text:
    467 A.2d 841
    COMMONWEALTH of Pennsylvania v. Robert Lloyd MIDDLETON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1983.
    Filed Oct. 28, 1983.
    Petition for Allowance of Appeal Denied Feb. 23, 1984.

      Nancy S. Schultz, Franklin, for appellant.
    William G. Martin, Franklin, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Venango County entered against the appellant, Robert Lloyd Middleton. Appellant was charged with criminal homicide in connection with the shooting death of Linda Jane Miller. A consolidated jury trial was held for the appellant and a co-defendant, James Hartzell, in which the appellant was found guilty of second degree murder. His motions for a new trial and in arrest of judgment were denied by the trial court and he was sentenced to life imprisonment.

The appellant raises several claims of error herein. First, he attacks the constitutionality of the felony-murder statute on two bases: (1) he argues that the imposition of a sentence of life imprisonment on an accomplice to a felony-murder violates the Eighth Amendment prohibition against cruel and unusual punishment; and (2) he argues that the Commonwealth’s ability to establish the requisite state of mind by implication violates due process of law. Second, he contends that the trial court erred in denying his demurrer to the charge of felony-murder. Third, he contends that the trial court erred in admitting evidence of other crimes committed by the appellant and his co-defendant. Finally, he contends that the trial court erred in joining his trial with that of his co-defendant, James Hartzell.

The facts relevant to this appeal are as follows:

On the evening of January 17, 1981, the appellant, Jerry Rice and John Perry drove to the home of James Edward Hartzell to try to sell Hartzell a set of stereo speakers and a .44 magnum handgun which Rice and the appellant had obtained in a burglary earlier. The handgun was loaded and kept in the glove compartment of Rice’s automobile. While at the appellant’s house they each had a few whiskey and orange juice cocktails and discussed driving into Oil City to “rob drunks”. They also discussed going to Rouse-ville to rob one Carrie Schilk, a cousin of Hartzell. Rice, Hartzell, Perry and the appellant left the Hartzells’ home at approximately 10:30 to 11:00 P.M. They were all in Rice’s automobile. Perry was dropped off at his house in Pin Oak Village and the others proceeded to Oil City.

Once there, Rice parked the vehicle. The three men went to a bar called “Scrubby’s”. Hartzell and the appellant stayed and had a drink. Rice left because he was underage and the barmaid refused to serve him. Rice went out to the street and waited for a victim. Rice soon became cold and returned to his automobile where he was met by Hartzell and the appellant. It was approximately 1:00 A.M.

It was at this time the criminal activity, later described by some as a “crime spree”, began. Rice saw a man who was carrying several cartons leaving a nearby bar. The man got into his car. After some discussion among the felons, Rice exited the vehicle with the gun and walked over to the car and knocked on the window. The man, one William Gesin, opened the window whereupon Rice produced the pistol and demanded Gesin’s wallet. Rice took the proffered wallet and told Gesin to drive straight over the hill. He then returned to the car where the proceeds of the crime were divided.

The three men then decided to leave and re-enter Oil City as an evasive maneuver to escape detection for the Gesin robbery. Rice was driving, the appellant was in the front passenger seat and Hartzell was sitting behind the appellant in the rear seat. The gun was on an arm rest between Rice and the appellant. They drove a few miles out of town and then returned to Oil City, with their ultimate destination being Rouseville. They stopped on the roadside across from the Oasis Bar so that Rice and Hartzell could urinate.

At that unfortunate moment, Linda Jane Miller walked out of the Oasis Bar and toward her pick-up truck in the parking lot. After some discussion among the three men, the appellant retrieved the handgun from the car and walked across the street for the purpose of robbing Linda Miller. Hartzell said to the appellant words to the effect “if she was ugly to blow her away.” The appellant followed Miller to her truck; however, she reached the truck and drove away before he could consummate the crime.

The appellant returned to the car and, again after some discussion, the three men decided to follow her to her home and rob her there. They did, in fact, follow her toward Rouseville. Rice wanted to pass Miller because the truck was weaving back and forth across the road. Hartzell said to Rice “this is a good road for it.” He also instructed Rice as to the exact moment to pass.

As Rice passed the truck he heard a shot from the back seat. Hartzell said that he thought he got her. They continued up the road for about three-quarters of a mile, turned around and returned to where Miller’s truck had crashed into a ditch. The appellant got out of the car and talked to another motorist who had stopped to investigate. The appellant said he would call the police. Miller was not visible in the truck, probably because she had slumped to the floor. The men then left and proceeded to Rouseville.

Hartzell gave directions to Rice leading to the home of Carrie Schilk, Hartzell’s cousin. Rice’s testimony indicates that during the entire time subsequent to the shooting of Miller, the gun was in Hartzell’s possession. At Schilk’s house, Rice and the appellant went to the door while Hart-zell waited around the corner of the house. Schilk opened the door, and the appellant and Rice grabbed her and turned her around. Hartzell entered and hit her on the head with the butt of the handgun. The force of the blow shattered the pistol grips. They proceeded to rob Schilk of money and personal items, and then left. The appellant also took Schilk’s pick-up truck.

Subsequent to the Schilk robbery, the appellant abandoned the truck and the three men went to a restaurant called the Villa Italia. At trial the night manager, Charles Latchaw, identified all three men as being present at the restaurant at approximately 4:00 A.M. After eating, the men left, split up the stolen items and then returned to their respective homes.

Later that morning, Rice surrendered to the police and gave them a statement implicating Hartzell and the appellant. He also directed the police to where the pistol and wallet had been discarded.

Hartzell raised an alibi defense. He testified that he had been with Rice and the appellant for part of the night but that they dropped him off at home at approximately 1:30 A.M. Hartzell’s wife testified that Hartzell was home at 1:30 A.M. The jury discredited this alibi testimony.

The appellant offered no testimony in his own defense.

Turning to the appellant’s arguments, we begin with an examination of his attack on the constitutionality of the felony-murder statute. 18 Pa.C.S.A. § 2502(b). The appellant’s assault is two-pronged. First, he asserts that his conviction under the felony-murder statute violates due process of law guaranteed by the United States Constitution, and the Pennsylvania Constitution. The thrust of the appellant’s argument is that he has been deprived of due process by virtue of the Commonwealth’s ability to establish the prerequisite state of mind (malice) by implication; i.e., that the malice is established by the intent to commit the initial felony.

Our examination of the record reveals that the appellant failed to include this issue in his post-verdict motions as required by Pa.R.Crim.P. 1123(a). Consequently, this issue is waived for purposes of appellate review. Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Appellant asserts in a footnote that the above issue was preserved within a general claim of the insufficiency of the evidence included in his post-verdict motions. We reject this contention.

The second prong of the appellant’s attack on the felony-murder statute is an assertion that the imposition of a mandatory life sentence on one convicted of felony-murder constitutes cruel and unusual punishment in derogation of the Eighth and Fourteenth Amendments to the United States Constitution.

The appellant argues that the mandatory life sentence required by 18 Pa.C.S.A. § 1102(b) is unconstitutional because it does not allow the sentencing judge to consider any mitigating factors which might alleviate the sentence; factors such as the defendant’s level of participation in the killing and his intent. The appellant seeks to buttress this argument by drawing an analogy to the recent decision of the United States Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and to the Sentencing Code, 42 Pa.C.S.A. § 9701, et seq.; both of which require consideration of mitigating and aggravating factors prior to the imposition of the death penalty.

The appellant’s argument was specifically addressed, and rejected, in Commonwealth v. Cornish, supra 471 Pa. at 261, 370 A.2d at 293, in which the court stated: “It can hardly be said that the circumstances wherein a murder is committed during the commission of a felony vary to such an extent that the legislative determination to mandate one penalty is unreasonable.”

Furthermore, the selection of the penalty of life imprisonment, being a legislative determination, carries a strong presumption of validity, and of constitutionality. Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981); School District of Deer Lakes v. Kane, 463 Pa. 554, 345 A.2d 658 (1975). “Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. * * * a heavy burden rests on those who would attack the judgment of the representatives of the people.” Commonwealth v. Zettlemoyer, 500 Pa. 16, 59, 454 A.2d 937, 960 (1982) (quoting from Commonwealth v. Story, 497 Pa. 273 at 297-98, 440 A.2d 488 at 500-01 (1982) (Larsen, J. dissenting)); Commonwealth v. Dessus, supra; Commonwealth v. Bryant, supra.

