author:
MONTEMURO, Judge:
      McEWEN, Judge,

text:
    473 A.2d 614
    COMMONWEALTH of Pennsylvania v. Frederick D. DUDEN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1983.
    Filed March 16, 1984.
    Petition for Allowance of Appeal Denied Oct. 9, 1984.

      Gilbert E. Toll, Philadelphia, for appellant.
    Carolyn E. Alden, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence imposed on the appellant, Frederick Duden, Jr., by the Court of Common Pleas of Philadelphia County, per the Honorable Lynne M. Abraham. The appellant was convicted in a jury trial of forgery, theft by deception, theft by failure to make required disposition of funds received, and theft by unlawful taking. The post-verdict motions in arrest of judgment and for a new trial filed by the appellant were denied by the court. The appellant was subsequently sentenced to three and one-half (3 V2) to seven (7) years imprisonment and ordered to pay six thousand dollars ($6,000.00) on the forgery charge, and sentenced to three and one-half (3 V2) to seven (7) years imprisonment on each of the theft charges. The sentences for theft were to be served concurrently with each other, but consecutive to the sentence for forgery. The appellant filed a petition to modify sentence which was denied. This appeal followed.

The appellant raises the following issues herein:

A. The sentence imposed by the court was illegal and improper.
B. The imposition of consecutive maximum sentences was manifestly excessive, and illegal.
1. Ineffectiveness of former counsel.
C. The prosecutor improperly commented on the appellant’s failure to take the witness stand.
D. The Commonwealth failed to establish the jurisdiction of the court beyond a reasonable doubt.
E. The trial court erred in not holding a hearing on the admissibility of appellant’s bank records seized by the Commonwealth pursuant to a search warrant.
F. The seizure of appellant’s bank records was invalid and illegal per se.
G. The Commonwealth failed to prove by competent evidence that the $6,000.00 check payable to St. Joseph’s Home was deposited in the appellant’s account.
1. The trial court improperly allowed Ruth Cliggett, a record custodian, to offer opinion testimony.
2. Physical evidence consisting of the deposit slip and Mrs. Cliggett’s testimony in connection therewith violated the Best Evidence Rule.
3. Ineffectiveness of former counsel.
H. The appellant was denied a fair trial by having to defend a multiplicity of theft charges although he was alleged to have committed a single theft.
1. Ineffectiveness of former counsel.

We have carefully reviewed each of the appellant’s arguments and find they are without merit except that only one sentence should have been imposed for theft. We also note that in arguments C, D and E, the appellant attempts to tack on claims of ineffectiveness of counsel without presenting them in the statement of questions presented. These claims are waived under our appellate rules, Pa.R.A.P. 2116, and will not be further discussed.

The facts relevant to the present appeal are as follows: The appellant was, prior to his disbarment in 1977, an attorney representing, among others, the St. Joseph’s Home for Homeless Industrious Boys (St. Joseph’s). On June 26, 1976, one Sarah E. Morawski died testate in Massachusetts. She named St. Joseph’s as a beneficiary of her estate. Specifically, St. Joseph’s was named as one of many residuary legatees. Its share would amount to some $15,600.00. The administrators of the estate sent notice of the bequest to St. Joseph’s, and the notice was referred to the appellant in his capacity as attorney for the home. Thereafter, the appellant sent a letter to the administrators advising them that he represented St. Joseph’s and requesting a copy of the Morawski will. Appellant also directed the administrators to send all future correspondence and papers directly to the appellant.

On January 30, 1977, a check made payable to St. Joseph’s in the amount of $4,000.00 was sent by the administrators directly to St. Joseph’s. In accordance with its standard practice, the check was received by the bookkeeper, Edith Hynes; endorsed with a rubber stamp; and deposited into the St. Joseph’s account in Central Penn National Bank.

On August 15, 1978, the administrators mailed a second check made payable to St. Joseph’s in the amount of $6,000.00. This check was mailed to the appellant.

On February 11, 1980, the administrators requested a release from St. Joseph’s for the $10,000.00 already received in order that the final distribution could be made. At this time, Father Francis Duffy, pastor and administrator of St. Joseph’s, informed the administrators of the estate that the second check had never been received.

After investigation by the police, the appellant’s bank records were seized pursuant to a search warrant. The records showed that on September 7, 1978, a deposit of four checks totaling $6,336.20 was made into the appellant’s account in Girard Bank. The deposit ticket, pre-printed with the appellant’s name and address, showed that one of the checks was for $6,000.00. Microfilm bank records demonstrated that the $6,000.00 check was the Morawski estate check. When the deposit was made on September 7, 1978, the appellant’s balance was $110.59. By September 11, 1978, the appellant’s balance was $10.64. None of the checks drawn on the account in the interval between September 7 and 11, 1978, was made payable to St. Joseph’s.

We now proceed to the disposition of the issues before us, beginning with the appellant’s allegation that the sentence was improper and an abuse of discretion because it was based on numerous factors which were improperly considered by the trial court. Specifically, the appellant contends that the trial judge erred in considering: (1) her belief that the appellant had hidden assets; (2) the testimony of the appellant in other cases; (3) other unspecified cases “which [had] been brought to [her] attention;” (4) communications with a former associate of the appellant; and (5) the appellant’s failure to conclude a monetary settlement with the complainant.

A sentence is invalid if it reasonably appears from a review of the entire record that the sentencing court may have relied in whole or in part on an impermissible consideration. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Commonwealth v. Russo, 297 Pa.Super. 424, 444 A.2d 105 (1982); Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979). “However, when a defendant fails to make a timely objection in the sentencing court, he waives the issue.” Commonwealth v. Cruz, id. 265 Pa.Super. at 477, 402 A.2d at 537. See also, Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975). Herein, no objection was raised by the appellant to any of the allegedly impermissible considerations — either at the sentencing hearing or in the petition to modify sentence. The sentencing judge was not afforded an opportunity to correct the alleged error. We therefore conclude the issue is waived.

The appellant also alleges that the judgment of sentence is illegal. A challenge to the legality of the sentence is not waived by the failure to raise it in the trial court. Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982). As stated previously, Judge Abraham sentenced the appellant to 3 V2 to 7 years imprisonment for forgery, and 3V2 to 7 years consecutive imprisonment on the theft charges. She also stated on the record that the total sentence was 7 to 14 years imprisonment. (N.T. January 20, 1982, at 39).

The appellant, relying on 18 Pa.C.S. § 1357, the statutory provision regarding consecutive sentences which was in effect at the time of sentencing, asserts that the minimum sentence should be 3 V2 years, and not 7 years. Section 1357 states:

§ 1357 Consecutive Sentences of total confinement for multiple offenses.
Whenever the court determines that a sentence should be served consecutively to one then being imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum shall not exceed one-half of the maximum sentence imposed.

The appellant would have us construe the term “maximum sentence” to mean the longest sentence imposed on one of the charges; e.g., since the longest sentence imposed on a single charge herein was 7 years, the minimum sentence on all charges must be 3 lk years. We refuse to accept this construction. The “maximum sentence” imposed is the total of the maximum sentence on all charges. Thus, the minimum sentence cannot exceed one-half of that maximum; in the present case one-half of 14 years, or 7 years. This not to say that, in the exercise of discretion, a trial court cannot impose a minimum sentence less than one-half of the maximum sentence on all charges. A trial court clearly is empowered to do so; however, in the present case, the court did not. We do not find that this in any way makes the sentence illegal. However, the appellant was sentenced to concurrent sentences for each of the theft charges where it is apparent that only one theft took place. Consequently, the sentences imposed for theft by unlawful taking and theft by deception should be vacated.

The appellant’s third argument is that the prosecutor improperly commented on the appellant’s failure to testify. The allegedly improper comments, and their surrounding context are as follows:

You’re going to discuss the facts, and let me suggest to you here today, this day that when you do come back on Monday and you go and deliberate and you talk amongst yourselves and you have all of those facts and documents at your disposal, there will be two facts that are essential to this case as you discuss them, and they will come up time and time again and one question. All the other facts, all the other evidence, all the other testimony centers on these two facts and one question.
Fact one. A $4,000 check drawn in 1977, in the Estate of Sarah Morawski is sent by the administrators to St. Joseph’s House for Homeless Industrious Boys and it ends up in the account of St. Joseph’s House for Homeless Industrious Boys in February, which is where it belongs.
Fact two. Eighteen months later, a year and a half, a second check is sent, $6,000 addressed again to St. Joseph’s, sent out by Mrs. Poirier after Mr. Polliss [sic] signed it to Mr. Abedon. That check ends up in the checking account of the defendant, where it doesn’t belong.
The one question. Why? Why doesn’t that $6,000 end up in the account of St. Joseph’s just like the other one? Isn’t that where it belongs? It’s not payable to the defendant.
All of these other facts, all of these other documents, all the testimony when you consider them will give you the answer to that question why.

