text:
    476 A.2d 427
    Nelson G. TYUS, Jr. and Frances A. Tyus v. Richard RESTA and Patricia Resta, Appellants, v. Nelson G. TYUS, Jr., and Frances A. Tyus.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1982.
    Filed April 19, 1984.
    Petition for Allowance of Appeal Denied Aug. 14, 1984.

      Robert R. Stone, Pittsburgh, for appellants.
    Craig E. Wynn, Aliquippa, for appellees.
    Before HESTER, BECK and VAN der VOORT, JJ.:
   BECK, Judge:

Appellant/Builder-Vendors Richard and Patricia Resta (“Vendors”) appeal an order of the Court of Common Pleas of Beaver County which denied their post-trial motions for a judgment n.o.v. or a new trial. We affirm the order of the trial court.

On August 23, 1976, the Vendors entered into a contract with Appellee/Buyers Nelson and Frances Tyus (“Buyers”) for the sale of a newly constructed house. As a corollary to the contract, the parties agreed that pending the sale of the Buyers’ former house in Arkansas, the Buyers would initially occupy their new house as lessees. The Buyers leased their new home from August of 1976 until March 7, 1977, on which date the Vendors executed a general warranty deed conveying the house and its lot to the Buyers.

On May 12, 1978, the Buyers filed a complaint in assump-sit which alleged, inter alia, that “various defects ... occurred in [their] house which were the direct cause of [the Vendors’] poor workmanship in building said premises, the selection of substandard materials with which to build said premises, or both.”

The matter proceeded to trial before a jury. Following the presentation of the Buyers’ case, the Vendors moved for a non-suit in favor of Vendors Richard and Patricia Resta, jointly, and alternatively, for a non-suit in favor of Vendor Patricia Resta, singly. Both motions for non-suit were denied.

At the conclusion of the trial the Vendors filed a motion for a directed verdict which the court denied. The jury then rendered a verdict for the Buyers in the amount of $6,750. Pursuant to Pa.R.C.P. No. 227.1, the Vendors filed timely post-trial motions seeking a judgment n.o.v. or a new trial. Subsequently, the Vendors’ motions were denied after a hearing and a rehearing at which the Vendors were represented by new counsel.

On appeal the Vendors contend (1) that the implied warranties of habitability and reasonable workmanship were excluded by the terms of the parties’ contract of sale; (2) that the Buyers’ witness was not properly qualified as an expert; (3) that the testimony of the Buyers’ witness constituted hearsay; (4) that the proof of damages was insufficiently exact to prevent jury speculation; (5) that the trial court incorrectly charged the jury as to the measure of damages, and (6) that the trial court improperly instructed the jury as to the liability of Vendor Patricia Resta and wrongly molded the verdict against said Vendor. We shall address these contentions seriatim.

Our scope of review in such cases is well settled. In reviewing a motion for a judgment n.o.v., we must consider the evidence most favorable to the verdict winner and all reasonable inferences therefrom. Ditz v. Marshall, 259 Pa.Super.Ct. 31, 35, 393 A.2d 701, 703 (1978). “A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict.” Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980).

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz, 259 Pa.Super. at 35, 393 A.2d at 703. “[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion,” Myers v. Gold, 277 Pa.Super.Ct. 66, 69, 419 A.2d 663, 664 (1980), or committed “a clear error of law.” Eldridge v. Melcher, 226 Pa.Super.Ct. 381, 387, 313 A.2d 750, 754 (1973), allocatur denied.

I. Implied Warranties

In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), Pennsylvania numbered among the first jurisdictions acknowledging an implied warranty of habitability, as well as an implied warranty of reasonable workmanship, in contracts whereby builder-vendors sold newly constructed houses. We are now asked to decide whether in selling new homes builder-vendors can limit or disclaim the implied warranties.

Compared to the ordinary home purchaser, the builder-vendor possesses “superior knowledge and expertise in all aspects of building, including its legal aspects.” Contractor Industries v. Zerr, 241 Pa.Super.Ct. 92, 106, 359 A.2d 803, 810 (1976) (Cercone, J., dissenting). “In the vast majority of cases the vendor ... enjoys superior bargaining position ____ Standard form contracts are generally utilized and ‘[ejxpress warranties are rarely given, expensive, and impractical for most buyers to negotiate. Inevitably the buyer is forced to rely on the skills of the seller.’ ” McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283, 1290 (1979) (citation omitted).