The appellant’s argument does not meet this heavy burden. Both the analogy to Enmund, and the analogy to the Sentencing Code 42 Pa.C.S.A. § 9711 suffer from the same defect. Both are concerned with the constitutional limitations on the imposition of the death penalty. The appellant would have us overlook the inherent quality of the death penalty which distinguishes it from all other forms of punishment. As stated by the Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), in holding that a sentencing court must consider the character of the defendant and the circumstances of the offense before the death penalty may be imposed:

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Id. at 304-305, 96 S.Ct. at 2991-92, 49 L.Ed.2d at 961. See also Solem v. Helm, 463 U.S. 277, —, 103 S.Ct. 3001, 3008, 77 L.Ed.2d 637 (1983); Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346, 388 (1972) (Stewart, J. concurring); Commonwealth v. McKenna, supra 476 Pa. at 428, 383 A.2d at 181; Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977) cert. denied Pennsylvania v. Moody, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978). “As a result [the Court’s] decisions in capital cases are of limited assistance in deciding the constitutionality of the punishment’ in a noncapital case.” Solem v. Helm, supra 463 U.S. at —, 103 S.Ct. at 3010 quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980).

Instead we look to Solem, in which the Court propounded an analysis by which the courts are to determine whether a sentence is unconstitutionally disproportionate. The analysis relies on a comparison of the sentence to three objective criteria. These are “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. 463 U.S. at —, 103 S.Ct. at 3010. Application of these criteria herein favors the imposition of the sentence of life imprisonment.

The offense of felony-murder is undoubtedly one of the gravest and most serious which can be committed. The taking of a life during the commission of an enumerated felony demonstrates a disregard for the property, safety, sanctity, integrity, and especially, the life of the victim. It is a crime of archviolence. Clearly, such an offense merits a severe penalty.

In comparing the sentence imposed on a felony-murder with those imposed on other criminals in this Commonwealth, we note that 18 P.S. § 1102(a) provides that a person convicted of murder in the first degree may be sentenced to either life imprisonment or death, subject to the provisions of 42 Pa.C.S.A. § 9701, et seq. This is the only offense for which the death penalty can be imposed, and the only other offense besides second degree murder for which life imprisonment can be imposed. Felonies of the first degree (e.g. third degree murder, kidnapping, rape, involuntary deviate sexual intercourse, arson, burglary, robbery) are punishable by a term of imprisonment not to exceed 20 years. 18 Pa.C.S.A. § 1103(1). Felonies of the second degree (e.g. voluntary manslaughter, aggravated assault, statutory rape) are punishable by a term of imprisonment not to exceed 10 years. 18 Pa.C.S.A. § 1103(2). Felonies of the third degree are punishable by a term of imprisonment not to exceed 7 years. 18 Pa.C.S.A. § 1103(3). It is clear that the legislature contemplated that the seriousness of second degree murder—that is, murder in the course of a first degree felony—should be matched by an equally severe penalty.

Finally, we compare the sentences imposed for commission of the same crime in other jurisdiction. Fortunately this lengthy compilation has been performed for us by the Supreme Court in Enmund, supra, 458 U.S. at 795, 102 S.Ct. at 3376. It is shown therein that a sentence of life imprisonment for felony-murder comports with the range of sentences found proper in other jurisdictions.

We conclude that the consideration of the three criteria set forth in Solem does not derogate from the propriety of a sentence of life imprisonment for the offense of second degree murder.

The appellant next argues that the trial court erred in denying his demurrer to the charge of felony-murder. “The test to be applied in ruling on a demurrer is whether the evidence and all reasonable inferences therefrom are sufficient to support a finding by the jury that the defendant was guilty beyond a reasonable doubt.” Commonwealth v. Duncan, 473 Pa. 62, 66, 373 A.2d 1051, 1053 (1977); Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976).

The appellant argues that the killing was not connected to the attempted robbery of Linda Jane Miller, and therefore, the demurrer should have been granted because the slaying was not in furtherance of the underlying felony. In Commonwealth v. Waters, 491 Pa. 85, 95, 418 A.2d 312, 317 (1980), the court discussed the elements to be proved in order to establish accomplice liability for felony murder, saying that:

... [t]he responsibility of persons, other than the slayer, for a homicide committed in the perpetration of a felony require[s] proof of a conspiratorial design by the slayer and the others to commit the underlying felony and of an act by the slayer causing death which was in furtherance of the felony. See e.g. Commonwealth v. Allen [475 Pa. 165, 379 A.2d 1335], supra; Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973); Commonwealth v. Williams, 443 Pa. 85, 277 A.2d 781 (1971); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). Cf. Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971). (footnote omitted) (emphasis in original).

Moreover, it was stated by the court in Commonwealth v. Legg, supra 491 Pa. at 82, 417 A.2d at 1154:

When an actor engages in one of the statutorily enumerated felonies and a killing occurs, the law, via the felony-murder rule, allows the finder of fact to infer the killing was malicious from the fact the actor was engaged in a felony of such a dangerous nature to human life because the actor, as held to the standard of a reasonable man, knew or should have known that death might result from the felony, (footnote omitted)

After applying these standards, we conclude that the trial court properly denied the appellant’s demurrer because the evidence was sufficient to establish the appellant’s guilt beyond a reasonable doubt.

The evidence shows that the appellant, and his co-felons on the night in question, embarked on a plan to “rob drunks.” One robbery, that of William Gesin, had already been consummated; another, that of Linda Jane Miller, the victim, was attempted by the appellant. After Miller drove away in her truck, the three men agreed to follow her for the purpose of robbing her. Hartzell said to appellant, “If she’s ugly, blow her away.” Miller was shot when the vehicle in which the felons were driving passed Miller’s vehicle and Hartzell fired one shot from the rear seat.

There can be no doubt that there was a conspiratorial design to commit the underlying felony—the robbery of Miller—of which the appellant was a part. The appellant was the actor in the initial attempt; he carried the gun used in that attempt; and after the attempt was temporarily thwarted, he engaged in the discussion of continuing the robbery and accompanied the others for that purpose. The act by Hartzell which caused the death of Miller was in furtherance of the felony. The felons were following her for the purpose of robbing her—with force if necessary. One of them took matters into his own hands to force prematurely the intended result. The question of whether this act was in “furtherance of the conspiracy was a question of proof for the jury to resolve.” Commonwealth v. McNeal, 456 Pa. 394, 396-97, 319 A.2d 669, 671 (1974). It does not matter whether the appellant anticipated that the victim would be killed in furtherance of the conspiracy. Id., 456 Pa. at 397, 319 A.2d at 672. The appellant knew or should have known that the possibility of death accompanied this dangerous undertaking. Commonwealth v. Legg, supra; Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975) cert. denied Pennsylvania v. Martin, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Commonwealth v. Yuknavich, supra. Thus, this claim must also fail.

Appellant’s third claim is that the trial court erred in allowing the admission of evidence of other crimes committed by the appellant and his co-felons. Specifically, the appellant would have us find error in the admission of testimony regarding the robbery of William Gesin; the prior attempted robbery of Linda Jane Miller; the robbery of Carrie Schilk; and the theft of a truck from the Schilk residence. We decline to do so.

Our scope of review in this matter is whether the trial court abused its discretion in allowing the admission of the other crimes evidence. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977).

The general rule, of course, prohibits testimony regarding other criminal acts. However, the exceptions under which such testimony is admissible are well established. Included are those cases where the evidence is introduced to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) the identity of the person charged with the commission of the crime on trial. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981).

Additionally, the probative value of the evidence must exceed its prejudicial impact. Commonwealth v. Ulatoski, supra; Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982); Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981); Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978).

After analyzing the appellant’s claim under the above standard we conclude the trial court did not abuse its discretion in admitting the contested testimony.

The Commonwealth’s testimony showed that the three actors herein formulated a plan to “rob drunks” while they were at the Hartzell’s house. The armed robbery of William Gesin was but one manifestation of this preconceived plan. The attempted robbery of Linda Jane Miller was another. In both crimes, a similar method was utilized. The men were together in or around Rice’s car. When a victim was spotted, one member of the group was selected to carry out the robbery. The same weapon was used in each criminal episode. The crimes occurred within one hour of each other, and took place within a few miles of each other. In both crimes there was a possibility, because of the use of a deadly weapon, of the escalation into violence, including serious injury or death. The fact that only one of the crimes resulted in such an escalation is not a sufficient distinction between them so as to preclude the application of the common scheme exception.

Furthermore, we refuse to accept the purported distinction between the “attempted robbery” of Miller and the subsequent “attempt” which resulted in her murder. We are of the view that this scenario constituted a single criminal episode; a single attempt encompassing a temporary setback in its perpetration. Therefore there was no error in the admission of testimony regarding the criminal act since it was part and parcel of the underlying felony upon which the charge of second degree murder was premised. Thus, it was also admissible to demonstrate the appellant’s intent to engage in the underlying felony. Finally, the probative value of this testimony clearly outweighs any prejudicial impact it might have.