(N.T. May 1, 1982, at 3.156-3.157) (emphasis added)

In Commonwealth v. Smith, 490 Pa. 380, 387-88, 416 A.2d 986, 989 (1980), the Court held that:

[A] district attorney must have reasonable latitude in fairly presenting a case to the jury and that he or she must be free to present his or her argumehts with ‘logical force and vigor.’ Commonwealth v. Cronin, supra, 464 Pa. [138] at 143, 346 A.2d [59] at 62 [(1975) ]. Furthermore, the district attorney may always argue to the jury that the evidence establishes the defendant’s guilt. Commonwealth v. Capalla [322 Pa. 200, 185 A. 203 (1936) ], supra; Commonwealth v. Wilcox, 316 Pa. 129, 173 A. 653 (1934). Finally, the prejudicial effect of the district attorney’s remarks must be evaluated in the context in which they occurred. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977) (plurality opinion); Commonwealth v. Crittenton, 326 Pa. 25, 191 A. 358 (1937).

The prosecutor’s comment herein was a rhetorical question based on reasonable inferences from the evidence presented. The assertion that the prosecutor was commenting on the appellant’s refusal to testify is an inference so tenuous as to constitute pure conjecture. We perceive no error.

The appellant’s fourth argument is that the Commonwealth failed to establish the jurisdiction of the court beyond a reasonable doubt because it failed to present evidence that the forgery and thefts occurred in Philadelphia. This court has held:

Jurisdiction to try a person on a criminal charge lies only in the courts of the state or county where the crime was committed. Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892).
While some evidence of the place of the crime must be offered by the prosecution to sustain a guilty verdict, Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 206 A.2d 43 (1965); Commonwealth v. Tarsnane, 170 Pa.Super. 265, 85 A.2d 606 (1952), where there is a real question as to the place, it is reversible error for the trial judge to refuse the defendant’s request to submit that question to the jury. Commonwealth v. Mull, 316 Pa. 424, 175 A. 418 (1934). And see Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); Commonwealth v. Hainds, 448 Pa. 67, 292 A.2d 337 (1972); Commonwealth v. Tarsnane, supra; Commonwealth v. Wojdakowski, 161 Pa.Super. 250, 53 A.2d 851 (1947).

Commonwealth v. Kloss, 253 Pa.Super. 559, 563, 385 A.2d 480, 482 (1978). Herein, the appellant did not request and did not receive a jury charge on jurisdiction. However, the question is not waived since the venue of the court is a question of subject matter jurisdiction, Commonwealth v. Ziegler, 251 Pa.Super. 147, 380 A.2d 420 (1977), and “[t]he lack of subject matter jurisdiction cannot be waived ... and it may be raised any time by the parties or the court, including an appellate court.” Commonwealth v. Man- gum, 231 Pa.Super. 162, 164-65, 332 A.2d 467, 468 (1974). Moreover, we are mindful of an additional standard:

In a somewhat related argument, the appellant urges that the trial judge erred in failing to specifically instruct the jury on the law concerning jurisdiction. Jurisdiction is a legal issue and therefore is not normally a concern for the jury. However, in those infrequent cases where jurisdiction depends upon the resolution of disputed facts, it is within the province of the jury to resolve the issue under proper instructions, and failure to give such instructions may constitute reversible error. Commonwealth v. Mull, 316 Pa. 424, 175 A. 418 (1934). Where the facts underlying jurisdiction are not in dispute, the rule is as follows:
‘There is no duty on a trial judge to charge a jury upon law which has no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at the trial: Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961).’
Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963).

Commonwealth v. Bighum, 452 Pa. 554, 559, 307 A.2d 255, 258-59 (1973). We find there was no error in the trial judge’s failure to give a jury charge on jurisdiction, even if one had been requested. The facts herein are not in dispute. The appellant received the check by mail at his office at 2116 Two Girard Plaza in center city Philadelphia, and the check was deposited in his account in Girard Bank. The funds were later withdrawn from his account by check.

It is the appellant’s contention that the Commonwealth did not establish that the appellant deposited the check in a Girard Bank branch office in Philadelphia County, and they have thus failed to establish facts requisite to a finding that jurisdiction was proper in Philadelphia. While it is true that the Commonwealth introduced no evidence on where the check was deposited, it is immaterial, because other factors establish that jurisdiction in Philadelphia was proper.

It is well established that the Commonwealth must prove only that one element of the offenses charged occurred in Philadelphia County. 18 Pa.C.S.A. § 102(a)(1); Commonwealth v. Ohle, 291 Pa.Super. 110, 126-27, 435 A.2d 592, 600 (1981). As the trial court cogently pointed out:

Three of the theft offenses, theft by deception, theft by unlawful taking or disposition and theft by receiving stolen property are complete the moment the defendant received the check in Philadelphia with the requisite intent and thus did not depend on whether or where he deposited it. Additionally, for the offense of theft by failing to make required disposition of funds received, defendant did nothing criminal until he failed to pay the money to St. Joseph’s.

Lower Court Opinion, at 45. See also Commonwealth v. Ohle, supra. We agree with the conclusion of the trial court. Furthermore, “A charge of embezzlement or fraudulent conversion may be tried in any county in which any part of the embezzlement or fraudulent conversion was committed, or where, upon being called to account, the defendant disowned having received the money.” Commonwealth v. Bertels, 260 Pa.Super. 496, 500, 394 A.2d 1036, 1038 (1978); Commonwealth v. Sexton, 107 Pa.Super. 69, 162 A. 678 (1932). Obviously, in order to embezzle funds, they first must be received by the embezzler. Herein the funds were received in Philadelphia.

Finally, with respect to the forgery, we conclude that the forgery was part and parcel of the theft i.e., they were so intertwined that trial was appropriate in Philadelphia. Commonwealth v. Lowry, 153 Pa.Super. 639, 34 A.2d 814 (1943).

The appellant next argues that the trial court erred in not holding a hearing on the admissibility of the appellant’s bank records which had been seized pursuant to a search warrant. On the second day of trial, the appellant’s trial counsel sought a “Jackson-Denno hearing when the Commonwealth indicated it was going to have Mrs. Ruth Cliggett testify concerning the appellant’s bank records. Mrs. Cliggett was employed by Girard Bank as a documents analyst. Defense counsel contended that they were unaware that the bank records had been seized, and so were unable to move for suppression pre-trial. They also raised two grounds upon which suppression should be granted: (1) the appellant had never received a copy of the search warrant, nor any other notice of the seizure, and (2) the affidavit of probable cause upon which the search warrant was based is insufficient.

The trial court ruled that the motion was untimely under Pa.R.Crim.P. 306(e) and 323(b) and that therefore suppression was waived. The court also made a finding that counsel’s failure to file a suppression motion pre-trial was a matter of trial tactics in that “the defense, in fact, failed or refused to file a motion to suppress and did not ask for the issue to be revealed on discovery in accordance with the Rules of Criminal Procedure.” (N.T. May 1, 1981, at 3.6) This latter finding was based on the grounds that: (1) this was the fourth case in which counsel had represented the appellant on similar charges and in each of the previous cases bank records were brought in to prove the charges; and (2) the prosecution voluntarily turned over to defense counsel copies of all bank records that it would be using at trial.

We conclude that the trial court properly denied the appellant’s motion. First, counsel failed to file a pre-trial motion to suppress. Second, counsel failed to move for discovery. Third, the district attorney’s office in no way misled counsel, and, in fact, turned over records to counsel which should have alerted him to the fact that they had been seized by the bank. We find that this case is similar to Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), rev’d. on other grounds, and so find no error. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). See also Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973).

In a related argument, the appellant asserts that the seizure of bank records was per se illegal because appellant was never served with a copy of the search warrant. Appellant cites no authority for this contention, and it seems that the Rules of Criminal Procedure provide that the contrary is true:

Rule 2008. Copy of Warrant; Receipt for Seized Property-
(a) A law enforcement officer, upon taking personal property pursuant to a search warrant shall leave with the person from whom or from whose premises the property was taken a copy of the warrant and a copy of the affidavit(s) in support thereof, and a receipt for the property seized.

The search warrant which appellant is contesting was served on Mrs. Ruth Cliggett, custodian of records at Girard Bank. Thus, Rule 2008 was followed. In any event, this issue is also waived by failing to file a motion to suppress pre-trial. Pa.R.Crim.P. 323(b).

The appellant’s sixth argument is that the evidence was insufficient to prove that the $6,000.00 check from the Morawski estate, payable to St. Joseph’s was deposited in the appellant’s bank account. The appellant’s argument is premised on an allegation that the trial court erred in allowing a Commonwealth witness, Ruth Cliggett, the Girard Bank record custodian, to offer opinion testimony, and also that the trial court erred in allowing physical evidence which violated the best evidence rule.

