author: ROWLEY, Judge:

text:
    537 A.2d 1
    COMMONWEALTH of Pennsylvania v. Leonard HOTTINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1987.
    Filed Dec. 8, 1987.
    Reargument Denied Feb. 12, 1988.

      Theodore Q. Thompson, Ambler, for appellant.
    William H. Platt, District Attorney, Allentown, for Com.
    Before CIRILLO, President Judge, and ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

This appeal is from an order denying appellant Leonard Hottinger’s motion for a new trial on the basis of after-discovered evidence. As the result of an incident in the city of Allentown on August 14, 1981, appellant was convicted of unlawful restraint, indecent assault, indecent exposure, and open lewdness. Appellant raises five issues: 1) whether the evidence was sufficient to support the verdict; 2) whether the trial court erred in denying appellant’s request for a curative instruction after the assistant district attorney in her closing argument commented upon what appellant did not say to the police at the time of his arrest; 3) whether the trial court erred in denying appellant’s motion for a mistrial, made for the same reason as the request for a curative instruction; 4) whether the trial court erred in denying appellant’s motion for a new trial based on after-discovered evidence; and 5) whether the trial court erred in denying appellant access to the victim’s mental health records. We affirm.

This case has a complex procedural history. Appellant was tried before a jury and on June 10, 1982, was found guilty of all charges. Appellant filed motions for a new trial and in arrest of judgment on June 17, 1982. These post-trial motions included the first, second, third, and fifth issues that appellant now raises before this Court. After a series of continuances had been granted, the trial court on July 1, 1983, ordered that appellant’s post-trial motions be dismissed for failure to proceed timely.

Throughout these proceedings appellant had been represented by counsel from the Public Defender’s Office. After dismissal of his post-trial motions, appellant retained private counsel, whose representation of appellant continues to the present time. On February 9, 1984, appellant’s new counsel petitioned the court to set aside its order dismissing appellant’s post-trial motions. The petition was granted, argument was heard on the motions, and the trial court denied the motions in an order filed on March 11, 1985. On May 23, 1985, appellant was sentenced to a term of imprisonment of nine to twenty-three months. On or about that date appellant filed an application for release pending appeal in which he asked the trial court to continue bail and to “stay the execution of sentence” or to “stay the sentence.” On the day of sentencing the trial court ordered that bail be continued on the condition that appellant pursue his appeal to this court within the time permitted by law. On or about June 3,1985, appellant filed a petition for reconsideration of sentence and a motion for a new trial based upon after-discovered evidence. The trial court denied the petition for reconsideration of sentence on June 12, 1985. After a hearing on the motion for a new trial based on after-discovered evidence, the trial court denied the motion on November 19, 1986. On December 16, 1986, appellant filed a timely appeal from that order.

The salient fact to emerge from this mass of procedural detail is that only the fourth of appellant’s five issues is properly before this Court. The notice of appeal that was filed on December 16, 1986, states that appellant “hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on November 19, 1986.” In its order of November 19, 1986, the trial court denied appellant’s motion for a new trial based on after-discovered evidence and addressed no other issue. Appellant, having appealed from that order, can address no other issue in this appeal. He cannot now be heard to claim that he has filed “a direct appeal as of right from a judgment of conviction and sentence” (Brief for Appellant at 1).

Even if appellant had originally brought this appeal as an appeal from the judgment of sentence, his attempt to raise issues one, two, three, and five would necessarily fail. Judgment of sentence was entered on May 23, 1985. Appellant filed the instant appeal on December 16, 1986. As an attempt to raise the four issues that concern matters prior to or during trial, the filing was almost one and a half years too late. Pa.R.A.P. 903(a) requires that a notice of appeal be filed within thirty days of entry of the judgment of sentence. Time limitations on the taking of appeals are to be strictly construed, Commonwealth v. Hoskins, 329 Pa.Super. 226, 230, 478 A.2d 45, 48 (1984); Commonwealth v. Wilkinson, 260 Pa.Super. 77, 79, 393 A.2d 1020, 1020 (1978), and cannot be extended as a matter of grace, Commonwealth v. Horner, 449 Pa. 322, 324, 296 A.2d 760, 762 (1972); Commonwealth v. Zazo, 330 Pa.Super. 386, 391, 479 A.2d 606, 608 (1984). The question of timeliness can be raised by the reviewing court sua sponte. Commonwealth v. Williams, 313 Pa.Super. 81, 82, 459 A.2d 420, 421 (1983).

We have thoroughly reviewed the record that has been certified to us and have discovered no action by the trial court that extended the time allotted to appellant to file an appeal. Appellant’s application for release pending appeal, filed on or about May 23, 1985, resulted in a continuation of bail, not in a stay of the sentence. The trial court stated expressly that bail was being continued only on the condition that appellant pursue an appeal to this court within the time permitted by law. It is settled law that the petition for reconsideration of sentence that appellant filed on or about June 3, 1985, did not extend the time for appealing the judgment of sentence. Comment to Pa.R. Crim.P. 1410; Commonwealth v. McCleary, 333 Pa.Super. 443, 446, 482 A.2d 651, 652 (1984); Commonwealth v. Wilkinson, 260 Pa.Super. 77, 79, 393 A.2d 1020, 1021 (1978). Only if appellant had asked the trial court to vacate the judgment of sentence until the motion was decided and the trial court had granted appellant’s request would the appeal period have been extended. See Comment to Pa.R.Crim.P. 1410. Similarly, appellant’s filing, within the thirty-day appeal period, of a motion for a new trial based on after-discovered evidence does not extend the appeal period. Pa.R. Crim.P. 1123(d) states that a motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery. Neither the rule, the comment to the rule, nor the case law that we have examined suggests that filing such a motion extends the period within which to appeal the judgment of sentence. Finally, we have ascertained from the prothonotary of this Court that appellant has not filed a separate appeal that is not noted in the certified record of this case.

In sum, appellant’s right to appeal the judgment of sentence expired on June 22, 1985, thirty days after the judgment was entered. If appellant had filed an appeal from the judgment of sentence on December 16, 1986, owing to its untimeliness we would lack jurisdiction to entertain it. Commonwealth v. Bey, 437 Pa. 134, 136-37, 262 A.2d 144, 145 (1970); Commonwealth v. McCarthy, 296 Pa.Super. 142, 145, 442 A.2d 698, 700 (1982).

Thus the sole issue to be decided by this Court is whether the trial court erred in denying appellant’s motion for a new trial based on after-discovered evidence. The evidence allegedly discovered by appellant concerns the testimony of Arthur Allender, former chief of police of the city of Allentown. Allender was called by the Commonwealth as a rebuttal witness whose testimony could be expected to impeach the credibility of appellant. He testified that appellant, as a student at the Allentown Police Academy, had been permitted to ride in police vehicles and had been given a permit to carry a pistol, but had never worked in an undercover capacity for the city police department. Appellant’s after-discovered evidence was the information that after appellant had been convicted, Allender allegedly revealed to the prosecuting police officer that he, Allender, had perjured himself at trial by denying that appellant had worked in an undercover capacity for the police department when in fact appellant had done so. Allender denied making such a statement.

To justify the grant of a new trial, evidence obtained after trial 1) must be such that it could not have been obtained at trial by reasonable diligence, 2) must not be cumulative or merely impeach credibility, and 3) must be such as would compel a different result. Commonwealth v. Tervalon, 463 Pa. 581, 589, 345 A.2d 671, 674 (1975); Commonwealth v. Benson, 317 Pa.Super. 139, 142, 463 A.2d 1123, 1125 (1983). The trial court, in a thorough and well-reasoned opinion, ruled that appellant’s evidence did not warrant a new trial because it failed to meet the second and third of these requirements. Allender’s testimony concerned collateral matters only; it was not essential to establishing the elements of the crimes with which appellant was charged. Thus, appellant’s evidence, even if its trustworthiness could be established, would not compel a different result. In addition, allegations that Allender had perjured himself would do no more than impeach Allender’s credibility. We conclude that the trial court has correctly decided this issue.

Order affirmed.

      . In its opinion the trial court stated that appellant was convicted of unlawful restraint, indecent assault, indecent exposure, and impersonating a public servant. The certified record and the briefs filed by both parties indicate that the fourth offense was open lewdness, not impersonating a public servant.

      . If the instant appeal were an untimely appeal from the judgment of sentence, we would be concerned that the record as certified to this Court does not include a transcript of the sentencing proceeding. The thirty-day appeal period does not begin to run until the trial court imposes sentence, informs the defendant of his right to appeal within thirty days, and enters the judgment on the docket. Commonwealth v. Cavanaugh, 500 Pa. 313, 315, 456 A.2d 145, 146 (1983); Commonwealth v. Nugent, 291 Pa.Super. 421, 425 n. 8, 435 A.2d 1298, 1300 n. 8 (1981). See Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 222, 261 A.2d 550, 552 (1970) (failure to appeal that results from lack of knowledge of appeal rights is not a knowing and voluntary waiver of right to appeal). Because this appeal has been taken from the order denying the motion for a new trial, not from the judgment of sentence, we do not need to consider whether appellant was fully informed of his right to appeal the sentence.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    537 A.2d 4
    Marie B. HECK, Appellee, v. Thomas A. HECK, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1987.
    Filed Dec. 10, 1987.
    Reargument Denied Feb. 5, 1988.