The testimony concerning the robbery of Carrie Schilk also shows that it arose out of the plan formulated by the men while at Hartzell’s house. Again the crime took place close in time and space to the slaying of Miller; and again the same weapon was used in both crimes. While these factors may not be sufficiently identical to meet the threshold for the common scheme, plan or design exception, we conclude that the testimony regarding the Schilk robbery (as well as the Gesin robbery) is admissible under the intent or state of mind exception. Because the testimony is relevant to events close in time and place to the shooting of Linda Jane Miller, it tends to demonstrate the appellant’s criminal intent with regard to the shooting. Moreover, the testimony shows the appellant’s continued association with Hartzell and Rice and participation in further criminal acts that evening. As such it tends to rebut the appellant’s assertion that he lacked the necessary state of mind to establish second degree murder under 18 Pa.C.S.A. § 2502. Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981). Finally, we agree with the trial court that the theft of Schilk’s pick-up truck was part of the robbery, and thus, admissible under the same analysis.

Appellant’s final contention is that the trial court erred in granting the Commonwealth’s motion to consolidate the trials of the appellant and co-defendant, James Hartzell. Specifically, he contends that he was prejudiced by the introduction of evidence admissible against Hartzell, but not against himself; that he was prejudiced by the questionable credibility of Hartzell’s alibi testimony; and that he was prejudiced by the testimony of two witnesses, Paul Eiseman and A1 Dempsey, who were called for the purpose of impeaching the testimony of Jerry Rice.

In Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980), the supreme court held that:

The decision whether to sever cases against co-defendants is one within the sound discretion of the trial court. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Pa.R.Crim.P. 219. Such a decision will be reviewed only where there has been a manifest abuse of discretion. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975) (opinion in support of affirmance); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295, (1965) appeal after remand 424 Pa. 380, 227 A.2d 849 (1967). And the critical factor in one analysis is the prejudice which inures to the accused as a result of the trial court’s determination. Commonwealth v. Peterson, 453 Pa. 187, 194, 307 A.2d 264, 267 (1973); Commonwealth v. Lasch, supra, 464 Pa. at 584-85, 347 A.2d at 690.

Id. 489 Pa. at 49, 413 A.2d at 1007; Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983).

We find no abuse of discretion in the trial court’s decision. First, we see no prejudice to the appellant in the admission of the other crimes testimony because, as we have already held, the evidence was admissible against the appellant as well as against Hartzell. Second, we do not see how the lack of credibility of Hartzell’s alibi witness operates to the detriment of the appellant. Finally, we conclude that the appellant was not prejudiced by the testimony of Eiseman and Dempsey. Their testimony was introduced solely to impeach the testimony of Jerry Rice. The trial judge carefully issued a cautionary instruction to the jury on that point. Furthermore, the trial judge obviated the potential prejudice of the testimony—a finding of guilt of murder in the first degree—by granting the appellant’s demurrer to this charge. Thus we find no prejudice and no error on the part of the trial court.

Accordingly the judgment of sentence is affirmed.

       Co-defendant, James Hartzell, was found to be guilty of first-degree murder.

      . United States Constitution, Amendments IV, XIV.

      . Pennsylvania Constitution, Article I, Section 9.

      . Even if we were to decide this issue on its merits, past precedents would mandate a result adverse to the appellant. See Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290 (1972); Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970). In each of these cases, the supreme court upheld the constitutional validity of the felony-murder statute. Cf. Commonwealth v. Geiger, 475 Pa. 249, 380 A.2d 338 (1977).

      . Appellant cites Commonwealth v. Legg, 491 Pa. 78, 81 n. 1, 417 A.2d 1152, 1154 n. 1 (1980), in support of his claim that the issue is preserved. In Legg, the supreme court reviewed the appellant’s claim that the evidence was insufficient to sustain a conviction of second degree murder, and a claim that the jury instructions were prejudicial. The court reversed on the latter issue, noting that while both issues were raised separately in post-verdict motions, they were consolidated in the appellate argument; yet the court found the issue presented in a sufficiently clear manner so as to enable review. In the present case, no post-verdict motion was filed on this issue and therefore it is waived.

      . Unlike the appellant’s due process argument, this issue has not been waived because it is essentially an attack on the legality of the sentence. This issue normally must be addressed in the first instance to the trial court by means of a motion for modification of sentence. Pa.R.Crim.P. 1400. Commonwealth v. McKenna, 476 Pa. 428, 433, 383 A.2d 1174, 1179-80 (1978); Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981). However, the trial judge must inform the defendant of his opportunity to file a motion challenging the propriety of the sentence. Pa.R.Crim.P. 1405(c)(2). Our review of the sentencing transcript reveals that the trial judge failed to inform the appellant of that right. Consequently, this issue has not been waived. Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981); Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981); Commonwealth v. Walton, 289 Pa.Super. 411, 433 A.2d 517 (1981).

        . See also Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978); Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976). Cf. Commonwealth v. Legg, supra.


source: Caselaw Access Project

author: HOFFMAN, Judge: POPOVICH, Judge,

license: Public Domain

text:
    467 A.2d 850
    COMMONWEALTH of Pennsylvania v. Melvin A. SHANNON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1983.
    Filed Oct. 28, 1983.

      James L. Jubelirer, State College, for appellant.
    Karen L. Steele, Assistant District Attorney, Hollidays-burg, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends the lower court erred in denying his suppression motion and when charging the jury that he was lawfully arrested as an element of aggravated assault. These contentions lack merit. Accordingly, we affirm.

On November 22, 1978, in response to a radio report of a fight in progress, a police officer drove into appellant’s driveway. Through the kitchen window, the officer heard and saw two men fighting. When he entered the open back door, both men grabbed him. Appellant, who had been lying on a couch in the next room, charged the group and pushed all three to the floor. After another officer arrived, appellant announced he was going to get his gun. The officers went outside, and appellant emerged pointing his shotgun at one officer then the other. Appellant fired the shotgun at one of the officers. The police returned fire, wounding appellant. After denial of his suppression motion, appellant was found guilty by a jury of aggravated assault and related offenses, and sentenced to a total of five to ten years imprisonment followed by two years probation. This appeal followed.

Appellant contends the lower court erred in denying his suppression motion. Specifically, he argues that the radio report of a fight in progress did not justify the officer’s entering appellant’s driveway, and that all subsequent evidence was fruit of that illegal entry. This contention lacks merit. Although a person’s reasonable expectation of privacy may include the curtilage of his home, the police may approach that area to investigate a report of ongoing crime. Commonwealth v. Daniels, 280 Pa.Superior Ct. 278, 421 A.2d 721 (1980). When police obtain a view of a dwelling’s interior, a trespass to the surrounding property is only one factor in determining the reasonableness of the search. Commonwealth v. Soychuk, 221 Pa.Superior Ct. 458, 289 A.2d 119 (1972). For instance, the occupants’ failure to close window shades largely negates their expectation of privacy. Commonwealth v. Johnson, 247 Pa.Superior Ct. 208, 372 A.2d 11 (1977) (police stood on patio). Here, the officers’ entry into the driveway was a justifiable response to the report of an ongoing altercation. Immediately upon arrival, they heard noise and saw the combatants through the open window, thus justifying their further actions. Consequently, the lower court properly denied appellant’s suppression motion.

Appellant contends next that the lower court erred in instructing the jury that, when appellant fired the shotgun, the police were conducting a lawful arrest. This contention also lacks merit. “A person is guilty of aggravated assault if he ... attempts to cause ... bodily injury to a police officer making or attempting to make a lawful arrest.” 18 Pa.C.S.A. § 2702(a)(3). See Commonwealth v. Stortecky, 238 Pa.Superior Ct. 117, 352 A.2d 491 (1976) (court may determine lawfulness of arrest) (HOFFMAN, J. dissented). Appellant argues that because the initial police entry into his driveway was allegedly illegal, their attempts to arrest him after he tackled one officer and pointed a shotgun at both, were also unlawful. We have already determined that the initial police entry was lawful. Moreover, appellant’s subsequent violent conduct provided an independent basis for a lawful arrest. We therefore affirm the lower court on these grounds.

Finally, although appellant has failed to challenge the legality of his sentence, we may, sua sponte, address this issue. See Commonwealth v. Martin, 316 Pa.Superior Ct. 190, 462 A.2d 859 (1983); Commonwealth ex rel. Curry v. Myers, 195 Pa.Superior Ct. 480, 171 A.2d 792 (1961). Appellant was sentenced to two-and-one-half-to-five years imprisonment and fined $250 for crimes committed with a firearm, an identical, consecutive sentence for the aggravated assault charge, and two years probation on the remaining charges to run consecutive to his imprisonment. 18 Pa.C.S.A. § 6103, Crimes committed with firearms, provides:

If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he may, in addition to the punishment provided for the crime, be punished also as provided by this subchapter.

In Commonwealth v. Turner, 265 Pa.Superior Ct. 486, 490, 402 A.2d 542, 544 (1979), our Court relied on Commonwealth ex rel. Curry v. Myers, supra, to hold that § 6103 “merely defines that a firearm violation will not merge with a crime of violence,” and “was not intended to create a separately punishable crime.” Accordingly, because appellant’s two-and-one-half-to-five year sentence for crimes committed with a firearm cannot stand, we must remand to the lower court for resentencing.