The appellant contends that the trial court erred in allowing Mrs. Cliggett to testify that the $6,000.00 check from the Morawski estate was the same check deposited in appellant’s checking account which appeared on the deposit ticket of September 7, 1978. The appellant contends that this constituted opinion testimony from a lay witness. We agree with the resolution of this alleged error set forth in the trial court’s opinion:

Ruth Cliggett, duly qualified as a Girard Bank custodian of records. Among other things, Cliggett explained that every bank transaction is microfilmed including every check and every deposit slip that goes through the bank. She further testified that she brought with her certain microfilmed copies of Girard’s bank statements belonging to Duden. She identified one exhibit as showing that on September 7, 1978, there was a deposit into defendant’s account of $6,336.20. She was next shown a deposit ticket she brought with her to court and she identified this as the deposit ticket used to make the $6,336.20 deposit on that date. Four checks were entered on the deposit slip: $179; $50; $6,000; and $107.20. Since the bank microfilmed all four checks as well as the deposit slip, Cliggett also brought the filmed checks. In particular, the $6,000 check was marked C-10. Cliggett was asked if the $6,000 check was the item that was the $6,000 item on the deposit slip, to which she replied in the affirmative. Defense counsel objected that this was impermissible opinion evidence.
We note at the outset that the original check brought to court by Mrs. Poirier was marked C-3. The bank copy of that check was the one Cliggett was asked to testify to. There was no opinion testimony elicited. What Cliggett testified was statement of fact — i.e., that the bank copy of the check was the one which was deposited in the defendant’s account and appeared on his deposit slip (N.T. 2.174-2.179). ‘A witness may state relevant facts known to him, because of experience, even though he is not regarded as an expert whose opinion would be admissible on a hypothetical inquiry.’ Commonwealth v. Bennett, 471 Pa. 419, 423-24, 370 A.2d 373, 375 (1977) quoting Commonwealth v. Harris, 186 Pa.Super. 59, 63, 140 A.2d 344, 345 (1958). See also Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199 (1980).

Lower Court Opinion, at 26-27. Accordingly, we find no error in the trial court’s ruling.

The appellant also contends that the trial court erred in admitting photocopies of the microfilm record of the deposit slip. It is his assertion that this admission violated the “Best Evidence Rule.” We note that this issue was not included in the appellant’s post-verdict motions. Consequently, it has been waived. Pa.R.Crim.P. 1123.

The appellant has also asserted that trial counsel was ineffective in not objecting to the admission of evidence of the deposit slip. We must therefore review the issue within the ineffectiveness context.

This court, in determining whether a criminal defendant was afforded effective assistance of counsel will make an independent review of the record, Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Gray, 297 Pa.Super. 123, 443 A.2d 330 (1982). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309, 421 A.2d 737 (1980). However, where the claim concerns an issue or a motion not raised, it is only where the claim is of arguable merit that we must make an inquiry into counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

The so-called “Best Evidence Rule” is codified in Pennsylvania in 42 Pa.C.S.A. § 6109, which states:

§ 6109. Photographic copies of business and public records.
(a) Short title of section. — This section shall be known and may be cited as the ‘Uniform Photographic Copies of Business and Public Records as Evidence Act.’
(b) General rule. — If any business institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed, in the regular course of business, unless its preservation is required by law. Any such reproduction in order to comply with this section must accurately reproduce all lines and markings which appear on the original. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding, whether the original is in existence or hot, and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the tribunal. The introduction of a reproduced record, enlargement or facsimile does not preclude admission of the original.

The appellant concedes that under 42 Pa.C.S.A. § 6109 the photocopy of the microfilmed deposit ticket is admissible. This is undeniable especially since Mrs. Cliggett testified that it would be necessary to bring in not only the microfilm, but also a microfilm viewing machine from the bank. Counsel, instead, asserts that the Commonwealth failed to link the photocopier to the microfilm because Mrs. Cliggett testified that she. herself did not make the copies. This contention is without merit since Mrs. Cliggett was found by the trial court to be qualified as the record custodian of Girard Bank. The Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, states:

(b) General Rule. — A record of an act, condition or event shall insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

Mrs. Cliggett was properly found by the trial court to be a qualified record custodian. Moreover, she testified that, at the end of each day, the tellers would microfilm their work; the deposit ticket and the checks listed thereon being filmed in sequence. (N.T. April 30, 1981, at 2.151-2.153, 2.161). This microfilm is stored in bank records. (N.T. April 30, 1981, at 2.153-2.154). The copies from which Mrs. Cliggett testified were those which had been prepared at her direction. (N.T. May 1, 1980, at 3.56-3.58). We believe that the requirements of both § 6108 and § 6109 have been met. In Re Estate of Indyk, 488 Pa. 567, 413 A.2d 371 (1980). Therefore, the appellant’s trial counsel cannot be found ineffective because the objection to the records would have been without arguable merit.

In any event, we would find that counsel had a reasonable basis for not objecting since it appears that he chose not to object, and instead attempted to derogate from the witness’ credibility and the veracity of the records. Thus, we find no ineffectiveness on the part of trial counsel.

The appellant’s final claim is that he was denied a fair trial “by having to defend a multiplicity of theft charges although he was alleged to have committed a single theft.” We again note that the issue is not presented in appellant’s post-verdict motions as required by Pa.R.Crim.P. 1123(b), and so it is not preserved for our review.

However, the appellant has once again asserted counsel’s ineffectiveness in failing to preserve the issue. Thus, we must review counsel’s actions under the standard previously stated. We conclude that there is no claim of arguable merit presented and therefore counsel was not ineffective.

It goes almost without saying that an accused may be charged, tried and found guilty of several offenses but one criminal act. Indeed, ‘prosecutors generally offer the jury a smorgasbord of offenses.’ Commonwealth v. Artis, 294 Pa.Super. 276, 282, 439 A.2d 1199, 1201 (1982). However, it is equally well established that ‘the imposition of two sentences under the guise of two offenses, where only one act was the basis for charge and sentence, is unlawful____’ Id., 294 Pa.Superior Ct. at 281, 439 A.2d at 1201 (emphasis added). The constitutional prohibition against double jeopardy not only bars successive prosecutions for a single criminal act, but it also forbids multiple punishments for the same offense. Commonwealth v. Bolden, 472 Pa. 602, 618, 373 A.2d 90, 97-98 (1977). So also, the doctrine of merger ‘ “prevents double punishment for a lesser offense when it is a necessary ingredient of the greater offense for which the defendant has also been indicted convicted and punished” ’ Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 545-546, 420 A.2d 674, 675-676 (1980) quoting Commonwealth v. Nelson, 452 Pa. 275, 280, 305 A.2d 369 371 (1973) (Nix, J., concurring and dissenting).

Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983). Thus, we perceive no ineffectiveness in the trial court’s failure to object to the multiple theft charges upon which the appellant was tried. The issue of whether counsel was ineffective for not requesting merger of sentence is not before us.

Judgment of sentence for forgery and theft by failure to make required disposition of funds received is affirmed. Judgment of Sentence for theft by unlawful taking and theft by deception is vacated.

McEWEN, J., files concurring statement.

McEWEN, Judge,

concurring:

However extended the pause and however concerned the reflection caused by a harsh sentence, this court is powerless to alter the terms of the sentence. With delivery of that observation, I join in the fine opinion of my esteemed colleague, Judge Frank J. Montemuro, Jr.

      . 18 Pa.C.S.A. § 4101(2).

      . Id. § 3922.

      . Id. § 3927.

      . Id. § 3921.

      . Judge Abraham had previously presided over a trial wherein the appellant was convicted of various charges arising out of the defalcation of funds from three other clients.

      . Because this issue is not waived it is not necessary to consider appellant’s allegation that trial counsel was ineffective for failing to object to the legality of the sentence.

      . Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended. Act of October 5, 1980, P.L. 693, No. 142, § 401(a), 42 Pa.C.S.A. § 9757.

      . Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    473 A.2d 625
    Ruby E. SMITH, v. Lee M. BEARD, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed March 16, 1984.

      Laurence T. Himes, Jr., York, for appellant.
    John D. Miller, Jr., York, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the Order of the Court of Common Pleas of York County directing the appellant, Lee M. Beard, to make weekly payment for the support of Lavar L. Smith. The appellant does not contest the amount of the support order; rather, he contends that the trial court erred in adjudicating the paternity of the child without providing him with blood test groupings or a hearing. We find no merit in the appellant’s contentions.

The facts relevant to the present appeal are as follows: On June 1, 1981, Lavar L. Smith was born. On June 23, 1981, the appellee filed a Complaint in the York County Court of Common Pleas seeking support payments and lying-in expenses from the appellant, whom she alleged to be the father of young Lavar. Accompanying the Complaint was an Order directing the appellant to appear at a pre-trial conference on July 24, 1981, in accordance with Pa.R.C.P. 1910.5, 42 Pa.C.S.A. The Complaint and order were sent to the appellant at his home address by “certified and restricted mail.”