In Elderkin the Pennsylvania Supreme Court recognized that the implied warranties of habitability and reasonable workmanship were necessary to equalize the disparate positions of the builder-vendor and the average home purchaser by safeguarding the reasonable expectations of the purchaser compelled to depend upon the builder-vendor’s greater manufacturing and marketing expertise.

[0]ne who purchases a development home ... justifiably relies on the skill of the developer that the house will be a suitable living unit. Not only does a housing developer hold himself out as having the necessary expertise with which to produce an adequate dwelling, but he has by far the better opportunity to examine the suitability of the home site and to determine what measures should be taken to provide a home fit for habitation. As between the builder-vendor and the vendee, the position of the former, even though he exercises reasonable care, dictates that he bear the risk that a home which he has built will be functional and habitable in accordance with contemporary community standards____ [T]he builder-vendor impliedly warrants that the home he has built and is selling is constructed in a reasonably workmanlike manner and that it is fit for the purposes intended — habitation.
... [Selection and subdivision of the home sites are within the exclusive domain of the builder-vendors. The developer holds himself out, not only as a construction expert, but as one qualified to know what sorts of lots are suitable for the types of home to be constructed. Of the two parties to the transaction, the builder-vendor is manifestly in a better position than the normal vendee to guard against defects in the home site and if necessary to protect himself against potential but unknown defects in the projected home site.

Id. 447 Pa. at 128-30, 288 A.2d at 776-77; accord, Park v. Sohn, 89 Ill.2d 453, 60 Ill.Dec. 609, 433 N.E.2d 651 (1982); Casavant v. Campopiano, 114 R.I. 24, 327 A.2d 831 (1974).

Thus, given the important consumer protection afforded by the implied warranties, we hold that such warranties may be limited or disclaimed only by clear and unambiguous language in a written contract between the builder-vendor and the home purchaser. Sloat v. Matheny, Colo., 625 P.2d 1031 (1981); accord, G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982); Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 225 S.E.2d 557 (1976); Casavant; Hesson v. Walmsley Construction Co., 422 So.2d 943 (Fla.App.1982); Arnold v. New City Condominiums Corp., 78 App.Div.2d 882, 433 N.Y.2d 196 (1980), appeal dismissed, 53 N.Y.2d 823, 422 N.E.2d 582, 439 N.Y.2d 922 (1980); Herlihy v. Dunbar Builders Corp., 92 Ill.App.3d 310, 47 Ill.Dec. 911, 415 N.E.2d 1224 (1980); Note, Elderkin v. Gaster—The Pennsylvania Experience with Implied Warranties in Sales of New Homes, 47 Temple L.Q. 172 (1973).

Furthermore, since “the language of a contract must be construed strictly against the party responsible for it [and since] ... [t]his general principle is even more forcefully applied .when the contract is reduced to writing by a party possessing special knowledge with respect to the subject matter,” Zerr, 241 Pa.Super. at 107, 359 A.2d at 810 (Cer-cone, J., dissenting), we additionally hold that the contractual language purportedly creating an express restriction or exclusion of an implied warranty must be strictly construed against the builder-vendor. Sloat; accord, Herlihy; see generally Zimmer v. Mitchel and Ness, 253 Pa.Super.Ct. 474, 385 A.2d 437 (1978), aff'd, 490 Pa. 428, 416 A.2d 1010 (1980).

To create clear and unambiguous language of disclaimer, the parties’ contract must contain language which is both understandable and sufficiently particular to provide the new home purchaser adequate notice of the implied warranty protections that he is waiving by signing the contract. G-W-L, Inc.; accord, Casavant; Herlihy; Sallinger v. Mayer, 304 So.2d 730 (La.App.1974); see generally Zimmer. To supply proper notice, language of disclaimer must refer to its effect on specifically designated, potential latent defects. See discussion of latent defects, infra. Evidence that the purchaser and the builder-vendor actually negotiated the waiver language in the parties’ contract will tend to indicate that the purchaser was aware of the contract’s waiver language and its import and accordingly, will tend to substantiate a valid waiver. See Herlihy; Conyers; accord, Sallinger.

In the present case paragraph thirteen of the Vendors’ contract with the Buyers states that the

Buyer has inspected the property or hereby waives the right to do so and he has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller ... and that he has agreed to purchase it in its present condition unless otherwise specified herein. It is further understood that this agreement contains the whole agreement between the Seller and the Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale.

