author: CIRILLO, Judge: ROWLEY, Judge,

text:
    466 A.2d 152
    Donald C. BROOKS v. Clelia BROOKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 31, 1983.
    Filed Sept. 16, 1983.

      Daniel J. DiGiacomo, Philadelphia, for appellant.
    Albert Momjian, Philadelphia, for appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County dated July 22, 1981, awarding custody of the parties’ two minor children, Donald Jr. and Stephanie Kara, to their father, appellee Donald C. Brooks, and awarding partial custody during certain holiday and vacation periods to their mother, appellant Clelia Brooks.

Donald and Clelia were married in Florida in 1968 and resided there until 1980. Donald Jr. was born on January 20, 1969, and Stephanie Kara was born on June 12, 1972. Mr. Brooks was employed as a maitre’d at the Diplomat Hotel in Hollywood, Florida. Mr. Brooks subsequently left his job at the Diplomat to become a manager at a Holiday Inn. Mr. Brooks also worked as a carpenter for a lime and returned to the employ of the Diplomat Hotel. In January 1980 Mr. Brooks accepted a position as catering director at the Fairmount Hotel in Philadelphia. The salary of $78,000 offered by the Fairmount was almost triple Mr. Brooks’ salary at the Diplomat. Mr. Brooks discussed the move to Philadelphia with his wife, and the couple came to Philadelphia on two occasions to search for an appropriate residence. They found a suitably large house in Elkins Park. However, the parties decided that it would be best that the children finish the school year in Florida. Donald, therefore, moved to Philadelphia alone and began work at the Fairmount in early January, 1980. It was planned that at the end of the school year Clelia and the children would join Donald in Philadelphia.

During the five months between January and June, 1980, Mr. Brooks kept in contact with his family through frequent telephone calls and he traveled to Florida in May to attend Stephanie Kara’s first Holy Communion. At the end of the school term in early June, Mr. Brooks attempted to telephone his family on numerous occasions, but the line was constantly busy. Unable to reach his family by telephone, Mr. Brooks took the next available flight to Florida. Mr. Brooks arrived at the family home in Florida at 1:30 a.m. and found the children, then ages 8 and 11, at home alone. Mr. Brooks took the children to his hotel and when he later spoke to Mrs. Brooks, she informed him that she was seeing another man and that she did not want to move to Philadelphia. Mr. Brooks brought the children back to Philadelphia with him. Mr. Brooks kept in contact with his wife by telephone during the next two months.

During the summer of 1980, Mr. Brooks and the children resided in a suite at the Fairmount Hotel. The children attended a day camp at Friends Central School. When Mr. Brooks was working, the children were cared for by a babysitter, Miss Cheryl DiPrimio, the daughter of Mr. Brooks’ secretary.

In mid-August, 1980 Mrs. Brooks came to Philadelphia and the family moved into the house in Elkins Park. However, on September 23, 1980, without notice, Mrs. Brooks left the house abruptly and returned to Florida. In Florida, she lived with the man with whom she had the affair. Mrs. Brooks later called her husband and informed him that she intended to stay in Florida. Mr. Brooks then hired Miss DiPrimio as a full time live-in housekeeper and babysitter. Miss DiPrimio was paid $100 a week and provided with room and board. In October, 1980, Mrs. Brooks had herself admitted to a Florida hospital for psychiatric care. Mrs. Brooks stayed in the hospital for approximately three weeks.

Mr. Brooks remained in telephone contact with his wife during the fall of 1980, but Mrs. Brooks did not see him or the children during that time. However, in early February, 1981, Mrs. Brooks arrived unannounced at the Elkins Park home. Mr. and Mrs. Brooks had dinner on the evening of her arrival and she expressed a desire to reconcile. However, Mr. Brooks felt it was thén too late for a reconciliation. The next day, after Mrs. Brooks verbally abused Miss DiPrimio in front of the children, Mr. Brooks took her to the airport and sent her back to Florida. Mrs. Brooks returned to the Elkins Park home the next day, accompanied by her parents. They demanded to be admitted, but Miss DiPri-mio, who was at home alone with the children, refused to open the door and called the police. On February 6,1981, a hearing was held before the Honorable Mason Avrigian and temporary custody of the children was awarded to Mr. Brooks. On July 22, 1981, after a hearing, the Honorable Lawrence A. Brown awarded custody to Mr. Brooks and partial custody to Mrs. Brooks. Mrs. Brooks was awarded custody of the children for a portion of each Christmas and Easter holiday period and for six weeks each summer. Mrs. Brooks’ partial custody was ordered to take place at the home of Mrs. Brooks’ parents in Florida. Mrs. Brooks filed the instant appeal.

At the outset, we note that the primary consideration in a custody dispute between parents is the best interest of the child, including the child’s physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). On appeal, our scope of review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Newcomer v. King, supra. That is not to say that we can nullify or usurp the fact-finding function of the trial judge. Commonwealth ex rel. Michael R. v. Robert R.R., 314 Pa.Super. 335, 460 A.2d 1167 (1983); Commonwealth ex rel. Newcomer v. King, supra. We must defer to the trial court’s findings of fact and reverse only where in making the finding the trial court has abused its discretion. Commonwealth ex rel. Newcomer v. King, supra. However, we are not bound by the deductions and inferences made by the trial judge from the facts he has found. Commonwealth ex rel. Michael R. v. Robert R.R., supra. We must exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Commonwealth ex rel. Pierce v. Pierce, supra; Commonwealth ex rel. Newcomer v. King, supra.

Appellant raises numerous issues on appeal. First, appellant claims that the trial court erred in basing its custody award on appellant’s past conduct and not on her present condition. Specifically, appellant contends that the trial court put too much emphasis on her past meretricious relationship and her past emotional and psychiatric problems. We disagree.

It is well established that,

The primary concern in custody matters lies not with the past but with the present and future. Hooks v. Ellerbe, 257 Pa.Super. 219, 390 A.2d 791 (1978), reversed on other grounds 490 Pa. 363, 416 A.2d 512 (1980). Facts as of time of hearing are the foundation for determination of the court. Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974). Past conduct is not relevant unless it will produce an ongoing negative effect on the child’s welfare. In Re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978).

Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 514, 444 A.2d 1299, 1301 (1982) (emphasis in original).

Further, the mere fact that a parent has had a non-marital relationship is insufficient to deny him or her custody of the children. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); L.D. v. B.D., 291 Pa.Super. 589, 436 A.2d 657 (1981). Rather, it is the effect of the non-marital relationship on the child which is crucial to the determination of custody. Commonwealth ex rel. Myers v. Myers, supra. While not dispositive, a parent’s meretricious relationship is a factor to be considered. See Rupp v. Rupp, 268 Pa.Super. 467, 408 A.2d 883 (1979). Such a relationship may reveal something about the person’s, ability to be a good custodial parent. L.D. v. B.D., supra. Nor does a parent’s past emotional problems preclude a finding that the child’s best interests require that custody be awarded to that parent. McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).

In the instant case, however, the trial court did not find that appellant’s extramarital affair or her past emotional and psychiatric problems precluded her from having custody of the children, nor did the trial court place too much weight on these factors. The trial court did not totally deny appellant custody, but awarded her substantial partial custody.

Relatedly, appellant argues that the trial court considered the appellant’s alleged responsibility for the breakup of the parties’ marriage. In support of this assertion, appellant refers us to page 3 of the trial court’s Opinion, alleging that there the court stated its belief that it was too late for a reconciliation between the parties. It is clear that a trial court’s opinion as to the responsibility for the breakup of the marriage is irrelevant to the determination of which parent would best serve the .children’s interests as custodian. G.J.F. v. K.B.F., 284 Pa.Super. 139, 425 A.2d 459 (1981). However, appellant has misread the trial court’s Opinion; nowhere in that Opinion does the trial court state its personal view as to responsibility for the break-up of the marriage. On page 3 of its Opinion, the trial court does not state its own belief, but rather, Mr. Brooks’ belief that in February 1981 it was too late for the parties to reconcile.

Appellant also contends that the trial court improperly considered the relative income of the parties in making its custody decision. In a custody proceeding, the sole permissible inquiry into the relative wealth of the parties is whether either parent is unable to provide adequately for the child; unless the income of one party is so inadequate as to preclude raising the children in a decent manner, the matter of relative income is irrelevant. In Re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982); G.J.F. v. K.B.F., supra. In the present case the trial court did not consider the relative income of the parties in making its custody decision. The trial court said, “Practically, Mr. Brooks has more adequate means of caring for the children. Mrs. Brooks has been receiving psychiatric care since October 1980 and presently is dependent on her parents.” (Trial ,Ct. Slip Op. at 5). The trial court’s reference to practical means does not reveal a limitation to financial means, but encompasses a consideration of each parent’s ability to meet all the needs of the children, both physical and emotional, on a day to day basis.

Appellant also argues that the trial court failed to give sufficient weight to the fact that she was the primary parental figure for the children. The role of the primary caretaker is a substantial factor which the trial judge must weigh in adjudicating a custody matter. Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982). However, this is only one factor to be considered. Further, “[A] parent’s ability to care for a child must be determined as of the time of the custody hearing, not as of an earlier time.” In Re Custody of Frank, 283 Pa.Super. 229, 244, 423 A.2d 1229, 1237 (1980). The record reveals that during the thirteen months between June 1980 and the custody hearing, Mr. Brooks spent a substantial amount of time with the children and provided them with love, care and devotion. The nature of the hotel at which Mr. Brooks worked in Florida accounts in part for the fact that he was not as involved as his wife in the upbringing of the children in their early years. Mr. Brooks testified that the Diplomat Hotel in Florida is a resort hotel which required that he work longer hours and frequently at night and on weekends. The Fairmount Hotel, on the other hand, is a center-city hotel which does not often require him to work nights and weekends. Thus, Mr. Brooks has more time to spend with the children now than he had while in Florida. Mr. Brooks testified that the opportunity to spend more time with his family was one of the reasons that he accepted the job at the Fairmount.

