author: DEL SOLE, Judge: BROSKY, Judge,

text:
    538 A.2d 578
    COMMONWEALTH of Pennsylvania v. Anthony GREGORY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed March 3, 1988.

      Robert G. Kochems, Assistant Public Defender, Mercer, for appellant.
    Kenneth K. McCann, Assistant District Attorney, Mercer, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a Judgment of Sentence directing that Appellant be incarcerated for a period of 10-20 years following the jury’s determination that he was guilty of third degree murder.

Presented for our consideration is a claim that the trial court erred in denying Appellant’s motion for “hybrid representation”. Appellant further challenges the jury’s finding of guilt as being against the weight of the evidence and also asserts that there was insufficient evidence on the element of malice to support their verdict. In his final issue, Appellant questions the exercise of the trial court’s discretion in formulating his sentence.

The first three allegations of error have been considered and properly disposed of by the Honorable Thomas T. Frampton in his Opinion dated January 15, 1987. We have reviewed the record to determine whether the trial court abused its discretion or committed an error of law with respect to these claims. Having done so, it is clear that the resolution of these matters as set forth in the trial court opinion is well-founded in both law and fact as evidenced by the record. Thus, as to these issues, we affirm on of the able trial court opinion.

Remaining for our determination is consideration of the propriety of Appellant’s sentence. As required by Pa.R. A.P., Rule 2119(f), Appellant, who is challenging the discretionary aspects of his sentence has set forth in his brief “a concise statement of the reasons relied upon for allowance of appeal”. Id. On a separate page on his brief, immediately preceding the argument appears Appellant’s statement which is entitled “STATEMENT OF THE SUBSTANTIAL QUESTION”. Therein Appellant alleges that his 10-20 year sentence of imprisonment is inappropriate under his particular circumstances. He specifically alleges that it was error to impose “a maximum sentence for third degree murder on the appellant, a twenty-four year old person with only a misdemeanor adult record and many of the elements of voluntary manslaughter present in his case”. Since Appellant has complied with the requirements of Pa.R.A.P. 2119(f), and since there appears to be a substantial question that the sentence imposed is not appropriate, we will allow the appeal of this issue and consider Appellant’s claim. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Tilghman, 366 Pa.Super. 328, 332 n. 2, 531 A.2d 441 (1987).

With regard to his sentence Appellant asserts that the court abused its discretion when it formulated a sentence which was “excessive in length and not tailored to the specific needs of appellant, the ends of justice, or the community’s welfare”. We disagree. The record of the sentencing hearing provides us with ample evidence that the court did consider all of the requisite factors in fashioning a sentence which does not inflict too severe a punishment. The particular circumstances of the offense, and Appellant’s past propensity to aggressive, violent behavior were recognized by the sentencing judge. The judge also remarked that he “appreciate^] the fact that [Appellant is] a very articulate young man and that [he has] accepted Christ into [his] life”. Further, the impact Appellant’s actions had on society as well as the serious nature of the crime were considered by the court. The sentencing judge noted that the gravity of this offense had to be reflected in the sentence. In light of the above, we cannot find any abuse of discretion in the imposition of sentence. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

Although we conclude that an abuse of discretion was not evident in Appellant’s sentence, we must vacate the sentence since it includes an increased term under the now void Deadly Weapon Enhancement provisions of the sentencing guidelines. We note that Appellant has not specifically challenged this portion of his sentence which would normally preclude our review, however, the illegality of a sentence is not a waivable issue and may be raised sua sponte by a reviewing court. Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985).

The Deadly Weapon Enhancement provisions of the Sentencing Guidelines mandated that “[w]hen the court determines that the defendant or an accomplice possessed a deadly weapon ... during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable”. 204 Pa.Code § 303.4. In the instant case the sentencing judge clearly stated that he was applying the enhancing provisions of § 303.4 in formulating Appellant’s sentence. The record also contains a standard sentencing guideline form. Under the heading “deadly weapon enhancement” appears an “x” in the box next to the word “yes”. In addition, the specific weapon used, a “handgun”, is noted on the form. While we cannot determine the exact length of time which was added to Appellant’s sentence under the provisions of § 303.4, it obvious that Appellant’s sentence includes a period of confinement consistent with the mandates of the Deadly Weapon Enhancement provisions.

The weapon enhancement provisions of the Sentencing Guidelines were also found to have been utilized by the sentencing court in a recent case considered by our Supreme Court, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). The appellant therein challenged the validity of his sentence by questioning the method by which the Sentencing Guidelines were established. The Supreme Court found merit to appellant’s argument and ruled that the Pennsylvania Sentencing Guidelines are invalid as promulgated in violation of the bicameral consideration and gubernatorial presentment requirements of the Pennsylvania Constitution. Declaring the the present guidelines are “to be of no force at all”, the Supreme Court found it necessary to vacate the appellant’s sentence and remand for resentencing pursuant to the remaining valid provision of the Sentencing Code. Id., 516 Pa. at 365, 532 A.2d 775.

Following the dictates of Sessoms we conclude that Appellant’s sentence which includes a period of incarceration based on the now nullified Deadly Weapon Enhancement provisions of the Sentencing Guidelines, is unauthorized, illegal and must be vacated. Accordingly, we vacate the Judgment of Sentence and remand this case for resentencing. We caution the court that upon remand the provision of § 303.4 shall not be utilized in reformulating Appellant’s sentence.

Judgment of Sentence vacated. Case remanded for re-sentencing. Jurisdiction relinquished.

HOFFMAN, J., concurs in the result.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. The majority disagreed with appellant’s assertion that the sentence imposed was excessive in length or “not tailored to the specific needs of appellant, the ends of justice, or the community’s welfare.” Maj. opinion p. 579. In so concluding the majority acknowledges that the sentence imposed does not compromise the purposes of the sentencing code or go beyond the legal sentencing limits as set forth in the sentencing code. The majority is troubled because the sentence was enhanced by a provision of the sentencing guidelines found to be void ab initio in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). There, where the issue was properly raised, our Supreme Court vacated a sentence because it had been enhanced pursuant to the same guideline provision as the sentence presently being considered. However, the Supreme Court noted that “this ruling is applicable to cases where the issue has been ‘properly preserved at all stages of adjudication up to and including any direct appeal.’ ” Id., 516 Pa. at 380, n. 2, 532 A.2d 775 at p. 19, n. 2. Appellant has not challenged, in this appeal, the method or procedure which was utilized in establishing the guidelines. Consequently, I believe this issue is waived.

The sentence imposed is within the legal limits of the sentencing code and is not, therefore, otherwise illegal. The fact that the sentence imposed was based upon guidelines found to be void does not necessarily make the sentence illegal or void as long as the sentence did not exceed the statutorily imposed limits. No opinion of this court or our Supreme Court has suggested that Sessoms requires the vacation of a sentence imposed pursuant to the guidelines if the sentence imposed is otherwise legal under the code. The sentencing code sets forth the permissible range of the sentence for the offense committed. The guidelines were a useful tool for determining a proper sentence within the statutorily authorized range but the guidelines never provided legal authority for the imposition of the sentence; this was provided by the sentencing code. The same can be said for the deadly weapons enhancement provision. That provision, although calling for enhancement of the sentence, did not provide any authority for an additional period of time of incarceration. It merely suggested or indicated that an appropriate standard sentence, within the permissible range of sentencing, for a crime committed with a deadly weapon, was 12 to 24 months greater than the same offense committed without a deadly weapon. Consequently, as the guidelines did not provide the statutory authority for the sentence, or any part of it, I cannot agree that the voiding of the guidelines by Sessoms makes the sentence illegal or requires the vacation of the sentence imposed here.

I see no difference between this sentence and another sentence imposed under the guidelines, even one in the standard range. Since either sentence would have been imposed under a guideline found to be void ab initio, either sentence could be theoretically open to a challenge as to its appropriateness at this point in time. However, as the guidelines did not provide authority for either sentence, neither could be thought of as lacking statutory authority, which would make the sentence illegal. Furthermore, to the extent the guidelines were used properly, we should presume that the sentence imposed was appropriately fitted for the crime committed.' Consequently, I would see no further reason to treat a sentence imposed in the standard range differently from one which was enhanced by the deadly weapons .provision. As indicated earlier, no Opinion of this court or the Supreme Court has indicated that a sentence imposed with consideration of the guidelines must be vacated. In fact, Justice Papadakos, in his Concurring Opinion to Sessoms indicates that very point.

It is possible that appellant would have been given a lesser sentence had the voided guidelines not been considered. It is also possible that he would not have. But, appellant did not challenge the usage of guidelines or the method of its adoption as did Gershom Sessoms, nor does the present sentence lack statutory authority. Therefore, despite the majority’s assertion to the contrary, the sentence imposed was not illegal and vacating the sentence is improper.

      . We note that while Appellant has recognized the Supreme Court’s ruling on a like claim involving the right to "hybrid representation” in Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) he urges us to “reexamine the same” and change the court’s position. Appellant asserts that such a change is warranted because the Supreme Court’s decision in Colson and the decision in the case on which it relies, Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979), are unsupported by underlying rationale. To bolster his attack of these Pennsylvania decisions, Appellant cites numerous cases from other jurisdictions.
      We decline Appellant’s invitation to "re-examine” and "change” the law of this Commonwealth on this issue. The Superior Court, as in intermediate appellate court, is powerless to alter the decisional law of our Supreme Court. DeFrancesco v. Western Pennsylvania Water Co., 329 Pa.Super. 508, 478 A.2d 1295 (1984); Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    538 A.2d 582
    COMMONWEALTH of Pennsylvania, Appellee, v. Lee Lewis COHEN, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Terry George RUGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Decided Feb. 23, 1988.

