as follows:

We have imposed a sentence of total confinement after having due regard to the nature and circumstances of the crimes and the history, character and condition of the defendant. From that and from the extensive pre-sentence investigation report which was submitted to this Court in this matter, it is the opinion of the Court that total confinement of the defendant is necessary because there is an undue risk that during a period of probation or partial confinement the defendant would be likely to commit another crime or crimes.
We feel that he is in need of correctional treatment that can best be provided most effectively by his commitment to a state correctional institution and we feel that a lesser sentence would depreciate or lessen the seriousness of the crimes of the defendant. Defendant will stand committed.

Here, even though the lower court indicated that it considered the nature and circumstances of the crimes, the history, character and condition of appellant, and appellant’s presentence report, we are unpersuaded that these remarks constitute a statement of reasons which comports in quality and length with that envisioned by the drafters of the Sentencing Code. See Commonwealth v. Wicks, supra. Thus, we are required to remand this case for resentencing.

As to appellant’s contention that his sentence is excessive, this allegation is meritless. Also, regarding the additional issue raised by appellant alleging that his presentence report was inaccurate and thus appellant’s trial counsel was ineffective, appellant, at his next sentencing hearing, will have an opportunity to correct any alleged inaccuracies in the report.

Appellant’s final issue concerns whether his theft conviction should merge with his robbery conviction for sentencing purposes. The facts constituting the theft conviction are the same as those involved with his robbery conviction; therefore, appellant’s theft conviction does merge with his robbery conviction for sentencing purposes. Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982). Since appellant received a two-year probationary period for theft which is to be served consecutive to his robbery sentence, the lower court will correct this sentence at the time of appellant’s new sentencing proceedings.

Affirmed in part; reversed in part; judgment of sentence vacated and the case is remanded for a hearing on the ineffectiveness claim. If the hearing court does not find counsel to be ineffective and a new trial warranted, then the sentencing judge will conduct proceedings consistent with the dictates of this Opinion. Jurisdiction is relinquished.

      . In Stafford, supra, the following comprised the court’s statement of reasons and was held by this Court to lack sufficient specificity:
      "I have considered all that [i.e. remarks of counsel] and I’ve considered the entire presentence investigation and have noted an extensive record, especially juvenile record of this individual and any robbery ... it's hitting somebody or tapping somebody is not the best thing. The sentence of the court on all these charges____”


author: SPAETH, President Judge:

text:
    480 A.2d 1199
    In re ESTATE OF Alma L. BROCKERMAN, Deceased. Appeal of Roberta Lee JACKSON, A/K/A Gerdelmann, Executrix For the Estate of Alma L. Brockerman, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1984.
    Filed Aug. 3, 1984.

      James A. Lynch, III, Havertown, for appellant.
    James Weiner, Philadelphia, for appellee.
    Before SPAETH, President Judge and BROSKY and CIRILLO, JJ.
   SPAETH, President Judge:

This is an appeal from an order dismissing appellant’s exceptions and awarding additional attorneys’ fees to appellee. Appellant is the executrix of the estate of Alma L. Brockerman. Appellee is a law firm that performed services for the Brockerman estate. Appellant argues: (1) that the orphans’ court erred in not surcharging appellee’s attorneys’ fees by $6,000, this being the amount of loss allegedly incurred by the Brockerman estate due to the alleged negligence of one of appellee’s attorneys; and (2) that the orphans’ court erred in awarding additional attorneys’ fees without sufficient evidence to support the award. Appellant’s first argument is without merit, but we agree with appellant’s second argument. We therefore affirm the dismissal of appellant’s exceptions but reverse the award of additional attorneys’ fees and remand the case to the orphans’ court for further proceedings.

-1-

Appellant argues that the attorneys’ fees awarded to appellee should be surcharged by $6,000 because the negligence of one of appellee’s attorneys caused the estate to suffer a loss in that amount. There are two aspects to this argument: that the attorney was negligent, and that this negligence caused a loss of $6,000 to the Brockerman estate.

With respect to the allegation of negligence, the notes of testimony disclose the following: The Brockerman estate had a claim against Albert C. Jackson, appellant’s ex-husband. Alma Brockerman died in February 1971. N.T. 8. Approximately one week later appellant retained one of appellee’s attorneys and requested that he attempt to collect any debts that were owed to the Brockerman estate. N.T. 8, 11. The attorney filed a complaint against Mr. Jackson on September 28, 1973, and service was made on October 12, 1973. N.T. 6. An answer was not filed within the 20 day period and a default judgment in the amount of $6,000 was taken on April 15, 1975. N.T. 7, 32. Mr. Jackson had died on January 5, 1975. N.T. 24. Appellant testified that she had made repeated phone calls to the attorney and that she did not know why there was a delay in filing the complaint. N.T. 12, 13.