Affirmed in part and Remanded in part for proceedings consistent with this opinion. Jurisdiction is not retained.

POPOVICH, J. filed a concurring statement.

POPOVICH, Judge,

concurring:

The record in this case reveals no sentencing transcript or pre-sentence report which might explain the apparently harsh sentence received by appellant. On remand, the sentencing court should state, on the record, its reasons for sentencing and should consider the pre-sentence investigation which was ordered on July 1, 1981, but was not made a part of the record. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).


author: CAVANAUGH, Judge:

text:
    467 A.2d 853
    ZIEGLER LUMBER AND SUPPLY COMPANY, Appellant, v. GOLDEN TRIANGLE DEVELOPMENT COMPANY, INC., Trading as 2001. ZIEGLER LUMBER AND SUPPLY COMPANY v. GOLDEN TRIANGLE DEVELOPMENT COMPANY, INC., T/A 2001, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed Nov. 4, 1983.

      Louis Vaira, Pittsburgh, for appellant (at No. 387) and for appellee (at No. 417).
    Donald J. Barley, Pittsburgh, for appellant (at No. 417) and for appellee (at No. 387).
    Paul F. Laughlin, Pittsburgh, for Landlords, participating parties.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the trial court in response to petitions to stay execution on a judgment rendered in a mechanics’ lien proceeding. The history of these proceedings is extensive and need not be set forth in detail here. Briefly, for our purposes, Ziegler Lumber and Supply Company holds a judgment in a mechanics’ lien action against Golden Triangle Development Company, Inc. which has a leasehold interest in the property in question. The property is owned by Joseph and Katherine Talarico. The Sheriff was directed to execute upon the judgment including the leasehold estate, together with all the fixtures, machinery and other similar property located in the building. Golden Triangle petitioned the court to stay the execution, set aside the writ and strike the judgment.

The court set aside execution as to items of tangible personal property, but permitted execution to proceed as to the leasehold interest. As part of his disposition, Judge McGowan permitted Barbara Martinelli, who claims a senior security interest in certain of the property subject to execution, to intervene although he also denied her request for relief. The court also considered contentions by the landlord, Joseph Talarico and Katherine Talarico, but dismissed their petition on the basis that the landlord was not a party in interest on the record. Nevertheless, leave was granted to the landlords to formally intervene. The order of court was entered on March 11, 1981. Thereafter, the Talaricos petitioned to intervene and on March 31, 1981, the petition was granted by order of Judge Papadakos. There is no record that Martinelli moved to intervene. Cross appeals from the order of Judge McGowan have been filed by Zeigler Lumber and Supply Company and Golden Triangle Development Company, Inc. Intervenor, Talarico, has filed a motion to quash the appeal which was deferred by order of this court until the time of argument on the appeal.

Both Zeigler and Talarico rely upon Cherry v. Empire Mutual Insurance Co., 417 Pa. 7, 208 A.2d 470 (1965) in support of their position on the motion to quash.

It is true that in Cherry the court in discussing the finality necessary to support an appeal said:

[i]f the court had intended to make a final disposition of the matter it either would have allowed immediate prosecution of the attachment execution or set aside the writ of execution pursuant to 3121(d). 208 A.2d 472 (emphasis in original) (footnote omitted).

It is also true that Judge McGowan’s order had an appealable characteristic in that it did grant Golden Triangle’s petition “to set aside execution as to all items of tangible personal property” on the described premises. However, the order went further and denied the petition of Golden Triangle to set aside execution regarding the leasehold interest. Golden Triangle on appeal argues that there is no leasehold interest upon which a lien could attach and for that reason, inter alia, the court erred in not striking the judgment.

This case has had a long and tortuous history. This, in fact, is the third time that it has been in this court. The chosen course in this matter has been that the ultimate efficacy of the rival contentions must be forged from the application of every available implement of legal hardware. On appeal counsel have presented critical issues including questions of the constitutional limitations of the Mechanics’ Lien Law of 1963, Act of August 24,1963, P.L. 1175, 49 P.S. § 1101.

Despite this long history and allied proceedings in the federal courts, there has as yet been no precise determination as to the specific property to which the mechanics’ lien attaches. Indeed the trial court has also permitted an interested party, the Talaricos, to intervene before making a final determination of the issues before it. The Talaricos, now parties to the case, attack the constitutionality of the Mechanics’ Lien Law of 1963 as applied to this case. Because of the appeals, the issues raised by the intervenor were never reached. Obviously, the disposition of the inter-venor’s claims could affect the interests of all parties to this litigation, and to attempt to resolve an issue on appeal with other issues still to be presented to the trial court would promote piecemeal determination of this already protracted litigation. The rule prohibiting interlocutory appeals is aimed at preventing this evil. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). To the extent that this appeal is from the lower court granting intervention it is also interlocutory. Kovacs v. Redevelopment Authority of Philadelphia, 16 Pa.Commw. 410, 328 A.2d 545 (1974).

Appeal quashed.


author: WICKERSHAM, Judge:

text:
    467 A.2d 855
    COMMONWEALTH of Pennsylvania v. John W. BOYD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Nov. 4, 1983.

      Neil E. Jokelson, Philadelphia, for appellant.
    Michele Goldfarb, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and VAN der VOORT, JJ.
   WICKERSHAM, Judge:

Early in the morning of June 30, 1977, John W. Boyd, Jr., an off-duty officer of the Philadelphia Police Department, entered a bar in the city of Philadelphia. There was an altercation between Boyd and another patron of the bar; Boyd shot and wounded the person with whom he had been arguing.

After a jury trial John W. Boyd, Jr. was convicted of recklessly endangering another person and aggravated assault. Post-verdict motions were heard and denied by the Honorable William M. Marutani; the judge sentenced Boyd to five years probation on August 21, 1979. A direct appeal to this court, 298 Pa.Super. 615, 443 A.2d 401, followed and the judgment of sentence was affirmed in a memorandum opinion filed March 26, 1982.

The Pennsylvania Supreme Court granted Boyd’s petition for allowance of appeal. On April 4, 1983 the supreme court, 500 Pa. 370, 457 A.2d 858, vacated our order and directed us to consider Boyd’s case in light of its decision in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982). Accordingly, we have re-examined Boyd’s case with guidance provided by our supreme court.

In Sorrell, supra, appellant wished to waive his right to trial by jury. The Commonwealth asserted an absolute right to jury trial pursuant to 42 Pa.C.S. § 5104(c) and, therefore, opposed Sorrell’s request. After sentencing, Sor-rell appealed to this court and argued that 42 Pa.C.S. § 5104(c) was unconstitutional. The constitutional question was certified to the supreme court.

The supreme court held that Section 5104(c) is unconstitutional. The court reasoned that Pa.R.Crim.P. 1101, promulgated under its constitutional authority to supervise the courts, made it clear that the decision to grant or deny a defense request for a non-jury trial must be made only by the trial court. Therefore, the statute giving the Commonwealth the same right to jury trial as the accused precluded a trial court from exercising the discretion conferred by Pa.R.Crim.P. 1101 in assessing whether a non-jury trial should be allowed. The court concluded that “42 Pa.C.S. § 5104(c), which contravenes Pa.R.Crim.P. 1101, is an unconstitutional infringement upon the procedural rule-making authority of this Court conferred by Pa. Const, art. V, § 10.” 500 Pa. at 362, 456 A.2d at 1329.

In this case, Boyd requested a non-jury trial. As Boyd’s counsel explained to Judge Marutani, Boyd believed that a jury would be prejudiced against him because the general topic of police brutality was currently of public interest in Philadelphia. The Commonwealth wanted the case tried to a jury. Judge Marutani, following the then applicable statute, stated “I’m going to have to grant the Commonwealth’s request for a jury trial.” N.T. 4/17/78 at 8. Obviously, Judge Marutani did not feel that he could exercise any discretion in the matter but rather was compelled to honor the Commonwealth’s wish for a jury trial.

Yet Sorrell, supra, and Rule 1101 do not give a defendant an absolute right to a non-jury trial. As was said in Commonwealth v. Giaccio, 311 Pa.Super. 259, 261, 457 A.2d 875, 876-77 (1983):

Instead, in deciding whether to allow a defendant to waive his right to a jury trial, the trial court must “tak[e] into account all relevant considerations.” Commonwealth v. Sorrell, supra, 500 Pa. 355, at 360, 456 A.2d 1326, 1328.
It is not clear what procedure the trial court should follow, or which considerations it should weigh, in deciding whether to approve a waiver. It is clear that under Rule 1101 the defendant must have “the consent of his attorney, if any,” and also the “approval” of “a judge of the court in which the case is pending.” In addition, Sorrell suggests that while the prosecutor’s view as to whether the defendant should be permitted to waive his right to a jury trial is “a relevant consideration,”, 500 Pa. at 360, 456 A.2d at 1328, “Rule 1101 does not deem any one fact or circumstances controlling,” id.
It is possible to read the rule as providing that if the judge is satisfied that the defendant’s waiver of a. jury trial is “knowing and intelligent” ... then approval should be given. But we are not persuaded that this is the way to read the rule. Instead, we believe that under the rule, even if satisfied that the defendant’s waiver is “knowing and intelligent,” still the judge has discretion to decide whether to approve the waiver.
In Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979), the lower court refused to accept the defendant’s waiver of a jury trial. The Supreme Court affirmed.