      Peter P. Griffin, Public Defender, Lock Haven, for appellant in 309.
    Harold N. Fitzkee, Jr., York, for appellant in 310.
    Merritt E. McKnight, District Attorney, Lock Haven, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is a consolidated appeal from the trial court’s judgment of sentence following a jury trial at which appellants were convicted of prostitution and related offenses in violation of 18 Pa.C.S.A. § 5902(b)(1). For the reasons stated below we affirm the order of the trial court.

Appellants were the owners and operators of the Taj Mahal II, a massage parlor. They were brought to trial on the charge of promoting prostitution of another person by owning, controlling, managing or supervising a house of prostitution. The basis for the charge was the giving of a full body massage by nude female masseuses. The massage included a “hand release”, a euphemistic term for masturbating the male clients of the establishment. Following appellants’ conviction of promoting prostitution, post-trial motions were filed and denied. This appeal followed.

Appellants raise three issues for our review: (1) did the lower court err in finding that 18 Pa.C.S.A. § 5902 was not unconstitutionally vague as applied to the instant case; (2) was it proper for the court to deny appellant Cohen the right to testify concerning his reliance on legal information and advice which he had received before entering into the “massage” business; and (3) was the trial court correct in its decision to permit introduction of the testimony of an employee as an admission against appellants even though appellants were not present when the statement was made.

Prostitution is prohibited in Pennsylvania by 18 Pa.C.S.A. § 5902, Prostitution and Related Offenses. Section 5902 provides in pertinent part:

(a) Prostitution — a person is guilty of prostitution; a misdemeanor of the third degree, if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; ...

(Emphasis added.). Sexual activity is defined in 18 Pa.C. S.A. § 5902(f) as including homosexual and other deviate sexual relations.

Appellants contend that the definition of “sexual activity” is a limited one not including masturbation or genital massage. Alternatively, they contend that Section 5902 is vague and was unconstitutionally applied in the instant case.

We feel that both of these contentions are adequately addressed by this Court’s prior pronouncements in this area.

With respect to the contention that “sexual activity” does not include masturbation or genital massage, this Court stated the following:

“In the mind of a man of ‘common intelligence’ the term sexual activity clearly encompasses masturbation as a business. Indeed, as we have already observed, it is difficult to believe that any man of common intelligence would consider the massaging of the genitals of an unclothed man by a nude or partially nude female to be anything other than sexual activity.”

Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266 (1986), appeal denied, 515 Pa. 577, 527 A.2d 538 (1987), quoting Commonwealth v. Israeloff, 8 Pa.D. & C. 3rd, 5 (1978).

We now undertake a review of appellants’ contention that 18 Pa.C.S.A. § 5902 is vague and that its application to the present situation is achieved through judicial legislation and is therefore unconstitutional. Specifically, appellants contend that the statute does not give reasonable notice of the conduct which it proscribes, therefore it violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 246 (1976)

It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed.

Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 244, 46 L.Ed.2d 185, 188 (1975). However,

“ ‘[T]he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices____’” (Emphasis added) Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957); see also District of Columbia v. Garcia, D.C.App., 335 A.2d 217, cert. denied, 423 U.S. 894, 96 S.Ct. 192, 46 L.Ed.2d 125 (1975).

In dealing with the exact same issue, with substantially the same factual setting, Commonwealth v. Robbins found that the appellant therein had notice and fair warning that she was violating the law by allowing the performance of manual sexual stimulation for money.

Appellants, however, fault Robbins for failing to recognize that the issue there, as here, was not whether the term “sexual activity” encompassed masturbation but whether masturbation is the type of activity intended to be prohibited by the Prostitution statute. Robbins specifically addressed this issue. We therefore quote the pertinent portion of that opinion.

Furthermore, since the term “sexual activity” is undefined by the statute, we are obliged to construe that term according to its common and approved usage. Barasch v. Pennsylvania Public Utility Commission, 507 Pa. 430, 490 A.2d 806 (1985). See also Statutory Construction Act, 1 Pa.C.S.A. Section 1903 (a). When the term “sexual activity” is examined in light of the statute’s underlying purpose of prohibiting commercial exploitation of sexual gratification and also in light of its common and approved usage, there is no doubt that masturbation for hire falls within the statute’s proscription. Therefore, we find Section 5902 (a) is not unconstitutionally vague so as to cause appellant to seriously believe that she was not providing some form of sexual gratification for the payment of money.

Commonwealth v. Robbins, 358 Pa.Super. at 230, 231, 516 A.2d at 1269 (Emphasis added.).

Appellants’ next contention is that the trial court erred in not permitting one of the appellants, Lee Cohen, to testify that he had relied on certain legal information that the business with which he was involved was not illegal. He cites Commonwealth v. Bollinger, 197 Pa.Super. 492, 179 A.2d 253 (1962) for the proposition “that a person is entitled to rely on the parameters in defining the legitimacy of their activities.” (Appellant’s brief at 17).

The legal information on which appellant relied is the case Commonwealth v. Jayne Dougan, 5 Pa.D. & C. 3d 406 (1978), which ruled that masturbation for hire did not constitute a sexual activity so as to come within the realm of the prostitution statute. This case is no longer a correct statement of the law since Commonwealth v. Robbins. Appellant argues, however, that the issue is not whether Dougan is controlling but whether his reliance on it negated his intent to commit the crime of promoting prostitution. We feel that the trial court aptly addressed this argument when it stated:

The intent to commit the crime of prostitution as the Court perceives it relates to the intent to commit the specific acts prohibited by the statute. Such intent cannot relate to the Defendant’s perception of the law since to do so would be to create an extremely questionable policy of allowing a defendant to submit to a jury that his understanding of the law did not make the criminal conduct a crime.

(Trial court opinion at 4).

We are therefore in agreement with the trial court that the appellant, in asserting his reliance on an interpretation of the law by a lower court, was in fact attempting to assert his ignorance of the law or mistake of law, neither of which are a defense to the commission of a crime. See 18 Pa.C. S.A. § 304 (providing for the defense of mistake of fact but not mistake of law).

Finally, appellants contend that the trial court erred when it admitted testimony, that the appellants characterize as hearsay testimony, of one of the employees of appellants’ establishment concerning the use of the “hand release” in the massage. Specifically, the court allowed the state police undercover officer to testify that one of appellants’ masseuses had instructed her as to the method used in giving a “hand release” and that a “hand release” was to be given with a massage. The trial court permitted the testimony on the basis that the masseuse, an employee of appellants, was acting within the scope of her employment when she made the statement and therefore it was admissible under an exception to the hearsay rule as an admission of a party. We find that the testimony was properly admitted, not as an exception to the hearsay rule, but as non-hearsay.

Testimony by a third person as to extra-judicial utterances made by another, when offered to prove the truth of the matter averred therein, constitutes hearsay evidence and is inadmissible at trial. Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1980). Testimony as to an out-of-court statement is not hearsay, however, if offered to prove, not that the content of the statement was true, but that the statement was made. Commonwealth v. Sampson, 454 Pa.Super. 215, 311 A.2d 624 (1973). In the instant case appellants do not contend that a “hand release” was not being given at their establishment. In fact, at trial appellants’ counsel indicated to the court that the fact that the hand release was to be given with every massage was not an issue. (N.T. 8/7/86 at 21). Therefore we find that the statement by the masseuse that a “hand release” was to be given with a massage was not offered to prove that such a technique was employed but simply to show that the statement was made. It therefore was not hearsay and was admissible at trial.

For the reasons stated above, the judgment of sentence is affirmed.


author: DEL SOLE, Judge:

text:
    538 A.2d 881
    Darla A. VIHLIDAL, as Administratrix of the Estate of William E. Vihlidal, Deceased, Appellant, v. Timothy BRAUN, an Individual, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed Feb. 1, 1988.
    Reargument Denied March 22, 1988.

      John H. Riordan, Jr., Pittsburgh, for appellant.
    Kathleen S. Delach, Washington, for appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment entered in accordance with a jury verdict finding for Appellee, defendant, and against Appellant, plaintiff, in a wrongful death and survival action. Following the denial of her motion for post-trial relief, Appellant filed the instant appeal citing a variety of errors with the trial judge’s rulings and with the jury verdict. Among the issues raised by Appellant is a claim that the trial court erred in refusing her request for a jury instruction on her decedent’s presumption of due care. Because we find this issue is meritorious and demands Appellant receive a new trial, we do not consider the other allegations of error presented in this appeal.

Necessary to an understanding of the issue before us is a brief review of the underlying circumstances. The record reveals that an automobile accident occurred at about 10:00 p.m. when a truck driven by Appellant’s decedent collided with an automobile driven by Appellee. Prior to the accident both drivers had been traveling alone in opposite directions along Route 519 in North Strabane Township, Washington County. There were no witnesses to the actual collision. As a result of the accident the driver of the truck suffered injuries and died the next morning. The Appellee was unable to recall the events of that evening and at trial testified that his lack of memory was caused by injuries he sustained in the accident.

At trial both sides presented experts who differed in their opinion as to the location of the point of impact. Appellant’s expert opined that Appellee’s vehicle traveled across the center line and collided with the deceased’s truck. Appellee’s expert believed the point of impact occurred in the northbound lane indicating that Appellant’s decedent must have crossed the center line. Since those involved in the accident were incapable of providing testimony as to its circumstances, both parties sought to have the jury instructed that the driver of their respective vehicles should be presumed to have been using due care at the time of the accident. The trial judge refused both requests for such a charge, and it is this ruling which Appellant questions.