      Lynne Z. Gold-Bikin, Norristown, for appellant.
    Lind K.M. Ludgate, Reading, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

This case commenced with appellant’s institution of a complaint in equity, filed February 24, 1986, requesting the court to set aside a post-nuptial agreement entered into by the parties. Appellee responded with preliminary objections which were overruled on June 2, 1986 by the trial court in an order requiring appellant to file an Answer within 20 days of the order. On June 27, appellee took a default judgment. Appellant’s motion to open was denied on July 16, and a petition for reconsideration was filed on July 24. On July 25 appellant filed a notice of appeal to this court from the default judgment. On August 7 the trial court entered an order directing that the parties list the reconsideration petition for argument. However, on September 29 the court rescinded its August 7 order on the grounds that having failed to grant reconsideration within 30 days as is required by Pa.R.A.P. 1701(b(3)(ii), it was divested of jurisdiction to consider the petition.

On appeal, appellant argues that the court’s refusal to open the default judgment was an abuse of discretion. He bases this claim on appellee’s failure to give notice of her intention to take default judgment under Pa.R.C.P. 237.1(b).

The law is well settled that:

Prior to granting a petition to open judgment, the petitioner must establish that: (1) the petition was promptly filed after the judgment was entered; (2) a legitimate explanation exists; and (3) a meritorious defense to the underlying substantive claim is advanced.

Rousley v. D. C. Ventre & Sons, Inc., 361 Pa.Super. 253, 256, 522 A.2d 569, 571 (1987). Further, “all three parts of the test should be evaluated in light of all the circumstances and equities of the case.” Autologic Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 178 n. 2, 481 A.2d 1362, 1364 n. 2 (1984); Provident Credit Corp. v. Young, 300 Pa.Super. 117, 131, 446 A.2d 257, 264 (1982).

The trial court, having correctly applied the elements of this standard, found that while the petition was indeed promptly filed and that appellant could mount a meritorious defense, nevertheless, he had failed to provide an acceptable excuse for neglecting to file his Answer within the appointed period. The explanation raised in the original petition to open was that appellant had been on vacation and was therefore unavailable to sign the Answer which had been ordered. The trial court correctly determined that this apologia was insufficient since appellant’s counsel had known, months in advance, of her client’s proposed absence. Further, the court noted that counsel could have attached her own verification to the Answer pursuant to Pa.R.C.P. 1024(c).

We see no reason to disagree with this analysis, and none is provided in appellant’s brief. Instead appellant now attempts to argue that the default judgment should be opened because he was not provided with notice of its entry as Rule 237.1(b) requires. Appellant claims to have raised this issue in his original motion to open judgment of July 2, 1986. Moreover, he argues that the court’s rationale in denying the motion was that “the judgment entered against the defendant resulted from his failure to plead over within twenty (20) days of the overruling of his preliminary objections, and that under Rule 237.1(b), no notice was required.” (Brief of appellant at 9). As neither of these assertions is corroborated by the record, we need not address the merits of appellant’s claim.

We note, however, in examining the procedural flaw which has determined the outcome of this case, that:

Rule 1701 contemplates that when a motion for reconsideration is denied, the prior appeal retains its validity; however, when reconsideration is granted, the prior appeal becomes inoperative and appeal time will run anew after the lower court reconsiders the merits of the claim and enters a new order.

Dillon by Dillon v. National Railroad Corporation (AMTRAK), 345 Pa.Super. 126, 130, 497 A.2d 1336, 1337 (1985). In this case although the appeal and the petition for reconsideration were contemporaneous, having been filed on two successive days, the court never ruled on the petition. The comment to Pa.R.A.P. 1701 Subsection (b)(3) provides that:

“If the trial court or other government unit fails to enter an order ‘expressly granting reconsideration’ (an order that ‘all proceedings shall stay’ will not suffice) within the time prescribed by these rules for seeking review, Subdivision (a) becomes applicable and the power of the trial court or other government unit to act on the application for reconsideration is lost.”

As a result, the trial court could not have and did not reason as appellant insists, having had no opportunity to do so. The court documents reveal that the notice problem was not put into issue until September 11, 1986, when appellant filed a motion to strike. By that time, the 30 day period from the filing of the reconsideration petition on July 24 had already run. The court’s failure to rule on the petition thus became the functional equivalent of a denial and no jurisdiction remained. The issue of Rule 237. notice was therefore waived.

Accordingly, having concluded on the only issue before us that the court acted properly in in refusing to open the default judgment, we affirm.

Order affirmed.

      . (b) Authority of a trial court or agency after appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:
      (3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
      (iii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.

      . Rule 237.1. Notice of Praecipe for Entry of Default Judgment
      (a) No judgment of default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
      (b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

      . Rule 1024.
      (c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge of information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party.


author: MONTGOMERY, Judge:

text:
    537 A.2d 7
    James E. KOLBE, II, Appellant, v. AEGIS INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1987.
    Filed Dec. 28, 1987.
    Reargument Denied Feb. 19, 1988.

      James Naddeo, Clearfield, for appellant.
    Darryl R. Slimak, State College, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal by the Plaintiff-Appellant arises from a judgment entered following an order by the lower court which sustained preliminary objections in the nature of a demurrer. In his suit, the Plaintiff sought a recovery pursuant to underinsured motorist provisions of a policy of insurance issued to him by the Defendant-Appellee.

In reviewing this appeal, we must accept as true all of the Plaintiff’s well-pleaded averments of fact in his Complaint, as well as all inferences reasonably deducible therefrom. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983); Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981). Our task is not difficult in the instant case, as there appear to be no disputes regarding the salient facts. They show the following: On or about April 1, 1985, the Plaintiff purchased a policy of motorcycle insurance from the Defendant. On April 22, 1985, the Plaintiff was involved in an accident with another vehicle. Subsequently, Plaintiff, through his attorney, sought to recover a payment from the Defendant under the underinsured motorist provision of his policy for damages he had sustained in the aforesaid accident. The Defendant insurer responded that it had no liability under the underinsured motorist provision, and refused coverage. The Plaintiff thereafter negotiated a settlement of his claims against the other driver’s insurer, for $25,000, the apparent limit of the liability coverage under that policy. A general release was executed in-connection with that settlement on September 24, 1985.

The Plaintiff never sought the consent of the Defendant prior to entering into the aforesaid settlement. The policy issued by the Defendant to the Plaintiff contained the following pertinent language, in the provisions dealing with underinsured coverage: “This coverage does not apply to bodily injury sustained by a person: ... If that person makes any settlement without our written consent.”

On November 15, 1985, Plaintiff’s attorney again requested payments from Defendant pursuant to the underinsured motorist clause, or, in the alternative, sought Defendant’s consent to arbitration to resolve the issue, as mandated by the policy. The Defendant refused to join in arbitration and this suit was filed.

The lower court sustained the Defendant's preliminary objections in the nature of a demurrer on the basis that the Plaintiff's failure to secure the insurer’s consent to the settlement with the other driver was a breach of the insurance agreement, which excused the insurer from any liability for underinsured benefits under the policy. We disagree with that reasoning under the factual situation presented in the instant case.

The Defendant insurer was advised of the accident and the Plaintiff’s underinsured coverage claim prior to the Plaintiff’s settlement with the other driver. In response to that notice and request for coverage, the insurer disclaimed liability, and thus took the legal position that its policy coverage was not applicable to the Plaintiff’s claim. Its conduct in that regard was buttressed by its refusal to enter into the arbitration procedure made mandatory by its own policy language. In the face of such conduct, it would be unreasonable to permit it to subsequently rely on other contract provisions and conditions to avoid answering the claims of its insured based upon its own lack of consent. It would have obviously been an unavailing effort for the Plaintiff to have sought the Defendant’s consent for the settlement when he had already been advised by the Defendant that it considered his policy coverage to be inapplicable.

In Engle v. National Council, Junior Order United American Mechanics of the United States of North America, Beneficiary Degree, 133 Pa.Super. 149, 1 A.2d 798 (1938), our Court stated:

It is a well-established rule that a contracting party by his conduct may render inoperative conditions of the contract on which he might otherwise insist. Thus, it has been held that a provision requiring the filing of proofs of loss is waived where a denial of liability has been made. So also a denial of liability renders ineffective a clause requiring the insured to wait a certain period before bringing suit.