In both Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), and Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976), this court expressly held that under Rule 1101 the lower court has discretion to withhold approval of a defendant’s waiver of jury trial. In each case we upheld the refusal to give approval, saying that the defendant was “judge-shopping.” In Garrison we said:

It is well established that there is no constitutional prohibition to a court’s denial in appropriate circumstances, of a defendant’s request to be tried by a judge sitting without a jury____
In the instant circumstances, we find that the lower court committed no abuse of discretion in denying appellant’s waiver request since it was apparent that the appellant’s only purpose for attempting such waiver was to maneuver for a judge he thought might be more lenient or for other reasons more desirable. The lower court must examine the waiver of jury trial carefully since it constitutes a relinquishment of a significant and fundamental right____ The defendant must demonstrate a knowing, intelligent and understanding waiver before the trial court can agree to permit trial without jury____ In the instant case appellant’s expressed reasons for requesting jury trial, and total conduct suggests less than a knowing and intelligent basis for the relinquishment of an important constitutional right. Moreover such attempts to “shop” for a more desirable judge, as are exhibited in the record of this case, are not to be condoned. 242 Pa.Super. at 515, 364 A.2d at 390-91.
We acknowledge that these decisions don’t go very far in defining the boundaries of the lower court’s discretion when it is asked to approve a defendant’s waiver of a jury trial. But in the absence of any provision in Rule 1101 defining these boundaries, we must proceed case-by-case.

Instantly, we are compelled to reverse and remand for a new trial. If appellant on re-trial again states his intention to waive a jury trial, the trial court should proceed, under Rule 1101, to decide whether to approve the waiver. If the court decides to disapprove the waiver, it should state the reasons for its decision, so that on any further appeal we may decide whether it has acted within its discretion. We do not retain jurisdiction.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 2702.

      . We cannot simply remand with instructions to consider whether Boyd’s request for a non-jury trial should be granted or denied under Pa.R.Crim.P. 1101. Remand for application of Rule 1101 was suggested to us by the Commonwealth in its application for reargument in Commonwealth v. Giaccio, supra, but this proposed remedy was rejected by the full court, which refused reargument. See also Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (1983) a recent remanding for a new trial, rather than consideration of Rule 1101.


author: CIRILLO, Judge:

text:
    467 A.2d 857
    In the ESTATE OF Hazel SEASONGOOD, Deceased. Appeal of Helen REDDY, Lillian Reddy and Dr. William E. Kelly, Jr., Executor of the Estate of Mary Kelly.
    Superior Court of Pennsylvania.
    Argued May 31, 1983.
    Filed Nov. 4, 1983.

      F. Emmet Ciccone, Philadelphia, submitted a brief on behalf of appellants.

      Arthur E. Newbold, IY, Philadelphia, for Bank, participating party.
    Charles E. Donohue, Philadelphia, for Commonwealth, participating party.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the final decree of the Court of Common Pleas of Montgomery County, Orphans’ Court Division, en banc, dated August 30, 1982, which dismissed appellant’s exceptions, confirmed the executor’s account, and ordered distribution of the estate in accordance with the account.

Hazel Seasongood died on July 3, 1980 leaving a will, dated December 16, 1976, which left her entire estate to the American Cancer Society. The Will was probated by the Register of Wills of Montgomery County on July 16, 1980 and letters testamentary were granted to Girard Bank, the executor named in the Will. No Caveats were filed nor appeal taken from the probate of the Will or grant of letters. Girard Bank administered the estate and filed its account and statement of proposed distribution with the Register of Wills on February 17, 1982. The audit of the account was scheduled for April 5, 1982. On April 2, 1982 appellants filed objections to the account and statement of proposed distribution. Appellants alleged that Hazel Sea-songood was of unsound mind and lacked testamentary capacity at the time of the making of the Will; that the Will was the result of fraud and undue influence by the scrivener and his assistant; and that the signature on the Will was a forgery. Appellant averred that they were the sole-surviving cousins and heirs-at-law of Hazel Seasongood and therefore, the Will being invalid, they were entitled to the estate under the intestate laws. In addition, as a result of the care they provided for her, the appellants claimed that Hazel Seasongood promised to make a will leaving them all of her property. Because of the filing of the exceptions, the audit of the account was continued.

On April 26, 1982 Girard Bank, as executor, filed a petition to dismiss the objections. A pre-trial conference was held in the Chambers of the Honorable Alfred L. Taxis, Jr. on April 27,1982. At that time, argument on the matter was scheduled for May 28, 1982. On May 19, 1982 appellants filed a petition to obtain discovery regarding the allegations of undue influence and lack of testamentary capacity. Judge Taxis notified the parties that he would hear argument on the petition for discovery at the argument scheduled for May 28,1982. At the argument on May 28, 1982 appellants, requested but were denied leave to amend their petition for discovery to include a request for discovery on the allegation of forgery. On June 8, 1982 Judge Taxis dismissed the appellants objections and denied their petition for discovery on the grounds that the appellants lacked standing to contest the Will and had failed to file a timely appeal from the probate of the Will. Appellants filed exceptions which were denied by a final decree of the Court en banc on August 30, 1983. This appeal followed.

The Orphans’ Court properly held that the appellants lacked standing to contest the Will and correctly dismissed the appellants’ objections alleging, undue influence, lack of testamentary capacity, and forgery and denied the related petition for discovery. At the pre-trial conference on April 27, 1982 Judge Taxis directed counsel for the appellants to be prepared to demonstrate to the court at the argument the relationship of the appellants to the decedent. However, at the argument, appellants were unable to support their allegation of standing with any facts. Furthermore, appellants now concede in their brief on appeal that they do not have standing under the intestate statute. (Brief for appellant at page 11). A party is aggrieved and therefore has standing when the party is directly and adversely affected by a judgment, decree or order and has some pecuniary interest which is thereby injuriously affected. See In re Estate of Atlee, 406 Pa. 528, 178 A.2d 722 (1962). In the instant case, since the appellants concede that they could not take under the intestate statute if the Will was declared invalid, they have no pecuniary interest which would be adversely affected by a determination that the Will was valid and thus they have no standing to contest the Will. The Orphans’ Court therefore properly denied appellants’ objections and petition for discovery regarding the allegations of undue influence, lack of testamentary capacity and forgery.

However, the Orphans’ Court did not address appellants’ claim that Hazel Seasongood promised to make a will in their favor. Breach of a contract to make a will does not prevent the probate of the will but only affects the distribution of the estate. Way Estate, 379 Pa. 421, 109 A.2d 164 (1954); Norris’s Estate, 329 Pa. 483, 198 A. 142 (1938); In re Vanston’s Estate, 26 D & C 2d 555, 12 Fiduciary 246, 63 Lack.Jur. 37 (1962). Thus, the appellants as claimants under the alleged contract to make a will would be adversely affected by the distribution of the estate in accordance with the account and therefore have standing to object to the distribution. This standing under the alleged contract is uneffected by the appellants’ lack of standing as heirs-at-law. While the executor countered the appellants’ allegations of a contract to make a will with affidavits, there was no evidentiary hearing and the court below made no finding of fact on this claim. We therefore must remand for an evidentiary hearing on appellants’ claim of a contract to make a will.

Affirmed in part, reversed in part and remanded for proceeding in accordance with this Opinion. We do not retain jurisdiction of this matter.

      . The original objectors were Helen Reddy, Lillian Reddy, and Mary Kelly. On appeal Mary Kelly has been replaced by Dr. William E. Kelly, Jr., Executor of the Estate of Mary Kelly.

      . The Orphans’ Court also held that appellants failed to file a timely appeal from the probate of the Will. Appeal from the probate of a will is governed by 20 Pa.C.S.A. section 908(a) which provides in pertinent part, "Any party in interest who is aggrieved by a decree of the register ... may appeal therefrom to the court within one year of the decree[.]” The Will in the instant case was probated by the Register of Wills on July 16, 1980 and the appellants' objections were not filed until more than one year and eight months later on April 2, 1982. However, because we hold that the Orphans’ Court properly held that the appellants did not have standing to contest the Will, it is not necessary for us to address the timeliness of appellants’ objections raising undue influence, lack of testamentary capacity, and forgery.