In support of her claim, Appellant cites the Supreme Court decision in Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986). Therein, the plaintiff, Waddle, was struck by a vehicle operated by the defendant, Nelkin. Waddle had no recollection of the occurrence itself and therefore at trial he requested that the jury be instructed that he was entitled to a presumption of due care. The trial court refused to give the following jury instruction:

Where a plaintiff’s mind is blank as to an accident and all its incidents the presumption is that he did all that the law required him to do and was not guilty of negligence.

Id., 511 Pa. at 645, 515 A.2d at 911.

The Superior Court, on appeal, found that the requested point for charge was required and awarded a new trial. Reviewing the Superior Court’s decision the Supreme Court cited the controlling law on this issue.

Where a plaintiff’s mind is blank as to an accident and all its incidents, the presumption is that he did all that the law required him to do and was not guilty of contributory negligence. The presumption, however, is a rebuttable one and must give way when the facts as established by plaintiff’s evidence shows that he was guilty of contributory negligence.

Id., citing: Auel v. White, 389 Pa. 208, 214, 132 A.2d 350, 353 (1957). The Supreme Court found no evidence which would rebut the presumption of due care and ruled that the trial court erred in failing to give the requested jury instruction. The Court went on to consider whether the trial error was harmless and concluded that it could not be so characterized. Finally, the Court considered and rejected the argument that the adoption of the doctrine of comparative negligence in Pennsylvania negated the necessity for the presumption of due care instruction. Accordingly, the Superior Court’s award of a new trial was affirmed.

The Appellant, herein, argues that the Supreme Court’s decision in Waddle v. Nelkin, was tempered by its ruling one month later in Rice v. Shuman, 513 Pa. 204, 519 A.2d 391 (1986). In the Rice case the Court found that an incompetent defendant was not entitled to a charge on the presumption of due care. Appellee argues that a reading of Rice v. Shuman disallowing use of the presumption only to deceased or incapacitated defendants is too narrow. He maintains that its ruling may properly be interpreted to disallow an instruction on the presumption of due care “for any deceased or incapacitated party." We do not agree.

An automobile accident also prompted the underlying lawsuit in Rice v. Shuman. As a result of head injuries he sustained in the accident, the appellant, Shuman was incompetent to testify at the time of the jury trial. Because of his incompetence, Shuman submitted the following point for charge:

When a person injured in an accident is rendered incompetent by his injuries or has lost his memory as a result of his injuries so that he is unable to testify as to how the accident occurred, the law presumes that at the time of the accident that person was using due care of his own safety.

Id,., 513 Pa. at 209, 519 A.2d at 394. The trial court refused to instruct the jury as appellant suggested. This decision was affirmed by the Supreme Court. The Court reasoned:

The obvious motive for the application of the presumption to a defendant was to prevent a surviving competent plaintiff from taking advantage of the death or incapacitation of the defendant. However, the recognized effect of the presumption does no more than prevent a defendant’s absence from lessening the burden upon the plaintiff of establishing the defendant’s negligence. Since the burden upon the plaintiff has been established without regard to the availability of the defendant to personally defend, it serves no purpose in this context.

Id., 513 Pa. at 212, 519 A.2d at 396. In conclusion the court remarked: “In any event, it is apparent under present law that the presumption of due care running in favor of a deceased or incapacitated defendant is a useless appendage which is likely to obfuscate rather than clarify the issues to be resolved in the lawsuit.” Id. (emphasis added).

We cannot accept Appellee’s argument that the decision in Rice v. Shuman invalidates the presumption of due care to all incapacitated or deceased parties. We arrive at this conclusion for the following reasons. In Waddle, the Supreme Court held that a deceased plaintiff was entitled to the “presumption”. The Opinion announcing the Judgment of the Court was written by Justice Zappala, Justice Larsen filed a Concurring Opinion in which Justice Papadakos joined and Justice McDermott filed a Concurring Opinion, Chief Justice Nix filed a Dissenting Opinion in which Justices Flaherty and Hutchinson joined and each of them filed separate Dissenting Opinions. The case was argued on March 5, 1986 and decided on October 8, 1986.

In Rice v. Shuman, Chief Justice Nix wrote the Opinion of the Court in which he was joined by Justices Flaherty, Hutchinson and Papadakos. Justices Larsen, McDermott and Zappala each wrote Dissenting Opinions. That case was argued on April 15, 1986 and decided December 16, 1986. In the Opinion of the Court, the Chief Justice begins by discussing the use of presumptions in litigation, but specifically restricts the holding to cases where the presumption is sought in favor a deceased or incapacitated defendant.

Obviously, the Court had both cases before it for simultaneous consideration between the time of argument in Rice and the time of decision in Waddle, almost six months.

The fact that the Court in Rice did not specifically overrule Waddle and specifically restricted its holding to the use of presumptions by defendants requires us to do the same. Thus, we hold that the Waddle decision which entitled a deceased or incapacitated plaintiff to an instruction of the presumption of due care, remains viable and should have controlled the trial court’s ruling in this case.

Since plaintiff’s husband died as result of the accident and since as there was no evidence establishing that as a matter of law Appellant’s decedent was contributorily negligent, we must reverse the judgment of the trial court and award a new trial. Upon retrial, Appellant shall be entitled to have the jury instructed on the presumption of due care afforded her decedent in accordance with Waddle v. Nelkin, supra.


author: JOHNSON, Judge:

text:
    538 A.2d 883
    ELKINS & CO. v. William Z. SUPLEE, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Filed March 7, 1988.

      John F. Stoviak, Philadelphia, for appellant.
    Edward J. O’Malley, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the confirmation of an arbitration award issued by a panel of arbitrators of the New York Stock Exchange. We affirm.

The arbitration award resolved a dispute between the stock brokerage Elkins & Co., a Pennsylvania Limited Partnership, and a former general partner, appellant William Z. Suplee, III, a citizen and resident of Pennsylvania. The Agreement of Limited Partnership provided that disputes between Elkins and appellant were to be arbitrated pursuant to the Constitution and Rules of the Board of Governors of the New York Stock Exchange (NYSE). The partnership agreement, which had been executed in Pennsylvania, stated that it was to be governed by the laws of Pennsylvania.

This dispute arose after appellant terminated his partnership interest in Elkins on June 28, 1981. On March 22, 1982, the executive committee of Elkins voted to charge all partners and former partners, including appellant, for expenses incurred by Elkins attributable to litigation arising from the years 1979-1981. On June 10, 1985, pursuant to the 1981 limited partnership agreement, Elkins filed a demand for arbitration after appellant refused to pay his assessed portion of these losses.1 On January 23, 1986, a hearing was held in the Stock Exchange Building, 11 Wall Street, in New York City. Both parties were present at the hearing and represented by counsel. The next day, the arbitrators unanimously issued an award directing appellant to pay $15,807.14 to Elkins. When appellant failed to satisfy that award, on May 13, 1986 Elkins filed a Petition to Confirm Arbitration Award in the Court of Common Pleas of Chester County. The Honorable Charles B. Smith, by opinion and order dated April 2, 1987, determined that jurisdiction existed to confirm an award of the New York Stock Exchange. This appeal followed.

Appellant first contends that the court of common pleas lacked jurisdiction to confirm an award of arbitrators convening at the New York Stock Exchange and rendered in our sister state of New York. Appellant asserts that there is no enabling statute which grants jurisdiction to a Pennsylvania Court of Common Pleas to enforce, confirm or enter judgment from a foreign arbitration award. Appellant, in essence, argues that Pennsylvania courts lack subject matter jurisdiction.

We will, initially, examine the partnership agreement since arbitrability is purely a matter of contract. Goodwin v. Elkins & Co., 730 F.2d 99 (3d Cir.1984). The partnership agreement provides:

Any controversy arising hereunder will be determined by arbitration pursuant to the Constitution and Rules of the Board of Governors of the New York Stock Exchange.

Partnership Agreement at 31.

In tandem, the Constitution of the New York Stock Exchange also provides:

Controversies Arbitrated. Any controversy between parties who are members, allied members or member organizations and any controversy between a member, allied member or member organization and any other person arising out of the business of such member, allied member or member organization or the dissolution of a member organization, shall at the instance of any such party be submitted for arbitration in accordance with the provisions of this Constitution and such rules as the Board may from time to time adopt.

Constitution of the New York Stock Exchange at Article XI, § 1.

The Supreme Court of this Commonwealth as a matter of public policy favors the settlement of disputes by arbitration to promote the swift and orderly disposition of claims. Waddell v. Shriber, 465 Pa. 20, 348 A.2d 96 (1975).

In Waddell, a case also involving the interpretation of the New York Stock Exchange Arbitration procedures, our supreme court in an opinion by Justice Roberts determined:

By subscribing to the constitution and the rules of the NYSE, the disputants created a contractual obligation to arbitrate any controversy arising among them---- The constitution and rules of the stock exchange constitute a contract between all members of the exchange with each other and with the exchange itself. Because the constitution and the rules of the exchange require that members and allied members submit all controversies to arbitration, the parties here, by contracting to abide by these provisions, have agreed to submit their disputes to arbitration. (Citations omitted.)

465 Pa. at 24, 348 A.2d at 100.

Rule 628 of the New York Stock Exchange provides, in pertinent part:

Awards

(a) All awards shall be in writing and signed by a majority of the arbitrators or in such manner required by law. Such awards may be entered as a judgment in any court of competent jurisdiction.