The record is silent as to anything which may have transpired until August 12, 1981, when the appellee filed a Motion for Blood Tests pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S.A. § 6131 et seq. On August 14, 1981, the court ordered all parties to submit to a Human Leukocyte Antigen blood test [hereinafter HLA test]. Testing was scheduled for October 6, 1981. Notice was sent to the appellant by regular mail to the same address to which the Complaint was sent. The appellant admits receiving notice, but failed to appear.

On January 13, 1982, the appellee filed a petition seeing a rule to show cause why the appellant should not be adjudicated to be the father of Lavar Smith by reason of his refusal to submit to HLA testing. On January 14,1982, the court issued a rule to show cause, returnable twenty (20) days after service. Service was made by regular mail on January 18, 1982. The appellant did not respond.

On May 12, 1982, the appellee filed a motion to make the rule absolute. On that same day the court granted appellee’s motion and issued an order adjudicating the appellant to be the father of Lavar Smith.

Thereafter, further support proceedings took place culminating in the lower court’s order of March 3, 1983, directing the appellant to pay $65.00 per week, plus arrearages toward the support of Lavar Smith. This appeal followed.

The appellant’s initial contention is that no adjudication of paternity can be made except after a hearing on the merits. The appellant relies on 42 Pa.C.S.A. § 6704(g), and Pa.R.C.P. 1910.15(b) in support of his position. The appellant misconstrues the import of these provisions. Apparently, he would have us hold that the right to a trial in a paternity action is an absolute right. We refuse to do so. Section 6704(g) is not a guarantee of a trial in every paternity action. Rather, this section defines the nature of the proceeding; i.e. a civil, as opposed to a criminal trial. Even a cursory examination of the history of paternity actions in this jurisdiction makes this evident. See Corra v. Coll, 305 Pa.Super. 179, 185 n. 6, 451 A.2d 480, 483-84 n. 6 (1982); Mansfield v. Lopez, 288 Pa.Super. 567, 573-74 n. 4, 432 A.2d 1016, 1019-20 n. 4 (1981). The purpose of Section 6704(g) when enacted was merely to put an end to the civil-criminal dichotomy which had theretofore existed in paternity actions.

Paternity is determined in a civil action governed by the Pennsylvania Rules of Civil Procedure. 42 Pa.C.S.A. § 6704(f). See also Pa.R.C.P. 1910.15 Explanatory Note-1981. As such, a trial is but one way to resolve the issue in controversy. The rules of civil procedure provide many ways for a controversy to be settled prior to trial; some of which have been utilized in paternity actions. See Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983) (summary judgment); Hughes v. Hutt, 500 Pa. 209, 455 A.2d 623 (1983) (preliminary objections).

The appellee herein utilized a petition and rule to obtain a determination from the lower court. We find nothing objectionable about the practice. First, the appellant had not made a demand for a jury trial. Second, he failed to appear for the HLA testing in defiance of an order of the court. At this juncture, the appellee filed her petition and rule. This Commonwealth’s petition practice affords a responding party with notice and an opportunity to be heard before a rule absolute is entered. The appellant simply did not avail himself of this right. As such, the lower court had before it an unanswered petition which alleged the appellant’s refusal to submit to HLA testing. The lower court was entitled to find that the appellant, in fact, refused to appear. Under 42 Pa.C.S.A. § 6133, the court could therefore “resolve the question of paternity” against the appellant. The appellant’s excuses, tendered over a year later at a hearing prior to the final support order, were not believed by the court. We will not substitute our own judgment of appellant’s credibility for that of the lower court. Bigham v. Wenschhof, 295 Pa.Super. 146, 441 A.2d 391 (1982).

This court recently stated, in an excellent opinion by Judge CAVANAUGH, that, “[t]he need for procedural safeguards at a paternity hearing is apparent in the light of the significant liberty interest in jeopardy at that juncture. Once paternity is established, that finding is res judicata and cannot be relitigated in a subsequent proceeding.” Corra v. Coll, supra, 305 Pa.Super. at 189, 451 A.2d at 486. We conclude that the safeguards inherent in our petition practice were more than sufficient to protect the appellant’s rights. His own failure to take measures in accordance with the established procedures is regrettable, but it does not derogate from the propriety of those procedures.

The appellant, in a final attempt at excusing his failure to respond to the rule to show cause, asserts that Pa.R.C.P. 1910.7 states that the defendant is not required to file any pleading. It is clear that this provision merely excuses a defendant from answering a complaint in a support action. It has no applicability to any motion or petition proceedings which may follow inasmuch as these are governed by the rules of civil procedure. 42 Pa.C.S.A. § 6704(f).

The appellant next contends that a blood test is required to determine paternity when requested by the putative father prior to an adjudication of paternity. While the assertion is no doubt true, see 42 Pa.C.S.A. § 6133, it has no applicability to the facts of the case. The appellant not only did not request a blood test prior to the court’s adjudication of paternity, he refused to submit to one, in defiance of a court order. This contention is patently meritless.

The appellant’s final argument is that he was improperly denied both the right to a blood test and the right to a hearing. While this argument is for the most part a rehash of his previous arguments, there are two points which merit some discussion.

The appellant asserts that 42 Pa.C.S.A. § 6705(a) provides the sole remedy for a defendant’s failure to obey a court order, and that the adjudication of paternity was therefore improper. We disagree. Section 6705(a) is a specific grant of contempt power applicable only in support cases. See generally, 42 Pa.C.S.A. § 4131. It does not profess to be the exclusive remedy available to the courts or the parties. It merely states that “a defendant who willfully fails or refuses to appear ... may be adjudged in contempt.” 42 Pa.C.S.A. § 6705(a). Section 6133, in a similar fashion, states, “[i]f any party refuses to submit to such [HLA blood] test, the court may resolve the question of paternity ... against such party ...” This section is not drafted as an exclusive remedy either.

We perceive no inconsistency in these provision, and would conclude that, insofar as they relate to the same subject matter, they are in pari materia, and should be construed to give effect to both provisions 1 Pa.C.S.A. § 1932.

Appellant also contends that service of the petition and rule to show cause was inadequate because it was by regular mail alone. Again, the appellant relies on Pa.R.C.P. 1910.6, and again we find this reliance unwarranted. The aforementioned rule pertains only to service of the complaint in a support action. Service of other legal papers is subject to Pa.R.C.P. 233 which recognizes service by regular mail as adequate. Thus, we find service of the petition and rule was proper. Furthermore, we are bound by the lower court’s disbelief of appellant’s assertion that he never received the petition. Bigham v. Wenschhof, supra.

Having found no merit in the appellant’s appeal, the order of the lower court is affirmed.

      . Pa.R.C.P. 1910.6(a)(2) requires when service is made by "certified and restricted mail" that a return receipt be requested. The certified record of the lower court contains no return receipt for the complaint. The appellee claims that service was completed on July 24, 1981 when the appellant appeared for the pre-trial conference. The appellant does not admit or deny appearing at the conference, but states that there is no record of it. However, the appellant does not contest service of the complaint. These facts are stated merely to completely present the context for appellant’s claims. In any event, we would conclude service was proper. See Pa.R.C.P. 1910.6 Explanatory Note-1981.

      . The appellant claims that on the day of the HLA test his truck broke down in North Carolina [he was a professional truck driver] and he was unable to return. He further asserted that he telephoned the Domestic Relations Office and informed them of the circumstances. The lower court judge disbelieved the excuse after a check of the DRO records showed no telephone call had been made.

      . § 6704. Commencement of support actions.

      (g) Trial of paternity. — Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.

      . Rule 1910.15. Paternity

      (b) If the reputed father does not execute an acknowledgement of paternity, the domestic relations officer shall terminate the conference. He shall advise the parties that there will be a trial without jury on the issue of paternity unless within ten days after the conference either party demands a trial by jury as provided by Rule 1910.28(b).

      . § 6133. Authority for test.
      In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

      . We will also note, without extensively analyzing the issue, that Pa.R.C.P. 1910.15(b) does not confer any substantive right to a trial; it merely sets forth the procedure and time by which a jury trial may be demanded.

      . § 6705. Failure of defendant to appear.
      (a) General rule. — A defendant who willfully fails or refuses to appear in response to a duly served order or other process under this subchapter may, after hearing, be adjudged in contempt and committed to prison by the court for not exceeding six months.


author: CIRILLO, Judge:

text:
    473 A.2d 629
    COMMONWEALTH of Pennsylvania v. Scott SHERLOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed March 23, 1984.