Appellant contends that the delay in filing the complaint and the subsequent delay in taking a default judgment constituted negligence. The orphans’ court, however, did not evaluate this contention or the evidence offered in support of it. Rather, the court held that on the evidence before it appellant had failed to establish the second element of her argument, that is, that the attorney’s conduct caused a $6,000 loss to the Brockerman estate. Therefore, the court concluded, it did not need to decide whether the attorney’s conduct was negligent.

Appellant’s theory of causation is as follows: Because the attorney did not take a default judgment until after Mr. Jackson’s death, the Brockerman estate was only an unsecured creditor of the Jackson estate. The priority of claims against an estate is determined at the time of death, and the entry of judgment after Mr. Jackson’s death therefore did not and could not improve the position of the Brockerman estate. The claim of the Brockerman estate was not paid because the Jackson estate was insolvent; only secured creditors of the Jackson estate were paid. If the attorney had acted diligently and secured a judgment before Mr. Jackson’s death, the Brockerman estate could have become a secured creditor of the Jackson estate with priority over unsecured creditors and probably over other secured creditors. If the claim of the Brockerman estate had had such priority, it would have been paid.

We are not able to reach the merits of this argument, just as the orphans’ court was not able to. This is because appellant did not introduce sufficient evidence in the orphans’ court to support her theory of causation. There is no evidence in the record as to why the claim of the Brockerman estate was not paid. Specifically, there is no evidence in the record that the Jackson estate was insolvent, and there is no evidence in the record that only secured creditors of the Jackson estate were paid. Appellant testified on direct examination that secured creditors of the Jackson estate were paid. N.T. 28. On cross-examination of appellant it was brought out that after sale of the Jackson residence, on October 27, 1976, and after payment of the mortgage and secured creditors, there remained $8,768.73 in net proceeds from the sale. N.T. 32. The record is silent as to why the $6,000 claim of the Brockerman estate was not paid from the net proceeds of the sale.

On the record before it the orphans’ court properly concluded:

However, the testimony and evidence does not bear out Exceptant’s contention. Although it is true that the Judgment was not entered until April 15, 1975, the settlement of her ex-husband’s residence did not take place until October 27, 1976, when there was still sufficient equity in the residence to cover the default judgment. Consequently, the Exceptant’s contention that the delay in obtaining the judgment precluded recovery by the Estate is without merit. (N.T. 32). The Judgment was clearly entered prior to the sale of the residence. And, the Exceptant was duly notified of the Judgment by letter dated April 24, 1975, as was her Counsel, Michael Cantwell. (N.T. 34). As Executrix for the Estate, the Exceptant had the responsibility and the opportunity to collect the outstanding debt.

Apparently recognizing that the evidence before the orphans’- court did not support her theory, appellant has attached to her brief on appeal copies of the first and the final accounts of the Jackson estate and copies of various letters regarding the claim of the Brockerman estate against the Jackson estate. However, none of these documents was entered into evidence in the orphans’ court. It is well-settled that documents that are not a part of the record should not be included in the reproduced record and may not be considered on appeal. See Auman v. Juchniewitz, 312 Pa.Super. 98, 458 A.2d 254 (1983). On the record before it, and before us, the orphans’ court properly concluded that appellant had failed to show that the attorney’s conduct caused the Brockerman estate to suffer a loss. See Brown’s Estate, 343 Pa. 19, 21 A.2d 898 (1941) (orphans’ court did not err in refusing to surcharge trustee where exceptants failed to furnish affirmative evidence to sustain their contention that trustee was negligent in failing to pursue claims).

Although the first and second accounts of the Jackson estate are apparently matters of record in the case of In re Estate of Albert C. Jackson in the Delaware County Court of Common Pleas, a court may not ordinarily take judicial notice in one case of records in another case, even when the case arose in the same court and the contents of the records are known to the court. See Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968); Naffah v. City Deposit Bank, 339 Pa. 157, 13 A.2d 63 (1940). But see McFarland Estate, 377 Pa. 290, 105 A.2d 92 (1954) (court examined record in county court case and took judicial notice of fact that appellant’s husband had deserted her). Cf. Schulz Estate, 392 Pa. 117, 139 A.2d 560 (1958) (entire record of estate involved in this case was admitted into evidence, but if it were not, court could take judicial notice thereof); Buncher v. Buncher, 207 Pa.Super. 322, 217 A.2d 861 (1966) (rule not strictly applied in divorce actions). Moreover, this court will not take judicial notice of evidence of which the trial court was not requested to take judicial notice, and appellant made no such request to the orphans’ court. Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 219 A.2d 666 (1966); Platt v. Philadelphia, 183 Pa.Super. 486, 133 A.2d 860 (1957).