The Supreme Court of this Commonwealth has determined that the parties may by their agreement to arbitrate provide authority for entering judgment on the award. Gretz v. Esslinger’s Inc., 416 Pa. 111, 204 A.2d 754 (1964); Allegheny Home Improvement Corporation v. Franklin, 308 Pa.Super. 225, 454 A.2d 103 (1982).

We agree with appellant that no enabling statute grants jurisdiction to a Pennsylvania Court of Common Pleas to confirm this arbitration award. It is superfluous.

The terms of this agreement, incorporating the rules of the NYSE, provide that an award of arbitrators of the New York Stock Exchange may be entered as a judgment in any court of competent jurisdiction. The parties presently before us agreed that arbitration was to be held according to the rules of the New York Stock Exchange; and they agreed to be bound by the result. If appellant allowed this dispute to proceed to arbitration in the belief that he could unilaterally void a binding agreement, he is mistaken.

As we have resolved appellant’s claim that Pennsylvania Courts lack subject matter jurisdiction adversely to him, we will entertain no argument that the Court of Common Pleas of Chester County is not a court of competent jurisdiction.

Appellant further contends the arbitration award should be vacated on four independent grounds: (1) he was denied his due process right to a fair hearing before the arbitration panel; (2) he received a final settlement letter from Elkins which did not refer to the monies sought at arbitration; (3) these expenses were incurred when he was not affiliated with Elkins and pursuant to a partnership agreement to which he was not a signatory; and (4) the litigation from which the charged expenses arose was a result of a breach of fiduciary duty by the Executive Committee of Elkins.

These contentions require that we next determine the appropriate standard of review. In order to do so, we must establish whether the parties agreed to common law or statutory arbitration. In pertinent part, 42 Pa.C.S. § 7302(a) provides:

An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this statute or any other similar statute____

42 Pa.C.S. § 7302(a).

Having no evidence that the parties, either expressly or by implication, agreed to statutory arbitration, our scope of review will be bound by the common law rules of arbitration. By statute, an arbitration award at common law is binding and may not be vacated or modified absent a clear showing that a party was denied a hearing or that fraud, corruption or other irregularity caused the the issuance of an unjust, inequitable or unconscionable award. 42 Pa.C.S. § 7341.

After a thorough review of this record including the transcript of the arbitration proceedings, we echo the observation of the Honorable Charles B. Smith of the Court of Common Pleas of Chester County, that appellant would have us relitigate the legal and factual arguments he made to the arbitrators. We must remind appellant that in common law arbitration, the arbitrators are the final judges of both law and fact; there is no authority which sanctions vacatur of their determinations of either. They are the final arbiters. Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 464 A.2d 1354 (1983).

The trial court in its decision followed the reasoning of L.R. Foy Construction Co. v. Dean L. Dauley and Waldorf Associates, 547 F.Supp. 166 (D.Kan.1982). The trial court rejected appellant’s reliance on 42 Pa.C.S.A. § 7318 and appellant’s contention that the arbitration agreement must provide for arbitration in Pennsylvania for jurisdiction to exist. Following Foy, the trial court found the statutory jurisdictional requirements to be met by appellant’s agreeing to be bound by a procedure that could result in arbitration in Pennsylvania. This finding was grounded on NYSE Arbitration Rule 613 which provides that the situs of arbitration is to be selected by an official of the NYSE. The trial court found arbitration to be at common law and concluded that appellant had not met his burden of proof to vacate the award. While we agree with the trial court that confirmation of the award was proper, we affirm by different reasoning. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986).

We find this dispute to be governed by 42 Pa.C.S. § 7342(b) which provides:

(b) Confirmation and judgment. On application of a party made more than 30 days after an award is made by a arbitrator under section 7341 (relating to common law arbitration) the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order. Section 7302(d)(2) shall not be applicable to proceedings under this subchapter. (Emphasis added.)

42 Pa.C.S. § 7342(b).

In the case presently before us, no action was taken to modify the award until appellant filed Preliminary Objections, an Answer and New Matter to appellee’s petition to Confirm Arbitration on July 11, 1986. Appellant had allowed in excess of five months to elapse from the date the arbitrators issued their award, January 24, 1986, until he challenged the arbitration award. In an earlier case with a similar time lapse prior to the appellant’s challenge of an arbitration award, we held that “[t]he use of the word ‘shall’ must be interpreted as mandatory in an instance such as this”. Beriker v. Permagrain Products, Inc., 347 Pa. Super. 102, 104, 500 A.2d 178, 179 (1985). In Beriker we held that any issues must be raised within thirty days of the date of the arbitration award. Once thirty days have passed, it is mandatory that the trial court affirm the award upon application of either party. Id. Where, as here, appellant failed to challenge the January 24, 1986 arbitration award until July 11, 1986 by responding to appellees Petition to Confirm, in excess of some five months later, the challenge comes too late.

Judgment affirmed.

      . Appellant had been a general partner of Elkins & Co. and its predecessor firms, Elkins, Stroud, Suplee & Co. and Suplee-Mosley, since December 12, 1974. Appellant served as a member of the Board of Governors of the Philadelphia Stock Exchange from 1969 to 1984. He was elected to the Board of Governors of the National Association of Security Dealers for a term from 1979 to 1981. As of March 11, 1985, appellant was vice-president of Soliday & Co., Inc., a Philadelphia Stock Exchange member and resident manager of their Media, Pennsylvania office.

      . These expenses were itemized in schedules accompanying letters mailed to appellant from the partnership.

      . The arbitration award of $15,807.14 is the sum of the $15,307.14 amount claimed by Elkins plus costs, the $500 arbitration fee charged by the NYSE.

       [H]e did know that he was agreeing to abide by the constitution of the exchange and that his actions as an allied member would be regulated by the exchange. This suffices to bind the parties to the terms of the agreement. Corbin on Contracts § 607.

      . Paragraph 18(e) of the partnership agreement, in pertinent part, provides:
      The Executive Committee may in its sole discretion distribute any major loss (which it may define in its sole discretion) on the basis of the Partners” shares of profit and loss for the year to which the Executive Committee shall determine such loss shall be attributed.


author: HESTER, Judge:

text:
    538 A.2d 887
    COMMONWEALTH of Pennsylvania v. Anthony WHITE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 4, 1988.
    Filed March 7, 1988.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WATKINS and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s conviction, in a nonjury trial, of criminal trespass, a felony, and attempted theft. The sole issue is whether the ladies’ room entered by appellant was a separately secured or occupied portion of the Society Hill Club within the meaning of 18 Pa.C.S. § 3503(a) so as to justify his conviction of criminal trespass. We agree with the trial court that appellant’s offense constituted criminal trespass, and affirm the judgment of sentence.

On March 29, 1986, appellant entered the Society Hill Club in Philadelphia, and went into the ladies’ room. An aerobics instructor was alone in the room, in a bathroom stall. Appellant attempted to push the stall door open, and she told him the stall was occupied. Moments later, when she emerged, she saw that appellant had taken her gym bag from outside the stall, and was rifling its contents in the adjacent locker area of the ladies’ room. She asked him to return her gym bag.

In response, appellant dropped his trousers and approached her in a threatening manner, using obscene language and making indecent propositions, while blocking the exit from the ladies’ room. The instructor told appellant that an aerobics class would be entering the room at any minute, whereupon appellant fled. He was arrested a short time later hiding a few blocks away from the club, and was identified as the intruder.

Appellant was charged with burglary, attempted rape, criminal trespass, unlawful restraint, assault, terroristic threats, attempted theft, and defiant trespass. He waived his right to a jury and was tried on July 24,1986, before the Honorable Theodore A. McKee, who found him guilty of criminal trespass and attempted theft, acquitting him of the other charges. Following the denial of post-trial motions, appellant was sentenced to an aggregate term of one and one-half to three years imprisonment.

Appellant challenges only his conviction of criminal trespass. Specifically, he argues that the trial court erred in finding that his conduct violated 18 Pa.C.S. § 3503(a); he claims his conduct, at worst, offended § 3503(b), defiant trespass. Appellant argues that it was error to interpret the statute in such a way as to consider the Society Hill Club ladies’ room as a “separately secured or occupied portion” of a building. He claims he merely entered a “place as to which notice against trespass is given by ... posting in a manner ... reasonably likely to come to the attention of intruders,” so that he was guilty only of defiant trespass, a misdemeanor.

The statute provides:

§ 3503. Criminal trespass

(a) Buildings and occupied structures.—

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:

(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or

(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.

(2) An offense under paragraph (l)(i) is a felony of the third degree, and an offense under paragraph (l)(ii) is a felony of the second degree.

(b) Defiant trespasser.—

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(i) actual communication to the actor; or

(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(iii) fencing or other enclosure manifestly designed to exclude intruders.

(2) An offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a summary offense.

18 Pa.C.S. § 3503.

We hold that appellant’s entry into the ladies’ room violated § 3503(a)(l)(i), and therefore affirm his conviction of felonious criminal trespass. We deem the ladies’ room to be a separately secured or occupied portion of the structure housing the Society Hill Club.

Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322 (1982), noted that the Pennsylvania statute is taken from section 221.1 of the Model Penal Code. The following official commentary helps explain this provision:

The provision as to separately secured or occupied portions of buildings and structures takes care of the situation of apartment houses, office buildings, steamships with many private cabins, etc., where occupancy is by unit. It is the unit rather than the structure which must be safeguarded, even against the occupants of other units in the same structure.