      Salvatore J. Cucinotta, Philadelphia, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and CIRILLO, JJ.
   CIRILLO, Judge:

On June 13, 1981 the appellant, Scott Sherlock, and his girlfriend, Susan Hogue, switched motor vehicles for the evening as they had often done in the past. It was their practice to leave the ignition keys in each vehicle and to replace any gas they had used. Early the next morning, the appellant returned Susan’s vehicle to her residence on Highland Road in Lansdale, where she lived with her parents. The appellant then tapped on Susan’s bedroom window and requested that she come outside. Susan refused, but the appellant persisted. Susan testified that she was afraid the appellant knew she had gone out with someone else that night. The appellant testified that all he wanted was the keys to his house and car. Susan’s father told the appellant to leave or he would call the police. So the appellant went to his car, started it with a spare ignition key and pulled out of the driveway. However, as he reached the street, he noticed his gas gauge was on “empty” and he was not sure that he could make it home. The appellant testified that he had no money and he wanted to let Susan know that he did not have any gas in the car. Therefore, the appellant parked his car on the street and walked to the front of the house where he saw Susan in the picture window. Just as he began to tap on the window, police cars arrived, so the appellant hid behind some bushes. After a short time he went to leave but was halted by police and a scuffle ensued. The appellant was arrested and charged with simple and aggravated assault, defiant trespass, resisting arrest, loitering and prowling.

He was brought to trial on February 11 and 12, 1982 before the Honorable William T. Nicholas and a jury. The jurors found the appellant guilty of defiant trespass and not guilty as to all other charges. Post-trial motions for a new trial and in arrest of judgment were filed and denied after argument. On May 27, 1982 the appellant was placed on probation for one year and fined $200.00. An appeal was filed with this Court on June 4, 1982. Thereafter, the appellant filed a motion to modify sentence and arrest judgment, which was dismissed by the trial court.

The sole question preserved for our review is whether the trial judge erred in failing to charge the jury regarding the appellant’s reasonable belief that he had permission to remain on the property.

In charging a jury, it is the duty of the trial judge to clarify issues so that the jurors may comprehend the questions they are to resolve, to elucidate correct principles of law applicable to the pending case, and to endeavor to make such principles understandable in plain language. Commonwealth v. Funke, 306 Pa.Super. 542, 452 A.2d 857 (1982). The failure to fulfill this duty deprives the defendant of a fair trial. Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977); Commonwealth v. Litman, 276 Pa.Super. 114, 419 A.2d 121 (1980).

The relevant portion of the jury charge is as follows:

A person commits this offense of defiant trespass if knowing he is not licensed or privileged to do so he enters or remains in any place as to which notice against tres- . pass is given by actual communication to the actor, and in this instance it is charged that the defendant defied an order to leave personally communicated to him by the owner in this instance, Mr. Hogue.
Let me break this offense down for you into its constituent elements.
In order to find the defendant guilty of being a defiant trespasser you must find that all of the following elements have been established beyond a reasonable doubt: One, that the defendant entered or remained on the property of Mr. and Mrs. Hogue; two, that the notice against trespass in that place was given by actual communication to the defendant or that notice of trespass— strike that. That notice against trespass in that place was given by actual communication to the defendant; three, that the defendant knew he was not licensed or privileged; that is, he had no permission from the owner to be in such place; four, that the defendant defied an order to leave personally communicated to him by the owner of the premises or other authorized person.
Thus, members of the jury, if after considering all of the evidence you find that the Commonwealth has established each of these elements, these four elements beyond a reasonable doubt, then you may find the defendant guilty of criminal trespass by defiant trespasser; otherwise, you must find the defendant not guilty.

Defense counsel requested that the trial judge charge the jury in conformity with 18 Pa.C.S.A. § 3503(c)(3) which states:

(c) Defenses. It is a defense to prosecution under this section that:
(3) the actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain.

The trial court refused counsel’s point for charge, expressing that it had already been covered. Appellant’s counsel, in conformity with Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure, noted an exception to the court’s failure to include the proposed point for charge.

. In determining the adequacy of the instructions to the jury on the relevant legal principles, the charge must be read as a whole. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982); Commonwealth v. Warren, 313 Pa.Super. 390, 459 A.2d 1285 (1983). The Commonwealth asserts that the defense of reasonable belief was adequately covered by the court’s charge. However, our reading of the charge is contrary to this assertion. Judge Nicholas merely stated to the jurors that they had to find that the appellant knew he had no permission from the owner to be on the property. The charge cannot be said to satisfactorily cover the provisions of section 3503(c)(3) since no mention is made concerning the appellant’s reasonable belief that Susan licensed him to be on the property.

The Commonwealth claims that Susan was not in that class of persons who could grant authority since she did not own the property. We do not agree. Section 3503(c)(3) does not limit to the owner of the premises the power to license access to his property. Rather, it includes those people “empowered to license access thereto.” Certainly, it was in contemplation of our lawmakers to include the owner’s daughter, living on the premises, in the class of persons able to license access to the property, absent evidence to the contrary. Cf Commonwealth v. Burton, 299 Pa.Super. 147, 445 A.2d 191 (1982). (Defendant’s girlfriend had the power to allow the defendant access to the back porch of a boarding house where she rented a room).

The appellant and Susan had known each other since high school and had been dating each other for over two years at the time of this incident. They had even lived together for a period of time. Often, they used each other’s motor vehicles and, when so doing, would replace whatever gas was used. So too, the appellant’s tapping on Susan’s window was a common form of communication between the two. Thus, despite the fact that Mr. Hogue told the appellant to leave, the appellant could have reasonably believed that he was licensed to return to the property to ask Susan for gas money or his other set of keys. In view of these circumstances, the failure of the trial court to charge the jury regarding the defense of appellant’s reasonable belief was prejudicial error. Consequently, we reverse the judgment of sentence of the trial court and remand for a new trial.

REVERSE and REMAND.

JURISDICTION IS RELINQUISHED.

      . The crime of defiant trespass, codified at 18 Pa.C.S.A. § 3503(b), occurs when a person remains in a place where he is not privileged to remain after notice of trespass is given. Commonwealth v. Conyers, 238 Pa.Super. 386, 357 A.2d 569 (1976).


author: JOHNSON, Judge:

text:
    473 A.2d 632
    J. Warren MATSON, Bert Collins, Harry Ingram and Mary Ann Miaczynski v. HOUSING AUTHORITY OF the CITY OF PITTSBURGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed March 23, 1984.

      David B. Washington, Pittsburgh, for appellant.
    Henry Miller, III, Pittsburgh, for appellees.

      Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This is an appeal from an order of an en banc Common Pleas Court, Allegheny County, which granted summary judgment based on the application of the doctrine of offensive collateral estoppel. We reverse.

The factual history of this appeal reveals that appellees were former employees of appellant, Housing Authority of the City of Pittsburgh (HACP). Appellees instituted an action in assumpsit to secure payment for the earned but unused sick leave and vacation time they had accumulated upon their retirement from HACP. Their assumpsit claim is based upon certain personnel policies, alleged to have been adopted in the period of 1968 to 1970, which appellees allege provided for such payments. In response to appellees’ complaint in assumpsit, HACP filed an answer and new matter. As new matter, HACP asserted that the personnel policies relied upon by appellees and the payments requested pursuant thereto were contrary to certain federal guidelines enacted pursuant to the U.S. Housing Act of 1937, 42 U.S.C. § 1401 et seq., which were applicable to HACP through its contributions contract with the Department of Housing and Urban Development.

In their reply to new matter and their motion for summary judgment, appellees invoked the doctrine of collateral estoppel based upon judgment entered in a previous action, Housing Authority of the City of Pittsburgh v. Konrad Dorsch, et al., Nos. G.D. 75-3399-3402 and 75-3405-07 (C.P. Allegheny County filed August 4, 1978), to bar the defense raised in HACP’s new matter. By order dated April 26th, 1982, appellees’ motion for summary judgment was granted and this appeal was taken.

Summary judgment is appropriate when the only defense presented is for some reason rendered invalid. See e.g. Hilton v. State Employees Retirement Board, 470 Pa. 301, 368 A.2d 640 (1977). The offensive invocation of collateral estoppel to bar a defense raised is a proper ground to grant summary judgment when, properly applied, the doctrine eliminates all issues of material fact and entitles the moving party to judgment as a matter of law. See Day v. Volkswagenwerk Aktiengeselschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983).

In Day, a panel of this court delineated the following requirements for the applicability of collateral estoppel:

The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a ’question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit____ Unlike res judicata, there is no requirement that there be an identity of parties between the two actions to invoke the bar. “Parties to a subsequent action need not be the same as those in the prior suit in order to raise the question of collateral estoppel. Collateral estoppel may be used as either ‘a sword or a shield’ by a stranger to the [prior] action, as long as the party against whom the defense is invoked is the same.”... “ ‘[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in the question in a prior action.’ ”...

Id., 318 Pa.Superior Ct. at 236-37, 464 A.2d at 1318-1319 (citations omitted) (brackets in original). In addition to these requirements, the determination in the prior suit must have been essential to the judgment therein. See Restatement (Second) of Judgments § 27; Restatement of Judgments § 68; c.f. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975).

In their brief, appellees argue that the issue common in the instant case and the Dorsch case is whether the enactment of federal guidelines can retroactively abrogate appellees’ allegedly contractual right to receive payment, upon retirement for unused vacation and sick leave. In contrast, HACP argues in its brief that the issues presented by the instant case and Dorsch are not identical in that the Dorsch case involved the HACP’s attempt to recover monies it had already paid in violation of the guidelines whereas in the instant case HACP would be forced to expend monies in violation of the guidelines.