Finally, the record before us reveals that appellant had ample opportunity to present evidence in support of her theory, but did not do so. At the close of the hearing on appellant’s exceptions, appellant’s attorney restated appellant’s theory to the court. N.T. 45. Appellee’s counsel also restated its position to the court that there was money in the Jackson estate and that appellant just did not collect it. N.T. 46. The court made clear its view that the facts on the record did not bear out appellant’s contention. N.T. 45. Nevertheless, appellant still did not introduce the evidence necessary to establish that the attorney’s conduct caused a loss to the Brockerman estate. By thus not presenting the relevant evidence to the orphans’ court, appellant has failed to preserve the issue she now argues. See Commonwealth v. National Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977) (issue of technical defect in service was not raised in trial court and therefore would not be considered on appeal); DiAndrea v. Reliance Savings and Loan Ass’n, 310 Pa.Super. 537, 456 A.2d 1066 (1983) (in reviewing order granting motion on pleadings, court may consider only pleadings and documents attached thereto; issue of fact raised in petition to trial court and not attached to pleadings is not preserved for appellate review; appellants had ample opportunity to amend complaint to add relevant allegation but failed to do so).

-2-

Appellant also argues that the orphans’ court erred in awarding additional attorneys’ fees without sufficient support in the record for the award. In the decree nisi the orphans’ court awarded attorneys’ fees of $3,103.40 “plus payment for fees since submission of that bill at [the attorney’s] standard hourly rate.” Appellant excepted to this award and at the hearing testified that there had been no agreement to pay additional fees and that her understanding was that only $3,100 remained to be paid. N.T. 9-10. Appellee’s counsel acknowledged that the claim for additional fees was not based on an agreement, but was based on quantum meruit. N.T. 43. The court determined that services were in fact performed beyond the original agreement and that appellee was entitled to compensation on the basis of quantum meruit. N.T. 43-44.

It is well-settled that the supervision of compensation is within the discretion of the orphans’ court. In re Reed Estate, 462 Pa. 336, 341 A.2d 108 (1975). Nevertheless, when the compensation awarded is without support in the record, the award cannot stand. Id.; Crawford’s Estate, 307 Pa. 102, 160 A. 585 (1932) (court abused its discretion in reducing attorneys’ fee award where there was no evidence to contradict extensive evidence that fee was reasonable, and court did not explain reasons for reduction); Moore’s Estate, 228 Pa. 516, 77 A. 899 (1910) (court abused its discretion in reducing attorneys’ fee award where itemized statement of services was submitted, there was no evidence to show services were not worth amount requested, and court gave no reasons for reduction).

“When the fees of counsel come before the orphans’ court, it is a function of the court to decide what is a reasonable and just compensation under all the circumstances.” Crawford’s Estate, 307 Pa. at 111, 160 A. at 588. Factors to be considered are “the size of the estate, the novelty and difficulty of the questions involved, the extent of counsel’s labor on the case and the time the labor required, the responsibility assumed by counsel, and his professional standing.” Warden Estate, 348 Pa. 224, 225, 35 A.2d 297, 298 (1944).

The orphans’ court did not explain in its opinion the reasons for the amount it awarded as additional fees. Cf. Estate of McClatchy, 492 Pa. 352, 353, 424 A.2d 1227 (1981) (judge explained in his opinion that from first-hand experience he was familiar with entire record and knew that extraordinary services had been performed on behalf of estate). Nor does the record reveal in sufficient detail the basis for the amount awarded. One of appellee’s attorneys testified as to the services performed and the amount of fees requested. He testified that from June 1973 until October 1978, when one James Lynch, the father of present counsel for appellant, also started to do work on behalf of the Brockerman estate, the firm’s fee was $2,478.50 and costs were $10.40. N.T. 37. He further testified that from November 1978 until November 1981 the firm’s fee was $1,223 and costs were $28.45, id.; that three attorneys from the firm had performed these services for the estate, id.) and that the fees sought were based on the attorneys’ hourly rates. N.T. 38. This testimony was based on a summary that was prepared by the attorney from records kept by the firm regarding the time and type of services performed. N.T. 36. The attorney further testified, not on the basis of this summary, that after November 1981 approximately $1,400 worth of time had been spent on the Brockerman estate. N.T. 38. On cross-examination the attorney testified that he had the figures broken down by calendar year, hours for each attorney, and hourly rate, N.T. 40, but this information does not appear in the record. The attorney testified that some of the time spent after Mr. Lynch also began to represent the Brockerman estate for which fees were being sought could have been spent in attempting to collect the firm’s fee, but that some of it was also spent in attempting to get Mr. Lynch to file a second account. N.T. 41-42. The attorney was unable to give any specific estimates of how the time was spent. N.T. 42. Finally, the attorney testified that the charges were fair and reasonable for the services rendered at the time and in the general area. N.T. 44.