Appellant also argues that the trial court did not give sufficient weight to the moral atmosphere of Mr. Brooks’ home. Specifically, appellant intimates illicit cohabitation between Mr. Brooks and Miss DiPrimio. The trial court found that there was no relationship beyond that of employer and employee between Mr. Brooks and Miss DiPrimio. Appellant concedes in her brief that there is no proof of impropriety but only the appearance of such. (Brief for Appellant at 25). We have reviewed the record and find it sufficient to support the trial court’s finding that there is no illicit relationship between Mr. Brooks and Miss DiPrimio.

Appellant further contends that the trial court failed to consider Mr. Brooks motive in removing the children from Florida. It is clear that,

When a party, in bad faith, removes a child from another jurisdiction in order to circumvent an adverse custody order of a court in that jurisdiction, our courts have held that such evasion of the law, if proven, should be an important factor when Pennsylvania courts consider the custody dispute. Commonwealth ex rel. Rogers v. Daven, 298 Pa. 416, 148 A. 524 (1930); Irizarry Appeal, 195 Pa.Super. 104, 169 A.2d 307 (1961)---- In ascertaining who would best serve the welfare of the children, the lower court should consider appellee’s disrespect for the legal process and evaluate how it bears on his.fitness to be awarded custody of the children. Commonwealth ex rel. Daven v. Smith, supra; Irizarry Appeal, supra.

In Re Leskovich, 253 Pa.Super. 349, 359, 385 A.2d 373, 378 (1978).

There is no previous custody order involved in this case. Nor does our review of the record reveal any bad faith motive to evade the law on the part of Mr. Brooks in bringing the children to Philadelphia from Florida. Mr. Brooks brought the children to Philadelphia after he was unable to reach the family by phone, flew to Florida, and found the children at home alone at 1:30 a.m. At the time Mr. Brooks brought the children to Philadelphia, he hoped to reconcile with his wife and in mid-August, 1980 Mrs. Brooks came to Philadelphia and the family moved into the Elkins Park residence. There is, thus, no evidence in the record of any bad faith motive on the part of Mr. Brooks to circumvent the law by bringing the children to Philadelphia. Nor will we infer any improper motive from Mr. Brooks’ consultation with an attorney in August, 1980. This consultation came after a prolonged separation from his wife during which she had an affair with another man.

Appellant also claims that Mr. Brooks made misrepresentations to her about the possibility of a reconciliation between them and the necessity that she assign her interest in their Florida home and the proceeds from its sale to him in order to purchase the home in Elkins Park. There is no evidence in the record to indicate that Mr. Brooks’ desire for a reconciliation with his wife was not sincere. Further, it is clear that Mr. Brooks intended the Elkins Park property to be a home for his wife and children. Mrs. Brooks moved into that house with Mr. Brooks and the children in August 1980 but later left and returned alone to Florida.

We have independently reviewed the record and conclude that it is in the best interest of Donald Jr. and Stephanie Kara that they be in their father’s custody. Mr. Brooks is the more stable parent and provides the more stable environment for the childrens’ growth and development. The record demonstrates that Mr. Brooks is best able to meet the physical, emotional, intellectual and spiritual needs of the children. The record shows that Mr. Brooks is a loving, caring and nurturing parent. Mr. Brooks spends substantially all his non-working time with the children. While Mr. Brooks is sometimes required to work at night, at these times the children are cared for and supervised by a full time live-in housekeeper and babysitter, Miss DiPrimio. Further, Mr. Brooks has instructed his staff at the Fairmount Hotel that if any calls come in pertaining to his children, he is to be immediately located and the call put through under any circumstances. Mr. Brooks eats breakfast with the children every morning and supervises their diet and grooming. The children take instructions in the Catholic religion and Mr. Brooks requires that the children go to the library once a week and choose a good book to read. Both Donald Jr. and Stephanie Kara are involved in gymnastics.

Furthermore, Donald Jr. and Stephanie Kara both expressed the preference to remain with their father.

Although the express wishes of the child are not controlling in custody decisions, they do constitute an important factor which must be carefully considered in determining the child’s best interest. The weight to be accorded the child’s preference varies with the age, maturity and intelligence of the child and the reasons given for the preference.

Commonwealth ex rel. Pierce v. Pierce, supra, 493 Pa. at 299-300, 426 A.2d at 559 (citations omitted).

At the time of the custody hearing, Donald Jr. was 12 years old and Stephanie Kara was 9 years old. The children stated that they preferred to stay with their father because they believed he would take good care of them, help them with schoolwork and take them places. These are sound reasons which evidence an understanding of the gravity of the question and which warrant considerable weight.

Appellant asserts that the trial court failed to consider that Mr. Brooks exerted subtle pressure on the children to influence their preference. This Court is aware of the fact that a parent in possession of young children can exert subtle pressure to influence the children’s parental preference. See In Re Leskovich, supra. The trial court detected no hint of any persuasion and pur review of the record reveals none.

Finally, appellant claims that she should be given custody of Stephanie Kara. Appellant argues that the needs of a nine-year old girl are different than those of a young boy and that it is important that Stephanie Kara have maternal input during her formative years. In child custody proceedings, there is no preference for keeping male children with the father and female children with the mother. Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981). Mrs. Brooks has been awarded liberal partial custody of the children and she can provide Stephanie Kara with the necessary maternal input at that time. In addition, Mrs. Brooks is also always available to Stephanie Kara by telephone.

Mrs. Brooks further argues that because Mr. Brooks had permitted a young man in his early twenties to reside at the Elkins Park house, Mr. Brooks’ home is an unfit moral environment for a young girl. However, at the time of the custody hearing, the young man had found his own apartment and no longer resided at Mr. Brooks’ home. Conditions must be evaluated as they exist at the time of the custody hearing. In Re Custody of Frank, supra. Thus, at the time of the custody hearing, the young man did not reside at the Elkins Park home and he had no effect on the fitness of the home for either Donald Jr. or Stephanie Kara.

We have independently reviewed the record and conclude that at this time it is in the best interest of the children that they be in Mr. Brooks’ custody.

Order affirmed.

ROWLEY, J., files a concurring statement in which WIE-AND, J., joins.

ROWLEY, Judge,

concurring:

I join in the order of the court and almost all of the opinion filed with the order.

I do not join, however, in that portion of the opinion on pages 274 and 275 dealing with this Court’s scope of review in child custody cases. That precise issue is presently pending before an en banc panel of this Court. Moreover, the Supreme Court of Pennsylvania in Commonwealth ex rel. Davenport v. Montgomery County Children and Youth Services, 501 Pa. 472, 462 A.2d 221 (1983), stated that while our review is to be of the broadest type we are bound by the trial court’s findings of fact concerning “the parties emotional feelings and attitudes towards one another.” Given this most recent pronouncement of the Supreme Court, it is my understanding that we are not to substitute our “independent judgment” for that of the trial court in such matters. To do so would render the trial courts little more than masters in custody cases. Since I am of the opinion that appellate judges are no better equipped to decide such delicate issues than are the trial judges of the Commonwealth, I do not agree that appellate review should be replaced by a re-trial of the case.

Since the record in this case contains evidence supporting the trial court’s findings concerning the emotional well-being of the children, I agree that the order should be affirmed.

WIEAND, J., joins in this concurring statement.

      . We recognize that the issue of the proper scope of review applied in custody cases is presently before our en banc Court in the case of IN RE Donna Williams, No. 674 Pittsburgh 1981 (J. 903/83), argued May 10, 1983; however, the exercise of a different scope of review in this case would not affect the result.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    466 A.2d 159
    COMMONWEALTH of Pennsylvania v. Reginald PELZER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Denied Sept. 20, 1984.

      Michael H. VanBuskirk, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   BECK, Judge:

Reginald Pelzer raises two issues in this appeal: that he was denied a speedy revocation of probation hearing in violation of Pa.R.Crim.P. 1409 and that his guilty plea should be withdrawn because the lower court failed to inform him of the range of possible sentences at the time of the plea colloquy. We find the first issue without merit and the second issue waived. Accordingly, we affirm the order of the court below.

The facts giving rise to this appeal go back to June 1973 when Pelzer was arrested and charged with two counts of burglary and related offenses. In February 1974 he offered a counselled guilty plea to the burglary charges and received a sentence of ten years probation. At this time the sentencing court informed him: “I’m accepting this recommendation but if you come back before this Court, you’re going to go to jail and you’re going to go for a long period of time” (N.T. 13, February 14, 1974). No appeal was taken from this sentence.

Five years later, in May 1979, Pelzer was convicted in a bench trial of rape, burglary, indecent assault, simple assault, and possessing instruments of crime. In February 1980 he was sentenced to ten to twenty years for rape, ten to twenty years for burglary, and two and one half to five years for possessing instruments of crime, all sentences to run concurrently. On direct appeal, judgment of sentence was affirmed. Commonwealth v. Pelzer, 297 Pa.Super. 584, 441 A.2d 785 (1982).

One month after sentence was imposed for the rape and burglary offenses, a violation of probation hearing was held on March 26-27, 1980. Pelzer was found in violation of probation and sentenced to ten to twenty years, the sentence to run consecutively to the sentences imposed in February 1980. No appeal was taken within the initial time period for doing so.