That rule and reasoning are directly applicable in the circumstances of the instant case. We cannot condone the action of the Defendant in first denying the applicability of its policy and thereafter relying upon a consent requirement in the same policy to defeat a coverage claim. In reaching this conclusion we are also mindful of the principle that a party to a contract may not complain of a breach caused by his own default. See Byrne v. Kanig, 231 Pa.Super. 531, 332 A.2d 472 (1975).

Although there appears to be no prior Pennsylvania appellate decision exactly on point to the issues raised in this case, we cite, with approval, the reasoning and conclusions of the Supreme Court of Maine in the directly analogous case of Bazinet v. Concord General Mutual Insurance Company, Me., 513 A.2d 279 (1986). There, the Court rejected an insurer’s attempt to defend an underinsured motorist claim based upon a “no consent to settlement” clause, on the basis that the insurer’s prior denial of the claim precluded it from subsequently relying upon the consent to settlement requirements of the policy. The Maine Court applied the same reasoning we have adopted in this case and rejected arguments similar to those offered by the Appellee on this appeal.

Accordingly, we find that the lower court erred in sustaining the Appellant’s preliminary objections in the nature of a demurrer.

The judgment of the lower court is reversed and this case is remanded for further proceedings. Jurisdiction is not retained.

      . This fact was brought out in the Defendant’s Preliminary Objections, wherein it pleaded that the Plaintiff's Complaint failed to allege or attach a copy of Defendant’s written consent to the settlement. The Plaintiff does not assert that such consent was sought or granted.

      . The arbitration section of the policy states:
      If we and an insured person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle, or we do not agree as to the amount of damages, either party may make written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs, and bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county and state in which the insured person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding.

      . We reject Appellee’s argument, based on several cases, that the Appellant’s rights under the policy should be barred because of possible loss of contribution claims by the Appellee against the other driver as a result of the Appellant’s execution of a release which would arguably cover such claims by his insurer. The Appellee should have recognized that such a settlement would eventuate when it initially denied coverage on the policy to the Appellant. It has not suggested any legal or other justification for that initial denial to our Court or the lower court. In any event, its conduct nullified any subsequent consent or notice requirements of the policy in the context of this case.


author: BECK, Judge:

text:
    537 A.2d 9
    COMMONWEALTH of Pennsylvania v. Edward THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1987.
    Filed Jan. 29, 1988.

      John W. Ashley, Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Com., appellee.
    Before CAVANAUGH, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This is an appeal by Edward Thomas from a judgment of sentence entered on August 8, 1984 by the Court of Common Pleas of Lehigh County. The issue is whether the court, which resentenced defendant after his original judgment of sentence was invalidated, erred by failing to provide an adequate statement of reasons for the new judgment of sentence. We find that the court did not provide an adequate statement of reasons. Accordingly, we must vacate the new judgment of sentence and remand for resentencing.

This case has a complex procedural history. In January, 1976, appellant was charged with burglary and receiving stolen property and incarcerated in the Lehigh County Prison. These charges were eventually dismissed. While in prison, however, appellant allegedly engaged in sodomy with a fellow inmate. He was charged with the sodomy offense and released on bail. Appellant was rearrested in May, 1976, and charged with robbery, conspiracy, terroristic threats, and commission of a crime with a firearm. During the month of September, 1976, appellant had two separate jury trials before the same trial court judge — one in connection with his alleged sex crime (Lehigh County Case No. 726 (1976)) and one in connection with the robbery and related charges (Lehigh County Case Nos. 1494 through 1497 (1976)).

On September 16, 1976, appellant was convicted of voluntary deviate sexual intercourse. He was sentenced for this offense on July 25, 1977 to 11 to 23 months imprisonment. He received a fifteen month credit on this sentence for the period during which he had been detained in connection with the robbery and related charges.

On September 23, 1976, appellant was convicted of robbery, conspiracy, terroristic threats, and commission of a crime with a firearm — the charges directly at issue in this appeal. He was originally sentenced for these offenses on November 29, 1977. At this sentencing hearing, the trial judge stated that he had to consider appellant’s prior record when imposing sentence, and that this prior record indicated that appellant would be likely to continue to engage in criminal activity if placed on probation. The judge also specifically noted that appellant’s prior record included a conviction for voluntary deviate sexual intercourse. The court then sentenced appellant to a total of ten to twenty years imprisonment.

Appellant sought to overturn both his voluntary deviate sexual intercourse conviction and his robbery and related convictions on direct appeal and in collateral proceedings in the state courts of Pennsylvania. These efforts were unsuccessful. He then filed writs of habeas corpus in the federal district court for the Eastern District of Pennsylvania. In an opinion issued February 29, 1984, the federal court held that appellant had been denied his right to effective assistance of counsel as to the voluntary deviate sexual intercourse conviction. Thomas v. Zimmerman, 583 F.Supp. 701 (E.D.Pa.1984). The federal court also noted that subsequent to the exhaustion of appellant’s direct appeal, the Pennsylvania statute proscribing voluntary deviate sexual intercourse had been declared unconstitutional by our State Supreme Court. See Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980) (invalidating 18 Pa.Cons. Stat.Ann. § 3124 (Purdon 1983)).

After setting aside appellant’s conviction for voluntary deviate sexual intercourse, the federal court proceeded to consider the impact that this conviction had on appellant’s judgment of sentence for his robbery and related offenses. The court found that the sex crime conviction had affected the robbery sentence in two ways. First, appellant’s fifteen month credit for pretrial detention had been applied toward his sex crime sentence rather than his robbery sentence. Second, the trial judge apparently considered appellant’s previous conviction for voluntary deviate sexual intercourse as one of the aggravating factors which justified a long prison sentence for robbery. In light of these conclusions, the federal court granted a writ of habeas corpus as to the voluntary deviate sexual intercourse conviction. The court also granted a writ of habeas corpus as to robbery sentence but stayed execution of the writ for ninety days in order to afford the Commonwealth an opportunity to arrange for resentencing the appellant on his robbery and related convictions.

On August 8, 1984, appellant was resentenced to eight to twenty years imprisonment by the Honorable James N. Diefenderfer of Lehigh County, a judge with no previous involvement in this case. Appellant filed a motion to modify sentence which was denied, and he appealed the new judgment of sentence to this court. Appellant argues in the instant appeal that Judge Diefenderfer did not place on the record sufficient reasons for the new sentence. We agree.

Before addressing the merits of appellant’s claim, we must first decide whether the issue which he raises is properly before us. A challenge to the adequacy of a statement of reasons is viewed as an appeal of a discretionary aspect of sentencing. See Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982). The right to appeal from a discretionary aspect of a sentence is not absolute. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Pennsylvania Supreme Court held that such an appeal should comply with the requirements of both Pa.R. A.P. 2119(f) and section 9781(b) of the Sentencing Code.

Rule 2119(f) provides that the appellant “shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence.” In the case sub judice, appellant’s brief does not contain this statement and is therefore defective. However, a Rule 2119(f) violation will be overlooked unless the appellee specifically directs the court’s attention to this deficiency. See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc). Since the Commonwealth’s brief is silent as to the Rule 2119(f) defect, we will not dismiss Thomas’ appeal on this basis.

Section 9781(b) provides that the Superior Court may grant an appeal from a discretionary aspect of sentence when it appears that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. As we recently noted in Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (Pa.Super.1987):

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process. See, e.g., Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980) (sentence must be adjudicated by fair and impartial judge); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (sentence may not be based in part on impermissible consideration).

Id., 369 Pa.Superior Ct. at 201 n. 7, 535 A.2d at 119 n. 7.

We conclude that appellant’s claim that the court failed to place sufficient reasons for his new judgment of sentence on the record presents a substantial question. Section 9721(b) of the Sentencing Code specifically provides:

In every case in which the court imposes a sentence for a felony or a misdemeanor, the court shall make as part of the record, and disclose in open court at the time of sentencing a statement of the reasons for the sentence imposed____ Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

Cf. Pa.R.Crim.P. 1405 (mandating statement of reasons at sentencing as rule of criminal procedure); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (mandating statement of reasons at sentencing as matter of case law). This requirement applies both to the original sentencing hearing and to all subsequent resentencing hearings. Commonwealth v. Losch, 369 Pa.Super. at 208 n. 9, 535 A.2d at 123 n. 9; see Commonwealth v. Weldon, 320 Pa.Super. 102, 466 A.2d 1082 (1983); Commonwealth v. Kostka, 276 Pa. Super. 494, 512-13, 419 A.2d 566, 575 (1980) (Spaeth, concurring); Commonwealth v. Phillips, 258 Pa.Super. 109, 114-15, 392 A.2d 708, 710 (1978). Moreover, the appellate courts of Pennsylvania have repeatedly held that a statement of reasons must conform to certain minimum requirements in order to be legally effective. See, e.g., Commonwealth v. Holler, 326 Pa.Super. 304, 473 A.2d 1103 (1984); Commonwealth v. Weldon, supra. Accordingly, appellant’s allegation of error clearly merits review. Cf. Commonwealth v. Losch, supra; Commonwealth v. Plasterer, 365 Pa.Super. 190, 529 A.2d 37 (1987); Commonwealth v. Lapcevich, 364 Pa.Super. 151, 527 A.2d 572 (1987) (finding claim of inadequate statement of reasons presents substantial question under Tuladziecki).