We do not consider this record sufficient to support the orphans’ court’s award of additional attorneys’ fees. It does not appear what hourly rate the firm charged, what the prevailing rate in the general area was at the time, what services were performed, or how much time those services consumed. Cf. Browarsky Estate, 437 Pa. 282, 263 A.2d 365 (1970) (attorneys presented bills representing total fee, hours spent and hourly rate, and testified as to work performed); Fraiman Estate, 408 Pa. 442, 184 A.2d 494 (1962) (attorney testified as to services rendered and presented to court a 66 page memorandum that noted letters written, conferences, phone calls, etc.; members of bar testified as to reasonableness of fee for work performed); Bickel Appeal, 388 Pa. 270, 130 A.2d 498 (1957) (in lengthy opinion court outlined all services performed by attorney, noted rate of professional compensation in county, noted no extraordinary services were performed and that legal questions involved were not novel, and considered time spent and fee charged to remainderman for prior services). Given the sparsity of the record and the absence of explanation by the court for the amount of additional fees awarded, the award of additional fees must be reversed and the case remanded for further proceedings.

The dismissal of appellant’s exceptions is affirmed, but the award of additional attorneys’ fees is reversed and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . It might seem from this statement that the appeal should be quashed, since an order dismissing exceptions is interlocutory and nonappealable until judgment has been entered on the docket. See, e.g., Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981). However, in this case judgment has been entered. It was entered on the docket on May 14, 1981, because appellant failed to timely file exceptions. By order dated November 25, 1981, appellant was granted leave to file exceptions nunc pro tunc. When granting this leave, the orphans’ court should have vacated the judgment entered on May 14, 1981. Then, if the court dismissed the nunc pro tunc exceptions, judgment could be entered again, and an appeal filed. However, the court did not vacate its May 14, 1981, judgment. Therefore, when the court dismissed appellant’s exceptions, on January 7, 1982, the judgment remained on the docket, and this appeal is in practical effect from that judgment.

      . We refer to the law firm as appellee although there appears to be some uncertainty as to whether the appellee is the firm itself or the individual attorney whose conduct is at issue. The original attorneys’ fees were awarded to the individual attorney and the order awarding additional fees does not specify whether the fees are awarded to the individual attorney or the firm. Nevertheless, the notes of testimony indicate that the award of additional fees was based on services performed by several attorneys in the firm. N.T. 37.

      . The attorney whom appellant alleges was negligent is Stephen J. McEwen, Jr., now a judge of this court. For this reason this court was of the view that it should not hear and decide this appeal. Cf. Commonwealth ex rel. Armor v. Armor, 263 Pa.Super. 353, 398 A.2d 173 (1978) (where divorced mother had married member of Montgomery County bench, no judge of Court of Common Pleas of Montgomery County could properly hear child support dispute between mother and ex-husband; appellee's appearance before bench necessarily involved her remarriage to member of that bench and therefore demanded that case not be heard by husband’s colleagues) (per PRICE, J., with two judges concurring). We therefore certified the appeal to the Supreme Court on August 9, 1983. The Supreme Court nevertheless refused to hear the appeal and by order of April 16, 1984, remanded the appeal to us for decision, with a direction that oral argument be heard within 30 days. Oral argument was heard on May 1, 1984.

      . There is testimony in the record regarding the contents of one of the letters, a copy of which appellant has attached to her brief. See N.T. 31-32. Nevertheless, the letter itself was not offered into evidence at the hearing and no testimony was offered concerning the parts of the letter that would apparently support appellant’s theory of causation.

      . Appellant mistakenly characterizes the award of additional attorneys’ fees as being in the amount of $3,103.40, when this amount was in fact the amount that was admitted to be due under the agreement. There is, however, a discrepancy in the amount of additional attorneys’ fees actually awarded. Following the hearing on exceptions the orphans' court orally awarded total fees of $6,848.60, making the additional fees $3,745.20, but in its written order the court awarded total fees of $6,948.80, making the additional fees $3,845.40. Since we are reversing the award of additional fees and remanding anyway, the discrepancy is not important.


author: POPOVICH, Judge:

text:
    480 A.2d 1205
    COMMONWEALTH of Pennsylvania v. George BRADLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Aug. 3, 1984.

      John M. McAllister, Philadelphia, for appellant.

      Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by George Bradley, appellant, from an order of the Court of Common Pleas of Philadelphia County which dismissed without a hearing appellant’s second petition for relief under the Post-Conviction Hearing Act on May 19, 1982.