In determining whether the requisite identity of issues exists, we must first be able to identify with sufficient certainty the issue necessarily decided in the prior case. The necessity of identifying the issue in the prior case requires an examination of the relevant portions of the record in the prior case. See Restatement (Second) of Judgments § 27 comment f. Of course the relevant portions of the record in the prior case must be incorporated into the record in the present case. The record in the instant case does not contain any documents from the Dorsch case; and no reference has been made to the pleadings or the evidence in the Dorsch case. Instead, appellees and HACP rely solely upon the unreported opinion of the trial court in Dorsch to establish what the issues were in that case and whether they are identical to the issues presented by the instant case. Taken from appellees’ brief, the text of the trial court’s unreported opinion in Dorsch is as follows:

OPINION
This is an action by the plaintiff (HACP) against former employees to recover sums of money paid to them by HACP. The claims are based on, in plaintiff’s terminology, “unconstitutional enrichment,” “breach of employment contract” and “municipal employment” (sic). Tried nonjury, the case resulted in a verdict for defendants in every instance. Plaintiff filed exceptions in each case.
The bulk of the documentary evidence was stipulated to by all parties as to authenticity. The only fact question at trial was the manner in which the 1970 Personnel Policy was adopted, and whether it was regularly promulgated.
The defendants worked as janitors (Reed), clerks (Mr. and Mrs. Heckert), groundskeeper foreman (Dorsch) and administrators (Chapman, Tronzo, Utterback, Vennare). All retired in 1970-71. In dispute are the amounts paid for earned and unused sick pay. Plaintiff’s claim is based on the allegation that HACP violated United States Housing and Urban Development guidelines in paying defendants these funds, and therefore seeks to recover them from defendants.
Assuming, arguendo, that the allegedly applicable guidelines did apply, and that they were in fact violated, no cause of action has been created. First of all, the violation of a guidelines does not create a cause of action. M.B. Guran, Co., Inc. v. City of Akron, 546 F.2d 201 ([6th Cir.] 1976). Secondly, if a suit could be filed, it is not those who received the funds who should be sued, but those who were responsible for the allegedly erroneous payments; i.e., the Board of Directors of HACP, who should be surcharged. Cottar v. Warminster Twp., 8 Comm.Ct. [163] 162 [302 A.2d 859] (1973).
Finally, the evidence on the record is very persuasive in favoring the defendants; in particular, that the contested resolution permitting the payments was indeed adopted. Further, the alleged guidelines were adopted after the payments were in effect. Nothing, not even the federal government, can retroactively interfere with a contract, in this case a contract of employment between defendants and plaintiffs. This principle was enunci ated over 150 years ago by Justice Marshall in the Dartmouth College Case, and it is not about to be abrogated now by this Court.
THEREFORE, plaintiff’s Exceptions are denied. An order will be entered accordingly.

Brief of Appellees at la (emphasis added). Appellees rely upon the highlighted language above to support their contention as to the existence of a common issue in the present case and Dorsch.

While copies of the trial court opinion in Dorsch were included in the reproduced record portion of the briefs of both parties, the certified record from the trial court does not include a copy of the Dorsch opinion. We, of course, may not rely upon either of the parties’ statements in their briefs as to what the issues were in the Dorsch case. See McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982). Nor are we permitted to examine the copies of the Dorsch opinion contained within the reproduced records of both parties to determine what issues arose in Dorsch, since the original record submitted to us in this case does not contain a certified copy of that opinion. Only matters of record may be included within a reproduced record. Pennsylvania Human Relations Commission v. Ammon K. Graybill, Jr., Inc., Real Estate, 482 Pa. 143, 147 n. 3, 393 A.2d 420, 422 n. 3 (1978); Auman v. Juchniewitz, 312 Pa.Super. 98, 458 A.2d 254 (1983); General Accident Fire & Life Assurance, Ltd. v. Flamini, 299 Pa.Super. 312, 317 n. 3, 445 A.2d 770, 773 n. 3 (1982). Consequently, the record is devoid of any material from which we may properly determine whether the issues presented in the present case and those in Dorsch are identical.

We note further that even if we were to consider the opinion copied in the briefs of the parties, we would conclude that collateral estoppel was improperly applied because the language relied upon by appellees was dictum and not essential to the judgment in the Dorsch case. Restatement (Second) of Judgments § 27 comment h. The opinion amply indicates that HACP’s complaint in Dorsch did not state a cause of action; thus the subsequent language relied upon by appellees that pertained to the substance of the case was not necessary to the result in the case.

Accordingly, on either ground, we must reverse the order of the trial court en banc that estopped HACP from litigating issues relative to its defense.

So ordered.

      . Because HACP is a Commonwealth agency, see 35 P.S. §§ 1544, 1550, appellate jurisdiction may have been properly vested in the Commonwealth Court. 42 Pa.C.S.A. §§ 101, 762(a)(ii). However, since appellees have failed to file an objection to the filing of this appeal in this court our appellate jurisdiction was perfected. 42 Pa.C.S.A. § 704; Pa.R.A.P. 741. In the interest of judicial economy, we deem it prudent not to exercise our discretion under 42 Pa.C.S.A. § 705 and Pa.R.A.P. 752 to transfer this appeal to Commonwealth Court.

        . The only references to the opinion in the certified record is in appellees’ reply to HACP’s new matter and HACP’s reply to appellees’ new matter. Averment 1) of appellees’ reply to HACP’s new matter indicated that a copy of the Dorsch opinion was attached thereto, but no such copy was attached to the pleading. A check with our Prothonotary’s Office indicated that we have before us the record as it was certified from the trial court.


text:
    473 A.2d 636
    Ruth HARRISON v. AETNA LIFE AND CASUALTY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 22, 1983.
    Filed March 23, 1984.

      R. Burke McLemore, Jr., Harrisburg, for appellant.
    James Edgar Carlson, District Attorney, Wellsboro, for appellee.
    Gary A. Wolensky, Philadelphia, for participating party.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Aetna Life and Casualty (hereinafter “Aetna”) from a final decree in a declaratory judgment action. Appellee, Ruth Harrison, commenced the declaratory judgment action to determine whether Aetna, under a contract of insurance, had a duty to defend her in a negligence action.

The lower court determined that: (1) the broker who had procured the policy was acting as an agent of Aetna, and (2) even though a clear and unambiguous exclusion to coverage existed in the policy, under Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974); the exclusion had no applicability because Aetna did not prove that the insured (Harrison) was aware of the exclusion and its effects. The lower court found, therefore, that Aetna had a duty to defend Harrison in the negligence action.

Our supreme court has recently rejected Hionis. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983, by Roberts, C.J.). There being no bar to the applicability of the exclusion, coverage did not exist and Aetna had no obligation to defend.

Accordingly, we reverse the final decree of the lower court and remand for modification in conformity with this opinion. Jurisdiction is not retained.

      . In view of the dispositive Hionis issue, we need not address the issue of whether the broker acted as an agent of Aetna.


author: WATKINS, Judge:

text:
    473 A.2d 637
    COMMONWEALTH of Pennsylvania v. John R. TRUSS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed March 23, 1984.

      Mark S. Refowich, Easton, for appellant.
    Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before PRICE , CAVANAUGH and WATKINS, JJ.

      The late Honorable Gwilym A. Price, Jr. did not participate in the consideration and decision of this case.

   WATKINS, Judge:

In Commonwealth v. Truss, 303 Pa.Superior Ct. 22, 449 A.2d 58 (1982), we held that it was error to permit into evidence the confessions of a minor who had not been advised at the time of his interrogation by the police that he had the right to have an informed adult, parent or counsel present during the questioning. The suppression of the confessions had also been refused by the Suppression Judge.

He had been asked his age by the questioning police and he responded that he was born January 2, 1960, which made him eighteen years of age and an adult. The police checked his age in prior police records which showed he was an adult at the time. However, his proper age was recorded in the Juvenile Court records as February 25, 1960, which made him a juvenile at the time of the interrogation and the police had not checked the juvenile records.

The trial court held that “in the instant case the police did check defendant’s age — not once — but twice — through his own statement to the police and through prior police records. In both instances the police received information that defendant was born on January 2, 1960 and was, therefore, eighteen years of age at the time of questioning. We believe this is all the police can reasonably be required to do. We believe that if the police diligently make a good faith attempt to ascertain a suspect’s age, and if information from two separate sources including the Defendant himself indicates that Defendant is an adult, the police should be entitled to rely on this information in not giving the extra juvenile warnings.”

We said “This disposition by the court below seems logical and good common sense and prevents a juvenile from taking advantage of the situation by falsifying his age to delay or thwart the administration of justice.”