We hold that the court which resentenced the appellant did not provide an adequate statement of reasons. The only reason given for the new sentence appears in the following order which the court announced at the resentencing hearing:

Now, August 8, 1984, upon direction of the Federal District Court of Eastern Pennsylvania, said sentence is modified in that said defendant undergo imprisonment of Eight (8) to Twenty (20) years in such state correctional institution as shall be designated by the Deputy Commissioner for Treatment, Bureau of Diagnostic Classification Center at Graterford, Pennsylvania, for this purpose.
Said defendant shall be entitled to Credit for time served, under this charge for time served in Case No. 726/1976 [the sentence for voluntary deviate sexual intercourse] as a result of said criminal act being declared unconstitutional.

The court did not provide any further explanation for the new sentence. It merely recited the text of the above order. Such a statement is not sufficient to comply with the Sentencing Code.

As we noted in Commonwealth v. Mills, 332 Pa.Super. 75, 480 A.2d 1192 (1984):

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 sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 895 (1980); See also Commonwealth v. Stafford, [313 Pa.Super. 231, 459 A.2d 824 (1983) ]. 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, discouraging] 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, [265 Pa.Super. 305, 401 A.2d 1223 (1979) ], 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], 422 A.2d at 896, quoting Commonwealth v. Wareham, 259 Pa.Super. 527, 534, 393 A.2d 951, 954 (1978).

Id., 332 Pa.Super. at 86-87, 480 A.2d at 1198.

Section 9721 of the Sentencing Code directs the sentencing authority to consider “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” Section 9725 of the Code directs the sentencing authority to have regard for “the nature and circumstances of the crime and the history, character, and condition of the defendant” when imposing a sentence of total confinement. A brief statement at sentencing which reveals how the judge has applied these factors is ordinarily sufficient. See Commonwealth v. Wareham, supra. However, the judge’s statement must clearly show that he has given individualized consideration to the character of the defendant. See Commonwealth v. Ruffo, 360 Pa.Super. 180, 520 A.2d 43 (1987); Commonwealth v. Weldon, supra. Where, as here, the judge at resentencing referred neither to the Sentencing Code nor to any information bearing upon the defendant’s character, the need to vacate and remand is readily apparent.

The Commonwealth contends that this court should simply assume that the judge who resentenced appellant relied on the same character considerations which were articulated by a different judge at the time of the original sentencing hearing. This argument has two flaws. First, “[t]he mere presence in the record of evidence the court could have relied on does not meet the requirement that the judge state what it was the court did rely on in imposing sentence.” Commonwealth v. Warden, 335 Pa.Super. 315, 323, 484 A.2d 151, 154-155 (1984) (emphasis in original). See also Commonwealth v. Barrett, 293 Pa.Super. 100, 437 A.2d 1010 (1981). A judge who wishes to rely upon sentencing considerations expressed at an earlier sentencing hearing should specifically state for the record that he is incorporating those considerations by reference.

Moreover, in the case sub judice, there is a further reason why we cannot rely on the original sentencing transcript to justify the sentences imposed at the resentencing hearing. A federal court found evidence that the evaluation of the appellant’s character which took place at the first sentencing hearing was tainted by the trial judge’s consideration of appellant’s invalid conviction for voluntary deviate sexual intercourse. The resentencing judge had a duty to eliminate any influence which this impermissible consideration may have had on the determination of appellant’s punishment. Under such circumstances, there can be no substitute for a full and fair reassessment of appellant’s character. If the resentencing judge had implicitly adopted the trial judge’s analysis of appellant’s character, he would have perpetuated the impermissible consideration.

Appellant was originally sentenced to ten to twenty years imprisonment for robbery and related offenses. He was resentenced to eight to twenty years imprisonment. Perhaps the resentencing court carefully reconsidered appellant’s case and then deducted twenty-four months from his original sentence — fifteen months as a credit for pretrial detention and an additional eight months which represent the court’s independent evaluation of appellant’s character without reference to his invalid sex crime conviction. Such a disposition would undoubtedly be within the broad discretion of the sentencing authority. However, since there is no adequate statement of reasons, we are left to guess why the resentencing court acted as it did. Accordingly, we must again vacate judgment of sentence and remand for resentencing.

On remand, the court should apply the considerations outlined in the Sentencing Code in light of both the existing record and any new relevant evidence which defense counsel brings to its attention. See Commonwealth v. Losch, supra. Ordering an updated presentencing report, although not mandatory, would also be advisable. The court should then announce a more detailed statement of reasons at the new sentencing hearing. Assuming it complies with these requirements, the court may again choose to impose a lengthy prison sentence.

Judgement of sentence vacated and case remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

      . See Thomas v. Zimmerman, 583 F.Supp. 701 (E.D.Pa.1984) for a detailed summary of the history of this case.

      . Appellant filed a direct appeal to this court and a motion for reconsideration of sentence with the sentencing court. A hearing on the motion was repeatedly rescheduled and was not held until February 3, 1986. The transcript of this hearing does not appear in the record. On February 18, 1986, Judge Diefenderfer denied the motion for reconsideration.
      Judge Diefenderfer did not file an opinion explaining the basis for his sentencing decisions. See Pa.R.A.P. 1925(a). The record was certified to the Superior Court without the Rule 1925(a) opinion by directive of President Judge Cirillo.

      . We note that appellant also raises two additional arguments that are without merit.
      Appellant claims that his new judgment of sentence is illegal since he was not resentenced within ninety days of the federal court’s order. On February 29, 1984, the federal court provided that the execution of the writ of habeas corpus as to appellant’s robbery sentence would be stayed for ninety days "in order to afford the Commonwealth an opportunity to arrange for resentencing ...” The Commonwealth arranged for resentencing on May 17, 1984 — within the ninety day period. The only reason why the actual sentencing hearing was delayed until August 8, 1984 is that appellant’s counsel requested and obtained a continuance. Under these circumstances, we conclude that the Commonwealth complied with the federal court order and that the writ of habeas corpus did not take effect.
      Appellant also argues that the sentencing court erred by failing to consider the 1982 sentencing guidelines when imposing the new judgment of sentence. These guidelines did not apply to sentences imposed for offenses committed before July 22, 1982. 204 Pa.Code § 303.1(d). Moreover, the sentencing guidelines were recently invalidated by the Pennsylvania Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987).

      . 42 Pa.Cons.Stat.Ann. § 9781(b) (Purdon 1982).


author: TAMILIA, Judge:

text:
      537 A.2d 14
    The ESTATE OF John Victor JORDAN, by His Guardian Brenda FOSTER and New Medico Associates, Inc. v. COLONIAL PENN INSURANCE COMPANY and Prudential Insurance Company and Pennsylvania Assigned Claims Plan (Two Cases). Appeal of PRUDENTIAL INSURANCE COMPANY. Appeal of COLONIAL PENN INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed Feb. 1, 1988.

      David M. McCormick, Philadelphia, for Prudential, appellant in No. 451 and appellee in No. 452.

      James C. Haggerty, Philadelphia, for Colonial Penn, appellant in No. 452 and appellee in No. 451.
    A. Richard Feldman, Philadelphia, Pa. Assigned Claims, appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

These are timely cross-appeals by defendants Colonial Penn Insurance Company (“Colonial”), and Prudential Insurance Company (“Prudential”), of a January 14, 1987 trial court Order entering summary judgment in favor of defendant Pennsylvania Assigned Claims Plan (“the Plan”). This action was commenced on October 24, 1984 by the plaintiff John Victor Jordan, an incompetent, by his sister and guardian Brenda Foster. The case arose from a motor vehicle accident that occurred on December 30, 1982. On that date, Harry Yellin, the owner operator of a vehicle insured by Prudential, struck Jordan on Interstate 95 in Philadelphia, Pennsylvania, causing serious bodily injuries which rendered Jordan an incompetent. Jordan has never been able to explain the events leading up to his unfortunate accident because of his permanent condition.

An automobile belonging to Mr. Jordan was subsequently found parked alongside the roadway approximately three-quarters of a mile south of the accident scene. Although no evidence has surfaced to explain Jordan’s situation, the trial court conjectured that Jordan experienced mechanical difficulty, parked his automobile, and set off on foot to seek assistance when he was struck (Slip Op., Wallace, J., 5/19/87, p. 2).