Model Penal Code, T.D. 11, § 221.1, p. 59 (1960). The trial court stated that the criminal trespass statute gives legal protection to the expectation of privacy that the occupants of the smaller units would realistically assume. The court concluded that the legislature intended to afford the occupants of a restroom the same protection afforded occupants of an office. Trial court opinion, 10/9/87, at 5. We agree.

Although the occupancy of the ladies’ room is extensive, encompassing all women in the club, it is nevertheless true that all women in the restroom may exclude all men, even those legitimately in the club, from occupying that area. The ladies’ room is therefore “separately secured or occupied” for precisely the same reason that an office in an office building is — it is reserved for the exclusive use of only a subset of the total population authorized to use the larger structure. Accordingly, the trial court was correct in concluding that appellant’s conduct violated 18 Pa.C.S. § 3503(a)(l)(i).

Judgment of sentence affirmed.


text:
    538 A.2d 889
    Virginia BROWN, as Administratrix of the Estate of Lawrence Brown and Individually, Joan Brown Spina, John Brown, Thomas R. Brown, Appellants, v. The DELAWARE VALLEY TRANSPLANT PROGRAM, Arthur Harrell, Individually and in his Capacity as Transplant Coordinator of the Program, Howard Nathan, Individually and in his Capacity as Executive Director of the Program, Brandywine Hospital, Norman Ledwin, Individually and in his Capacity as President of Brandywine Hospital, James P. Argires, M.D., Individually and in his Capacity as a Staff Member of Brandywine Hospital, Philippe Ouellette, Individually and in his Capacity as Vice President of Brandywine Hospital, Charles R. Wagner, M.D., St. Christopher’s Hospital for Children, Samuel Heed, Esquire (Two Cases).
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed March 8, 1988.

      Joseph F. Lawless, Jr., Media, for appellants.
    George E. Rahn, Jr., Philadelphia, for Brandywine Hosp. and Ledwin, appellees.
    Roberta D. Liebenberg, Philadelphia, for Heed, appellee.
    Before BECK, CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from orders transferring this tort action from Philadelphia County to Chester County on the ground of forum non conveniens. We hold that the change of venue was a proper exercise of the trial court’s discretion, and affirm the orders.

On October 30, 1984, Lawrence Brown was discovered lying on a roadside in Chester County with a gunshot wound in his head. He was transported to Brandywine Hospital in Chester County, where he was placed on life support systems. Hospital personnel determined that he had suffered brain death, and decided to seek permission to use Brown’s heart and kidneys for transplantation.

The hospital directed its counsel, Samuel Heed, to prepare a petition requesting a court order granting consent to the extraction of Brown’s organs for transplantation. Heed presented the petition to the Chester County Court of Common Pleas, alleging that the identity of Lawrence Brown, identified as “John Doe,” was unknown and that the hospital was unable to contact his next-of-kin to obtain consent. Following a hearing, the court granted the petition. With court approval, Brown’s heart and kidneys were removed under the auspices of the Delaware Valley Transplant Program.

Representatives of the decedent filed a multi-count complaint against the Delaware Valley Transplant Program and some of its officers, Brandywine Hospital and various officers and staff physicians, and Mr. Heed, counsel for the hospital. The complaint alleged that although the defendants knew the identity of Lawrence Brown, they conspired to obtain court authorization for the removal of his organs in violation of the law, rather than seeking the authorization of his next-of-kin, resulting in extreme emotional distress.

On January 22, 1987, the court granted the defendants’ petition to transfer venue to the Court of Common Pleas of Chester County on the ground that Philadelphia was a forum non conveniens. Appellants have appealed the transfer under Pa.R.A.P. 311(c). The sole issue is whether the trial court abused its discretion in ordering the change of venue.

Pa.R.C.P. 1006(d) “vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion.” Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 81, 461 A.2d 805, 806 (1983), citing Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960).

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.

In re Women’s Homoeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958), quoting Echon v. Pennsylvania R.R. Co., 365 Pa. 529, 534, 76 A.2d 175, 178 (1950). The supreme court has described the heavy burden facing the appellant from a discretionary trial court determination: “[I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” Mackarus’s Estate, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968), quoting Garrett’s Estate, 335 Pa. 287, 292-93, 6 A.2d 858, 860 (1939). If there is any basis for the trial court’s decision, the decision must stand. Id.

The factors which should be considered by the trial court fall into three categories. First, the plaintiff’s choice of forum should be given significant weight. Second, the interests of the parties should be considered, including relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of premises, if appropriate, enforceability of a judgment, and any other problem which affects the ease, celerity or expense of the litigation. The third category is the public interest; litigation should not be piled up in congested centers rather than being handled at its origin; jury duty should not be imposed on the people of a community which has no relation to the litigation. Plum v. Tampax, Inc., supra.

Appellants argue that the trial court gave too little weight to their choice of forum, and incorrectly evaluated the other relevant factors. Appellants argue that alleged inconvenience to the defendants was overrated by the court, inasmuch as the hospital witnesses will be subject to the same impositions always present when a hospital is a defendant. Moreover, the distance from the Chester County Courthouse to Philadelphia City Hall is only thirty-one miles, an impediment appellants argue does not warrant a change of venue. Appellants argue that sources of proof are located throughout four counties, four states and the District of Columbia, and that costs of litigating in either Philadelphia or Chester County are equally balanced; they conclude that no single county emerges as the more convenient forum.

We do not agree with appellants’ arguments. The trial court found that: 1) the sources of proof are overwhelmingly located in Chester County; 2) trial of the case in Chester County will work no appreciable inconvenience on any party, whereas litigation in Philadelphia would be extremely inconvenient for the defendants and many witnesses; 3) the case has a much more substantial relationship to Chester County than to Philadelphia; and 4) the public interest in avoiding the administrative difficulties of crowded dockets is served by transfer to Chester County. Each of these findings is supported by the record.

The gunshot victim was discovered in Chester County, the rescue squad, the police officers and the physicians involved in the case are from Chester County, and the hospital where he was treated is in Chester County. The judge who signed the decree is in Chester County, the attorney who appeared before him in Chester County, and the transplant program has an office in Philadelphia, but serves Chester County. The vast majority of witnesses, many of whom perform important medical, judicial, and law enforcement functions, are located in Chester County. Finally, the decedent’s personal representative, suing on behalf of Mr. Brown’s estate and on her own behalf, is a resident of Chester County, and only one of the four plaintiffs lives in Philadelphia County.

Under the standard of review set forth above, we conclude that the trial court was within its discretion to order the transfer of this case to Chester County. Orders affirmed.

      . The trial court unnecessarily entered two orders on January 22, 1987, both of which transferred the action to the Court of Common Pleas of Chester County. Appellants filed a notice of appeal from each order.


text:
    538 A.2d 892
    COMMONWEALTH of Pennsylvania v. Edward BAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 4, 1988.
    Filed March 8, 1988.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WATKINS and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the denial of appellant’s petition for PCHA relief. Appellant was convicted of first degree murder, robbery, burglary and criminal conspiracy. He was sentenced to life imprisonment for murder and two concurrent terms of ten to twenty years imprisonment for burglary and robbery. Appellant alleges that all of his prior counsel were ineffective for failing to raise trial counsel’s ineffectiveness for not objecting to the prosecutor’s closing remarks. We hold that appellant’s allegation has been finally litigated, and we affirm the order of the trial court.

Following a jury trial, appellant was found guilty on September 27, 1974. Represented by new counsel, appellant filed timely post-trial motions, which were denied. He was sentenced on March 27, 1975, and filed an appeal to the Pennsylvania Supreme Court, which affirmed the judgment of sentence on March 17, 1976. Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976). Subsequently, appellant, represented by new counsel, filed his first PCHA petition which was denied on January 8, 1980, following an evidentiary hearing. The supreme court affirmed the denial of PCHA relief on July 2, 1981. Commonwealth v. Baker, 494 Pa. 144, 430 A.2d 1158 (1981). Thereafter, appellant filed a petition for writ habeas corpus in the United States District Court for the Eastern District, which denied relief on July 21, 1983. Baker v. Patton, No. 82-4648 (E.D.Pa. 7/21/83). He then filed a petition for a certificate of probable cause in the United States Court of Appeals for the Third Circuit, which was denied on April 24, 1985. Appellant, again represented by new counsel, filed a second PCHA petition, which was denied on May 28, 1987. Appellant, with newly appointed counsel, appeals from this second denial of PCHA relief.

The supreme court has aptly stated the facts as follows:

On December 20, 1973, Steven Gibbons was found dead in his home. The house had been thoroughly ransacked. The body of the deceased was bound and gagged with paper stuffed in the mouth and an ice pick plunged downward into the nape of the neck. A physician from the office of the medical examiner testified for the Commonwealth that death resulted from the stabbing, strangulation and a severe beating which had been inflicted on the victim. The victim was approximately 80 years old at the time of death.
Donahue Wise, who plead guilty to murder after being charged with this homicide, was the Commonwealth’s primary witness at appellant’s trial. He testified that on the night of the crime he had been in a bar drinking with the victim Steven Gibbons. Three men, including appellant, came into the bar. One of the men voiced a threat against Gibbons because Gibbons had refused to buy him a drink.
Wise testified that he went home to go to bed. The three others, including appellant, came to his house and asked him if he wanted to make some money by committing a robbery. Wise agreed and the four eventually proceeded to the home of the victim. En route, one of the four obtained an ice pick and a hammer for use in the crime. When they reached Gibbons’ home appellant broke the glass on the front door and the men entered. A coat was thrown over the victim’s head and the house was searched for money and valuables.
Wise testified that as he returned from searching the upstairs he saw one of his co-felons stab the victim with the ice pick. He testified that appellant was going through the victim’s trouser pockets. The four men met later to divide what they had taken from the victim and his home.