The Vendors argue that paragraph thirteen of the parties’ contract “negate[s] any and all warranties.” We do not agree and shall proceed to analyze each of the component clauses of paragraph thirteen.

The inspection clause introducing paragraph thirteen refutes the existence of Vendors’ representations as to defects which would be apparent to the Buyers upon a reasonable inspection of the property being sold. See LeDonne v. Kessler, 256 Pa.Super.Ct. 280, 389 A.2d 1123 (1978); Griffin; see also Quashnock v. Frost, 299 Pa.Super.Ct. 9, 445 A.2d 121 (1982); Glanski v. Ervine, 269 Pa.Super.Ct. 182, 409 A.2d 425 (1979). However, the warranties of habitability and reasonable workmanship are not created by representations of a builder-vendor but rather are implied in law and as such, exist independently of any representations of a builder-vendor. Griffin.

Moreover, the implied warranties of a builder-vendor do not “extend to defects of which the purchaser had actual notice or which are or should be visible to a reasonably prudent man upon an inspection of the dwelling.” Griffin, 290 N.C. at 200, 225 S.E.2d at 567; accord, Herlihy; see Raab v. Beatty, 96 Pa.Super.Ct. 574 (1929); Stewart v. Trimble, 15 Pa.Super.Ct. 513 (1901); Hermes v. Staiano, 181 N.J.Super. 424, 437 A.2d 925 (1981); Duncan v. Schuster-Graham Homes, Inc., 194 Colo. 441, 578 P.2d 637 (1978); Casavant; Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); see also Quashnock; LeDonne; Elfant v. Clauss, 197 Pa.Super.Ct. 201, 177 A.2d 153 (1962).

A reasonable pre-purchase inspection requires examination of the premises by the intended purchaser — not by an expert. Defects which would not be apparent to an ordinary purchaser as a result of a reasonable inspection-constitute latent defects covered by the implied warranties. Raab; Trimble; accord, Park; Sallinger; Casavant; Wawak; see also Quashnock; LeDonne.

Furthermore, a reasonable inspection does not necessitate “ ‘a minute inspection of every nook and cranny.’” Abrams, Inc. v. Wolkov, 371 Pa. 44, 47, 89 A.2d 359, 361 (1952); Quashnock; see LeDonne; Elfant. To the contrary, the requisites of a reasonable inspection vary with the circumstances of the individual case. In Quashnock, for example, this Court held that “a ‘reasonable inspection’ of [a] house by prospective buyers would not require investigation of the crawl space beneath the house in question since the crawl space lacked lighting and had an entry measuring only one foot by two feet. Id. 299 Pa.Super. at 22, 445 A.2d at 127. Similarly, in LeDonne we excused the purchasers’ non-examination of a septic system which was underground and hence, virtually inaccessible. Accord, Sallinger (purchaser not expected to climb onto roof to evaluate soundness of roof structure when purchaser’s view of roof was obscured by trees); Casavant (reasonable inspection did not mandate investigation of roof construction where there was no access to the open space under the roof).

In the case sub judice the Buyers principally complained of pervasive dampness in their newly built home which caused mold and mildew throughout the house and produced a constant malodor. Record at 40-44. The expert witness whom the Buyers retained in preparation for the trial of this case, testified that the excessive moisture inside the Buyers’ house resulted from an improper crawl space drainage system underneath the house. Record at 143-44, 148, 150.

Consequently, our inquiry becomes whether a reasonable pre-purchase inspection of the house by the Buyers should have included the Buyers’ exploration of the crawl space under the house. At trial the Buyers’ expert gave the following description of the crawl space beneath the Buyers’ home: “It is about between thirty and thirty-six inches high. You drop in through a little opening about three by four onto a little landing area; then you go underneath the foundation, and it is basically leveled gravel.” Record at 143.

Based upon the described physical impediments to investigating the subject crawl space, we conclude that here, as in Quashnock, a reasonable pre-purchase house inspection did not require the Buyers to examine the crawl space below the house. Therefore, although the Buyers had leased the house for several months, on the house purchase date the inadequate crawl space drainage system remained a condition undiscerned by the Buyers, i.e., a latent defect encompassed by the implied warranties.