On January 1, 1981 Pelzer filed a pro se Post Conviction Hearing Act Petition, amended with assistance of new counsel on August 13, 1981. In this Petition, Pelzer claims that his violation of probation hearing was untimely. The lower court granted the right to appeal nunc pro tunc from the sentence imposed on March 27, 1980 on the issue of the timeliness of the hearing.

In the Petition Pelzer also claims that he was denied effective assistance of counsel at the time his guilty plea was entered in 1974 because he was never informed of the maximum sentence for the burglary offenses in the event that probation should be revoked. On this issue the lower court denied relief. The appeal nunc pro tunc from judgment of sentence in 1980 and the denial of relief relating to the 1974 guilty plea are here combined.

The claim of the Rule 1409 violation fails for the following reasons. The law is well settled that when probation violation is based upon a crime which occurs during the period of probation, for Rule 1409 purposes the focus is on the time between the conviction and the violation hearing. Commonwealth v. Honeyblue, 267 Pa.Super. 107, 419 A.2d 118 (1980); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). In Pelzer’s case, this period was ten months. Pelzer relies heavily on Commonwealth v. White, 218 Pa.Super. 188, 279 A.2d 768 (1971) where a delay of five months was found too lengthy to satisfy the Rule. However, a quantitative approach, i.e. merely counting the days and months between conviction and parole violation hearing, is not determinative in Rule 1409 cases.

Neither White nor the requirements of Rule 1409 establish a prophylactic cut-off whereby timeliness is determined. Commonwealth v. Nance, 290 Pa.Super. 312, 434 A.2d 769 (1981); Commonwealth v. Long, 264 Pa.Super. 465, 400 A.2d 179 (1979) (parole violation); Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978). The requirement of a speedy revocation hearing means that the courts must act with reasonable promptness once officials are aware of parole violation. Commonwealth v. Williams, 254 Pa.Super. 202, 385 A.2d 979 (1978); Commonwealth v. Johnson, 277 Pa.Super. 88, 419 A.2d 674 (1980).

The primary purpose of a prompt revocation hearing is to prevent the loss of essential witnesses or documentary evidence, and to avoid the continuance of unnecessary incarceration or other limitations of the personal liberty of the accused. Commonwealth v. Jones, supra; Commonwealth v. Johnson, supra. To determine whether there has been reasonable promptness for purposes of Rule 1409 courts look to three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay. Commonwealth v. Nance, supra; Commonwealth v. Young, supra; Commonwealth v. Diaz, 258 Pa.Super. 346, 392 A.2d 827 (1978); Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979); Commonwealth v. Sanders, 303 Pa.Super. 139, 449 A.2d 617 (1982); Commonwealth v. Gaus, 300 Pa.Super. 372, 446 A.2d 661 (1982).

An analysis of the circumstances surrounding Pelzer’s violation of probation hearing leads us to conclude that the rule of reasonable promptness has not been violated. While it is true that in White, supra, the Court found a five month delay too long, in that case the hearing was held after the end of the probationary period, a factor which influenced the decision. See also Commonwealth v. Williams, supra, (five month delay in White unreasonable because the original probationary period expired before the hearing). In Pelzer’s case, by contrast, even after the passing of ten months subsequent to the conviction on the rape and burglary charges, the revocation hearing took place a year before the termination of the ten year probation imposed for the 1973 burglaries.

The length of this delay, without more, does not constitute grounds for reversal of the sentence. Pelzer makes no claim that the ten month period impeded his defense. Indeed, his counsel testified that he had no intention of calling witnesses at the probation violation hearing (N.T.P.C.H.A. Hearing, at 30). There was no averment that evidence which would have aided the defense had been lost as a result of passing time. Moreover, Pelzer’s counsel testified that it was his practice to delay revocation hearings until after sentence was imposed for the violating offense in the hopes that the sentence for the violation would be thereby mitigated (N.T.P.C.H.A. Hearing, at 28). See Commonwealth. v. Long, supra (not unreasonable for the lower court to delay revocation hearing until appellant was sentenced on other charges) (Judges Jacobs and Spaeth dissenting).

Finally, we note that for the entire period in question, Pelzer was in prison for the rape conviction of 1980. On the issue of prejudice, a probation violator who is incarcerated for another offense does not suffer any loss of freedom from the delay in holding the revocation hearing because he is already in prison. Commonwealth v. Diaz, supra; Com monwealth v. Gaus, supra; Commonwealth v. Ballard, 292 Pa.Super. 129, 436 A.2d 1039 (1981).

We conclude that because the revocation was held within the probationary period, because Pelzer has not shown that his defense at the hearing was hampered by the passing of ten months, and because he was in prison for the entire time on the other charges the scheduling of his revocation hearing was not in violation of Rule 1409.

We now consider the second issue in this appeal, i.e. the claim that Pelzer’s guilty plea was defective because he was not apprised of the maximum sentence possible should he violate probation. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) established the rule that in a guilty plea colloquy the defendant must be informed, inter alia, of the permissible range of sentences. Pelzer claims in his P.C.H.A. Petition that he was not specifically informed of the maximum sentence for burglary, and therefore his guilty plea must be withdrawn. However, Pelzer neither filed post-trial motions challenging his guilty plea nor averred any extraordinary circumstances (such as ineffectiveness of counsel for failing to file post-trial motions) which would explain his failure to do so. The issue is therefore waived. 19 P.S. 1180-3(d); Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979) (Justices Nix and Manderino dissenting); Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Jumper, 494 Pa. 451, 431 A.2d 941 (1981); Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981); Commonwealth v. Baylor, 279 Pa.Super. 304, 420 A.2d 1346 (1980); Commonwealth v. Knox, 304 Pa.Super. 368, 450 A.2d 725 (1982). .

For the appeal nunc pro tunc from judgment of sentence of March 27, 1980 judgment of sentence is affirmed; and the order of the lower court denying petitioner relief under the P.C.H.A. is affirmed.

      . Rule 1409. Violation of Probation or Parole: Hearing and Disposition
      Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole. In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.

      . Pelzer cites several other cases in which delays of several months were found to be in violation of Rule 1409. They are distinguishable from the instant case. In three of the cases cited, as in White, supra, the violation hearing was held after the expiration of the original period. Commonwealth v. Boykin, 270 Pa.Super. 592, 411 A.2d 1244 (1979) (parole); Commonwealth v. Smith, 266 Pa.Super. 234, 403 A.2d 1326 (1979) (probation); Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978) (probation). In Commonwealth v. Darby, 244 Pa.Super. 331, 368 A.2d 746 (1976) the hearing was held after the expiration of the sentence for the probation violating offense. In one case, Commonwealth v. Jones, 242 Pa.Super. 558, 364 A.2d 414 (1976) a violation of Rule 1409 was found where the hearing was nine and one-half months after conviction, but still within the original probation period. In Jones, unlike the instant case, the Commonwealth sought two postponements of the violation hearing without giving reasons for delay. We take note of Judge Price’s vigorous dissent in Jones: applying a balancing test, in so far as appellant had not requested that the hearing be held sooner, and had not shown prejudice by the delay, no violation of the Rule should be found.

      . Even if not waived on these grounds, upon entry of a guilty plea all grounds of appeal are waived except challenges to the jurisdiction of the court and challenges to the voluntariness of the guilty plea. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978). Pelzer makes no claim that his guilty plea was involuntarily made. He testified at the P.C.H.A. hearing that his plea was voluntary (N.T.P.C. H.A. Hearing at 11).


author: MONTEMURO, Judge:

text:
    466 A.2d 163
    Benjamin Paul SHERRER, Individually And On Behalf Of a Class And Of Subclasses of Which He is a Member v. William H. LAMB. Appeal of Benjamin Paul SHERRER.
    Superior Court of Pennsylvania.
    Argued April 12, 1983.
    Filed Sept. 23, 1983.

      Joseph P. Green, Jr., Assistant Public Defender, West Chester, for appellant.
    Lee Russlander, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from an order dismissing appellant’s class action complaint in equity, on the basis of preliminary objections as to jurisdiction.

Appellant Sherrer was arrested and incarcerated on January 26, 1978, on the basis of an outstanding bench warrant which had been issued on October 31, 1974. The warrant had been issued in connection with an alleged burglary that had occurred in July of 1969.

On or about February 16, 1978, appellant, through his attorney, the Public Defender of Chester County, filed a petition for writ of - habeas corpus alleging that he was illegally confined on the charges contained in indictment No. 76 September Term, 1973. A hearing on the petition for writ of habeas corpus was scheduled for March 8, 1978. On March 7, 1978, appellant filed a class action complaint in equity, which is the subject of this action. The habeas corpus hearing was held before the Honorable Thomas Pitt of the Court of Common Pleas, Chester County. By order dated March 8, 1978, Judge Pitt dismissed the charges against appellant and ordered that all outstanding warrants be quashed.

On or about April 10, 1978, appellee District Attorney filed preliminary objections to the complaint in equity, contending that the action was moot, and under separate heading challenging the class action allegations. On May 3, 1978, appellant filed an answer to these preliminary objections. After briefs were submitted, on June 3, 1980, the Honorable Leonard Sugerman of the Court of Common Pleas, Chester County, issued an order sustaining the preliminary objections and dismissing the complaint. This appeal followed.

The process by which the court below reached its conclusion was as follows. As was stated earlier, appellee filed preliminary objections as to the class action allegations, and as to jurisdiction—specifically alleging that appellant’s action was moot. The lower court, while stating that it was “not directly treating the issue of class action status”, proceeded to do so anyway and concluded that the appellant had failed to move for class action certification under Pa.R. C.P. 1707. Accordingly, the lower court treated the matter as an action by the appellant in his individual capacity. It then went on to sustain appellee’s preliminary objections as to jurisdiction, specifically concluding that appellant’s action was moot.