However, we felt bound, especially by Commonwealth v. Walker, 477 Pa. 370, 383 A.2d 1253 (1978) and Commonwealth v. Markle, 475 Pa. 266, 380 A.2d 346 (1977) wherein the suppression of the confession was found to be a mandatory requirement with the only exception being the equally divided affirmance in Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980), so that under the circumstances we reluctantly reversed and directed that the oral and written confessions of the juvenile-defendant be suppressed; and thereby granted a new trial.

On appeal to the Supreme Court, the following Judgment was entered at No. 1 E.D. Appeal Docket, 1983 on December 1, 1983:

“ON CONSIDERATION WHEREOF, it is now ordered and adjudged by this Court that the Order of the SUPERIOR COURT, be, and the same is hereby vacated and the record is remanded to the Superior Court for the Disposition of any remaining claims of error.”

The only remaining issue raised for disposition by the defendant is that: “The court erred when it instructed the jury after the jury appeared deadlocked that if the jury could not agree as to a verdict, the Defendant would have to go through a second trial and that this would be costly and time consuming and, therefore, the verdict obtained as a result thereof constituted a coerced verdict.”

The testimony in this case took only two hours and after the jury had deliberated for four hours, they returned to the courtroom and the court asked whether they had any questions. They said that they had difficulty in arriving at a verdict. The judge then said: “Let me point out to you as a jury, chosen after you were screened by both sides and questioned in a voir dire if this jury does not arrive at a verdict, the case will have to be tried again in front of another jury, added expenses, added problems.”

In Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977), a homicide case, the Supreme Court speaking through Mr. Justice Roberts, held that it was not reversible error to refer briefly to inconvenience of a new trial which would be necessitated by failure to obtain a verdict.

Judgment of sentence affirmed.


text:
    473 A.2d 638
    COMMONWEALTH of Pennsylvania v. James SCHWARZMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1983.
    Filed March 23, 1984.

      Frank J. Marcone, Media, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   WATKINS, Judge:

This appeal comes to us from the Court of Common Pleas of Delaware County and involves defendant-appellant’s appeal from a judgment of sentence of six to twenty-three (6 to 23) months in prison after he was convicted, non-jury, of simple assault, aggravated assault and possessing an instrument of crime.

The defendant was convicted on December 17, 1981. He filed a motion in arrest of judgment challenging the sufficiency of the evidence on December 23, 1981. On February 1, 1982, the court advised defendant’s counsel that it did not intend to have the trial testimony transcribed for purposes of briefing post-trial motions and set February 10, 1982 as the date when defendant’s brief was to be submitted. On February 18, 1982 defendant’s counsel advised the court that he was unable to prepare a brief without the notes of testimony. The court advised defendant’s counsel that it saw no need for transcribed testimony in order to have the brief prepared and reminded counsel to submit the brief. No brief was ever submitted and on March 4, 1982 the court dismissed defendant’s motion in arrest of judgment. Defendant was sentenced on March 15, 1982. He now appeals from that judgment of sentence.

The court below took the position that defendant waived the issues raised in his motion in arrest of judgment by failing to file a brief in support thereof. The issues raised in said motion were that the evidence produced at trial was insufficient to sustain the conviction and that the verdict was against the weight of the evidence.

We note that defendant’s trial took only two days. Only six witnesses testified for the Commonwealth. Of these, only three witnesses (the victim, the victim’s friend, and a bystander) testified as to what actually occurred on the date of the incident. Their testimony indicated that on September 25, 1980 the victim (Michael Cooke) and a companion (Michael Allen) were walking along an alleyway in Drexel Hill when they approached defendant and asked him for a match. A scuffle ensued during which defendant shot Cooke in the abdomen. All participants then left the scene but were later found. The victim testified that the defendant shot him without provocation. Cooke admitted that he had been drinking and that he did not remember everything that had occurred during the incident. He did testify that he remembered the defendant shooting him.

On appeal, defendant raises three issues. First, he claims that the court below erred when it required his counsel to file a brief without the trial transcript. However, the issue as to whether to require the transcription of the notes of testimony prior to arguing and briefing of post trial motions is a matter within the sound discretion of the trial judge and he will be reversed only for an abuse thereof. Commonwealth v. Moretti, 280 Pa.Superior Ct. 167, 421 A.2d 458 (1980). Also see, Pa.R.Crim.P. 1123(a). In the instant case the defendant’s trial lasted only two days, his counsel who filed the post verdict motions was the same as his trial counsel, the issues were not complicated and only six Commonwealth witnesses testified and one defense witness testified. We do not find that the trial court abused its discretion when it required defendant’s counsel to file his brief before the transcription of the testimony.

Next defendant argues that he did not voluntarily waive his right to pursue post-verdict motions and that trial counsel was ineffective because he failed to file the brief. As we have said before, counsel will not be deemed ineffective for failing to pursue a frivolous issue. Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978). Such is the case herein. We, therefore, find defendant’s second contention is without merit.

Defendant also argues that the evidence produced at trial was not sufficient to convict him. We find that the evidence produced at trial was sufficient. The testimony had to be transcribed for this appeal and it reveals that the victim’s testimony, if believed, was sufficient to convict the defendant. The court below, sitting as the trier of fact, believed the victim’s version of the events of September 25, 1980. Defendant’s arguments in this regard amount to nothing more than reasons why he believes that his testimony rather than that of the victim should be believed. On appeal, we must consider the evidence produced at trial in the light most favorable to the verdict winner. Commonwealth v. Speller, 311 Pa.Superior Ct. 569, 458 A.2d 198 (1983). In this case the verdict winner was the Commonwealth. As noted above the defendant does not argue that the Commonwealth failed to prove any of the specific elements of the offenses of which defendant was convicted. Rather, he argues that the Commonwealth witnesses were biased and not credible. Thus, his argument is really a challenge to the weight of the evidence. We will not grant a new trial on the ground that the verdict is against the weight of the evidence unless the verdict was such that it shocks the court’s sense of justice. Commonwealth v. Kaufman, 307 Pa.Superior Ct. 63, 452 A.2d 1039 (1982). When we consider the evidence in the light most favorable to the Commonwealth, we see that there was sufficient evidence, if believed, to support the verdict of the court below. The issue boiled down to one of credibility. The court below simply resolved this issue against the defendant.

Judgment of sentence affirmed.


author: PER CURIAM:

text:
    473 A.2d 641
    Joseph E. KENNY, Jr., Administrator of the Estate of Joseph F. Kenny, Sr., Deceased, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1984.
    Filed March 23, 1984.

      Blake E. Dunbar, Jr., Norristown, for appellant.
    Marc Robert Steinberg, Souderton, for appellee.
    Before WICKERSHAM, OLSZEWSKI and ROBERTS, JJ.
   PER CURIAM:

Once again, this Court is presented with a question under that embattled statute, the Pennsylvania No-fault Motor Vehicle Act. The question before us today is whether the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Motor Vehicle Act, which does not include “estate” in its definition of a “survivor.”

The record discloses the following pertinent facts:

On December 7, 1979, the decedent of appellee, while a pedestrian, was struck by a vehicle insured by Nationwide Mutual Insurance Company, appellant. On December 23, 1979, he died solely and exclusively as a result of injuries sustained in the accident. At the time of the accident, appellee’s decedent was single and the father of four children, three of whom were emancipated and receiving no support from the decedent. The fourth child was attending college and was receiving support from the decedent prior to his death; however, the appellee was unable to establish proof of dependency.

On February 21, 1980, Nationwide paid to appellee the sum of Two Hundred Eighty-six ($286.00) Dollars, reflecting decedent’s lost wages from the date of the accident, December 7, 1979, until the date of death, December 23, 1979.

Appellee claimed entitlement to Fourteen Thousand Seven Hundred and Fourteen ($14,714.00) Dollars, representing the difference between the maximum work loss benefits payable under the No-fault Act and the amount already paid by Nationwide, together with interest and attorney’s fees.

On August 6, 1982, the Honorable Joseph Stanziani, of the Montgomery County Court of Common Pleas, entered a judgment in favor of the plaintiff for the above amount. It is from this judgment which this appeal has been filed. Appellant argues that since the language of the No-fault Act does not include “estate” in its definition of survivor, the appellee should be precluded from recovery.

The instant matter is controlled by Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super.Ct. 344, 447 A.2d 999 (1982), affirmed 504 Pa. 218, 470 A.2d 958 (1983), wherein the Supreme Court affirmed the en banc opinion of the Superior Court, which held that the estate of a deceased victim is entitled to the $15,000 in anticipated lost income, without having to establish dependency. Writing for the majority, Justice Larsen relied heavily on Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), which held that survivors of a person fatally injured in an automobile accident are entitled to both “survivor’s loss” and “work loss” benefits, with decedent’s contribution of income under “survivor’s loss” recovery to be excluded from the amount recoverable under “work loss.” Id., 491 Pa. at 460, 421 A.2d 636, In reaching his conclusion, Justice Larsen stated:

In Heffner, it was decided that the right to work loss benefits is not terminated by the demise of a victim. We held that “survivors” of deceased victims are entitled to payment of these benefits under the terms of the No-fault Act. It follows then that, if work loss benefits do not terminate upon the death of a deceased victim, absent a statutory bar those benefits are recoverable by the deceased victim’s estate. This is the natural, logical and compelling extension of our holding in Heffner. Upon a close and careful examination of the No-fault Act, we find no language which precludes the recovery of work loss benefits to the estate of a deceased victim.