Appellant was convicted on May 26, 1969, of murder in the first degree and took a direct appeal to the Pennsylvania Supreme Court, which affirmed the conviction but vacated the sentence of death and ordered life imprisonment. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). On March 26, 1974, appellant petitioned pro se for post-conviction relief under the Post-Conviction Hearing Act, which petition was dismissed without appointment of counsel. On February 28, 1977, upon appeal to the Supreme Court, the order dismissing appellant’s PCHA petition was reversed, and the case was remanded for appointment of counsel. Commonwealth v. Bradley, 470 Pa. 602, 369 A.2d 1155 (1977). After appointment of counsel, on June 7, 1977, appellant filed an amended petition under the PCHA which alleged, inter alia, that the trial court erred in failing to charge the jury that it could return a verdict of guilty of voluntary manslaughter and that trial counsel was ineffective in failing to object to the trial judge’s charge to the jury which allegedly precluded the jury from returning a verdict of voluntary manslaughter. The trial judge, finding those issues to have been waived, denied the petition for relief; however, his opinion does reach the merits of the underlying claim. The Pennsylvania Supreme Court thereafter affirmed. Commonwealth v. Bradley, 485 Pa. 230, 401 A.2d 744 (1979). On July 16, 1979, appellant filed the petition for relief under the PCHA which is the subject of this appeal. In his petition, appellant alleged that all prior counsel were ineffective in failing to preserve the claim that the trial judge erred in failing to instruct the jury on voluntary manslaughter and, indeed, that the trial judge’s instructions precluded the jury from such a finding. This petition was denied without a hearing, and this appeal followed. We affirm.

On appeal, appellant urges that the trial court erred in summarily dismissing his PCHA petition, where the issue of counsel’s ineffectiveness was properly presented, and, thus, a waiver was precluded. By couching his argument “Each of Petitioner’s previous court-appointed attorneys failed to render effective assistance of cousel [sic] which would have preserved the issue of trial counsel’s effectiveness for review”, appellant has properly preserved the underlying issue in the context of ineffectiveness of counsel. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Since denial of appellant’s first PCHA petition resulted in affirmance by the Pennsylvania Supreme Court solely on the basis of waiver, appellant has not had an opportunity to appeal the merits of his claim.

On December 15, 1967, appellant, along with two other men, entered a bar in Philadelphia. The owner and a patron were in the bar at this time. Upon entry, appellant drew a pistol, while his accomplices shouted “This is a stick-up.” (T. 498). One of appellant’s cohorts threw the patron, who was an old man, to the floor, knocking him unconscious, and the other grabbed the owner, hurled him to the floor and screamed, “Move, mother fucker, and I’ll kill you”. (T. 499). Appellant relinquished his gun to one of his companions while he removed the money from the cash register and a cigar box used for charitable contributions. He also grabbed two bottles of liquor. The owner, who was relegated to the floor, was shot to death at close range. The trio fled the bar, and appellant was arrested on December 19, 1967. Appellant was tried by a jury on charges of murder of the first and second degree and aggravated robbery. The court charged, inter alia,

“Now, members of the jury, one of the sub-divisions of the crime of murder in Pennsylvania is voluntary manslaughter. It is my opinion, and I charge you now, that it is my opinion that the offense of voluntary manslaughter is not involved in this case at all. I instruct you, therefore, under the circumstances, that I do not believe voluntary manslaughter is not in any wise applicable to this case.” (T. 699)

Since counsel cannot be held ineffective for failing to foresee future developments in the law, Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977), and since subsequent counsel cannot be faulted for failing to preserve an objection which had no probability of success, Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977), we must direct our inquiry initially to the state of the law at the time of trial. In determining whether counsel at any stage of the proceedings was ineffective, we must first evaluate whether counsel’s omissions would have been of arguable merit had they been raised. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

At first blush, appellant’s contentions seemingly have arguable merit. At the time of trial, the law was firmly entrenched that the jury always has the power, under a murder indictment, to return a verdict of voluntary manslaughter, although the classical requirements of the crime of manslaughter are absent. Commonwealth v. Hill, 444 Pa. 323, 281 A.2d 859 (1971), Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970), Commonwealth v. Harry, 437 Pa. 532, 264 A.2d 402 (1970), Commonwealth v. Cooney, 431 Pa. 153, 244 A.2d 651 (1968), Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966), Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d 369 (1963). “Not only was the jury empowered to return a verdict of voluntary manslaughter under a murder indictment where the evidence suggested the presence of provocation and passion but also the power existed where these elements are absent.” Commonwealth v. Jones, 457 Pa. 563, 572, 319 A.2d 142, 147, cert. denied 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). Jones involved an appeal questioning the rule which permitted the trial court to refuse a charge of voluntary manslaughter under a murder indictment where the evidence did not provide a basis for finding passion or legal provocation, and the court overruled Commonwealth v. Morrison, 266 Pa. 223, 109 A. 878 (1920) holding that

“By decisional law we have continued to embrace the common law concept that the jury could also find voluntary manslaughter under facts justifying a finding of murder in the absence of provocation and passion. It is beyond dispute that the jury must be informed of its power to determine the degree of murder in all cases. Consistency would suggest that the same rule should be employed as to the power to decide between murder and voluntary manslaughter.” Id., 457 Pa. 573, 319 A.2d at 148.