Commonwealth v. Baker, 466 Pa. 479, 483-84, 353 A.2d 454, 456-57 (1976).

Appellant contends that all prior counsel were ineffective for failing to raise trial counsel’s ineffectiveness. Specifically, appellant alleges that trial counsel failed to object to prejudicial remarks made by the prosecutor during his summation. Appellant asserts the following argument was improper:

Donahue Wise took the stand before you and he took an oath to tell the truth. Mr. Milner suggested that he perjured himself. Ladies and gentlemen of the Jury, I tell you right now at the outset before even discussing it, Donahue Wise’s testimony, if you believe that I had Donahue Wise get on that stand and perjure himself in this case, I ask you, indeed, the Constitution and law of this country demands that you not even leave this jury box, that you stand up at the close of his Honor’s charge and you say not guilty to Edward Baker if you believe that I put that man up there to perjure himself. (N.T. 498).

Appellant’s brief at 9.

The Post Conviction Hearing Act, 42 Pa.C.S. § 9545(c), provides:

Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.

(Emphasis added). Furthermore, the purpose of the Act is to provide “relief from convictions obtained and sentences imposed without due process of law.” 42 Pa.C.S. § 9542. Consequently, the Pennsylvania Supreme Court has held that “persons currently serving sentences in this Commonwealth may, consistent with the Act, file one and only one PCHA petition. Failure to raise all claims that might have been raised in the first PCHA petition constitutes a waiver which will only be avoided by ‘extraordinary circumstances’, 42 Pa.C.S. § 9544(b).” Commonwealth v. Hagood, 516 Pa. 340, 345, 532 A.2d 424, 426 (1987). Appellant’s assertion of layered ineffective assistance of counsel constitutes an extraordinary circumstance; therefore, we will consider the allegations of appellant’s second PCHA petition. See Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982).

Appellant’s underlying claim, however, is similar to a claim advanced in his first PCHA petition. Both petitions argue that trial counsel was ineffective for failing to object to the prosecutor’s summation. The Pennsylvania Supreme Court affirmed the first PCHA court’s finding that trial counsel was not ineffective for failing to object to the prosecutor’s summation. Commonwealth v. Baker, 494 Pa. 144, 430 A.2d 1158 (1981). Thus, appellant’s present argument has been finally litigated. 42 Pa.C.S. § 9544(a)(3).

Although appellant contends that his present claim is different from his first PCHA petition in that he now objects to another portion of the prosecutor’s summation, he is mistaken. The courts of this Commonwealth have consistently held that “one may not relitigate a finally litigated ground for relief every time a new legal theory is advanced.” Commonwealth v. Curtin, 365 Pa.Super. 424, 427, 529 A.2d 1130, 1132 (1987). See also Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981); Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972); Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983). As the supreme court affirmed the first PCHA court’s finding that trial counsel was not ineffective for failing to object to the prosecutor’s summation, appellant cannot relitigate this claim merely by focusing on different remarks in the summation.

Order affirmed.


author: BROSKY, Judge: KELLY, Judge, TAMILIA, Judge,

text:
    538 A.2d 895
    COMMONWEALTH of Pennsylvania v. Donald R. FEAGLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 2, 1987.
    Filed Feb. 29, 1988.

      Charles A. Bierbach, Huntingdon, for appellant.
    Ellen L. Cohen, Assistant District Attorney, Williamsport, for Com., appellee.
    Before BROSKY, TAMILIA and KELLY, JJ.
   BROSKY, Judge:

This is an appeal from an order accepting appellant into the Accelerated Rehabilitative Disposition (ARD) program and setting forth the terms and conditions of that acceptance.

The question before us is whether the trial court can impose a mandatory twelve-month license suspension as a condition of acceptance into the ARD program when 75 Pa.C.S.A. § 3731(e)(6)(ii) specifically grants discretion to impose a license suspension for a period of less than twelve months. We quash the appeal.

Before doing so, however, we must direct our attention to resolving a procedural irregularity in the record.

Subsequent to the filing of the Notice of Appeal and on March 25, 1987, it appears that the trial court entered an Order vacating the suspension of appellant’s operator’s privileges. By further Order dated April 16, 1987, the trial court apparently suspended the operation of the March 25, 1987 Order and “reinstated” the Order of January 12, 1987 (filed February 20, 1987) from which the instant appeal was taken. Neither the March 25, 1987 Order nor the one dated April 16, 1987 appear as part of the record certified to us. We attribute their absence from the record to the fact that the record in this case was transmitted to this Court on March 16, 1987. However, both Orders were without legal effect when entered. A trial court is without jurisdiction to act in a matter after the record has been transmitted to an appellate court. Commonwealth v. Burkett, 352 Pa.Super. 350, 507 A.2d 1266 (1986). Moreover, when a timely Motion to Modify has been filed, as here, the trial court must act within the thirty-day appeal period by either issuing an order denying the Motion or vacating the original judgment of sentence either for the purpose of granting the Motion or to gain an additional period of time within which to consider the Motion. In other words, after an appeal has been docketed in this Court, the mere filing of a Motion to Modify, absent the trial court’s utilization of one of the above-cited options within the thirty-day appeal period, does not toll the applicable period, and the trial court consequently loses jurisdiction to act thereafter. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Leonard, 308 Pa.Super. 292, 454 A.2d 136 (1982); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982); Comment following Pa.R.Crim.P. 1410; Pa.R. App.P. 1701(b)(3).

Appellant was charged with violating 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). He was subsequently admitted into the ARD program where, among one of his conditions of acceptance, was a suspension of his operator’s privileges for twelve months by Order of January 12,1987, filed February 20, 1987. On January 14, 1987, he filed a Motion to Modify the condition of the twelve-month license suspension.

The Commonwealth argues that appellant has failed to preserve this issue because he did not voice any opposition to the condition at the ARD hearing. It considers the filing of a Motion to Modify inappropriate, premising that conclusion on the correct assumption that ARD acceptance does not operate as a conviction which, in turn, implicates the imposition of sentence.

Our court in Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987) (en banc), recently held that, for the purpose of applying the recidivist penalty provisions of 75 Pa.C.S.A. § 3731(e)(1), acceptance .of ARD is a conviction. 75 Pa.C.S.A. § 3731(e) provides:

(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction____

(Emphasis supplied).

The Becker court elaborated on this as follows:

We emphasize that our decision in the instant case is narrow in scope. We deal here only with the proper interpretation of § 3731(e)(2). With this in mind, it is readily apparent that the straightforward application of § 3731(e)(2) is consistent with Pennsylvania case law and with the Rules of Criminal Procedure. It is true that when the word ‘conviction’ appears in a statute, it is usually taken to mean ‘the ascertainment of the guilt of the accused and judgment thereon by the court ... ’ Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). However, this technical definition of conviction should not be applied ‘where the intention of the legislature is obviously to the contrary ... ’ Commonwealth ex rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939). Where a statute clearly defines its terms, that fact that other legal enactments may provide alternate definitions of the same term is irrelevant. The court must construe each statute according to its internal definition. See Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 662, 664 (1983); Commonwealth v. Massini, 200 Pa.Super. 257, 259,188 A.2d 816, 817 (1963). 366 Pa.Superior Ct. at 59-60, 530 A.2d at 890-91. Accord Commonwealth v. Potts, 352 Pa.Super. 299, 507 A.2d 1239 (1986) (ARD acceptance is the equivalent of a conviction only for the purpose of sentence enhancement for subsequent convictions.)

Hence, since our court has considered acceptance into the ARD program to be a conviction only for the purpose of sentence enhancement for subsequent violators, we hold that appellant’s acceptance operates as a conviction for that purpose only and that the appeal is not properly before us.

The salutary purpose of and theory behind the ARD program militate against the conclusion that an order of acceptance into the program is an appealable one. First, ARD is a pre-trial diversionary program in which the District Attorney agrees to suspend prosecution of a defendant contingent upon that subject’s successful participation in a program of rehabilitation. If ARD is not completed successfully, the defendant may be prosecuted upon revocation of his participation in the program. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The purpose of this diversionary program is to attempt to rehabilitate the defendant without resort to a trial and ensuing conviction. During this time, the criminal proceedings are held in abeyance pending successful completion of the program or revocation for violation of the conditions. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981). Moreover, since acceptance of ARD does not constitute a conviction except for the limited purpose set forth in Section 3731(e)(2), supra, Commonwealth v. Becker, supra; Commonwealth v. Potts, supra, it provides no basis for impeachment of a witness. Commonwealth v. Scheinert, 39 Pa.Super. 423, 519 A.2d 422 (1987) (Kelly, J., concurring and joining). Acceptance of ARD is not the equivalent of a conviction, nor does successful completion of the program result in an acquittal. Id.

In Commonwealth v. Hunter, 294 Pa.Super. 52, 439 A.2d 745 (1982), a panel of this court quashed an appeal from an order denying the Motion of the Commonwealth, joined in by the defendant, to accept the latter into the ARD program, holding that such an order was interlocutory and non-appealable under Pa.R.Crim.P. 179(c) and 184(c), infra, the latter of which specifically forecloses appellate review of any order terminating or otherwise barring a defendant’s participation in the ARD program. The court’s predicate for doing so was its conclusion that the ARD Rules contemplate only a postponement of proceeding on the applicable charges during the pendency of a defendant’s participation in the program. Despite the difference in the Order appealed from in Hunter — the denial of the Commonwealth’s Motion to accept defendant into the program — we are not compelled to reach a contrary result here.