By Order of June 11, 1985, the trial court permitted New Medico Associates, one of the medical providers to Jordan, to become an intervening plaintiff in the action. Plaintiffs’ action seeks basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act (“No-fault Act”), 40 P.S. § 1009.101 et seq. Plaintiffs seek recovery from Colonial based on a motor vehicle insurance policy it issued to Brenda Foster, with whom Jordan was living at the time of the accident. Plaintiffs seek alternative recovery from Prudential pursuant to its policy issued to Yellin, and as a last resort seeks basic loss benefits through the Plan. All three defendants filed an answer and new matter to Jordan’s complaint and all three participated in extensive discovery. At the close of pleadings and discovery, cross-motions for summary judgment were filed by the defendants and subsequently denied. A court-approved settlement was then entered into by Colonial for basic loss benefits, interest, counsel fees and costs in the amount of $553,000 on December 19, 1986, without prejudice to Colonial’s claims against the other defendants. Subsequently, after reconsideration, the trial court granted the Plan’s motion for summary judgment on January 14, 1987, dismissing the Plan. It is from this Order that Colonial and Prudential bring these timely appeals.

Summary judgment may be entered only in the clearest of cases where the right to judgment is clear and free from doubt. Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 323 (1986); Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Pa.R.C.P. 1035(b). As we stated in Morgan v. Johns-Manville Corporation, 354 Pa.Super. 58, 61, 511 A.2d 184, 186 (1986):

Summary judgment ‘shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party, Helinek v. Helinek, 337 Pa.Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa.Superior Ct. 39, 48, 489 A.2d 828, 833 (1985). Moreover, summary judgment may be rendered only in cases that are free from doubt. Id., 340 Pa.Superior Ct. at 44-45, 489 A.2d at 831; Huffman v. Aetna Life and Casualty Co., 337 Pa.Superior Ct. 274, 277, 486 A.2d 1330, 1331 (1984).

See Davis v. Pennzoil Company, 438 Pa. 194, 264 A.2d 597 (1970); Chandler v. Johns-Manville Corporation, 352 Pa. Super. 326, 507 A.2d 1253 (1986); Pennsylvania Gas & Water Company v. Nenna & Frain, Inc. 320 Pa.Super. 291, 467 A.2d 330 (1983).

Section 1009.204(a) of the No-fault Act sets forth a priority schedule of the sources of payment of no-fault basic loss benefits with a descending list of priorities. Jordan’s complaint claims recovery from Colonial pursuant to section 1009.204(a)(2), with alternative recovery from Prudential pursuant to section 1009.204(a)(4) should Colonial be found to be not liable, and final recovery from the Plan pursuant to section 1009.204(a)(5) should neither Colonial or Prudential be found liable:

§ 1009.204. Source of basic restoration benefits
(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(2) an insured is the security under which the victim or deceased victim is insured;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

40 P.S. § 1009.204(a) (repealed). As we explained in Tyler v. Insurance Company of North America, 311 Pa.Super. 25, 30, 457 A.2d 95, 97 (1983):

In determining the applicable source of basic loss benefits under Section 204’s priority system, the pertinence of each subsection must be considered seriatim — that is, the applicability of each preceding subsection must be excluded before the next may be considered. The security provided by the assigned claims plan is applicable only as a last resort.

Following this method of determining the proper source of basic loss benefits, the trial court examined the positions taken by Colonial and Prudential and concluded that liability rested upon either Colonial or upon Prudential, therefore, making it conclusive under section 1009.204(a) that the Plan cannot be liable.

The trial court’s rationale can only be understood after a review of Colonial and Prudential’s positions and defenses. Colonial argues two reasons exist which demonstrate it is not liable for Jordan’s basic loss benefits claims. First, Colonial contends that there is a factual dispute as to whether Jordan resided with its insured Brenda Foster at the time of the accident within the meaning of the No-fault Act’s section 1009.103’s definition of an “insured” as a relative “in residence in the same household with a named insured,” Brenda Foster. Colonial argues that Jordan was not a resident in Brenda Foster’s home and, therefore, is not an insured of Colonial. In the alternative, Colonial argues that even if it should be determined that Jordan was a resident in Foster’s home, he would be rendered ineligible for benefits by an exclusion in Colonial’s policy.

Prudential’s sole defense lies in its position that Jordan was, in a legal sense, an “occupant” of his own car, which was parked approximately three-quarters of a mile away from the accident scene. Prudential argues, its insurance policy to Yellin was inapplicable to Jordan under Section 1009.204(a)(4) since that only applies to persons who are not the “occupant of a motor vehicle” and Jordan, in Prudential’s view, was an occupant of his vehicle. This would mean Prudential’s insurance coverage was inapplicable to Jordan’s injuries, leaving the Plan as Jordan’s sole source of basic loss benefits.

By applying the statutory priority schedule required under the No-fault Act, the trial court found there were no disputed factual issues preventing a summary judgment in favor of the Plan:

This Court recognizes that there are substantial questions of fact which must be resolved in order to determine whether Colonial Penn or Prudential should bear responsibility for Mr. Jordan’s basic loss benefits. Those issues include a determination of whether Mr. Jordan resided with his sister Brenda Foster; and whether Mr. Jordan’s injuries resulted from the maintenance or use of his motor vehicle.
When those factual issues are ultimately resolved, it will necessarily result in the placement of liability upon either Colonial Penn or upon Prudential. Given that result, there can be no liability placed upon the Pennsylvania Assigned Claims Plan.
The only circumstance which could lead to a conclusion that the Pennsylvania Assigned Claims Plan is liable would be a determination that John Victor Jordan was an ‘occupant’ of his motor vehicle at the time of the accident.
This Court concluded that as a matter of law it cannot be said that Mr. Jordan was an ‘occupant’ of his motor vehicle at the time of the accident. For that reason, there can be no liability placed upon the Pennsylvania Assigned Claims Plan and this Court therefore granted the Plan’s motion for summary judgment.

(Slip Op. at 6-7).

After review of the record and briefs, we agree with the trial court’s determination that triable issues of fact remain as to Colonial’s defenses. Therefore, the remaining issue is whether Prudential’s defense that Jordan was not an occupant of his own parked vehicle is meritorious or not. We agree with the trial court that as a matter of law Jordan was not an “occupant” of his motor vehicle. Therefore, Prudential is liable under the priority schedule of section 1009.204(a) for the No-fault Act if, and only if, Colonial is not liable, and because it is certain that either Colonial or Prudential are liable the Plan cannot be liable. See Tyler, supra. Accordingly, we affirm.

The No-fault Act does not define the word “occupant” in any of its provision. The provisions of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., govern the general construction and interpretation of words appearing in the statutes of this Commonwealth. Specifically, 1 Pa. C.S. § 1903 provides:

§ 1903. Words and phrases

(a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.
(b) General words shall be construed to take their meanings and be restricted by preceding particular words.

As we commented in Brinkley v. Pealer, 341 Pa.Super. 432, 437, 491 A.2d 894, 897 (1985), “[i]n construing the provisions of the No-fault Act, we should not disregard the clear and unambiguous language of the Act on the pretext that a literal interpretation will frustrate its spirit.”

In Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978), we found that an uninsured person who parked their motor vehicle, walked away from it, and was struck by the insurer’s vehicle while crossing an intersection was not an “occupant” of her own vehicle, but rather a pedestrian entitled to benefits from the insurer of the striking vehicle pursuant to section 1009.204(a)(4) of the No-fault Act. We find Hayes controlling in the present matter, and find that as a matter of law a person three-quarters of a mile from their own parked vehicle is not an “occupant” within the meaning of 40 P.S. § 1009.204(a)(4).

Additionally, the Supreme Court’s decision in Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), is inapposite because it dealt with the construction of a policy of uninsured motorist insurance and not the construction of a statute.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a) effective October 1, 1984.

      . The validity of the exclusion Colonial relies upon was not ruled upon by the trial court (slip Op. at 5-6), and we express no opinion as to its validity now.


text:
    537 A.2d 18
    Robby Gabriel ALVARINO a Minor, by His Father Gabriel ALVARINO and Gabriel Alvarino, Appellants v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed Feb. 3, 1988.

      Dennis L. Scanlon, Philadelphia, for appellants.
    William H. Resch, Jr., Philadelphia, for appellee.
    Before CAVANAUGH, BECK and HESTER, JJ.
   BECK, Judge:

This is an appeal from a grant of judgment on the pleadings in favor of appellee defendant Allstate Insurance Company.

In reviewing a grant of judgment on the pleadings, we must determine if the action of the trial court was based on a clear error of law or whether the pleadings raise factual issues that should clearly be decided by the jury. Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). In making this determination, we must confine ourselves to the pleadings and relevant documents attached thereto and accept as true all well pleaded statements of fact made by the party against whom judgment has been granted and consider against such party only those other facts that he specifically admits. Jones v. Travelers Insur. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986). We do not consider pleaded conclusions of law nor do we draw unjustified inferences of fact. Id.