Consequently, because the implied warranties do not arise from representations of a builder-vendor and because the implied warranties pertain only to latent defects, the inspection clause in paragraph thirteen of the parties’ contract does not effectively disclaim the warranties of habitability and reasonable workmanship.

The “present condition” provision of paragraph thirteen fails to refer specifically to its potential impact on the implied warranties. Accordingly, while the “present condition” language alerts alerts the Buyers to observe patent defects in the premises they wish to purchase, the “present condition” language does not adequately apprise the Buyers of their duty to ascertain latent defects normally covered by the implied warranties. Casavant; Sallinger; see also Glanski. Thus, the “present condition” provision of paragraph thirteen does not circumscribe the implied warranties.

The final segment of paragraph thirteen consists of an integration clause which declares that the parties’ written contract embodies “the whole agreement between the Seller and the Buyer and [that] there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale.” Thus, the integration clause of paragraph thirteen

may be regarded as sufficient to exclude a matter which one of the parties might contend was in fact agreed to prior to the signing of the contract ____ [Standing alone, these words are not sufficient to exclude an implied warranty, which is applicable only by operation of law. Such an exclusion, if desired by the parties to a contract for the purchase of a residence, should be accompanied by clear, unambiguous language, reflecting the fact that the parties fully intended such result.

Griffin, 290 N.C. at 202, 225 S.E.2d at 568 (emphasis in original). That is, the integration clause of paragraph thirteen does not constitute a valid limitation of the implied warranties because it fails to explain with particularity its purported effect on implied warranties.

Therefore, we hold that when the alleged disclaimer of implied warranties in paragraph thirteen of the parties’ contract is strictly construed against the Vendors, the alleged disclaimer fails because it does not refer to its impact on specific, potential latent defects and so does not notify the Buyers of the implied warranty protection they are waiving by signing the contract supplied by the Vendors.

II. Buyers’ Expert Witness

Next, the Vendors contend that the Buyers’ witness was not properly qualified as an expert in the construction of houses having a crawl space and should not have been permitted to testify about the allegedly defective design of the crawl space drainage system and the cost of correcting the design.

“The Pennsylvania standard of qualification for an expert witness is a liberal one.” Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 597-98, 437 A.2d 1198, 1201 (1981). “ ‘If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert.’” Morris v. Moss, 290 Pa.Super.Ct. 587, 591, 435 A.2d 184, 186 (citation omitted). “Such a person need not ‘possess all the knowledge in his special field of activity in order to' qualify.’” Pratt v. Stein, M.D., 298 Pa.Super.Ct. 92, 153, 444 A.2d 674, 706 (1982) (citation omitted); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super.Ct. 230, 433 A.2d 40 (1981).

“[T]he question of the qualifications of an expert witness is one for the discretion of the trial court.” Morris, 290 Pa.Super. at 591, 435 A.2d at 186. A trial court “will be reversed only for a clear case of error.” Pratt, 298 Pa.Super. at 152, 444 A.2d at 706.

In its written opinion the trial court gave the following excellent summarization of the qualifications of the Buyers’ expert witness:

The [Buyers’] witness, Mr. Hopkins, had studied mechanical and structural engineering for two years at the university level. After his education, he was employed for approximately three years [by] ... a firm which did structural design work and field corrections. He was subsequently employed for two years ... as a facility engineer ... in charge of plant repairs and alterations. In 1973, Mr. Hopkins began building houses, and at the time of trial was president of a building corporation---He was a past president of the Beaver County Home Builders, and a member of the Metropolitan Pittsburgh Home Builders, both of which are associations dealing with home building.
Mr. Hopkins testified that he had overseen practically every one of the one hundred and fifty foundation installations that his firm ... had performed since 1973. He also testified that [his firm] was primarily involved in single-family residence work, although the firm did take on some apartment and remodeling work. Although only two of the one hundred and fifty foundations Mr. Hopkins oversaw on behalf of his firm involved crawl spaces similar to that installed by [the Vendors] in the home sold to the [Buyers], Mr. Hopkins was of the opinion that the construction concept for a crawl space was not measurably different from that employed when constructing a full basement. The purpose of both a crawl space and a full basement, in his view, was to provide an air void between the floor and the ground. Therefore, the only difference between the two as far as he was concerned was in the cost of installation, with the crawl space being the less expensive of the two.

Trial Court Opinion at pp. 5-6.