Appellant makes two arguments on appeal.

He first argues that the court below erred in ruling that he had failed to move for class action certification, and in consequently treating the matter as an action in his individual capacity only. We agree.

The lower court based its ruling on the following. Pa.R. C.P. 1707(a) provides that, “within thirty (30) days after the pleadings are closed or within thirty (30) days after the last required pleading was due, the plaintiff shall move that the action be certified as a class action____” The accompanying Explanatory Note states that, “A representative party who does not move promptly may be charged with failure to represent the class adequately and runs the risk of removal under Rule 1713(a)(5).”

As appellant had not yet moved for certification, the court below concluded that it should treat the action as an action in appellant’s individual capacity only. Such reasoning is flawed. Appellant was under no obligation to move for certification at this stage of the proceedings. Surely, it cannot be said that the pleadings were closed here or that the last pleading was past due. When preliminary objections have yet to be ruled on, there is always the possibility, depending on their disposition, that an answer will be required.

Moreover, we note the lower court’s failure to adhere to the procedural sequence outlined by the class action rules, Pa.R.C.P. 1701 et seq. The class action rules, Pa.R. C.P. 1701 et seq., specify a sequence in which a class action should proceed. Preliminary objections are to be disposed of prior to consideration of the question of certification, which is to be determined at a hearing held specifically for that purpose. See Pa.R.C.P. 1707 and Explanatory Note. In fact, the lower court should not have concerned itself with the preliminary objections to the class action allegations at all. These preliminary objections were recognized by the court below as raising issues of fact. (Slip opinion, 5). Therefore, they should have been dismissed at the outset, and appellee instead should have been instructed that such issues are properly raised by way of answer. Pa.R.C.P. 1705. See also, Goodrich-Amram 2d, Vol. 5, supplement § 1705:1.

We now turn to the second issue. Appellant argues on appeal that although he has been released from confinement, his case is not moot as it is one which is capable of repetition, yet evades appellate review.

The general rule is that an actual case or controversy must exist at all stages of the judicial process. In Re Gross, 476 Pa. 203, 382 A.2d 116 (1978); Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966); Conti v. Pennsylvania Department of Labor and Industry, 405 Pa. 309, 175 A.2d 56 (1961). This has long been considered to be essential to this court’s jurisdiction. Commonwealth ex rel. Appellant v. Cairns, 48 Pa.Super. 265 (1911).

However, an exception to this doctrine has been repeatedly recognized by our appellate courts for cases “of a recurring nature, capable of avoiding review ____” Allen v. Colautti, 53 Pa. Commonwealth 392, 397, 417 A.2d 1303, 1306 (1980). See also, Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977). Although appellant essentially concedes that his release from prison, subsequent to the filing of the action, would normally moot his challenge, he asserts that the present case falls within the above described exception.

Were this not a class action we would have considerably less difficulty in deciding whether appellant has presented a claim which is “capable of repetition, yet evades review.” A succinct definition of the phrase was set forth in a recent opinion of our court. “Class actions aside, a case is ‘capable of repetition, yet evading review’ when ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.’ ” Commonwealth v. Roger Buehl, Appeal of Philadelphia Newspapers, Inc., 316 Pa.Super. 215, 220, 462 A.2d 1316, 1319 (1983). This definition is based on, and is essentially a quote of, that which was set forth by the United States Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).

Unfortunately, we, and presumably the parties, have been unable to locate in any Pennsylvania cases such a precise definition of mootness for the class action situation. Consequently, we have looked to the United States Supreme Court as did the panel in Commonwealth v. Buehl, supra. A survey of the relevant cases reveals that one critical inquiry is whether that which is challenged is of such a nature that it escapes appellate review at the behest of any single petitioner. This is similar to the first prong of the definition outlined for the non-class action situation. As to the second prong, however, the class action situation differs in focus. Although the possibility of the named petitioner encountering the challenged procedure again is frequently mentioned in the case law, such factor is not determinative. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Instead, the focus is on whether the challenged procedure operates in such a way that there is a “constant existence of a class of persons suffering the deprivation.” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54, 63 (1975); United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Sosna, supra; Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). As we stated at the outset, such definition is based on Federal case law. However, the essence of what we have just expressed is consistent with the spirit of that which has been enunciated by this court. In ruling that an eighteen year old petitioner’s challenge of certain Child Welfare Service practices was not moot, our court concluded that the issues presented were by their nature “capable of repetition, yet evading review,” after first noting that “... although appellee did not bring this action as the representative of a class ... the subject of this appeal may fairly be viewed as a continuing controversy that affects a large number of persons.” Janet D. v. Carros, 240 Pa.Super. 291, 309, 362 A.2d 1060, 1069 (1976).

Armed with the standards outlined above, we shall now set about the task of deciding whether appellant’s claim is one which is “capable of repetition, yet evades review.”

The pleadings reveal that appellant in this action is challenging Chester County’s practice of issuing bench warrants—which he alleges are not based on sworn or affirmed testimony, and is done without notice or probable cause. He alleges that he is a member of a class of individuals who has been charged with a crime and against whom a bench warrant has been issued.

In his brief, appellant outlines the possibilities for an individual who has been jailed as a result of a bench warrant. Like himself, such individual may successfully seek relief by way of habeas corpus proceedings. Similarly, an individual could seek to have the warrant quashed and bail reinstated. If an individual is unsuccessful in either or both of the above, appellant argues that the matter will be disposed of within a short time due to the mandates of Pa.R.Crim.P. 1100. An individual who pleads guilty or is found guilty will then be properly subject to a court’s sentence. By the time a judgment of sentence is appealed, assuming it is, incarceration on the basis of a bench warrant will have become academic.

That there is constantly a class of persons in Chester County who have been charged with a crime and against whom a bench warrant has issued cannot be seriously disputed. Additionally, as the discussion of possibilities for an individual against whom a bench warrant has issued demonstrates, appellate review is essentially foreclosed. Accordingly, we conclude that appellant’s claim is not moot. Our conclusion is in no small measure influenced by the analysis of the United States Supreme Court in Gerstein, supra, which involved a challenge to certain Florida pre-trial detention procedures. Therein the court at footnote eleven stated:

11. [6b] At oral argument counsel informed us that the named respondents have been convicted. Their pretrial detention therefore has ended. This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”
At the time the complaint was filed, the named respondents were members of a class of persons detained without a judicial probable cause determination, but the record does not indicate whether any of them were still in custody awaiting trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sosna. But this case is a suitable exception to that requirement. See Sosna, supra [419 U.S.] at 110 [402] n. 11 [95 S.Ct. at 559 n. 11], 42 L.Ed.2d 532; cf. Rivera v. Freeman, 469 F.2d 1159, 1162-1163 (CA9 1972). The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.

Gerstein, supra, 420 U.S. at 111, 95 S.Ct. at 861, 43 L.Ed.2d at 63.

Finally, a cautionary note is in order. Our holding today concerns itself only with the propriety of dismissing appellant’s complaint on preliminary objections. Our conclusion does not automatically establish that a class action is a fair and efficient method of adjudication here, that certification is dictated, or that appellant as a representative party will fairly and adequately represent the interests of the class. Additionally, we express no opinion on the merits of appellant’s claim. Our focus today is narrow, and is only aimed at insuring the policy expressed by our Supreme Court that “... rules of procedure govern the legal journey from filing to final order or judgment.” Boyle v. O’Bannon, 500 Pa. 495, 498, 458 A.2d 183, 185 (1983). (footnote omitted).

Order reversed and case remanded. We do not retain jurisdiction.

      . It is well settled that a defendant may not immediately appeal from the denial of his pre-trial application for habeas corpus relief. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974).

      . Initially, for the class action "capable of repetition, yet evading review” exception to apply, the class was required to be certified prior to the named representative’s claim becoming moot. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Recently, however, the United States Supreme Court applied this exception to a pre-certification class. United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980).
      In the Pennsylvania scheme, concerns with certification are inappo-site at this stage. The sequence of the rules dictates that challenges to the pleadings be disposed of prior to certification; thus, it would be impossible for a class to be certified at this juncture. See Pa.R.C.P. 1707, Explanatory Note. The rules provide that all class members are parties to the action from the moment it is instituted—until such time as they may be excluded. See Pa.R.C.P. 1701(a); Goodrich-Amran 2d, Vol. 5, supplement § 1701(a):!.


author: HESTER, Judge: POPOVICH, Judge,

text:
    466 A.2d 168
    David TIERNEY, Appellant v. PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued April 13, 1983.
    Filed Sept. 23, 1983.

      Edwin P. Smith, Philadelphia, for appellant.
    Jeffrey A. Less, Philadelphia, for appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   HESTER, Judge:

Appellant, David Tierney, filed a Complaint in Equity in the Court of Common Pleas of Philadelphia County on August 7, 1981 to compel appellee, Pennsylvania Assigned Claims Plan, to assign his claim for benefits to a participating insurer under the Pennsylvania No-Fault Motor Vehicle Insurance Act , hereinafter “the Act”. Appellee’s Demurrer and Motion to Strike were duly considered and the trial court dismissed appellant’s Complaint with prejudice by an Order of Court, dated November 17, 1981. Appellant filed this timely appeal from said Order.

On August 17, 1980, appellant, a Pennsylvania resident, was a passenger in a motor vehicle operated by another Pennsylvania resident. The vehicle struck a public utility pole in New Jersey causing appellant to incur severe personal injuries. Appellant, and all other members of his household were uninsured under the Act. Additionally, the automobile was not a “secured vehicle” as that term is defined in 40 P.S. § 1009.103. As a result, appellant sought benefits under the Assigned Claims Plan provision of the Act. 40 P.S. § 1009.108. Appellee refused to assign the claim due to its opinion that appellant’s injuries were not compensable under the Act.