Freeze v. Donegal Mutual Insurance Co., supra, 504 Pa. at 222, 470 A.2d at 960.

We reiterate the declared purpose of the No-fault Act, as set forth in its preamble as: “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all the individuals killed in motor vehicle accidents on Commonwealth highways . ..” In interpreting the No-fault Act, or any insurance legislation, we consistently apply the rule of liberal construction mandated by the Statutory Construction Act. This reasoning dictates that in close or doubtful cases, we must find coverage for the insured.

As the Supreme Court of Pennsylvania stated in Allstate v. Heffner:

Historically, the Courts of this Commonwealth have routinely followed this spirit and found coverage for the insured in close or doubtful cases. The tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage for the insured.

Id. 491 Pa. at 455, 421 A.2d at 633.

It is important to consider the wording of the Act itself in deciding the issue before us. With regard to basic loss benefits, of which work loss is but one type, the Act provides: “If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this Act.” Additionally, the No-fault Act goes on to specifically define those entitled to basic loss benefits as follows:

As used in this Act:

“Survivor” means:
(A) spouse; or
(B) child, parent, brother, sister or relative dependent upon the deceased for support.
“Victim” means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; deceased victim means a victim suffering death resulting from injury.

Appellant emphasizes that the above definition of “surviv- or” does not include the estate of the deceased. However, we conclude that a person who dies as a result of injuries suffered in a motor vehicle accident is clearly a victim under § 1009.103 of the No-fault Act. In addressing this exact issue in Freeze, supra, Justice Larsen stated that:

The fact that a “victim” dies as a result of his injuries and becomes, a “deceased victim,” makes him no less a “victim” entitled to benefits under the provisions of the Act. A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned... If it was intended that a victim’s right to benefits be extinguished at his death, the legislature could have and would have said so directly.

Freeze v. Donegal Mutual Insurance Co., 504 Pa. 224, 470 A.2d 961.

Therefore, we follow the mandate of Freeze, supra, and hold that the estate of a deceased victim is entitled to recover work loss benefits. Thus, the Order entered on August 6, 1982, in favor of appellee is affirmed.

Affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp.1980-81), hereinafter referred to as the Act or the No-fault Act. It should be noted that a No-fault reform bill, which recently passed Pennsylvania’s House of Representatives and Senate, has been signed by Governor Thornburgh.

      . 40 P.S. § 1009.202(b)(2) provides a $15,000 limit on work loss benefits.

      . In the recent case of McClaine v. Allstate, 317 Pa.Super.Ct. 154, 463 A.2d 1131 (1983), this Court held that the estate of a deceased victim could seek recovery of "work loss” benefits under the No-fault Motor Vehicle Insurance Act even though the deceased victim was a minor and a student. Id., 317 Pa.Superior Ct. at 154, 463 A.2d at 1131. See 40 P.S. § 1009.101 et seq. In reaching its decision, the McClaine Court relied heavily on Freeze v. Donegal Mut. Life Ins. Co., supra. Thus, this Court has clearly decided that the estate of a deceased victim may recover "work loss” benefits under the No-fault Act. This position has been affirmed in Reynolds v. Nationwide Mut. Ins. Co., 303 Pa.Super.Ct. 31, 33, 449 A.2d 62, 63 (1982), affirmed 504 Pa. 232, 470 A.2d 966 (1983); and Miller v. United States Fidelity and Guaranty Co., 304 Pa.Super.Ct. 43, 450 A.2d 91 (1982), affirmed 503 Pa. 127, 468 A.2d 1097 (1983).

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 102, 40 P.S. §§ 1009.102(a)(3).

      . Act of Dec. 6, 1972, P.L. 1339, No. 290 § 3, 1 Pa.C.S.A. § 1928.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. II, § 201, 40 P.S. §§ 1009.201(a).

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 103, 40 P.S. § 1009.103.


text:
    473 A.2d 643
    COMMONWEALTH of Pennsylvania, v. Jack Harvey KEESEY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1983.
    Filed March 23, 1984.

      Robin Cleland, New Castle, for appellant.
    J. Craig Cox, Assistant District Attorney, New Castle, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

This appeal arises from the denial of appellant’s motion for reconsideration and modification of sentence, and his motion to vacate sentence. Appellant alleges that the sentencing court erred in crediting time spent in confinement against a new sentence instead of his old sentence at No. 673 of 1978. The material facts are as follow:

Appellant received a suspended sentence on charges of forgery at Nos. 673 and 673A of 1978. As to No. 673, he was released on four years probation and ordered to pay the costs of prosecution and make restitution within four months of sentencing. Sometime thereafter, appellant failed to report to the probation department, failed to make payments as ordered and could not be located for a period of 20 months. During this time, he was charged with forgery and receiving stolen property at Nos. 276 and 276A of 1982, for acts which occurred on February 6, 1981. Three months later, he was returned to Lawrence County from Oregon. Approximately ten days after his return, appellant was charged with additional counts of forgery and receiving stolen property at Nos. 455 and 455A of 1982, for acts which also occurred on February 6, 1981.

The charges at Nos. 276 and 276A of 1982 were subsequently dismissed pursuant to Pa.R.Crim.P. 1100. Appellant thereafter proceeded to trial on Nos. 455 and 455A of 1982 and was found guilty as charged by the jury. Having violated his probation with, inter alia, this conduct and his failure to report and make payments as ordered, appellant’s probation was revoked and the original sentence of two to four years imprisonment was imposed. The eleven days appellant served as a condition of his probation were credited to the sentence imposed on Nos. 673 and 673A.

Our Supreme Court has held that

[I]f a defendant is being held in custody solely because of a detainer lodged by the Board [of Probation and Parole] and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence.

Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 147, 420 A.2d 381, 384 (1980), quoting, Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 403, 412 A.2d 568, 571 (1980).

The record herein evinces that upon appellant’s return to Lawrence County on June 15, 1982, a detainer was filed as a result of the charges pending against him at Nos. 276 and 276A of 1982, on which no bail was set and which charges were subsequently dismissed.

When no conviction results from the new charges, or if no sentence is imposed on a conviction of those new charges, the preceding period of detention must be applied to the original sentence. Gaito v. Pennsylvania Board of Probation and Parole, supra, 488 Pa. at 400 n. 1, 412 A.2d at 571 n. 1.

Between June 15th and June 24th, appellant was in prison solely on the charges at Nos. 276 and 276A of 1982 in conjunction with the detainer filed by the probation department. The subsequent dismissal of those new charges should have resulted in the crediting of the nine days served to his original sentence at No. 673 of 1978. Gaito v. Pennsylvania Board of Probation and Parole, Id. This finding is buttressed by the fact that no bail was set on these new charges, although the absence of this circumstance would not alter our determination that the sentencing court erred by not crediting the nine days between June 15th and June 24th to appellant’s original sentence at No. 673 of 1978.

Appellant’s incarceration from June 24, 1982, the date charges were filed at Nos. 455 and 455A of 1982, until sentence was imposed upon those charges presents a different situation, however. Although the detainer remained in effect until that latter date, bail was set at $5,000.00 and appellant was convicted and sentenced on the new charges. Appellant failed to secure bail, but argues herein that his failure to formally attempt to do so was premised upon the purported refusal of the district magistrate to accept bail.

During the hearing on appellant’s post-sentencing motions, the court determined that the record of the subject arraignment did not establish the magistrate’s purported refusal as fact. Our review of the entire record herein elicits no reason to disturb that determination of the post-sentencing court. As a result, the court properly credited time served from June 24th until sentence was imposed on the new charges at Nos. 455 and 455A of 1982 to that new sentence in light of appellant’s failure to post bail as set despite the presence of the detainer. Hines v. Pennsylvania Board of Probation and Parole, supra; Gaito v. Pennsylvania Board of Probation and Parole, supra; Rodrigues v. Pennsylvania Board of Probation and Parole, 49 Cmwlth.Ct. 355, 410 A.2d 1324 (1980). Compare, Mitchell v. Pennsylvania Board of Probation and Parole, 491 Pa. 291, 420 A.2d 1324 (1980).

Order denying reconsideration and modification of sentence is reversed; sentence is vacated; and, the matter is remanded for resentencing consistent with this opinion. Jurisdiction relinquished.

      . As one of the conditions of his probation, appellant was ordered to serve thirty days in the Lawrence County jail on weekends or in such a manner so as not to interfere with his employment under the Work Release Program.