Our independent review of the record has confirmed that the trial court accurately outlined the specialized training and extensive experience of the Buyers’ witness. Record at 122-29. Therefore, we hold that the trial court did not abuse its discretion in permitting the Buyers’ witness to testify as an expert.

III. Hearsay

In addition, the Vendors argue that even if the Buyers’ witness was properly qualified as an expert, the witness’s testimony regarding repair costs should have been excluded as hearsay.

The Vendors’ argument derives from the witness’s use of repair cost estimates which were prepared principally by the witness’s business associate who did not testify at trial and was thus not subject to cross-examination by the Vendors.

However, the record reveals that counsel for the Vendors knew that the Buyers’ witness was testifying on direct examination from a document which the witness had not prepared himself. Record at 170, 189. Nevertheless, the Vendors’ counsel did not object at trial to the possible hearsay nature of the witness’s testimony. At the close of the Vendors’ cross-examination of the Buyers’ expert, counsel for the Buyers offered into evidence the estimate sheet from which the Buyers’ expert had testified during direct examination. The estimate document was admitted into evidence without objection by the Vendors but with certain deletions to which the Buyers and the Vendors agreed on the record. Record at 229-31.

In this appeal the Vendors have raised a hearsay objection for the first time. Pursuant to Pa.R.A.P. 302, “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974); Roque v. Nationwide Insurance Co., 292 Pa.Super.Ct. 117, 436 A.2d 1033 (1981). Consequently, we cannot consider the Vendors’ claim of error.

IV. Proof of Damages

The Vendors additionally assert that the Buyers’ proof of damages was too inexact to prevent jury speculation.

The legal principles concerning proof of damages were summarized in Gordon v. Trovato, 234 Pa.Super.Ct. 279, 282-86, 338 A.2d 653, 654-57 (1975):

The plaintiff has the duty and the burden to establish by proper testimony the damages which he claims to have sustained, and if he fails to meet this burden, the question of damages cannot be submitted to the jury____ The amount and items of pecuniary damage cannot be presumed but must be proved by the establishment of facts .... It is the burden of the plaintiff to establish by evidence such facts as will furnish a basis for the legal assessment of damages according to some definite and legal rule.
The law requires not merely conjecture, but rather sufficient data from which the damages can be assessed with reasonable certainty.

Accord, Pratt; Department of Transportation v. Acchione and Canuso, Inc., 55 Pa.Commw.Ct. 65, 423 A.2d 30 (1980). “While it is true that mere uncertainty as to the amount of damages will not preclude recovery, Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979), it is also clear that the jury must have an intelligent understanding of how damages should be calculated.” Mason v. Western Pennsylvania Hospital, 286 Pa.Super.Ct. 354, 382, 428 A.2d 1366, 1380 (1981) (Hester, J., concurring and dissenting).

The testimony of the Buyers’ expert witness regarding the type and cost of repairs necessary to make the Buyers’ house habitable occupies thirteen pages of the record on direct examination and approximately forty-seven pages of the record on cross-examination. Illustrative of the detail provided by the Buyers’ expert is this excerpt from the expert’s answers on direct examination concerning the installation of a French drain to remove water from the crawl space beneath the Buyers’ home:

Buyers’ Expert Witness: [The installation of a French drain] is going to require digging a ditch from the front of the house out to the street and installing pipe in that ditch and running the water away from the house; approximately two hundred feet of pipe, miscellaneous fittings; have to install some more gravel and bring the layer of gravel up, and also the labor to do so because there it is a very difficult job because you can’t stand up [in the crawl space] — it is working on hands and knees. We estimate the total cost, $2,268.
Counsel for the Buyers: Break it [the cost] down?
Buyers' Expert Witness: The backhoe we estimated $240; the two hundred feet of pipe is estimated at $1.50 a foot, or $300; miscellaneous fittings, $25; the gravel, $400; plastic, which is your vapor barrier, is one hundred and fifty;. and labor is eleven hundred and fifty-three.

Record at 156.