In response to an alleged need to circumvent the expensive, lengthy and cumbersome common law recourse of pursuing motor-vehicle accident claims in the courts, the Pennsylvania General Assembly enacted the Pennsylvania No-Fault Motor Vehicle Insurance Act in 1974. It was designed with the purpose of providing a “low-cost, comprehensive and fair system” of compensating victims of motor vehicle accidents for damages in the nature of medical and rehabilitation expenses, work loss, replacement services and survivor’s losses. Since the Act’s effective date in July, 1975, “every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission” must secure the vehicle for the “payment of basic loss benefits” and for payment of statutorily-designated sums which the owner or authorized operator may be liable to pay as damages for personal injury to any one person and for property destruction. 40 P.S. § 1009.-104(a). Such security is generally provided through a contract of insurance, and in the event security is not provided by the owner, the registration is forfeited and operation of the vehicle is prohibited. 40 P.S. § 1009.104(b).

An “insured” is an individual who is a named insured in a contract of insurance containing terms in compliance with the Act, a spouse or relative of a named insured, a minor in the named insured’s custody or a minor in the custody of a relative of the named insured providing certain conditions are met. 40 P.S. § 1009.103. There is no dispute here with respect to appellant’s and the operator’s uninsured status; both failed to qualify as “insureds.”

Appellant contends that he is nevertheless entitled to no-fault benefits as an uninsured under the Assigned Claims Plan provision of the Act. As a victim of a motor vehicle accident, appellant may be entitled to basic benefits through the Assigned Claims Plan, providing “basic loss insurance is not applicable to the injury for a reason other than those specified in the provisions on ineligible claimants.” 40 P.S. § 1009.108(a)(1)(A). Failure to maintain security on an automobile involved in an accident appears to fall within this category provided by § 1009.108(a)(1)(A); therefore, upon initial study, appellant qualifies for benefits under the Assigned Claims Plan. However, a victim’s eligibility for basic loss benefits, whether that eligibility is derived from his status as an “insured” or under the Assigned Claims Plan, is subject to restrictions when the accident resulting in injury to a Pennsylvania resident occurs outside the Commonwealth.

Section 1009.201(b) of the Act provides as follows:

Accident outside this State—If the accident resulting in injury occurs outside this Commonwealth, a victim or a survivor of a deceased victim is entitled to receive basic loss benefits if such victim was or is:
(1) an insured; or
(2) the driver or other occupant of a secured vehicle.

As noted earlier, appellant concedes that he was uninsured at the time of the accident; nevertheless, he contends that since the motor vehicle was secured he was not barred from compensation through the Assigned Claims Plan.

Appellant’s rationale here is imaginative, but erroneous. It is his position that § 1009.201(b) does not proscribe the payment of benefits to him due to his opinion that the Assigned Claims Plan provides the security for the vehicle within which he was injured. His statutory source for this theory is § 1009.204(a)(5), which ascribes to the Assigned Claims Plan the responsibility of supplying security for the payment of basic loss benefits to injuries sustained by an uninsured motorist while traveling in an otherwise unsecured vehicle.

We do not agree that the Assigned Claims Plan can elevate an otherwise uninsured vehicle to “secured” status. Section 1009.103 defines a “secured vehicle” as one “for which security is provided in accordance with Section 104 of the Act.” Section 1009.104 requires every owner of a motor vehicle to provide continuous security on such vehicle for so long as it is “either present or registered in the Commonwealth.” Security can be provided, according to § 1009.104, through a contract of insurance with an insurer, through self-insurance or “by qualifying ____ as an obligated government.” Section 1009.104 does not denote the Assigned Claims Plan as an alternative means for “securing” a vehicle; consequently, we find that omission as evidence of the legislature’s intent to consider the procurement of a contract of insurance with an insurer or “by qualifying as a self-insurer or as an obligated government” as the only means of “securing” a vehicle. There is no ambiguity in § 1009.104; therefore, we must interpret that section according to the clear meaning of the words used therein. 1 Pa.C.S.A. § 1921(b).

Were we to subscribe to appellant’s view that § 1009.204(a)(5) designates the Assigned Claims Plan as another source of “securing” a vehicle, the otherwise unequivocal meaning of § 1009.201(b) would be muddled. Each section of a statute must be interpreted and applied with reference to the remaining sections. 1 Pa.C.S.A. § 1922; In Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981); Crary Home v. Defrees, 16 Pa.Cmwlth. 181, 329 A.2d 874 (1974). Section 1009.204(a)(5) delineates the Assigned Claims Plan as one of the forms of securing for payment of basic loss benefits, yet § 1009.201(b)(1) refers to a “secured vehicle” as that term is defined in § 1009.103 and § 1009.104. Section 1009.204(a)(5) cannot then, in reference to § 1009.103, § 1009.104 and § 1009.201(b)(1), provide for security of a vehicle through the Assigned Claims Plan.

Appellant’s next contention is that appellee’s responsibility is to assign claims to a participating insurer. According to appellant, the plan is not authorized to refuse assignment when it questions the propriety of the claim.

Section 1009.108(b)(2) sets forth the Plan’s duties accordingly:

The Assigned Claims Plan shall promptly:
(A) assign each claim for no-fault benefits to an assignee who shall be a participating insurer; and
(B) notify the claimant of the identity and address of such assignee.

Appellant is of the opinion that the Plan, under the mandate of § 1009.108(b)(2), must assign any and all claims, regardless of merit, to a participating insurer. The participating insurer then has sole authority to honor or refuse the claim.

We agree that the language of § 1009.108(b)(2) appears obligatory without reservation; nevertheless, under these facts, appellee must have the authority to reject the claim without first assigning it to a participating insurer. If appellee had assigned the claim to a participating insurer; § 1009.201(b) would have been rendered meaningless with respect to accidents occurring outside the Commonwealth. Once the claim is assigned, the “assignee thereafter has rights and obligations as if he had issued a policy of basic loss insurance complying with this Act applicable to the injury.” 40 P.S. § 1009.108(b). Since the assignee insurer under the Assigned Claims Plan is deemed to have contracted directly with the claimant for insurance benefits, it follows that an otherwise uninsured claimant injured in an out-of-state accident would be deemed an “insured.” It would be impossible, then, to have an uninsured Pennsylvania resident injured outside the Commonwealth, and § 1009.201(b) would be a superfluous provision. As stated in the statutory rules of construction, “[every] statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a).

Lastly, appellant argues that, should § 1009.201(b) be enforced, it is violative of both the Equal Protection Clause and Commerce Clause of the United States Constitution. More specifically, with respect to his equal protection argument, appellant avers that § 1009.201(b) penalizes uninsured Pennsylvania residents who engage in interstate travel and are injured in an out-of-state accident.

The classification set forth in § 1009.301(a) of the Act withstood an equal protection challenge in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). Section 1009.-301(a) enumerates those situations where tort liability is not abolished by the Act and the claimant in Singer charged that the enumeration was an unconstitutional classification. The Singer court first noted the State’s right to “treat different classes of persons in different ways.” Citing Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). Next, it recognized that, except where the classification is a form of discrimination against a suspected class or adversely affects a fundamental right, the classification passes constitutional muster, unless it is frivolous and does not serve a “legitimate governmental interest.” Citing Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Appellant does not assert that § 1009.201(b) affects a fundamental right or a suspect class; therefore, we must judge the constitutional integrity of the provision under the rational relationship test.

We agree that the Act provides basic loss benefits for uninsured motorists injured within the Commonwealth, yet denies benefits to an uninsured motorist injured in an out-of-state accident. We believe the Commonwealth has a legitimate interest in keeping insurance premiums at an affordable level so that its residents’ failure to comply with the Act is the result of indolence or defiance and not excessive cost. With the influx of interstate travel, innumerable accidents involving uninsured Pennsylvania residents can occur. Elimination of coverage for such accidents contributes to lower costs and easier administration and enforcement. We add that appellant is not without recourse; he may pursue damages through the courts with the filing of the more conventional complaint in trespass.

Appellant’s assertion that § 1009.201(b) violates the Commerce Clause is also without merit. We do not question that the Commerce Clause precludes the states from enacting laws which impede the free flow of interstate commerce. Great American & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976). Nevertheless, with a plethora of state legislation serving legitimate parochial needs, yet unavoidably restricting interstate commerce, our United States Supreme Court has been called upon to apply various tests to determine which state activity affecting interstate commerce is permissible. Most recently, the test has involved a close consideration of the nature of the state interest in light of the intensity of its impact on interstate commerce. The law will be upheld if it serves a legitimate parochial concern and has only an incidental effect on interstate commerce. Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). As alluded to in the above discussion concerning the equal protection clause, the Commonwealth’s refusal to pay basic loss benefits to uninsured Pennsylvania motorists injured in out-of-state accidents, serves the purpose of keeping insurance premiums at an affordable rate. This, in turn, makes compliance with the law easier and assures the availability of benefits for qualifying injured motorists. We find this legitimate interest to outweigh the impact on interstate commerce, particularly in light of the fact that it restricts the movement through interstate commerce of only those motorists who traverse in vehicles in contravention of the law.

Order affirmed.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

I join the Majority in its ruling on a subject (i.e., the Pennsylvania No-Fault Motor Vehicle Insurance Act) that on occasion has been labelled anything but lucid. In the case at bar, however, the law quite clearly affords “to the purchaser of insurance” access to “basic loss benefits” to compensate those victims injured in motor vehicle accidents. 40 P.S. § 1009.102(b). In Pennsylvania the law mandates that every owner of a motor vehicle registered or operated in this Commonwealth must have motor vehicle insurance. 40 P.S. § 1009.104(a).