Under this standard, we find that the relevant facts for purposes of our review of the trial court’s action are clear and are as follows. On September 14, 1985, appellant Robbie Alvarino and his father, appellant Gabriel Alvarino, were bicycling in their neighborhood when they came upon a neighbor who was driving his van through the neighborhood. The neighbor had a dog chained inside his van. The neighbor stopped his van to speak with the Alvarinos. Robbie Alvarino then entered the van. The neighbor drove on with Robbie in the van and Gabriel following behind on his bicycle. The neighbor stopped the van shortly thereafter and Gabriel Alvarino caught up to the van and again stopped to speak to the neighbor. At that time, the dog bit Robbie Alvarino who was still in the van.

Gabriel Alvarino owned a policy of motor vehicle insurance issued by appellee Allstate Insurance Company. Appellant sought to collect first party benefits under that policy to cover medical expenses incurred by both himself and Robbie as a result of the dog bite. Allstate refused the claim, contending that the policy did not afford coverage for expenses incurred because of the dog bite. Appellants then sued Allstate for the claimed benefits. Allstate answered the complaint and asserted New Matter, denying coverage, to which appellants filed a Reply. Allstate then filed a Motion for Judgment on the Pleadings which the trial court granted by Order dated December 9, 1986.

We are presented with only one issue in this appeal. That issue involves the proper construction of Sections 1711 and 1712 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. Cons.Stat.Ann. §§ 1701 — 1798 (Purdon 1987) (the “Financial Responsibility Law”). These sections require an insurer issuing or delivering liability insurance policies covering motor vehicles to make available for purchase first party benefits with respect to “injury arising out of the maintenance or use of a motor vehicle ...” 75 Pa. Cons.Stat.Ann. §§ 1711, 1712. Appellants contend that the trial court erred in concluding that as a matter of law, their injuries arising from the dog bite did not arise out of the maintenance or use of a motor vehicle.

The heart of appellants’ argument is as follows. Under the now repealed Pennsylvania No-fault Motor Vehicle Insurance Act, tit. 40, §§ 1009.101-1009.701 (Purdon 1987) (repealed effective Oct. 1, 1984), insurers were required to pay no-fault benefits for injuries arising out of the maintenance or use of a motor vehicle. In this regard, the No-fault Act was the same as the Financial Responsibility-Act. Id. § 1009.103. However, the No-fault Act also required that for no-fault benefits to be paid, the injury had to arise from the use or maintenance of the motor vehicle “as a vehicle.” Id. § 1009.103. On the other hand, the Financial Responsibility Law does not contain any reference to a requirement that the injuries arise from the use of a motor vehicle “as a vehicle”. Thus, appellants argue that the legislature has evidenced an intent to broaden the scope of coverage under the Financial Responsibility Law and to require insurers to provide first party benefits in a case like that before us.

Although appellants indicate that there are no Pennsylvania cases decided either under the No-fault Act or the Financial Responsibility Law dealing with a situation precisely like the one presented in the instant case, they do cite two cases decided in other jurisdictions where injuries resulting from a dog bite occurring in a motor vehicle were held to be within the coverage of the applicable automobile policy. See National Indemnity Company v. Corbo, 248 So.2d 238 (Fla.1971); Hartford Accident & Indemnity Co. v. Civil Service Employees Insurance Co., 33 Cal.App.3d 26, 108 Cal.Rptr. 737 (1973).

Appellee’s short answer to appellants’ argument, with which we agree, is divisible into two parts. First, appellee argues that under the principles developed in construing the No-fault Act, appellants are clearly not entitled to benefits in this case. Second, appellee argues that the change in statutory language on which appellants so heavily rely is irrelevant to this case and that, therefore, the principles developed under the No-fault Act are equally applicable here.

Appellee’s analysis is unquestionably correct. The analysis is premised on the valid assumption that if appellants’ injuries would not have been considered to have arisen out of the use of a motor vehicle under the No-fault Act and if the only changes to the statutory language of the Financial Responsibility Law concerning this requirement do not compel a different conclusion, then appellants are equally not entitled to recover benefits under the Financial Responsibility Law. Moreover, appellee’s analysis of the case law under the No-fault Act and appellee’s conclusion that under that case law the injuries in this case cannot be considered to have arisen from the use of a motor vehicle are also correct. Lastly, we agree with appellee that the change in the language of the Financial Responsibility Law which eliminated the requirement of use “as a vehicle” does not change the result in this case.

In Manufacturers Casualty Ins. Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961), a case decided before enactment of the No-fault Act, the Supreme Court construed the phrase “arising out of the ownership, maintenance or use” of a motor vehicle in an automobile insurance policy as follows:

Arising out of “means causally connected with, not proximately caused by.” “But for” causation, i.e., a cause and result relationship is enough to satisfy this provision of the policy. <

Id., 403 Pa. at 607-08, 170 A.2d at 573. This construction of a requirement that an injury arise out of the maintenance or use of a motor vehicle has been carried over into interpretation of the No-fault Act’s use of the same phrase. For example, in Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982), this Court relied on Manufacturers Casualty in concluding that:

The same construction of the phrase “arising out of the maintenance or use of a motor vehicle” can be applied to the No-fault Act. Thus, while the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle.

Id., 306 Pa.Superior Ct. at 303, 452 A.2d at 737. The Schweitzer Court held that injuries sustained by the owner of a vehicle who was beaten while in her vehicle did not arise from the use of the vehicle. See also Camacho v. Nationwide Ins. Co., 314 Pa.Super. 21, 460 A.2d 353 (1983), aff'd, 504 Pa. 351, 473 A.2d 1017 (1984) (injuries sustained by driver sitting in car from exploding bottle thrown into car did not arise out of use of motor vehicle); Erie Insur. Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982) (injuries sustained by passenger sitting in car when shot by driver did not arise out of use of motor vehicle).

The lesson from these and other cases on point is that there must be some causal connection between the injuries and the use of the motor vehicle. In other words, the involvement of the motor vehicle must be more than merely incidental to the cause of the injuries.

Under the facts as pled in the complaint in this action, we cannot see how there is any more than a merely incidental involvement of a motor vehicle in the situation that gave rise to appellants’ injuries. We can see nothing about the use of this motor vehicle that contributed in any way to causing appellants’ injuries. The only involvement of the motor vehicle in this case is that it was the situs of the dog bite. Under the authority cited above, the mere fact that a motor vehicle is the place where injuries are sustained is insufficient to establish a causal connection between the use of the vehicle and the injuries so as to require the payment of first party benefits. Indeed, as to appellant Gabriel Alvarino, the connection of the vehicle to the injuries allegedly sustained is even more remote than it is as to appellant Robbie Alvarino. While Robbie was in the vehicle, his father Gabriel was not.

The single Pennsylvania case cited by appellants, Spisak v. Nationwide Mut. Ins. Co., 329 Pa.Super. 483, 478 A.2d 891 (1984), does not persuade us to the contrary. In Spisak, the court held that injuries resulting from inhalation of carbon monoxide while the injured party was sitting in a motor vehicle did arise from the use of the vehicle. However, the Spisak court was careful to note that it so held because the use of the vehicle itself, i.e., the engine running and producing the noxious fumes, was the direct cause of the harm. Thus, the court expressly distinguished cases like the instant one where “... the harm arose from an instrumentality or external force other than the motor vehicle itself.” Id., 329 Pa.Superior Ct. at 486, 478 A.2d at 893.

Thus, appellants’ injuries did not arise from use of the motor vehicle as that phrase has been interpreted under the No-fault Act. Given this conclusion, we turn to a consideration of whether the legislature’s elimination in the Financial Responsibility Law of the No-fault Act’s requirement that a motor vehicle be in use as a vehicle alters the result in this case. We conclude that it does not. As noted commentators on the Financial Responsibility Law have stated:

Under the No-Fault Act, the courts found no coverage where the injury had no connection with the use of the vehicle. For example, in Howe v. Harleysville Ins. Co., [313 Pa.Super. 65, 459 A.2d 412 (1983)] the Superior Court determined that an occupant of a motor vehicle who suffered a gunshot wound in the vehicle could not receive benefits. Denial of coverage under these circumstances should continue under the Financial Responsibility Law, since the rationale for these decisions does not arise from the “as a vehicle” limitation but from the lack of causal connection between the incident and the maintenance or use of the motor vehicle.

Ronca, Sloan and Mundy, Pennsylvania Motor Vehicle Insurance, An Analysis of the Financial Responsibility Law, § 3.5(a) (1986) (footnotes omitted). We are completely in accord with the foregoing analysis. We see nothing in the Financial Responsibility Law that would lead us to conclude that the traditional requirement of some causal connection between use of the vehicle and the injuries has been eliminated. As to the specific change eliminating the use “as a vehicle” requirement, it is beyond peradventure that this change is irrelevant here since in this case there is no suggestion that the vehicle was being used as anything but a vehicle.