      . In regards to the timeliness of appellants’ objections relating to the alleged contract to make a will we note that, "An order which admits a will to probate is not an adjudication of the validity of a contract to make a different will[.]” Page on Wills, section 26.143 at 335 (footnote omitted). Further, "A statute which regulates the time in which contest [of a will] may be brought should have no application to a suit upon a contract to make a will.” Id. section 26.10 at 23 (footnote omitted). Thus, the timeliness of appellants’ claim of a contract to make a will is not affected by 20 Pa.C.S.A. 908(a).


author: BECK, Judge:

text:
    467 A.2d 860
    COMMONWEALTH of Pennsylvania v. Thomas RAFFERTY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 2, 1983.
    Filed Nov. 4, 1983.

      Brian S. Quinn, Havertown, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   BECK, Judge:

Appellant, Thomas Rafferty, was convicted after a jury trial of escape from Delaware County Prison. On appeal, he contends that the Commonwealth violated his right to a speedy trial under Pa.R.Crim.P. 1100(a)(1).. We agree and accordingly vacate judgment of sentence and order appellant discharged on the matter under appeal.

Appellant was jailed in the Delaware County Prison on an assault and battery charge. On June 8, 1974, he escaped and on June 11, 1974, a criminal complaint was filed against him. He was apprehended on July 31, 1974 and then released on bail.

Trial on the escape charges was initially scheduled for January 22, 1975. Appellant did not appear. The record indicates, however, that he was not provided with notice.

Trial was continued until February 3, 1975. Appellant again did not appear and a bench warrant was issued the next day. Appellant was arrested on an unrelated robbery charge on March 20, 1975.

On April 29, 1975, he petitioned for disposition in lieu of trial or criminal punishment on the escape charges. The lower court granted a rule returnable for May 16, 1975. The date for the rule returnable was then extended for reasons not satisfactorily explained until September 16, 1975 at which time appellant requested and was granted a fifteen day continuance.

On October 1, 1975, appellant moved to dismiss the charges against him resulting from the escape under Pa.R. Crim.P. 1100(f). Two days later, the lower court denied this motion and also appellant’s petition for disposition in lieu of trial or criminal punishment.

Trial on the escape charges commenced on December 3, 1975. Appellant was found guilty of escape and sentenced.

The criminal complaint in this case was filed on June 11, 1974. The run date at the relevant time was 270 days later or March 8, 1975. Trial did not actually commence until December 3, 1975, or five hundred forty-one (541) days after the filing of the complaint. The Commonwealth at no time applied for an extension.

The only question for our consideration is whether trial commenced within the statutory period; i.e. whether two hundred seventy-one day (271) days are excludable under section (d) of the Rule?

Appellant in his brief concedes that he was unavailable for one hundred seven (107) days: fifty (50) days, from June 11, 1974, the date of the filing of the complaint, to July 31, 1974, the date of his apprehension after his escape and fifty-seven (57) days from January 22, 1975, the date initially scheduled for trial on the escape charges to March 20, 1975, when he was arrested on the unrelated robbery charge.

Although appellant concedes he was unavailable from January 22, 1975 to March 20, 1975, the record indicates that his unavailability under the Rule did not commence until February 3, 1975, the continued date for trial. Since appellant did not receive notice of the January 22, 1975 trial date, he would not be considered unavailable for the twelve (12) days from that time until February 3, 1975, the continued date for trial. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). According to appellant’s calculation as modified by this court he was unavailable for trial for a total of ninety-five (95) days.

The Commonwealth contends that appellant should be considered unavailable for the forty (40) days between his arrest on March 20, 1975 on the unrelated robbery charge and April 29, 1975, the date on which the Commonwealth asserts appellant was returned to Delaware County Prison. For purposes of this appeal, we will accept, arguendo, the Commonwealth’s contention that appellant was unavailable for those forty (40) days. The number of days chargeable to appellant is, therefore, increased to one hundred thirty-five (135).

The Commonwealth next asserts that appellant was unavailable for fifteen (15) days based on the continuance granted appellant on September 16, 1975 on the rule returnable on his petition for disposition in lieu of trial or criminal punishment arising out of the escape.

At the time the continuance was granted only those days in excess of the thirtieth day of a continuance were excluded under Pa.R.Crim.P. 1100(d)(2). Commonwealth v. Bond, 268 Pa.Super. 49, 407 A.2d 430 (1979). Therefore, those fifteen days are not excludable.

Finally, the Commonwealth contends that appellant was not available for an additional one hundred twenty-three (123) days. This is the time from the originally scheduled hearing date on the rule returnable, May 16, 1975, to the date that the hearing was originally continued to, September 16, 1975. The Commonwealth suggests several reasons for charging this time to appellant, none of which have merit.

The Commonwealth argues judicial delay. It is sufficient to note an appellant has no legal duty to advance the time of his own hearing. Commonwealth v. Millhouse, 239 Pa.Super. 445, 362 A.2d 398 (1976), rev’d on other grounds, 470 Pa. 512, 368 A.2d 1273 (1977).

The Commonwealth also argues without specificity that the one hundred twenty-three (123) day delay should be charged to appellant because of his involvement in other judicial proceedings. Neither the record nor the Commonwealth’s brief contains any specific reference to the other judicial proceedings in which appellant was involved. Therefore, no time can be considered excludable on this ground. See Comment to Pa.R.Crim.P. 1100 as it relates to subparagraph (d)(1) and Commonwealth v. Vaughn, 475 Pa. 227, 380 A.2d 326 (1977).

The maximum time excludable is one hundred thirty-five (135) days. Appellant’s right to a speedy trial under Pa.R.Crim.P. 1100 has been violated. Pa.R.Crim.P. 1100 requires strict mechanical compliance. In this case trial was not commenced within the statutory period.

We reverse, vacate judgment of sentence and order appellant discharged on the matter under appeal.

      . At the time relevant in this trial Pa.R.Crim.P. 1100(a)(1) provided:
      Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.

      . Section 18 of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-118.

      . Pa.R.Crim.P. 1100(d)(2) provided at that time:
      In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.
      Under the amendment of section (d), the entire period of a continuance requested by a defendant on or after January 1, 1982 is excluded. Pa.R.Crim.P. 1100(d)(3)(ii).


text:
    October 7, 1983.
    468 A.2d 820
    Borger, et ux. v. Falls Equip., et al. Borger v. Keiper. Appeal of: Raymond Borger.
    Reargument Denied Dec. 16, 1983.
    Petition for Allowance of Appeal Denied May 24, 1984.

      Argued January 20, 1983.
    Charles W. Craven, for appellant; John T. Quinn, for appellees.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    467 A.2d 39
    Capital Consumer v. Brozack, et ux., et al., Appellant.
    Argued June 9, 1983.
    David Abrams, submitted a brief on behalf of appellant; Donnell D. Reed, for appellee; Edgar David Harr, for participating party.
    Before CERCONE, President Judge, SPAETH and HESTER, JJ.
   Case remanded, with instruction; jurisdiction retained.


text:
    467 A.2d 39
    Cardile, et al., Appellants v. Nationwide Ins. Co.
    Argued June 7, 1982.
    Francis A. Fer-rara, for appellants; Bruce A. Irvine, for appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    467 A.2d 39
    Cochard v. Commonwealth, etc. Appeal of Estate of Samuel Dickey and Edward Heller.
    Argued May 2, 1983.
    Dale Patrick Kennedy, for appellants; Raymond J. Falzone, Jr., for ap-pellee.
    Before CERCONE, President Judge, MONTGOMERY and HOFFMAN, JJ.
   Order affirmed.


text:
    467 A.2d 40
    Commonwealth v. Anderson, Appellant.
    Submitted June 21, 1983.
    Nicholas Panarella, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 40
    Commonwealth v. Baker, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Submitted October 27, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele M. Bart-hold, Assistant District Attorney, for Commonwealth, appel-lee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


text:
    467 A.2d 40
    Commonwealth v. Branham, Appellant.
    Submitted June 2, 1983.
    Abraham Leizerowski, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    467 A.2d 41
    Commonwealth v. Bynum, Appellant.
    Submitted June 21, 1983.
    Daniel H. Greene, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 41
    Commonwealth v. Cadogan, Appellant.
    Submitted June 22, 1983.
    Richard B. Moore, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    471 A.2d 561
    Commonwealth v. Constantine, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.

      Argued April 27, 1983.
    Edward J. Bilik, Assistant Public Defender, for appellant; Anthony G. Marsili, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 41
    Commonwealth v. Daly, Appellant.
    Argued September 15, 1981.
    Michael A. Raffaele, for appellant; Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.

       DiSalle, J., did not participate in the consideration or decision of this case.

   Judgment of sentence affirmed.


text:
    467 A.2d 42
    Commonwealth v. Demetrius, III, Appellant.
    Petition for Allowance of Appeal Granted Dec. 30, 1983.