At the outset we note the unusual facts of this case preclude David Tierney from recovering any benefits under the No-Fault Act, as correctly pointed out by the Majority, since the accident occurred outside of the Commonwealth and neither Tierney nor the vehicle in which he was injured was insured. 40 P.S. § 1009.201(b)(1) & (2). Furthermore, inasmuch as no other insured vehicles were involved in the accident, there is no security from which Tierney could recover under the No-Fault Act. 40 P.S. §§ 1009.204(a), 1009.108(a)(1)(E) and 1009.201(b)(1) & (2).

Consequently, Tierney “must resort to a tort action if he is to recover damages. While it is true that the No-[F]ault Act has partially abolished tort liability for motor vehicle injuries, this abolition applies only to injuries that take place in the Commonwealth. Section 301(a) of the No-[F]ault Act, 40 P.S. § 1009.301(a). Thus, [Tierney] has a tort action.” Lyngarkos v. Commonwealth of Pennsylvania, Depart. of Trans., 57 Pa.Cmwlth. 121, 124, 426 A.2d 1195, 1198 (1981).

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, 40 P.S. § 1009.101 et seq.

      . 40 P.S. § 1009.102(a)(5).

      . 40 P.S. § 1009.102(a)(6)(A).


author: HESTER, Judge:

text:
    466 A.2d 174
    Elizabeth D. DONLIN and Leo A. Donlin, her husband v. J.J. NEWBERRY COMPANY and McCrory Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued April 13, 1983.
    Filed Sept. 23, 1983.

      Richard A. Gray, Williamsport, for appellants.
    David B. Keeffe, Sayre, for appellees.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   HESTER, Judge:

On May 14, 1977, appellee, Elizabeth D. Donlin, was a customer in the J.J. Newberry Store, situate at Desmond Street, in the City of Sayre, Bradford County, Pennsylvania. JJ. Newberry Co. is a division of McCrory Corp. JJ. Newberry Co. and McCrory Corp. were defendants below and are appellants herein. •

Mrs. Donlin entered the store at 4:45 p.m. through the southern doorway from Desmond Street. She browsed for approximately one-half hour and eventually purchased white socks, coloring books and a package of crayons. It was closing time while Mrs. Donlin was inside the store, and doors were being locked and lights turned off. Having made her purchases, Mrs. Donlin was instructed to leave through the northern exit onto Desmond Street.

Upon leaving, Mrs. Donlin walked through an interior doorway, across a vestibule, and through a second doorway to the outside. She took two steps beyond the exterior doorway and was not yet clear of the open door when her right foot was snagged by a metal strip protruding from the concrete sidewalk. The concrete was crumbling; in fact, Mrs. Donlin detected its deteriorating condition as she walked into the vestibule.

The metal strip obstructed Mrs. Donlin’s gait and forced her to fall to the pavement. With the aid of Newberry’s assistant manager, she managed to get to her car and drive home alone. X-rays revealed a fracture of the right anklebone. Mrs. Donlin also sustained bruises over the posterior portion of her right hip, recurring pain in her right hip, buttocks and pelvis and an aggravation of a pre-existing lower-back ailment. These injuries prevented Mrs. Donlin from returning to work as a seamstress for the Darling Dress Factory in Waverly, New York, until July 11, 1979.

As a result of these injuries, Mrs. Donlin filed a Complaint in Trespass against appellants in the Court of Common Pleas of Bradford County, Pennsylvania. She demanded damages in excess of $10,000.00 as compensation for pain and suffering, lost earnings and disability. Mrs. Don-lin’s husband, Leo A. Donlin, joined as a complainant seeking compensation for medical expenses and loss of consortium. He joins Mrs. Donlin as appellee before this Court.

Following a trial by jury, a verdict of $500.00 was awarded to Mr. Donlin and a verdict of $41,770.00 was awarded to Mrs. Donlin. Appellants’ motion for new trial and judgment non obstante verdicto was denied by an Order of Court, dated September 19, 1980. A Notice of Appeal from the September 19th Order was timely filed; nevertheless, it was quashed by the Superior Court. Judgment on the verdict was then entered by the trial court by an Order of Court, dated March 15, 1982. Appellants filed this appeal from the March 15th Order.

It is appellants’ first contention that Mrs. Donlin was contributorily negligent as a matter of law due to her knowledge of the crumbling sidewalk and her failure to look down as she proceeded through the exterior set of double doors. According to appellants:

____ persons have an ever-present duty to look where they are going, and they must avoid an obvious danger by the use of the means at hand, and if one can reasonably assure her safety by the use of her senses, she must do so, or abide the consequences of her carelessness. Brief of appellants, p. 11.

Appellants cite three opinions in support of this contention. Unlike the facts in those opinions, the facts here disclose that, although Mrs. Donlin observed the deteriorating condition of the sidewalk, she did not notice the defect which actually caused the injuries. She was unaware of the metal band since it comprised a negligible portion of the entire sidewalk. The crumbling concrete, unlike the band, was a significantly larger mass rendering it readily detectable. Also, the lower section of the exterior doors, when closed, and as Mrs. Donlin proceeded through the vestibule, concealed the metal band. Moreover, the band was no more than three feet from the exterior doors; consequently, there was no appreciable opportunity to detect the danger upon stepping outside. In fact, the band was so close to the exterior doors that Mrs. Donlin fell while one door remained open. Her half-prone body prevented the door from closing until she pushed herself along the concrete. Finally, Mrs. Donlin had no alternative but to exit through the northern doors on Desmond Street. Since it was closing time, patrons were instructed to leave through that doorway only; therefore, she was compelled to use a treacherous route to her vehicle. In light of these facts, we will not reverse the jury’s finding that Mrs. Donlin did not voluntarily expose herself to a known risk. Contributory negligence can be found as a matter of law in clear cases only. Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970); Davis v. Feinstein, 370 Pa. 449, 88 A.2d 695 (1952). Only where it is beyond dispute that a dangerous condition is so apparent that an ordinarily prudent person would regard it as a hazard and attempt to avert it, can we say as a matter of law that a person exposing himself to such risk is contribu-torily negligent. See McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982). Sufficient evidence of Mrs. Donlin’s involuntary exposure to a latent defect precludes a finding of contributory negligence as a matter of law.

Although we agree with appellants’ averment that pedestrians “must look where they are going,” Villano v. Security Savings Association, 268 Pa.Super. 67, 407 A.2d 440 (1979); Lewis v. Duquesne Inclined Plane Co., 346 Pa. 43, 28 A.2d 925 (1942), we will not hold them responsible for walking so tentatively as to detect nearly-latent defects. Such action exceeds the burden placed upon the ordinarily prudent man under these circumstances. DeGregoris v. Stockwell Rubber Co. Inc., 235 Pa.Super. 71, 340 A.2d 570 (1975).

Next, appellants argue that the trial court erred in charging the jury on lost future earnings and loss of earning capacity. Mrs. Donlin made the following allegations in her Complaint with respect to damages:

7. As a result of the aforementioned negligence on Defendant’s part, the Plaintiff, Elizabeth D. Donlin, was rendered sick, sore, lame and disabled and experienced pain and suffering, which is permanent and still exists.
8. As a result of the injuries sustained by the Plaintiff, she was unable to work at Darling Dress Factory, 306 Broad Street, Waverly, New York, for the period from May 16, 1977 until July 12, 1977, where she earned $92.00 gross per week, for a total loss of wages of $736.00, a copy of said lost earnings attached hereto as Exhibit A.

Lost future earnings and loss of earning capacity were not set forth in the pleadings; therefore, according to appellants, it was improper to submit them for determination to the jury. Appellants cite Heymann v. Electric Service Manufacturing Co., 412 Pa. 338, 194 A.2d 429 (1963), wherein it was acknowledged that jury instructions must be curtailed to include only those issues raised in the pleadings, and, in the event issues not pleaded are elicited for the first time during trial without objection, it is still error to instruct the jury on its obligation to determine such issues.

Although we believe that the better practice is to specifically plead damages for loss of earning power and loss of future earnings, such damages are nevertheless general damages which may be sent to the jury under a general prayer for relief. Labradie v. Cilurso, 28 Monroe Leg.Rep. 220 (1973); Leonard v. Baltimore & O.R. Co., 259 Pa. 51, 102 A. 279 (1917). Consequently, such damages were properly plead by Mrs. Donlin, and Heymann is inapposite. Appellants were not without the means to discover, prior to trial, the precise damages for which appellees sought to be compensated. For example, under Pa.R.C.P. 4010, appellants could request that the court order Mrs. Donlin to submit to a physical examination by a physician of appellants’ choice; under Pa.R.C.P. 4009, appellants could seek inspection of the medical records compiled by Mrs. Donlin’s attending and treating physician; and, under Pa.R.C.P. 4004, 4005 and 4007.1, appellants could depose Mrs. Donlin on her loss of future earnings and earning power. Indeed, such damages are readily discoverable. See Ruddy v. Pennsylvania Gas & Water Co., 36 Pa.D & C 2d 705 (1965); Bell Tel. Co. v. Swartz, 19 Monroe L.R. 19, 52 Schul.Leg.Rec. 168 (1957).