Consequently, we hold that the testimony of the Buyers’ witness gave the jury “an intelligent understanding” of the items to consider including in the award of damages plus a basis for computing the amount of damages to award. “We have never held that damages that are not capable of exact ascertainment are for that reason not recoverable____ Our law only requires that a reasonable quantity of information must be supplied by plaintiff so that the jury may fairly estimate the amount of damages from the evidence.” Ashcraft v. C.G. Hussey and Co., 359 Pa. 129, 132-33, 58 A.2d 170, 172 (1948) (emphasis in original); Defulvio v. Holst, M.D., 272 Pa.Super.Ct. 221, 414 A.2d 1087 (1979). As the trial court observed, the Buyers’ expert

testified extensively with respect to the cost of the repairs he felt were necessary to correct the defects which [the Buyers] alleged. The [Vendors’] own expert witnesses likewise testified as to the cost of the repairs they felt were necessary to correct any alleged defects in the [Buyers’] property. Therefore, the jury was presented with more than mere conjecture from which to arrive at a damage sum. Although the [Vendors] may disagree with the method in which the [Buyers] proposed to rectify the damage they allegedly suffered and the amount of money needed to so rectify, that does not mean that the [Buyers] did not document in the evidence the damages they averred they suffered.

Trial Court Opinion at p. 9.

V. Measure of Damages

The Vendors further contend that the trial court incorrectly charged the jury as to the measure of damages by explaining that “[d]amages, where the property is not a total loss, ... are measured by the difference in value before and after the harm suffered, and in this case it would be the reasonable costs of repairs .... ” Record at 484.

Again, as with their hearsay contention, the Vendors have failed to raise this issue initially before the trial court, but rather, have argued this point for the first time on appeal. In Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), the Pennsylvania Supreme Court stated that an issue is preserved for appeal only where a timely specific exception to jury instructions has been taken in the trial court. “Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of court judicial resources.” Id., 457 Pa. at 258-59, 322 A.2d at 116; Crosbie v. Westinghouse Elevator Co., 297 Pa.Super.Ct. 304, 443 A.2d 849 (1982).

In the present case, after the trial judge had charged the jury, the judge queried whether there were “any amendments, corrections, or additions to the Charge.” Record at 493. The Vendors did not question the trial court’s instructions on formulating damages. Consequently, the Vendors have waived objections to the jury instructions regarding the measure of damages. Dilliplaine,

VI. Verdict Against Vendor Patricia Resta

Finally, the Vendors contend that the trial court improperly instructed the jury as to the liability of Vendor Patricia Resta and wrongly molded the verdict against her.

In its written opinion the trial court reviewed the evidence of record establishing Vendor Patricia Resta’s association with, and participation in, the construction business of her husband, Vendor Richard Resta:

Evidence that was not contradicted shows that Patricia Resta was involved in the construction and conveyance of the [Buyers’] property in the following respects: Along with her husband, she purchased the vacant lot upon which the residence was to be constructed and then sold. She helped financially by signing a construction mortgage on the property to provide construction money. She also aided in financing the purchase of building materials for the house by signing an open-ended joint note with a building supplier. She answered business calls on their home phone and conveyed messages to her husband. She joined as a seller in executing and delivering the deed for the completed property to the purchasers. She shared one-half the proceeds from the sale since the proceeds were deposited in a joint bank account owned by Patricia Resta and her husband.

Trial Court Opinion at pp. 12-13. Record at 231-33, 415-16.

Although the question is close, based on the evidence of Vendor Patricia Resta’s involvement, we cannot say that the trial court erred in its determination that Patricia Resta conforms to the Elderkin definition of a builder-vendor and thus was properly a party upon whom the jury could impose liability.

Having ascertained that Patricia Resta could be classified as a builder-vendor, the trial court instructed the jury that

as far as Mr. and Mrs. Resta [were] concerned, ____if [the jury found] as a fact that they were both owners of the property, and if [the jury] further [found] that a new home was built on the property, then [the jury] would find that both Mr. and Mrs. Resta [were] bound by [the] implied warranties [of habitability and reasonable workmanship].

Record at 479.

The court later explained that if the jury found that Vendors Patricia and Richard Resta

did not breach either the implied warranty of reasonable workmanship or the implied warranty that the house was habitable, then ... [the jury’s] verdict would be for the [Vendors]. However, if [the jury found] that the [Vendors] did breach either one or both of the implied warranties ... and if [the jury] further [found] such a breach of warranty was the legal cause of certain damage to the [Buyers’] property, [the jury] would then be justified in returning a verdict in favor of the [Buyers] against the [Vendors], and then ... would come to the question of damages.

Record at 484.