      Argued September 16, 1981.
    Jeffrey A. Mahle, for appellant; Ronald T. Williamson, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and WATKINS, JJ.

      DiSALLE, J., did not participate in the consideration or decision of this case.

   Judgment of sentence affirmed.


text:
    467 A.2d 42
    Commonwealth v. Elliot, Appellant.
    Argued April 26, 1983.
    Jay Stuart Nedell, submitted a brief on behalf of appellant; Frank J. Scutella, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 42
    Commonwealth v. Forbes, Appellant.

      Submitted June 21, 1983.
    Stephen P. Patrizio, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    467 A.2d 43
    Commonwealth v. Fruster, Appellant.
    Submitted July 28, 1983.
    Gary Phillip Heslin, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 43
    Commonwealth v. Helterbran, Appellant.
    Submitted July 27, 1983.
    Joseph Peter Semasek, for appellant; Richard B. Russell, District Attorney, for Commonwealth, appellee.

      Before ROWLEY, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    467 A.2d 43
    Commonwealth v. Hess, Appellant.
    Submitted February 10, 1983.
    Herbert V. Giobbi, for appellant; Michael Yedomsky, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Judgments of sentence affirmed.


text:
    467 A.2d 44
    Commonwealth v. Hnastischen, Appellant.
    Submitted June 22, 1983.
    Frank Robert Cori, Public Defender, for appellant; Adam D. Bavolack, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 44
    Commonwealth v. Hoover, Appellant.
    Submitted April 27, 1983.
    John J. Fioravanti, Jr., Assistant Public Defender, for appellant; William F. Merz, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 44
    Commonwealth v. James, Appellant.
    Submitted June 22, 1983.
    Charles H. Junod, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    467 A.2d 44
    Commonwealth v. Jones, Appellant.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.

      Submitted June 8, 1982.
    Lawrence A. Ruth, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appel-lee.
    Before CERCONE, President Judge, CAVANAUGH and ROWLEY, JJ.
   The order of the lower court is affirmed.


text:
    467 A.2d 45
    Commonwealth v. Jones, Appellant.
    Petition for Allowance of Appeal Denied Jan. 31, 1984.
    Argued September 13, 1983.
    Edward Ross Eidelman, for appellant; Emil W. Kantra, II, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   The order of the lower court is affirmed.


text:
    467 A.2d 45
    Commonwealth v. Laird, Appellant.

      Submitted May 25, 1983.
    James Richard Antoniono, Assistant Public Defender, for appellant; George R. Kep-ple, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 45
    Commonwealth v. Lawson, Appellant.
    Submitted May 12, 1983.
    John Frank Raimondi, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 46
    Commonwealth v. Lopez, Appellant.
    Petition for Allowance of Appeal Denied Feb. 14, 1984.
    Submitted June 22, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    467 A.2d 46
    Commonwealth v. Manning, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Submitted September 14, 1983.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Affirmed.


text:
    467 A.2d 46
    Commonwealth v. Mathis, Appellant.
    Petition for Allowance of Appeal Denied June 13, 1984.
    Submitted May 19, 1983.
    Elkin A. Tolliver, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 46
    Commonwealth v. Mills, Appellant.
    Submitted May 13, 1983.
    Oscar Gaskins, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 643
    Commonwealth v. O’Fallon, Appellant.
    Reargument Denied Nov. 18, 1983.
    Submitted June 23, 1983.
    Peter T. Campana, for appellant; James J. Rosini, District Attorney, for Commonwealth, ap-pellee.

      Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 47
    Commonwealth v. Pierce, Appellant.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.
    Submitted July 28, 1983.
    James E. Mugford, Sr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 47
    Commonwealth v. Rudd, Appellant.
    Submitted October 26, 1982.
    Robert F. Pappano, Assistant Public Defender, for appellant; David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


text:
    467 A.2d 47
    Commonwealth v. Smith, Appellant.
    Submitted November 15, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 48
    Commonwealth v. Taylor, III, Appellant.
    Petition for Allowance of Appeal Denied Jan. 31, 1984.
    Submitted July 27, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 48
    Commonwealth v. Thompson, Appellant.
    Submitted June 23, 1983.
    Michael H. Van Buskirk, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 48
    Commonwealth v. Van Zant, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Submitted July 27, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    467 A.2d 48
    Commonwealth v. Williams, Appellant.
    Submitted May 12, 1983.
    Samuel C. Stretton, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 49
    Commonwealth v. Zazo, Appellant.
    Petition for Allowance of Appeal Denied Mar. 26, 1984.
    Submitted January 19, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 49
    Commonwealth ex rel., Brown, v. Cleaver. Appeal of: Stephen Brown.
    Argued June 8, 1982.
    Joseph P. Green, Jr., Assistant Public Defender, for appellant; Clarence A. Dickerson and John S. Halsted, for Brown, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    467 A.2d 49
    Hunter, Appellant v. Hunter.
    Argued March 29, 1983.
    Thomas Allen J. Crawford, Jr., for appellant; Robert Raphael, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 50
    In the Interest of April Slabinski, a minor. Appeal of Sandra Slabinski, Appeal of Mrs. Eleanor Slabinski, Grandmother
    (at No. 3002).
    (at No. 3130).

      Argued May 12, 1983.
    Jonathan Blum, Assistant Public Defender, for Sandra Sla-binski, appellant (at No. 3002); Anthony J. Lumbis, for Eleanor Slabinski, appellant (at No. 3130); Ronald D. Oley, for appellee; Richard Balnave, for Schilling, participating party.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 50
    Kopp v. Miller. Appeal of: Joseph R. Thompson.
    Argued May 13, 1983.
    Joanne R. Jenkins, for appellant; Jeffrey Ted Sultanik, for Kopp, appellee; Catherine Guido for Miller, appellee; Richard R. High, for Tonco, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 50
    Lochetto et al., Appellants v. Lochetto.

      Argued May 13, 1983.
    Lynne Z. Gold Bikin, for appellants; Peter I. Daniele, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 50
    Long, Appellant v. Long et al.
    Submitted January 20, 1982.
    Eugene C. Lamanna, for appellant; Milton Bernstein, for appellees.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    467 A.2d 51
    Powell, et al. v. Hartford Accident et al., Appellant.
    Petition for Allowance of Appeal Denied Feb. 9, 1984.
    Submitted March 3, 1983.
    James K. Thomas, for appellant; Thomas L. Bright, for appellees.

      Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   Order affirmed.


text:
    467 A.2d 51
    Scuorzo v. Carey, Appellant.
    Argued June 9, 1982.
    David A. Scholl, for appellant; Armando G. Salazar, for appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    467 A.2d 51
    Phila. Nat’l Bank v. Kaiser Motel Co., et al. Appeal of Robert A. Kaiser Motel Co., Inc., Arthur Nem-roff, Phyllis Nemroff, Nicol C. Taylor, Virginia Taylor, Robert A. Kaiser, Jr., William L. Sherwood and Margaret Sherwood.
    Argued April 14, 1983.
    Alan L. Spielman, for appellants; Peter S. Thompson, for appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   We affirm the lower court order denying appellants’ Petition to Strike/Open the Judgment by Confession.


text:
    October 14, 1983.
    467 A.2d 52
    Awglis, Appellant v. Esh, et al.
    Argued June 9, 1982.
    Emil Awglis, appellant, in propria persona; Samuel M. Mecum, for appellees.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    467 A.2d 52
    Commonwealth v. Austin, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Submitted July 26, 1983.
    William P. James, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 52
    Commonwealth v. Bolton, Appellant.
    Submitted May 13, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 52
    Commonwealth v. Bryant, Appellant.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.
    Submitted May 20, 1983.
    John S. DiGiorgio, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 53
    Commonwealth v. Caswell, Appellant.
    Submitted March 1, 1983.
    James O’Brien, Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, CAVANAUGH and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 53
    Commonwealth v. Dourlain, Appellant.
    Petition for Allowance of Appeal Denied Feb. 2, 1984.
    Submitted May 26, 1983.
    James A. Wymard, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    467 A.2d 53
    Commonwealth v. Goodman, Appellant.
    Submitted June 22, 1983.
    George Henry Newman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 53
    Commonwealth v. Henderson, Appellant.
    Petition for Allowance of Appeal Denied Feb. 17, 1984.
    Argued April 14, 1983.
    John R. Miller, Jr., for appellant; Kenneth R. Weiss, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed in part and reversed in part. Reversed and remanded for resentencing.

POPOVICH, J., concurred in the result.


text:
    467 A.2d 54
    Commonwealth v. Johnson, Appellant.
    Submitted May 12, 1983.
    Leon A. Mankowski, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 54
    Commonwealth v. Jopling, Appellant.
    Submitted July 27, 1983.
    Joseph F. Sklarosky, Assistant Public Defender, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 54
    Commonwealth v. Krajci, Appellant.