With respect to the alleged error in charging the jury on lost future earnings and loss of earning capacity, appellants maintain that the trial court’s example for the jury of complete disability for 20 years and lost earnings of $10,-000.00 per year unduly emphasized the element of damages for future lost earnings. The court’s precise instruction was as follows:

Let me illustrate these instructions with a hypothetical example, which is not intended to be related to the facts of the case. Assume that you find the plaintiff will be disabled for a total of 20 years and assume further that you find her average loss of earning power for each of those 20 years would have been $10,000.00. Opposite the 20 years you will find the number 12.8722. 10,000.00 times 12.8722 is $128,722.00 which would be total loss of future earning power in this hypothetical case reduced to present worth. Listen to this, as with the figures on life expectancy. These present worth figures are offered to you only as a guide. You are not bound to accept these figures, any more than you are bound to accept the figures of [an] actuary testifying from the witness stand. These figures are offered only for your assistance. Well, when it gets to that example, it is a little easier to understand. If you were to find that a particular plaintiff were to, would normally make $10,000.00 a year for 20 years, then you’d say, “10 times 20 years; my gosh, he lost $200,000.00.” But this means that $200,-000.00 must be reduced to present worth, because they are not going to get that $10,000.00 a year for the next 20 years, they are going to get the whole bundle amount. So, they got a table here that you use. What it all means is $10,000.00 every year for the next 20 years would be $200,000.00. You get the same amount of money as the example said; you get $128,722.00 right today. That’s the same as $10,000.00 every year for 20 years. That’s what that’s all about and we will give you the tables so, if you find there’s a basis for awarding future loss of earnings and lost earning capacity, that’s the way you do it and you take the table with you so that you can do it. (Emphasis added).

Having determined that the court properly submitted the issue of lost future earnings and loss of earning capacity to the jury, and in recognition of the court’s cautionary instruction that its illustration was purely hypothetical, we fail to detect an over-emphasis of these damages. Furthermore, despite appellants’ assertion that Mrs. Donlin quit working in March, 1979 at her husband’s insistence that she retire, the record is replete with evidence that she resigned her position as a seamstress due to severe discomfort in her lower back. There was sufficient evidence of her loss of earning capacity and future wages; these damages were properly submitted to the jury and the instruction did not emphasize such damages to appellants’ detriment.

When determining the sufficiency of instructions to the jury, the charge must be reviewed in its entirety, Mount v. Bulifant, 438 Pa. 265, 265 A.2d 627 (1970), so that it can be determined whether the court fairly considered the evidence of both parties. Sears v. Birbeck, 321 Pa. 375, 184 A. 6 (1936). Appellants contend that the trial judge unfairly denied their point for charge that a store owner is not an insurer of its patrons’ safety. We agree that a store owner need not insure its patrons’ freedom from harm; however, we find no error in the trial judge’s refusal to so instruct the jury. Viewing the entire charge here in light of the maxim that instructions will not be the basis of reversible error where they do not mislead the jury into considering inapplicable or erroneous law, Hajduk v. Fague, 200 Pa.Super. 55, 186 A.2d 869 (1962); Coleman v. Reading Company, 346 Pa. 289, 29 A.2d 499 (1943), it was clear below that a store owner is not obligated to guarantee safety. The following excerpts from the charge illustrate this holding: “... an owner ... of land is required to use reasonable care in the maintenance and use of the property”; “[one] in possession of land is required to maintain the abutting public sidewalk in a reasonably safe condition to prevent or eliminate any hazard or unsafe condition, which upon all the circumstances involved could constitute an unreasonable risk of harm to pedestrians properly using walks.” These portions of the instructions speak of “reasonable”, not “guaranteed” care. Moreover, the instructions included an extensive explanation of contributory negligence and a person’s obligation to avoid certain dangerous conditions created by another.

Finally, appellants maintain that the total award of $42,270.00 was excessive. Appellants are particularly disturbed by the amount of the award in light of the $1,165.00 in special damages. Our scope of review with respect to an alleged excessive jury verdict is extremely limited. Unless the verdict “is so grossly excessive that it shocks our sense of justice”, Simmons v. Mullen, 231 Pa.Super. 199, 214, 331 A.2d 892, 901 (1975), we will not interfere with the jury’s determination. Out-of-pocket expenses do not solely determine the final award. Murphy v. Taylor, 440 Pa. 186, 269 A.2d 486 (1970); Simmons, supra. They are examined with all aspects of the case.

In addition to out-of-pocket expenses, there was evidence of Mrs. Donlin’s constant discomfort in her lower back, buttocks, pelvis, and right leg and ankle. The pain was so acute and enduring as to force her to retire at least four years before normal retirement age. Expert testimony revealed that, although her lower back pain would subside from time to time, it was likely to subsist for the remainder of her life. Under these facts, we are not inclined to find the verdict excessive.

Order affirmed.

CAVANAUGH, J. concurred in the result.


author: SPAETH, Judge:

text:
    466 A.2d 178
    COMMONWEALTH of Pennsylvania v. Bonnie Jean HEATH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed Sept. 30, 1983.

      Winifred H. Jones-Wenger, Philipsburg, for appellant.
    William J. Haberstroh, Assistant Attorney General, Al-toona, for Commonwealth, appellee.

      Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for robbery and Uniform Firearm Act violations. Appellant makes several arguments but we shall discuss only one of them, that the trial court erred in precluding her from recounting certain statements made to her. We agree, and therefore vacate the judgment of sentence and remand for new trial.

On March 4, 1976, appellant, Jeffrey Daugherty, and his uncle, Raymond Daugherty, visited the home of Frank Howard in Altoona. Jeffrey Daugherty showed Howard and the others a .25 caliber handgun and asked Howard where he could buy some ammunition for it. Later, appellant accompanied Jeffrey Daugherty to a store where he bought some ammunition. That evening, while en route with appellant to a local motel, the Daughertys planned to rob the Ricche Music Store. Shortly thereafter, appellant accompanied Jeffrey Daugherty to the music store. Ruth Montgomery, who was the only clerk attending the store, gave Daugherty a guitar to examine and began to close the store. Soon after she had transferred money in the cash register to a safe, Daugherty threatened her with the .25 caliber handgun and instructed her to give him the money. She did, and also gave him some watches and old coins. Daugherty then beat Montgomery until she was unconscious, and he and appellant left the store with the money, the watches and old coins, Montgomery’s purse, and the guitar.

At trial, appellant wished to recount Daugherty’s statements to her in support of her defense that in accompanying Daugherty during the preparation for and commission of the robbery, she acted under duress. See 18 C.P.S.A. § 309 (1973) (“It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.”). In upholding the trial judge’s ruling precluding appellant from recounting Daugherty’s statements, the trial court held that appellant’s testimony was inadmissible hearsay. Slip op. at 7-8.

When a witness testifies that someone said something to him and the purpose is not to show that what was said was true but only that it had a particular effect on the witness, the testimony is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978); Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962). See generally VI J. WIGMORE, WIGMORE ON EVIDENCE § 1789 at 314 (Chadbourn rev. 1976) (“Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is admissible, so far as the hearsay rule is concerned.”) (emphasis in original); McCORMICK ON EVIDENCE § 249 at 589-90 (2d ed. 1972) (“When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, such as ... anxiety, the evidence is not subject to attack as hearsay.”) (footnotes omitted). The trial court, therefore, erred in characterizing appellant’s proffered testimony of what Daugherty said to her as hearsay. See United States v. Herrera, 600 F.2d 502 (5th Cir.1979). (Trial court erred in precluding defendant from supporting her duress defense by recounting threatening statements made to her); cf. Commonwealth v. Douglass, 185 Pa.Super. 269, 138 A.2d 193 (1958) (Trial court properly permitted complaining witness to explain inconsistent testimony by recounting threatening statements made to her).

Since the improperly excluded testimony may have represented “the very heart of [appellant’s duress] defense,” United States v. Herrera, supra at 505, we cannot conclude that its exclusion was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

The judgment of sentence is vacated and the case is remanded for a new trial.

      . Appellant assigns various other rulings by the trial court as error, but since it is not clear that these rulings will recur, we shall not discuss them. Appellant also argues that the evidence was insufficient and she should therefore be discharged, but this argument so clearly lacks merit as to require no discussion.

      . Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978), is not to the contrary. There, the Supreme Court held that the trial court properly excluded appellant’s testimony that he had been threatened on the ground that the testimony could not plausibly have been offered for the purpose of showing what his state of mind was in light of the fact that his state of mind was irrelevant to his alibi defense.


author: WICKERSHAM, Judge:

text:
    466 A.2d 180
    COMMONWEALTH of Pennsylvania v. Larry D. BEDLEYOUNG, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1983.
    Filed Sept. 30, 1983.