The instant order appealed from is one accepting appellant into the program after appellant had already indicated his willingness in open court to accept the conditions of the program imposed upon him but, at some time subsequently, decided that one of the imposed conditions — a statutorily mandated license suspension of twelve months — was unsatisfactory. In the instant situation, the Rules provided appellant with an avenue of relief from his dilemma. His remedy was simple; he merely had to inform the trial court or the District Attorney of his discontent. At that juncture, the ARD court, pursuant to Pa.R.Crim.P. 179(d), 183 and 184(c) could then have entered a non-appealable interlocutory Order terminating appellant’s participation in the program because of his refusal to accept the determinate license suspension, a condition of his program. The District Attorney would then have been free to proceed as though the ARD proceedings had never occurred. Pa.R.Crim.P. 183, 184(c). Commonwealth v. Hunter, supra.

To further bolster our conclusion that ARD is not a conviction for appealability purposes, we turn to the Pennsylvania Rules of Criminal Procedure implementing the ARD procedure. Rule 178(2) and (3) provides:

Rule 178. Hearing, Explanation of Program

Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, his attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, the defendant shall be asked on the record whether he understands that:

(2) Should he fail to complete the program satisfactorily, he may be prosecuted as provided by law;

(3) He must agree that if he is accepted into the program he waives the appropriate statute of limitations and his right to a speedy trial under any applicable Federal or State Constitutional provisions, statutes or rules of court during the period of enrollment in the program.

Thus, a defendant who is accepted into the ARD program, upon failure to abide by its conditions, may be prosecuted, Rule 178(2), and, as a condition of acceptance, must agree to waive all limitations and speedy trial periods. Rule 178(3). Rule 180, entitled “Deferring Action Upon Admission to Program Before Information or Indictment”, requires that once a defendant is accepted into the diversionary program, no information or indictment may be filed on the charges for which the defendant is accepted into the program. In a similar vein, Rule 181 speaks to deferring any proceedings, after an information or indictment is found, during the duration of a defendant’s enrollment in the program. Furthermore, the actual conditions imposed are limited to those respecting probation after conviction of a crime, including the making of restitution and the payment of the cost of the program. The notable exception, however, is that a fine may not be imposed. Rule 182.

It is important for the purpose of this particular case to note that if the defendant refuses to accept the ARD conditions imposed upon him, “the case shall [then] proceed in the same manner as if these [ARD] proceedings had not taken place.” Rule 183. This Rule is silent as to the appealability of the Order denying the Motion for ARD. We believe that this is so for two reasons: (1) A defendant has no right to be admitted to the program and therefore cannot complain when he, of his own voluntary act, chooses not to participate or is precluded from doing so, Commonwealth v. Lutz, supra; Commonwealth v. Kiehl, 353 Pa. Super. 353, 509 A.2d 1313 (1986); (2) The ARD proceeding is a non-final one in which criminal proceedings are held in abeyance. Commonwealth v. Lutz, supra; Commonwealth v. Krall, supra. Moreover, we note the import of Rule 184. This Rule sets forth the procedure to be followed in the case of a defendant who violates a condition of his ARD program. Subsection (c) thereof reads as follows:

Rule 184. Procedure on Charge of Violation of Conditions

(c) When the defendant is brought before the Court, the judge shall afford him an opportunity to be heard. If the judge finds that the defendant has committed a violation of a condition of the program, he may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law. No appeal shall be allowed from such order.

Emphasis supplied.

The thrust of the above-cited Rule is evident. In addition to outlining the procedure terminating ARD for a defendant who violates its terms, it also specifically prohibits an appeal from any Order of termination. A defendant thus situated stands in a precarious position insofar as his future in the criminal justice system is concerned. The charges, once held in abeyance, are now resurrected, and his rights are strictly circumscribed. He may either plead guilty or take his chances at a bench or jury trial. He no longer has the option of ultimately securing dismissal of the charges against him without further stigma of guilt or punishment, all because he violated the conditions of the program. Yet, Rule 184(c) prohibits an appeal from any Order terminating him from ARD because of his violation.

Appellant, on the other hand, does not stand in the shoes of a violator. He voluntarily and freely accepted the conditions of the ARD program imposed upon him. If appellant was discontent with the twelve-month license suspension imposed upon him as a condition of the program pursuant to Section 3731(e)(6)(ii) of the Motor Vehicle Code, 75 Pa.C. S.A. § 3731(e)(6)(ii), he had the option, pursuant to Pa.R. Crim.P. 179(d), to so inform the hearing judge. The relevant portion of that Rule reads:

Rule 179. Hearing, Manner of Proceeding

(d) The defendant shall thereupon state to the judge whether he accepts the conditions and agrees to comply. If his statement is in the affirmative, the judge may grant the motion for accelerated rehabilitative disposition and shall enter an appropriate order as set forth in Rules 180 or 181. If the defendant answers in the negative, the judge shall proceed as set forth in Rule 184(c).

Thus, Rule 184(c) appears to bar the taking of an appeal from any Order terminating the program, whether the reason is for violation of a condition of the program or because a defendant, like appellant, disagrees with any of the conditions imposed by the hearing court. It does not stand to reason and is abhorrent to due process considerations to disallow an appeal from an Order terminating a defendant whose freedom hangs in substantial jeopardy as a result of violation of his ARD conditions pursuant to Rule 184(c), whereas a dissatisfied defendant, like appellant, who may opt out of the program, is given the unqualified right to ask that we, as an appellate tribunal, pass judgment upon a matter which, we believe, is before us in an unripe posture and for which the ARD rules provide a remedy at the trial court level. If a defendant elects out of ARD, as is his right under Rules 179(d) and 183, he may plead guilty to the charges for which he was initially recommended for ARD diversion and may, as a consequence thereof, receive the identical sentence of suspension to which he objected while in the ARD program. Alternatively, he may elect to be tried before a jury of his peers or at a bench trial and be adjudicated either guilty or innocent of the drunk driving charges. At that juncture, i.e. if a defendant is ultimately convicted and sentenced, he may challenge his original ARD condition by the process of direct appeal from the judgment of sentence.

We believe that the language in Rule 184(c) prohibiting the taking of an appeal from an order terminating a defendant’s participation in an ARD program was intended to reach situations similar to the one presented to us here by the triggering mechanism of Rule 179(c), supra. We further believe that our decision in Commonwealth v. Hunter, supra, is dispositive of the result we reach today. Any other conclusion, in our view, would eviscerate the validity the Rules of Criminal Procedure relating to the ARD program as adopted by our Supreme Court, would be against the weight of the decisional law of this Commonwealth and would thwart the purposes contemplated by the drafters of these Rules.

We also believe that any action on our part culminating in the disposition of this appeal on its merits would serve to flaunt our appellate jurisdiction which is circumscribed by Section 742 of the Judicial Code, 42 Pa.C.S.A. § 742, in that it invokes jurisdiction upon this court from final orders of the courts of common pleas and Pa.R.App. p. 341(a), limiting the taking of an appeal as of right from a final order.

The Commonwealth argues that this matter is more properly the subject of an interlocutory appeal for which permission must be sought from this court. See 42 Pa.C.S.A. § 702(b); Pa.R.App.R. 312 and 1311(b). The correctness of this assertion is not now before us. Appellant has not invoked the appropriate appellate procedure for seeking review of an interlocutory order not appealable as of right. See 42 Pa.C.S.A. § 702(b) and Pa.R.App. 1311(b), supra. Therefore, our only alternative is to quash the appeal. Commonwealth v. Hunter, supra.

Even if we were to address the merits of this appeal, we would be unable to find any support for appellant’s claim. Appellant argues that in imposing the blanket twelve-month license suspension, the trial court failed to consider the individual circumstances of each case before it. 75 Pa.C. S.A. § 3731(e)(6), the provision from which the court exacted the twelve-month license suspension penalty, reads in relevant part:

(6) Any person who accepts Accelerated Rehabilitative Disposition of any charge brought under this section shall accept as conditions the imposition of and the judge shall impose in addition to any other condition all of the following:
(ii) A mandatory suspension of operating privilege for a period of not less than one month but not more than 12 months.

Specifically, appellant asserts that, given the circumstances of his particular case, as he sets forth in his brief, the ARD court could have ordered a different period of suspension. He further qualifies this by stating that he was not but should have been informed of the imposition of the mandatory twelve-month suspension before entry of the Order so that he could have made a determination whether to accept or reject ARD and that he did not know whether his failure to respond affirmatively to acceptance of the condition would result in denial of permission to enter the ARD program.

First, a defendant has no right to participate in an ARD program. Hence, he cannot demand acceptance into the program, such recommendation lying within the discretion of the Commonwealth. Commonwealth v. Lutz, supra; Commonwealth v. Kiehl, supra; Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979), appeal dismissed, 491 Pa. 416, 421 A.2d 206 (1980). A defendant’s participation in the ARD program is only upon recommendation of the Commonwealth and by grace of the trial court. Consequently, appellant would have no basis to complain about a statutorily mandated condition precedent to his acceptance into the program, especially when the establishment of punishment for criminal wrongdoing is within the confines of legislative authority. Commonwealth v. So journer, 513 Pa. 36, 518 A.2d 1145 (1986) (construing penalty provision of 75 Pa.C.S.A. § 3731(e) to be mandatory); Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986) (same).