      Submitted June 23, 1983.
    John P. Cotter, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   We affirm the order denying appellant’s P.C.H.A. petition.


text:
    467 A.2d 55
    Commonwealth v. McFarland, Appellant.
    Submitted June 21, 1983.
    Leonard S. Wissow, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 55
    Commonwealth v. O’Neil, Appellant.
    Petition for Allowance of Appeal Denied Feb. 1, 1984.

      Submitted May 12, 1983.
    Charles P. Mirarchi, III, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 55
    Commonwealth v. Quartman, Appellant.
    Submitted May 31, 1983.
    Anne L. Wall, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 55
    Commonwealth v. Reason, Appellant.
    Submitted June 22, 1983.
    Joseph T. Kelley, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 56
    Commonwealth v. Solomon, Appellant.
    Submitted June 22, 1983.
    Alonderae J. Barnes, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 56
    Commonwealth v. Thomas, Appellant.
    Submitted June 1, 1983.
    Anne L. Wall, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 56
    Commonwealth v. Walker, Appellant.
    Argued May 2, 1983.
    Daniel M. Preminger, submitted a brief on behalf of appellant; John J. Burfete, Jr., Deputy Attorney General, for Commonwealth, appellee.
    Before CERCONE, President Judge, McEWEN and HOFFMAN, JJ.
   Affirmed.


text:
    467 A.2d 57
    Commonwealth v. Washington a/k/a Johnson, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1984.
    Submitted June 23, 1983.
    Charles P. Mirarchi, III, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 57
    Moore v. Moore, Appellant.
    Argued March 31, 1983.
    John Michael Leonard, for appellant; Henry A. Hudson, Jr., for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Orders affirmed.


text:
    467 A.2d 57
    Schmidt, etc., Appellant v. Kelly.
    Argued May 3, 1983.
    Jeffrey L. Rudnick, for appellant; Walter A. McClatchy, Jr., for appellee.
    Before CERCONE, President Judge, McEWEN and HOFFMAN, JJ.
   Affirmed.


text:
    October 21, 1983.
    467 A.2d 57
    Clay v. Aetna Life and Cslty., Appellant.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.
    Submitted September 13, 1983.
    Andrew John Trevelise, for appellant; H. Michael Cohen, for appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.


text:
    467 A.2d 58
    Commonwealth v. Bonk, Appellant.
    Submitted September 14, 1983.
    Patrick J. Flannery, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 58
    Commonwealth v. Bridges, Appellant.
    Submitted September 14, 1983.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 58
    Commonwealth v. Guinta, Appellant.
    Submitted September 14, 1983.
    Cregg Ellis Mayrosh, for appellant; Elviria C. La-Barre, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.


text:
    467 A.2d 59
    Commonwealth v. Herto, Jr., Appellant.

      Argued January 25, 1983.
    John N. Miller, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 59
    Commonwealth v. Jackson a/k/a Patterson, Appellant.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.
    Submitted May 26, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 59
    Commonwealth v. Jodziewicz, Appellant.
    Submitted January 25, 1983.
    Joseph J. Gale, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 59
    Commonwealth v. Martray, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Submitted March 30, 1983.
    Anthony S. Dedola, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Affirmed.

BROSKY, J. filed a memorandum concurring statement.


text:
    467 A.2d 60
    Commonwealth v. Miller, Appellant.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Submitted January 26, 1983.
    Richard Keith Renn, Assistant Public Defender, for appellant; Sheryl Ann Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 60
    Commonwealth v. Miller, Appellant.
    Submitted March 24, 1983.
    Marilyn C. Zilli, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 60
    Commonwealth v. Noyes, Appellant.
    Argued January 26, 1983.
    Thomas Bowles Steiger, Jr., for appellant; John R. Walker, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 61
    Commonwealth v. Rivera, Appellant.
    Submitted September 14, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 61
    Commonwealth v. Stevens, Appellant.
    Petition for Allowance of Appeal Denied April 6, 1984.
    Submitted June 7, 1983.
    Walter W. Stevens, appellant, in propria persona; F. Cortez Bell, III, Assistant District Attorney, for Commonwealth, appellee.

      Before CERCONE, President Judge, SPAETH and HESTER, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    467 A.2d 61
    Commonwealth v. Waid, Appellant.
    Argued April 26, 1983.
    Carmela R.M. Presogna, Assistant Public Defender, submitted a brief on behalf of appellant; Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Affirmed.

POPOVICH, J. filed a memorandum concurring and dissenting opinion.


text:
    468 A.2d 820
    Dougherty v. Universal Underwriters Ins. Co., Appellant.
    Reargument Denied Dec. 29, 1983.
    Petition for Allowance of Appeal Denied April 24, 1984.
    Argued March 2, 1983.
    William F. Sweeney, for appellant; Eugene A. Spec-tor, for appellee.
    Before CERCONE, President Judge, CAVANAUGH and WIEAND, JJ.
   The orders of the lower court are affirmed.

CAVANAUGH and WIEAND, JJ., concurred in the result.


text:
    467 A.2d 61
    Gas Arc Supply Inc., Appellant v. Northwestern Nat’l Ins. Co., et al.
    Argued May 24, 1982.
    Mitchell S. Greenspan, for appellant; Robert Perna Corbin, for appel-lee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    467 A.2d 62
    Hostetter, et al. v. Runk, et al., Appellants.
    Argued January 25, 1983.
    Leslie B. Handler, for appellants; S. Mazza, for appellees.

      Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    467 A.2d 62
    Jones, Appellants v. Kensington Hospital.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Argued September 13, 1983.
    Louis M. Paul, for appellants; Joseph R. Livesey, for Kensington, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.


text:
    467 A.2d 62
    Malayalee Assoc. of Greater Phila, Appellant v. Mathew.
    Argued September 13, 1983.
    William P. Thorn, for appellant; Paul Auerbach, for appel-lees.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.


text:
    467 A.2d 62
    Sgro v. Sgro, Appellant.
    Argued March 16, 1983.
    I. Sinclair, for appellant; Thelma McC. Zearfoss, for appellee.
    Before CERCONE, President Judge, ROWLEY and CI-RILLO, JJ.
   Affirmed.


text:
    October 28, 1983.
    467 A.2d 63
    Commonwealth v. Dizzley, Appellant.
    Submitted February 8, 1983.
    William D. Moyer, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    467 A.2d 63
    Commonwealth v. Flynn, Appellant.
    Petition for Allowance of Appeal Denied Feb. 10, 1984.

      Argued April 27, 1983.
    John L. Elash, for appellant; Melinda G. Tell, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Affirmed.


text:
    467 A.2d 63
    Commonwealth v. Gundaker, Jr., Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Argued March 3, 1983.
    James T. Vernile, for appellant; Mariana Coleman Sorenson, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 63
    Commonwealth v. Harris, Appellant.
    Submitted June 23, 1983.
    Benjamin Lerner, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 64
    Commonwealth v. Johnson, Appellant.
    Petition for Allowance of Appeal Denied Feb. 27, 1984.
    Submitted July 26, 1983.
    Steven J. Zwicky, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 64
    Commonwealth v. Lewis, Appellant.
    Submitted July 26, 1983.
    A. Charles Peruto, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    467 A.2d 64
    Commonwealth v. Logan, Appellant.
    Submitted June 23, 1983.
    Daniel M. Preminger, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The denial of the P.C.H.A. petition is affirmed.


text:
    467 A.2d 65
    Commonwealth v. Lyons, Appellant.
    Argued May 3, 1983.
    Frank H. Morgan, Jr., for appellant; Dennis Craig McAn-drews, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before McEWEN, MONTGOMERY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 65
    Commonwealth v. Milliner, Jr., Appellant.
    Submitted May 2, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 65
    Commonwealth v. Smith, Appellant.
    Submitted May 4, 1983.
    Ann Kane Seidman, for appellant; Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    467 A.2d 65
    In re M.T. Appeal of T.H.T.

      Submitted May 11, 1983.
    James Thomas I. Rague, III, for appellant; James Edgar Carlson, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    467 A.2d 66
    In re Williams v. Burnette. Appeal of Edith Williams a/k/a Edith Williams Parker.
    Submitted September 9, 1983.
    Leslie F. Kidd, for appellant; Linda Burnette, appellee, in propria persona.
    Before SPAETH, P.J., CAVANAUGH and HOFFMAN, JJ.
   Order affirmed.

SPAETH, President Judge, filed a memorandum concurring statement.


text:
    467 A.2d 66
    Krous, Appellant v. O’Brien, et al.
    Petition for Allowance of Appeal Denied Feb. 14, 1984.

      Argued April 13, 1983.
    Michael J. Rostolsky, for appellant; John E. Huber, for appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Order affirmed.

CAVANAUGH, J. filed a memorandum dissenting opinion.