      Robert Sullivan, Jr., Lebanon, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WICKERSHAM, Judge:

Defendant Larry Bedleyoung was found guilty on charges of rape, recklessly endangering another person, and criminal conspiracy on May 14, 1981 in a jury trial proceeding conducted before the Honorable G. Thomas Gates, President Judge of Lebanon County. At trial the victim testified that on January 3, 1981 she was living in Lebanon, Pennsylvania with her two sons, the youngest of whom was four months old. She was visited at about ten o’clock in the evening by her former husband and the defendant Larry Bedleyoung. After a period of time they left but returned at about eleven o’clock p.m. She let them in. She testified:

Q. Now, you said you went to feed the baby, and what happened?
A. They grabbed me and threw me on the bed.
Q. Who grabbed you?
A. Harvey and Larry.
Q. And where did they grab you?
A. My arms.
Q. What happened after they threw you on the bed?
A. They took my clothing off.
Q. Who took your clothing off?
A. Harvey and Larry.
Q. What clothing—what did you have on at the time that they took your clothing off?
A. My underwear and my lounger.
Q. What did you do when they did that?
A. Scream, told them to leave me alone.
Q. Did they leave you alone?
A. No.
Q. What did they do?
A. They just kept on.
Q. What did they do?
A. Well, Harvey had oral sex.
Q. On you?
A. Yeah.
Q. What was Larry doing while Harvey was doing that?
A. Holding me.
Q. Where was Larry holding you?
A. The arm.
Q. What happened after Harvey had oral sex with you?
A. He got on top.
Q. He got on top of you?
A. Ah-huh.
Q. Did he have his clothing on at that time?
A. Yeah.
Q. And what was he doing while he was on top of you? What did he try to do while he was on top of you?
A. Perform sex.
Q. Where was Larry at that time?
A. He was still holding me, on the bed next to me.
Q. What happened after that?
A. Well then, then Larry got on top, and Harvey got off and he got undressed.
Q. Who got undressed?
A. Harvey. And then he made me perform oral sex on him while Larry was on top of me.
Q. Harvey made you perform oral sex?
A. Yeah.
Q. On him?
A. Ah-huh.
Q. And what was Larry doing at that same time?
A. He was on top of me.
Q. Was he having sexual contact with you?
A. Yes.
Q. What type of sexual contact with you? Normal sexual relations, intercourse?
A. Yeah.
Q. What happened then?
A. Then Larry said that that looked like fun, and they switched. When he went to switch, he took his clothes off.
Q. Who took his clothes off?
A. Larry.
Q. What happened then, Wanda?
A. Well, I was screaming and carrying on. So, he was trying to hold my mouth shut, you know. So, he couldn’t and so Harvey told him to get a gun—I mean, to get his knife.
Q. Harvey told Larry to get his knife?
A. Yeah.
Q. What happened then?
A. Larry got up and took his knife out of his pants’ pocket, which was laying on the floor, and he brought it and held it against my neck and told me to shut up or they were gonna stab me.
Q. And who was it that held the knife against you?
A. Larry.
Q. What happened then, Wanda?
A. Well, then Harvey got off and Larry got on, and Larry laid the knife on the dresser next to my bed.

Record at 13-16.

On October 20, 1981, President Judge Gates sentenced defendant Bedleyoung to a term of imprisonment of not less than five nor more than fifteen years on the rape conviction and concurrent sentences on the other convictions. This direct appeal followed in which appellant Bedleyoung raises two issues for our consideration:

STATEMENT OF QUESTIONS INVOLVED
A. Did the lower court err in ruling that certain remarks by the victim were not so prejudicial as to deprive defendant of a fair and impartial trial and require granting a new trial?
B. Was the sentence imposed by the lower court manifestly excessive and unduly harsh in view of appellant’s age and prior conduct?

Brief for Appellant at 4.

As to the first issue raised on appeal relating to the defendant’s cross-examination of the victim, we are in complete accord with the thinking and analysis of President Judge Gates when, in his opinion dated September 28, 1981 for the court en banc, he said:

The defendant’s cross-examination of the victim was primarily an attack on her credibility. It was brought out that the victim ... was married to Harvey Anspach when she was only sixteen. It was brought out that she had her first child by Harvey before their marriage and when she was only fourteen years old. Pursuing this theme further, the defendant tried to develop the fact that their marriage was stormy and there were frequent separations prior to the divorce. The testimony on cross-examination complained of occurred in the following sequence:
Q. Now, you indicate—now, when did you separate from Harvey for the last time?
A. It was either the end of January or beginning of February. I can’t tell you the exact date.
Q. Of 1980?
A. Yes.
Q. Now, you indicated that your relationship with Harvey had been hot and cold. You lived together, separated, lived together, over the course of your marriage; is that correct?
A. Yes.
Q. How many times did you separate from Harvey, approximately?
A. I don’t know.
Q. Half a dozen times?
A. With him being in and out of jail, we were separated for a few times. I don’t know exactly. (N.T. 22)
Thereafter the defendant at sidebar moved for the withdrawal of the juror which was refused. He now claims that the victim’s answer was so prejudicial as to warrant a new trial. We disagree.
In the defendant’s brief a portion of the law as set forth in Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973) is quoted. The entire observation of the Court is as follows:
‘Every unwise or irrelevant remark made in the course of the trial by judge, a witness, or counsel, does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.’
A more pertinent legal principal applies. When defense counsel’s question invites an explanation, he cannot complain of it. See Commonwealth v. Brown, 229 Pa.Super. 211, [324 A.2d 392] (1974) and Commonwealth v. Dalton, 199 Pa.Super. 388, [185 A.2d 653] (1962). Here defense counsel was trying to pin down the number of times the victim and the co-conspirator Harvey Anspach had been separated during the course of their marriage. Counsel asked the question once and the witness answered she didn’t know. In pressing on, she explained she didn’t know exactly how many times because Harvey was in and out of jail.
In addition to the fact that counsel’s question induced the answer, we note that the reference to jail refers to Harvey Anspach, not the defendant. Therefore, it does not appear to us that the remark is. so prejudicial as to deprive this defendant of a fair trial. A passing reference to the co-conspirator’s prior criminal involvement who is not then on trial cannot be considered prejudicial since the co-conspirator’s prior activity cannot be ascribed to the defendant.

Lower ct. op. at 2-4.

Cf. Commonwealth v. Ewell, 318 Pa.Super. 397, 465 A.2d 13, Opinion by Wieand J., filed August 19, 1983, where “during a jury trial on a charge of driving while under the influence of alcohol, the prosecuting attorney deliberately elicits from a Commonwealth witness an extrajudicial statement attributed to the defendant ‘that he had an incident before for drunken driving.’ ” We held:

It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that the purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.

Id., 318 Pa.Superior Ct. at 400, 465 A.2d at 15.

Finally, appellant Bedleyoung complains that his sentence was manifestly excessive and unduly harsh.

Where the statute under which a defendant is convicted carries no specified penalty, sentencing is a matter within the sound discretion of the trial judge, whose determination will not be disturbed absent an abuse of that discretion. Such an abuse of discretion will be found where the sentence exceeds statutory limits or is manifestly excessive. Commonwealth v. Lee, 254 Pa.Super. 291, 385 A.2d 1025 (1978). As defendant’s sentence does not exceed the .statutory maximum, we need review the sentence only to determine whether it is manifestly excessive.

Guidelines have been established by the legislature for consideration by trial judges in the imposition of sentences. These guidelines require that the judge “follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). The judge is to apply this principle in choosing among the sentencing alternatives available: probation, determination of guilt without penalty, partial confinement, total confinement, and fines. 42 Pa.C.S. § 9721(a). Further, he must make as part of the record a statement of the reason or reasons for the sentence imposed. 42 Pa.C.S. § 9721(b). This statement of reasons must make it clear that the judge gave weight to the sentencing guideline statutes in making his determination. Commonwealth v. Kostka, 475 Pa. 85, 90, 379 A.2d 884, 887 (1977).

Here, a statement of reasons was made, and it shows that the judge made the determinations required by the statute for imposition of a sentence of total confinement. See 42 Pa.C.S. § 9725. While it is true that “the sentencing judge must do more than merely echo” the requirements of the applicable statute to justify his sentence, see Commonwealth v. Farrar, 271 Pa.Super. 434, 452, 413 A.2d 1094, 1103 (1979), where it is clear from the record that the judge was justified in reaching those conclusions, we need not remand for resentencing. Id., 271 Pa.Superior Ct. at 453, 413 A.2d at 1104. The record in this case reveals that the defendant’s conduct was of. a type which militates against the imposition of probation under the applicable guidelines. See 42 Pa.C.S. § 9722 (listing factors in favor of probation, e.g., “(1) The criminal conduct of the defendant neither caused nor threatened serious harm ... (3) The defendant acted under a strong provocation ... (5) The victim of the criminal conduct of the defendant induced or facilitated its commission.”). Since defendant’s conduct caused serious harm and his attack upon the victim was without any reasonable provocation whatsoever, the trial judge was clearly justified in declining to put defendant on probation and in finding that defendant’s conduct was sufficiently serious to warrant a .sentence of total confinement. The court considered all the factors required by statute and we find its determination to be adequately supported by the record. We therefore conclude that the sentence is not excessive under the circumstances and that the court did not abuse its discretion in imposing it:

THE COURT: Mr. Bedleyoung, I have before me a list of your prior violations, consisting of Assault, Parole Violation, Loitering and Prowling, Reckless Driving, Criminal Mischief, Eluding Police, Driving During Suspension, Operating Under the Influence, Failing to Pay Fines and Costs, Possession of Offensive Weapons, Criminal Conspiracy, all over a period extending from 1974, and you are only 27 years of age. Have I missed any here that is not correct?
THE DEFENDANT: No, sir.
THE COURT: Considering that this was a rape of a particularly despicable kind; considering your record; considering the fact that probation has not worked; considering the fact that you have an alcohol problem and you are aware of it and do nothing about it, something like this is apt to reoccur, and it is therefore my intention of sentencing you to imprisonment.
Do you have anything to say to me before sentence is imposed?
THE DEFENDANT: No, sir.

Sentencing Record at 3-4.

Judgment of sentence affirmed.

      . Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, effective in 90 days, as amended, Nov. 26, 1978, P.L. 1316, No. 319 § 1, effective Jan. 1, 1979; Act of Oct. 5, 1980, P.L. 693, No. 142, § 401(a), effective in 60 days.

      . Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, effective in 90 days, as amended by Act of Oct. 5, 1980, P.L. 693, No. 142, § 401(a), effective in 60 days:
      The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
      (1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime.
      (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
      (3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

      . Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, effective in 90 days, as amended by Act of Oct. 5, 1980, P.L. 693, No. 142 § 401(a), effective in 60 days.