Jones announced a rule applicable to trials which commenced after the date of that decision. Commonwealth v. Covil, 474 Pa. 375, 379, 378 A.2d 841, 843 (1977). Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977). It is a benchmark, however, for our inquiry because it confirms the long-held rule that upon an indictment for murder, a jury may “... return a verdict of guilty of voluntary manslaughter, notwithstanding that it is irrational to return any verdict other than either acquittal or guilty of some degree of murder, if the evidence would have been sufficient to support a conviction of some degree of murder.” Commonwealth v. Moore, 463 Pa. 317, 326 n. 7, 344 A.2d 850, 855 n. 7 (1975) (Justice Roberts concurring). Jones cleared up an unfortunate anomaly in the law. Prior to that decision, it was permissible for a jury to find voluntary manslaughter even if such a verdict was irrational, but it was not necessary for the judge to advise the jury of the power it possessed. "... [Fjactors which do not comport strictly with jurisprudential doctrine may cause a jury to refuse to find a criminal defendant guilty of the extreme crime of murder, but to be willing to find him guilty of a lower degree of homicide.” Commonwealth v. Hoffman, supra, 439 Pa. at 359, 266 A.2d at 732 (1970). One major reason for allowing such a verdict is to empower the jury to extend mercy. Commonwealth v. Hoffman, supra. The other reason is to prevent the prosecution from failing when some element of the crime of murder is not made. Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966).

Of late, “recent decisions of this court have indicated an erosion of the rule expressed in Commonwealth v. Jones ... and a recognition, although belated, that permitting the jury to consider a verdict where no evidence exists to support it invites arbitrariness.” Commonwealth v. Zettlemoyer, 500 Pa. 16, 72, 454 A.2d 937, 966 (1982), Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983). Indeed, in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982), the Court stated:

“[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury’s discretion is thus channeled so that it may convict a defendant of any crime fairly supported by the evidence.”

In assessing counsels’ ineffectiveness, we are constrained to follow the law as defense counsel knew it at the time of trial. Commonwealth v. Triplett, supra. In May of 1969, “[f]ew propositions [were] better established in the criminal law than the doctrine that where the evidence would be sufficient to support a conviction of murder, the return of a verdict of voluntary manslaughter is strictly within the jury’s prerogative even in the absence of provocation and passion.” Commonwealth v. Hoffman, supra, 439 Pa. 356-357, 266 A.2d at 731. Therefore, there could be no reasonable basis for trial counsel’s failure to object to a charge which precluded a verdict of voluntary manslaughter and appellate and PCHA counsel’s failure to preserve such an objection.

Even though of seemingly arguable merit, and notwithstanding our failing to discern any reasonable basis for counsel’s failure to request such a charge, a claim of ineffectiveness cannot be sustained where there is no prejudice to appellant. Commonwealth v. Knox, 304 Pa.Super. 368, 450 A.2d 725 (1982). Since any rule mandating that the trial judge inform the jury that they may find voluntary manslaughter or any rule precluding him from failing to do so upon request is based upon the jury’s mercy-dispensing function, it is obvious that had the members of the jury been sympathetic to appellant’s plight, they would have returned a verdict of guilty of murder in the second degree.

“It is clear in this case that appellant did not suffer prejudice from the refusal of such an instruction in view of the jury’s decision to ignore their right to return a verdict of second degree. There is not the slightest reason to believe that the jury would have returned a verdict of voluntary manslaughter out of sympathy or in recognition of factors that they may have deemed mitigating where these factors were not sufficiently compelling to cause them to elect the lesser alternative that was offered.”

Commonwealth v. Jones, supra, 457 Pa. at 574, 319 A.2d at 148. (See also Commonwealth v. Carter, supra, where the court stated “In Jones the defendant was not prejudiced by the trial court’s refusal to charge on voluntary manslaughter because the jury, although instructed on second degree murder, elected not to return a verdict on that lesser alternative.” Id., 502 Pa. at 441-442 n. 9, 466 A.2d at 1332 n. 9.)

Appellant is entitled to a hearing on his petition if it alleges facts that, if proven, would entitle him to relief. Commonwealth v. Murray, 315 Pa.Super. 417, 462 A.2d 264 (1983). However, it is manifest that appellant was not prejudiced by the trial judge’s charge, and we decline the opportunity to remand for an evidentiary hearing. Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983).

Order affirmed.

      . Act of May 13, 1982, P.L. 417, No. 122, § 2, 42 Pa.C.S.A. § 9541, et seq. (hereafter PCHA).

      . The lower court judge states that the Supreme Court affirmance of his dismissal of the first PCHA petition implies that the disposition of the merits of appellant’s contentions was “affirmed sub silentio” (Opinion Blake J. at 3). It is to be noted that on appeal, appellant phrased his contention properly in terms of ineffectiveness of all prior counsel. Since in his petition before the PCHA court, he had limited his claim solely to ineffectiveness of trial counsel, the Supreme Court deemed that issue waived because it had not been presented as such to the PCHA court. The Court did not deal with the claim on its merits.