Since we find that our own law commands an affirmance of the trial court in this case, we are constrained not to consider appellants’ citation of cases involving dog bites in motor vehicles from other jurisdictions. We note, however,, that were we to consider such decisions, we would not choose to follow them. The cases cited (see citations, supra ) are not in line with Pennsylvania law and are, in any event, distinguishable. Additionally, we note that appellants have not chosen to cite other out-of-state precedent that supports our conclusion that the fact that a motor vehicle is the situs of a dog bite to a passenger in the car does not command the result that the resulting injuries arose from the use of the vehicle. American States Insur. Co. v. Allstate Insur. Co., 484 So.2d 1363 (Fla.App.1986).

The order of the trial court is affirmed.

      . Mr. Alvarino alleges that he has suffered from various forms of mental distress as a result of viewing the accident.

      . We note that in a very recent opinion of the Supreme Court dealing with a similar issue, i.e., interpretation of the phrase "use of an automobile" as used in automobile and homeowners liability insurance policies, the Court manifested a restrictive attitude toward the meaning of "use”. Erie Ins. Exchange v. Transamerica Ins. Co., 533 A.2d 1363 (Pa.1987). In Erie, the Court held that “use” must be interpreted to denote an element of rational purpose. Thus, a 3'A year old boy’s setting a car in motion did not constitute "use" of the car.

      . Both of the "dog bite” cases cited by appellants involved coverage disputes between the homeowner and automobile liability insurers of the owner of the motor vehicle and the dog. In both cases, the coverage issue centered on whether the owner had been negligent. Neither involved construction of the first party benefits section of a statute like the Financial Responsibility Law. Thus, the cited cases are not relevant to our construction of that law.


author: WIEAND, Judge:

text:
    537 A.2d 22
    CHASE HOME MORTGAGE CORPORATION OF THE SOUTHEAST (Formerly Housing Investment Corporation of Florida), Appellant, v. Dean R. GOOD and Susan M. Good, H/W, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1987.
    Filed Feb. 4, 1988.

      Gary E. McCafferty, Philadelphia, for appellant.
    M. Kevin Coffey, Wellsboro, for appellees.
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Shortly before a scheduled sheriffs sale of real estate pursuant to writ of execution issued to enforce a judgment obtained in mortgage foreclosure proceedings, the mortgagors paid the amount of the judgment and costs. The mortgagee thereupon petitioned the court to reassess damages to include taxes and carrying charges for the three year period in which the sale had been stayed by a bankruptcy court. The trial court dismissed the petition, and the mortgagee appealed. We affirm.

On July 26, 1979, Dean Good and Susan Good, husband and wife, executed and delivered a mortgage on their residence to Colonial Mortgage Service Company. The mortgage was subsequently assigned to Chase Home Mortgage Corporation (Chase). On August 18, 1982, Chase commenced an action of mortgage foreclosure against the Goods to recover a mortgage balance of $32,718.44. When the Goods failed to file an answer, a default judgment was entered against them, and damages were assessed at $33,-625.17. A writ of execution was thereafter issued, and sale was set for November 5, 1982. On that date, however, the Goods filed a petition under Chapter 13 of the United States Bankruptcy Laws, which had the effect of staying the sale. Although they were required to make monthly payments and to pay any arrearages pursuant to the plan filed under Chapter 13, the Goods failed to do so. As a consequence, on September 4, 1985, the stay of foreclosure was lifted by the Bankruptcy Court. On June 10, 1986, a second writ of execution was issued; and a sheriffs sale was set for August 8, 1986. On the date of sale, however, the Goods tendered to the sheriff the sum of $34,131.50, which represented the amount of the judgment and costs. The sheriff thereupon stayed the sale and issued a receipt evidencing payment of the judgment in full.

On August 21, 1986, Chase filed a petition in the Court of Common Pleas of Berks County to reassess its damages. It alleged that the amount paid by the Goods had not included interest or the cost of taxes and insurance premiums which it had paid for almost three years while the sale was stayed. When these items were included, Chase alleged, the correct amount due was $51,033.42. Following an evidentiary hearing, the trial court dismissed the petition.

“Judgment in a mortgage foreclosure action must be entered for a sum certain or no execution could ever issue on it.” Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 226, 282 A.2d 335, 340 (1971). In the instant case, a default judgment had been properly entered following the Goods’ failure to file an answer to Chase’s complaint, and damages were assessed on the basis of the following figures submitted by Chase:

Balance of Principal Due.......$28,625.68
Interest from 10/1/81 to 11/5/82
at 10%...................... 3,143.84
Escrow Balance Deficit......... 295.66
Late Charges.................. 128.71
Attorney’s Pees at 5%.......... 1,431.28
Total.........................$33,625.17

Pa.R.C.P. 3183(a) directs that execution shall be stayed “... (3) upon a showing of a right to a stay under the provisions of an Act of Congress____” However, such a stay may contain appropriate terms and conditions and may be limited in time. Pa.R.C.P. 3183(c). In the instant case, the stay was required by the United States Bankruptcy Laws. Under the plan filed pursuant to Chapter 13, however, the Goods were required to continue to make monthly payments, including interest, taxes, and the cost of insurance as required by the mortgage. In this case, the mortgagors failed to comply with this condition. When the stay was lifted, therefore, the mortgagee could properly move the court to amend the judgment to add additional sums due by virtue of the mortgagors’ failure to comply with the terms of the mortgage agreement during the stay. Cf. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958) (court may exercise power to control enforcement of judgment and may grant relief until judgment is discharged or satisfied).

Chase, however, failed to take the necessary steps to amend the judgment. Instead, execution was re-issued on the original judgment. On the day of the scheduled sheriff’s sale, the Goods appeared and paid this judgment and costs in full. The sheriff, therefore, did not sell the real estate.

Although a court has the power to control the enforcement of a judgment and to amend the judgment to grant relief as required by the conditions of an order staying execution, it has no power to amend a judgment after it has been satisfied. 20 P.L.E., Judgments § 191. Cf. Stephenson v. Butts, supra, 187 Pa.Superior Ct. at 59, 142 A.2d at 321. After the Goods had paid the judgment in full on the date of the scheduled sheriff’s sale, Chase, the mortgagee, could no longer request the court to amend the judgment on which execution had issued.

Our holding is limited. We do not now hold that the mortgagors are entitled to obtain a satisfaction of the mortgage or that the mortgagee is powerless to effect a recovery of moneys remaining due under the terms of its loan agreement. Those issues are not now before us. We hold only that the judgment on which execution was issued could not be amended after it had been paid in full. The trial court, therefore, was correct when it denied Chase’s petition to amend the judgment.

Order affirmed.

      . Title 11, United States Code.

      . See: 11 U.S.C. § 362(a)(2).

      . Chase alleged that interest was due at the contract rate of ten (10%) percent.


author: OLSZEWSKI, Judge:

text:
    537 A.2d 24
    COMMONWEALTH of Pennsylvania v. Ulysses R. HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1987.
    Filed Feb. 4, 1988.

      Joseph K. Cottrell, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying a petition for relief under the Post Conviction Hearing Act. Court-appointed counsel for appellant filed an Anders brief claiming that the issues appellant raises are frivolous and requesting permission to withdraw from the case. We determine that counsel has complied with Anders and grant counsel’s request to withdraw. In addition, we find that the issues raised on appeal are without merit and, therefore, affirm the order of the trial court.

In October 1975, appellant was found guilty by jury of second-degree murder, conspiracy, robbery, and weapons offenses. Appellant was sentenced to life imprisonment for the murder with concurrent terms of incarceration on the other convictions. While represented by trial counsel, appellant filed a direct appeal to the Supreme Court. On July 14, 1978, that Court affirmed the judgment of sentence. Commonwealth v. Harris, 479 Pa. 343, 388 A.2d 688 (1978).

Appellant filed a pro se writ of habeas corpus in federal district court which was dismissed on January 18, 1980. Harris v. Cuyler, C.A. #79-590 (E.D.Pa.1980). On June 24, 1980, appellant filed his first pro se petition for relief under the Post Conviction Hearing Act (PCHA). The trial court appointed counsel twice during the pendency of appellant’s petition. Between the two attorneys, appellant’s petition was amended three times. On December 17, 1985, following an evidentiary hearing, the trial court denied appellant’s petition. No appeal was taken from this denial.

On March 20, 1986, appellant filed a second pro se petition for relief under the PCHA. In August 1986, appointed counsel filed an amended petition which was denied on February 9, 1987. The trial court appointed present counsel and this appeal followed.