Appellant’s argument that the ARD court failed to give him individual consideration, did not allow him to present circumstances in mitigation of his mandated suspension and did not give him the opportunity to accept or reject ARD is belied by the record. Instead, we find that appellant, along with fifteen (15) participants collectively standing before the ARD court, was informed by that tribunal that he must agree to abide by the conditions of the program imposed by the court prior to acceptance. The ARD court then twice asked the fifteen participants, including appellant, if they, or any of them, had any questions concerning the program’s general conditions or whether any of them wished to withdraw. Appellant gave no response. The ARD court then, after imposing the conditions, including the subject license suspension, upon all participants, including appellant, asked each participant, including appellant, individually, whether he or she understood the terms and conditions and whether he or she accepted them as a condition of entry. Appellant’s response to this interrogation was, “Yes, I do.” (N.T. 10).

Appellant was presented with the opportunity to set forth mitigating circumstances when the ARD court asked him if he understood the conditions of his acceptance and whether he had any questions. Pennsylvania Rule of Criminal Procedure 179 sets forth the hearing procedure. Rule 179(a) provides that after a defendant agrees to accept the conditions of the program, the record is to be closed. Rule 179(b) states that when the record is closed, the Commonwealth shall present the facts of the case after which the defendant may present information pertinent to his case. Thus, we cannot know from the record whether appellant did present any mitigating circumstances at the hearing for the ARD court to consider. However, we do know that he has not disclosed any either in his Motion to Modify or in his appellate Brief.

In Commonwealth v. Chestnut, 347 Pa.Super. 609, 500 A.2d 1225 (1985), we held that imposition of identical sentences to defendants pursuant to 75 Pa.C.S.A. § 3731(e) was not suspect absent the failure of the court to consider some important circumstance unique to the accused. There, as here, appellant and the other defendants were all charged with the same offense — driving under the influence. Neither in Chestnut nor here did appellant even remotely suggest a single factor which might warrant a different condition or sentence. While Chestnut involved a guilty plea rather than ARD proceedings, it is instructive for our purposes, for we find that the reasoning of that court in support of similar punishment for similarly situated defendants has equal application here. Moreover, individualized consideration of a non-capital offender facing a mandatory penalty is not required by law. Commonwealth v. Gamber, supra.

The operative penalty provision calls for a mandatory suspension of not less than one month nor more than twelve months. From this, appellant concludes that the ARD court abused its discretion in imposing the statutory limit when it had the option, according to appellant, to impose a lesser suspension period. Appellant misperceives the court’s power to exercise its discretion under these circumstances. The court’s discretion is limited here to fixing a sentence between the minimum and the maximum statutory parameters. We do not view the ARD court’s imposition of a license suspension for a period at the maximum end of the mandated penalty range an abuse of its discretion. Both the condition imposed and its duration are permissible expressions of legislative will. The ARD court, in imposing the. condition and the length of its duration, viewed it as a necessary deterrent and an effective response to a grave societal problem existing on our Commonwealth’s highways. See, generally, Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983) (citing reports and statistics on drunk driving tragedies). Appellant has no substantive right to a particular sentence or condition within the authorized range of the statute. Commonwealth v. Gamber, supra, citing Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Moreover, and in any event, had he pleaded guilty or gone to trial and been convicted of violating any provision of § 3731(a), appellant would have found himself subject to a twelve-month license suspension mandated and imposed by the Department of Transportation. 75 Pa.C.S.A. § 1532(b)(3). This provision is not applicable to persons who accept ARD. See Freed v. Com., 48 Pa.Commw. 178, 409 A.2d 1185, aff'd, 493 Pa. 230, 425 A.2d 747 (1979). Rather, the controlling provision for ARD participants is the subject § 3731(e)(6). We would therefore find no fault with the ARD court’s imposition of a license suspension for the length of time sanctioned by law as a valid condition for acceptance into the ARD program. Appeal quashed.

KELLY, J., files a concurring opinion.

TAMILIA, J., files a dissenting statement.

KELLY, Judge,

concurring:

I join in the majority opinion. I would add to its excellent analysis briefly as follows.

Appellant contends that the conditions imposed on ARD are illegal and excessive. Assuming, arguendo, that his contentions have merit, how may the conditions properly be challenged? Unless ARD is revoked, appellant’s charges will be held in abeyance until ARD is completed. Consequently, direct appeal of a final order would not be available as the challenged license suspension would have expired, the charges would be dismissed, and appellant’s claim would be moot. Thus, while ARD acceptance does not constitute a conviction in the general sense of that term, we must still decide whether the order is, nonetheless, immediately appealable.

Generally, an immediate appeal may only be taken from a final order. Pa.R.A.P. 341. A final order is one which disposes of the entire case or puts an appellant out of court with respect to a claim. Commonwealth v. Wills, 328 Pa.Super. 342, 476 A.2d 1362 (1984). In the instant case, appellant elected (wisely or not) to permit the charges against him to be held in abeyance; the charges are not disposed of and he is not out of court on his claims. Thus, the order in question is not immediately appealable as a final order.

Alternatively, even if an order is an interlocutory order rather than a final order, immediate appeal by right may be taken if the order is one of the types of interlocutory orders listed in Pa.R.A.P. 311. The instant order, however, is not.

Consequently, the order in question is only appealable by right during appellant’s participation in the ARD program if the order is appealable under the three prong “Cohen exception” to the final order rule, also referred to as the “collateral order doctrine.” See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The Cohen exception provides that an interlocutory order may be immediately appealed if: 1) the order is separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Fried v. Fried, 509 Pa. 89, 94, 501 A.2d 211, 214 (1985); see also Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987). To qualify under the Cohen exception, all three factors must be met. See Fried v. Fried, supra, 501 A.2d at 214; Commonwealth v. Bonaparte, 366 Pa.Super. 182, 184-185 n. 1, 530 A.2d 1351, 1352 n. 1 (1987) (applying the Cohen test). In the instant case, any irreparable loss of appellant’s ability to challenge the ARD conditions is clearly the result of appellant’s election and not the order appealed. Consequently, I do not find this case to be appealable under the Cohen exception.

When an interlocutory order is not immediately appeal-able by right, discretionary review may be sought. The proper procedure to seek discretionary review of an interlocutory order in this Court is to file a petition for review pursuant to Pa.R.A.P. 1311; see e.g. Pyle v. Commonwealth, 494 Pa. 323, 325, 431 A.2d 876, 876-77 (1981) (discretionary review of denial of admittance to ARD). As the majority notes, appellant has made no attempt to comply with the procedures dictated by the rules.

Moreover, even if the proper procedures were followed, I would deny discretionary review. Allowance of a discretionary appeal in cases such as this would tend to foster meritless and time-consuming appeals without a compelling justification. Appellant elected to limit his appellate rights by accepting ARD, even though he believed the terms to be illegal and excessive. Had he rejected the terms, proceeded to trial and been convicted, he still would have been able to challenge the alleged illegality and excessiveness of the ARD terms on direct appeal. See Commonwealth v. Burdge, 345 Pa.Super. 187, 497 A.2d 1367 (1985) (per Tamilia, J.) (court’s ARD conditions invalid, conviction reversed, case remanded for reconsideration of acceptance into ARD program); see also Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1986) (alleged abuse of discretion by D.A. in setting policy denying ARD to anyone with a prior record challenged on direct appeal from conviction, albeit unsuccessfully); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (conviction reversed and case remanded for hearing to have district attorney disclose on the record the reason(s) for denying appellant admission to ARD).

Neither law nor equity requires that we grant an extraordinary interlocutory appeal to an appellant whose predicament is caused solely by his own election to accept the ARD conditions which he now alleges to be illegal and excessive. I would not do so here.

TAMILIA, Judge,

dissenting:

I respectfully dissent. The holding of the majority and concurring opinions continues the anomaly created by Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987), which holds that acceptance of A.R.D. is a conviction for limited purposes. If acceptance is a conviction for any purpose, it must be appealable; otherwise the right of appeal does not exist in a matter which may have serious penal consequences to a defendant.

The reasoning of the majority would permit only an immediate right of termination of A.R.D. by an accused, for refusal to agree with one of its conditions, which would leave him technically with a conviction for having accepted A.R.D. This would permit the Commonwealth to proceed against him de novo on the original charge and even if he was acquitted at the de novo hearing, his acceptance of A.R.D. would technically be a conviction for sentencing purposes on a subsequent offense. With each new turn, in treating acceptance as conviction, we compound the irrationalities and inconsistencies propounded by Becker.

I believe the Becker dissent, by Cirillo, P.J., joined by Del Sole and Tamilia, JJ., properly propounds the rule that acceptance of A.R.D. is not a conviction and only completion of the program may be deemed as a conviction.

Under the dissent in Becker, there is no doubt that A.R.D. acceptance would be interlocutory and not appeal-able. Under the majority holding however, I believe A.R.D. acceptance must be appealable as it is a final determination of a defendant’s status as a convicted person and will have penal consequences in the event of further violations.

I would not quash the appeal but determine the issue on its merits.

      . The order of April 16, 1987 is included as an exhibit to appellant’s Brief and refers therein to the Order of March 25, 1987.,

       I assume merit in the contention for the purpose of discussion of the appealability question only. The condition challenged here (as the majority opinion demonstrates) is manifestly reasonable. However, our procedural analysis would apply equally even if the condition challenged were less obviously reasonable; consequently, I emphasize that the order to quash is not dependent upon the reasonableness of the condition challenged.