      . The lower court judge stated “As we have already addressed these issues and denied them once, we hereby deny the petition without a hearing” (Opinion Blake, J. May 19, 1982, at 3). Indeed, as we noted infra., the record does indicate that Judge Blake’s opinion disposing of the first PCHA petition reached the contention on its merits.

      . The Commonwealth alleges that trial counsel had a reasonable basis in view of his attempt to “orient[ ] the jury toward a verdict of not guilty” (Commonwealth Brief at 13). In light of the overwhelming evidence of guilt presented and in view of our decision, we need not entertain this theory.

      . Their lack of sympathy seems apparent in view of their imposition of the death sentence.


text:
    480 A.2d 1209
    COMMONWEALTH of Pennsylvania v. Kenneth CHAMBERLAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed Aug. 3, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

After a non-jury trial in the Court of Common Pleas of Philadelphia County, appellant, Kenneth Chamberlain, was convicted of knowing and intentional possession of a controlled substance. Post-trial motions were denied after which appellant was sentenced to four to eight months in the County Jail. This appeal followed.

The findings of fact upon which the lower court judge relied and which are supported by the record are as follows: On November 20, 1981, at approximately 1:05 a.m., the arresting officers observed an automobile being driven with multiple Motor Vehicle Code violations. The car pulled over upon request, and, as the officers approached the car, they noticed the driver attempting to conceal a black handgun. At this time, the driver and his passenger, appellant herein, were ordered to exit the car. The driver was searched for weapons, and the officer found a manilla envelope which contained a small amount of “green weed” in the driver’s pocket. The appellant was then searched by the officers. Manilla envelopes similar to the one removed from the driver were removed from the outside pocket of appellant’s jacket. The police opened the packets and found that they contained what appeared to be controlled substances.

Appellant contends on appeal that the trial court erred in denying his motion to suppress the contents of those manilla envelopes as the drugs found therein were the fruits of an unlawful search by police officers. We affirm.

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

In the instant case, we hold that appellant was initially subjected to a Terry v. Ohio “stop and frisk” and was not placed in full custodial arrest until after the drugs had been seized from him. See Commonwealth v. Collini, 264 Pa.Super. 36, 398 A.2d 1044 (1979). However, according to the testimony, after satisfying himself that appellant carried no weapons, the officer returned to the pocket which contained the drugs and proceeded to remove and inspect the contents of the manilla envelopes found therein. It was the latter action on the part of the police officer, taken after the search for weapons was concluded, which underlies appellant's primary claim of error. Our review must necessarily be comprised of a two-stage inquiry: (1) whether, in view of the circumstances, the initial “stop and frisk” of appellant was justified under the Terry standard, and (2) whether the contents of appellant’s pocket were lawfully seized after the officers were satisfied that appellant was not armed.

The United States Supreme Court has recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Court held that police may order persons out of an automobile during a stop for a traffic violation and may frisk those persons for weapons if there is a “reasonable belief” that they are armed and dangerous. That decision rested in part on the “inordinate risk confronting an officer as he approaches a person seated in an automobile.” Id. 434 U.S. at 110, 98 S.Ct. at 333. The Terry “stop and frisk” rule from which the Mimms rule derives deals with the permissibility of a frisk incident to an investigative stop based on less than probable cause to arrest. The issue is whether “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883. Since the officer need not have been absolutely certain that the individual was armed, the driver’s action in attempting to conceal the handgun justified the police officer’s apprehension of danger.

Admittedly, the frisk of appellant was based solely on the driver’s action in concealing the handgun and the officer’s resulting perception of danger. In his work Search and Seizure: A Treatise on the Fourth Amendment, Section 9.4, p. 119, the noted commentator, Wayne R. LaFave, states:

“Yet another situation in which there may exist grounds for a frisk is when the policeman and a citizen are brought into contact as a consequence of the officer acting to arrest a companion of that person.”

Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379 (1983) dealt with such a situation. Appellant therein was detained because a police officer noticed a lump protruding from his companion’s sweater. Although the court held that appellant had been arrested and not merely stopped and that probable cause was lacking, it noted that it would have been permissible for the officers to detain appellant for an investigatory stop and to conduct a limited search for weapons. {See also Dissent by Popovich, J.).

A leading case on this subject is U.S. v. Berryhill, 445 F.2d 1189 (9th Cir.1971). In upholding the search of a companion, the court observed that

“We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a police officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from [the suspect’s] associate because he cannot, on the spot, make a nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.”

Accord, U.S. v. Poms, 484 F.2d 919 (4th Cir.1973), U.S. v. Del Toro, 464 F.2d 520 (2d Cir.1972), Lewis v. U.S., 399 A.2d 559 (D.C.App.1979), U.S. v. Tharpe, 536 F.2d 1098 (5th Cir.1976).