Preliminarily, we note that counsel appointed to represent appellant on this collateral appeal filed an Anders brief. The United States Supreme Court recently declared, however, that Anders was not meant to apply to collateral post conviction proceedings. Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In accordance with Finley, in Commonwealth v. Rauser, 367 Pa.Super. 370, 532 A.2d 1191 (1987) (Rowley, J., and McEwen, J., concur in result and dissent), President Judge Cirillo opined that:

Basic principles of American jurisprudence dictate that cases in conflict with the holding of the United States Supreme Court in Finley ... need no longer be followed. In short, a so-called Anders brief need no longer be filed in a PCHA appeal when effective counsel has determined that an appeal would be wholly frivolous. This rule is a proper balance between the duty to protect the rights of the individual and the avoidance of forcing attorneys into an ethical dilemma by requiring them to pursue a frivolous appeal.

367 Pa.Superior Ct. at 385, 532 A.2d at 1199. See, e.g., Commonwealth v. Lowenberg, 493 Pa. 232, 425 A.2d 1100 (1981).

In place of the Anders requirements, President Judge Cirillo declared the following procedure:

Today we announce a method for counsel to certify that in his or her professional opinion there are no valid grounds for a PCHA appeal, without the need to raise issues which he does not support, but which could arguably be raised on appeal. The following procedure will be pursued henceforth by appointed attorneys who are asked to file what they honestly believe to be a frivolous PCHA appeal. First, counsel must conduct a thorough and comprehensive review of the record and relevant legal authority. Second, if the attorney in good faith and in his honest professional opinion believes after such a review that an appeal would be frivolous, he shall so advise the trial court and petition the trial court for leave to withdraw. Third, concurrent with his petition to withdraw, counsel shall inform his client of his petition to withdraw and the reasons therefor. Fourth, counsel shall advise his client of his right to another attorney and his right to raise issues on a pro se basis, as well as his right to appeal. The next step is taken by the trial court. The trial court is to conduct a full examination of all the proceedings, and if it determines that the case is frivolous, should grant the petition to withdraw.

367 Pa.Superior Ct. at 385, 532 A.2d at 1198.

We find much merit in the procedure suggested by the President Judge. While we agree with the President Judge that Finley should be followed in the Commonwealth, we feel that the matter is one of rule-making which is within the strict purview of our Supreme Court in its supervisory power. See Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987). Therefore, we leave for the Supreme Court the adoption of the procedure recommended by President Judge Cirillo and are constrained to analyze the instant situation under the litany of cases adopting the Anders standard.

Present counsel has made a motion to withdraw. The law in Pennsylvania concerning withdrawal when counsel sees no basis for appeal is derived from Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), adopted in Commonwealth v. Baker, 429 Pa. 209, 214, 239 A.2d 201, 203 (1968). Before counsel may be permitted to withdraw, counsel must make a thorough examination of the record to determine that the appeal is wholly frivolous and then (1) request permission of the court to withdraw; (2) accompany his request with a brief referring to anything in the record that might arguably support the appeal; and (3) furnish a copy of such brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders, supra; see also Commonwealth v. Green, 355 Pa.Super. 451, 513 A.2d 1008 (1986).

Instantly, in compliance with the foregoing, counsel avers that appellant’s second amended petition under the PCHA is without claims and issues which are not wholly frivolous. In support of this conclusion, counsel sets forth the relevant facts and discusses at length each of appellant’s contentions in light of the record. Further, counsel indicates that he had reviewed the record for any issues of arguable merit. See Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Also, counsel furnished appellant with a copy of the Anders brief and petition to withdraw. We conclude that appellant’s Anders brief evidences careful reflection and compliance with the three requirements. His request to withdraw is therefore granted.

We must now make an independent determination as to the frivolity of the appeal. Anders, supra; Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983). Appellant alleges the ineffectiveness of trial counsel and declares subsequent counsel ineffective for failing to challenge trial counsel’s performance. In making an ineffective assistance of counsel claim, appellant is required initially to establish that the underlying claim has arguable merit. Commonwealth v. Brandt, 353 Pa.Super. 250, 509 A.2d 872 (1986). Only if the claim is determined to be of arguable merit does the inquiry proceed to whether counsel acted reasonably. If the above criteria are met, the court must determine, finally, whether appellant was prejudiced by counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 160-161, 527 A.2d 973, 976 (1987).

Appellant has not surmounted the arguable-merit hurdle as it relates to prior counsel’s alleged failure to raise and/or object to any of his claims. First, appellant claims that the Commonwealth made unfairly prejudicial remarks at the outset of trial. We are persuaded that the comments complained of were nothing more than an attempt during voir dire to describe the victim-police officer and discover whether everyone in the panel could be fair and impartial. Therefore, appellant’s claim lacks arguable merit.

Next, appellant alleges that a new trial is warranted because the trial court, on one occasion, mistakenly named the victim as Thomas Meyer rather than Frank Collins. Our Supreme Court has declared that a misstatement constitutes reversible error only when the misstatement involves a variance between the testimony of a witness and the judge’s account of it to such an extent that the interests of the defendant are seriously prejudiced and defendant is denied a fair trial. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981). When reviewing the misstatement, we must consider the trial as a whole, because prejudicial error cannot be predicated on isolated excerpts. See id.

Instantly, the record indicates that the trial court’s inadvertent and isolated misstatement of the victim’s identity is overshadowed by subsequent correct identification. Appellant is entitled to a fair trial, not a perfect one. Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980), cert. den. 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981). Therefore, appellant’s claim lacks arguable merit.

Appellant also urges that prior counsel was ineffective for failing to raise the issue of the “four corners of the indictment” and to object to a reference in the information to the victim’s status as a former Philadelphia police officer. Both aspects of this claim are without merit. First, the court, at the outset of trial, read to the jury the indictment which charged defendant with murder of Frank Collins. Trial transcript at 126. Second, identification of the victim in the indictment referred to him by name, not by vocation.

Appellant also contends that counsel rendered ineffective assistance of counsel for remarking, “I do not know if we will ever be ready, Your Honor, but I would think so.” Trial transcript at 539. Appellant has failed to establish with specificity how such a comment rendered counsel’s performance ineffective. Nonetheless, the claim is merit-less. Perusal of the record indicates that counsel’s comment, elicited prior to closing argument, did not express unpreparedness. Rather, trial counsel was acknowledging the magnitude of the task before him. Therefore, this assertion too must fail.

Next, appellant alleges ineffectiveness for failure to object to the Commonwealth’s commenting on appellant’s failure to testify and/or present any testimony. A reading of the Commonwealth’s closing indicates, however, that no mention was made of appellant’s failure to take the stand in his own defense. The Commonwealth merely stated, “All [twenty-four] of those witnesses were either called or produced by the Commonwealth.” Trial transcript at 568. Further reading of the portion establishes that the prosecutor was attempting to reiterate his evidence and explain discrepancies in their testimony. In this light, we concluded that the summation was fair comment on the evidence that did not deprive appellant of a fair trial. Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983).

Similarly, appellant maintains that trial counsel was ineffective for failing to object to the Commonwealth’s statement that the jury should:

Put yourselves in their position. Suppose you were sitting in that bar, suppose you were Mr. Bell sitting next to a man that got shot in the head and there are bullets flying around and you know you are in a robbery and you don’t know what is going to happen to you next. They told the truth. There [are] going to be variations.

Trial transcript at 576. These comments were within the prosecutor’s prerogative in arguing the credibility of witnesses. Appellant’s claim is without merit.

Appellant next argues that trial counsel was ineffective for failing to litigate the issue of causation of the victim’s death and for stipulating to the medical examiner’s testimony concerning causation. This issue was not specifically raised in appellant’s amended PCHA petition and, therefore, cannot be considered for the first time in this appeal. Commonwealth v. Simmons, 504 Pa. 565, 475 A.2d 1310 (1984).

Finally, appellant claims that the prosecutor’s actions on several other occasions throughout trial were unfair; appellant, however, fails to establish in what manner he was prejudiced by these occurrences. We cannot discern appellant’s arguments and we “decline to become appellant’s counsel.” Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982).

The order of the trial court is affirmed.

      . We note that on October 29, 1986, the trial court ordered that appellant file a supplement to the amended petition delineating specifically the information demanded by the Commonwealth’s answer. The record, however, does not contain the ordered document. Therefore, we will consider only the arguments properly raised in the August 1986 petition.

       Thus, the appellate system is not involved in the initial finding of frivolity or the petition to withdraw.

      . We note that this issue and most contained herein were not raised in appellant’s first PCHA petition and appellant has failed to allege any extraordinary circumstances that would preclude waiver. See Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983). Accordingly, we could deem the issues waived. Id. In the interest of placing this matter to rest, however, we will address the merits of appellant’s contentions.

      . Nonetheless, we note that appellant’s cause of death query would have been frivolous because overwhelming evidence was presented to establish that the victim died as a result of a gunshot wound. Trial counsel wisely refused to litigate this frivolous issue, for to do so would have brought gruesome and prejudicial evidence to the attention of the jury.