Assuming, as we do, that the initial stop and frisk was justified, we further hold that the seizure of the contents of appellant’s pockets was lawful, and suppression is not indicated.

The manilla envelopes were observable in appellant’s bulging pocket; however, according to the testimony, the drugs themselves were not visible until after the envelopes were extracted from the pocket. The “plain view” doctrine may be employed only if we accept the hypothesis that the manilla envelopes were so linked with the carrying of drugs that the officers’ view of the envelopes was tantamount to a view of the drugs themselves. One of the arresting officers contended that, in his experience, manilla envelopes are most often used to conceal drugs. The officers, therefore, predicated their seizure on the driver’s coincidental possession of “green weed” in a similar manilla envelope along with the fact that manilla envelopes are commonly used for drug packaging.

Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) is dispositive. It involved a routine stop of an automobile at a driver’s license checkpoint. As he was situated alongside the driver’s window, the officer shined his flashlight into the car and saw respondent therein withdraw his right hand from his right pants pocket. He noted respondent holding an opaque, green party balloon, knotted about 1/2 inch from the tip. The officer reached into the car and picked up the balloon, and noticed a powdery substance within the tied-off portion. The plurality rejected the implication that an “unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine.” Id. 103 S.Ct. at 1542. They noted

“... probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ (cite omitted) that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false____With these considerations in mind, it is plain that [the officer] possessed probable cause to believe that the balloon in Brown’s hand contained an illicit substance. [The officer] testified that he was aware, both from his participation in previous narcotics arrests and from discussions with other officers, that balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics ----In addition, [the officer] was able to observe the contents of the glove compartment, which revealed further suggestions that Brown was engaged in activities that might involve possession of illicit substances. The fact that [the officer] could not see through the opaque fabric of the balloon is all but irrelevant; the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officers. Id., 103 S.Ct. at 1543. (Emphasis added)

Cf. Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979). The Court’s application of the “plain view” doctrine under these circumstances provides further grounds for seizure of an item only “when an officer’s access to an object has some prior justification under the Fourth Amendment. ‘Plain view’ is perhaps better understood, therefore, not as an independent exception to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.” The plurality notes examples of such a justification, i.e., “... some exception to the warrant clause, e.g., ... Terry v. Ohio ...” Texas v. Brown, supra, n. 4, 103 S.Ct. at 1540. Here, the initial justification for the “stop and frisk” was dealt with previously in our analysis of the first stage of appellant’s detention. Since the original “stop and frisk” was justified, the only remaining question is whether there was probable cause to associate the property with criminal activity. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Under the circumstances, the officers did not have to turn a blind eye to the incriminating evidence. One arresting officer testified that in his fourteen years as a highway patrolman, he had on approximately 200 occasions come into contact with manilla envelopes used for the purpose of concealing drugs. (T-27) Brown is factually similar to the case sub judice in that seemingly, the heroin in the balloons was only distinguishable upon close inspection after seizure. Here, since certain of the envelopes were open, the officer needed only to peer inside after seizure to distinguish their contents. {See also Commonwealth v. Trenge, supra, which involved the seizure of a marijuana pipe from Trenge’s pocket. The court held that the seizure was lawful, relying heavily on the observations and opinions of the officer involved which were “obviously those of a highly-trained and experienced police officer.” Id., 305 Pa.Superior Ct. 403, 451 A.2d at 710. The court went so far as to footnote the fact that the officer had frequently lectured on the subject of marijuana and its paraphernalia. Id., 305 Pa.Superior Ct. 390 n. 1, 451 A.2d at 703 n. 1.)

The envelopes were recognizable as a common drug packaging device, and similar envelopes were found on appellant’s companion. We hold, therefore, that the facts available to the police officers and the implications drawn therefrom, consistent with Brown, gave them probable cause for the seizure under the “plain view” doctrine which “authorizes seizure of illegal or evidentiary items observable to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.” Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983).

Judgment of sentence affirmed.

      . Appellant was a passenger in a car with no left headlight and no taillights.

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . A I completed the frisk for a weapon, then I went back to his pocket, that’s correct. Q So, after you didn’t find any weapon, that’s when you reached into his pocket? A That's correct. (Testimony of arresting Officer Whartman 4/30/82, T-31)

      . One study concludes that approximately 30% of the shootings of police officers occur when an officer stops a person in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J.Crim. L.C. & P.S. 93 (1963).

      . A As I was frisking the defendant for a weapon, ... I observed four manila envelopes in his right front pocket of his jacket. T-26 Q Could you see through the manila envelopes and see what was inside?
      A No I couldn’t.
      Q Now, you had to take those manila envelopes out of his pocket, is that right?
      A That’s correct. T-29.

      . See, e.g., Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978).

      . Q And in your experience as a Philadelphia Highway Patrolman, what is carried in those small manila envelopes?
      A Controlled Substances, ...
      (Testimony of Officer Whartman, 4/30/82, T-27)