The jury returned a verdict “in favor of the [Buyers], Nelson G. Tyus and Frances A. Tyus” for the sum of $6,750 but failed to express against whom their verdict was lodged. Record at 500. Consequently, after having read aloud the jury’s verdict, the trial judge stated:

Now, members of the jury, if I would understand your verdict, that you find in favor of the [Buyers] to be awarded the sum of $6,750 against the [Vendors], Richard Resta and Patricia Resta — is that your verdict? I have added that as being what would naturally follow from that. So, in such matters as this, it is appropriate for the Court to mold the verdict in accordance with your decision. Now, you have decided in favor of the [Buyers] the sum of $6,750, and it would naturally follow that it would be against the [Vendors], Richard Resta and Patricia Resta. Is that the verdict of the jury?

Record at 500.

The Vendors argue that it was inappropriate for the court to mold the verdict against Vendor Patricia Resta.

It is well settled that a trial court in this Commonwealth has the power to mold a jury’s verdict to conform to the clear intent of the jury____ Verdicts which are not technically correct in form but which manifest a clear intent on the part of the jury may be corrected without resort to further jury deliberations or the grant of a new trial.
Stated more simply, the power to mold or more precisely amend a jury's verdict is merely a power to "make the record accord with the facts, or to cause the verdict to speak the truth____”

House of Pasta, Inc. v. Mayo, 303 Pa.Super.Ct. 298, 307-08, 449 A.2d 697, 701-02 (1982) (citation omitted).

Thus, the underlying issue is whether the jury’s intent was sufficiently clear to permit the judge to rephrase the verdict to represent accurately the jury’s true intention.

Here, the trial judge asked on the record whether there was “any question in the minds of the attorneys for either side as to what the jury’s intention [was] ...” Record at 500. The Vendors’ counsel requested that the jury be polled. Each of the twelve jurors was polled and responded unequivocally that the verdict was for Mr. and Mrs. Tyus and against Mr. and Mrs. Resta. Record at 501-03.

Therefore, given the trial court’s explicit jury charges and the jurors’ answers to the poll, we hold that the jury's intent was sufficiently clear to empower the trial court to mold the jury’s verdict and that the court’s molding of the verdict accurately reflected the jury’s intent.'

Accordingly, we affirm the order of the Court of Common Pleas of Beaver County.

HESTER, J., concurred in the result.

      . "A builder-vendor, as the term is here employed, refers to one who buys land and builds homes upon that land for purposes of sale to the general public.” Elderkin v. Gaster, 447 Pa. 118, 123 n. 10, 288 A.2d 771, 774 n. 10 (1972).

      . For a list of jurisdictions using either an implied warranty or a strict liability theory to protect the purchasers of new homes, see Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982).

      . The implied warranties also comport with changes in the concept and intent of property ownership.
      In the early days of the common law, the main concern of the parties was the land, and whatever structures were on it could be easily repaired by the new landholder. Today, the purpose is to buy a dwelling, rather than land per se, and most purchasers are not equipped to undertake major repairs____ [Thus,] it seems only fair to put the burden of repairing defects in construction on the person who is (1) responsible for the defects, (2) is in a position to repair them and (3) is in a position to spread the costs of the repair. This is especially true since a significant amount of the defects can be so buried in the construction that it could be impossible to find them before buying, no matter how careful or thorough the inspection.

        Conyers v. Molloy, 50 Ill.App.3d 17, 19, 7 Ill.Dec. 695, 697, 364 N.E.2d 986, 988 (1977).

      . In LeDonne v. Kessler, 256 Pa.Super.Ct. 280, 389 A.2d 1123 (1978), "appellants' inspection of the premises revealed the very problem which they [protested on appeal]: water leakage in the sundeck and cellar.” Id., 256 Pa.Superior Ct. at 293, 389 A.2d at 1130. Consequently, we stated that "[a]t the time of executing the agreement of sale, appellants had every reason to insist upon contractual protection against this readily discernible threat.” Id., 256 Pa.Superior Ct. at 293, 389 A.2d at 1130.

      . The Buyers’ complaint in assumpsit was filed on May 12, 1978. The Buyers’ expert witness first examined the house in the summer of 1979 and again inspected the house in October of 1979.

      . In Stewart v. Trimble, 15 Pa.Super.Ct. 513 (1901), a builder-vendor argued that a home purchaser was estopped from alleging poor workmanship and the use of substandard building materials in constructing his newly built home because before raising the allegations, the purchaser had resided in the home for several weeks. However, this Court observed that “the character of the defects [in the house] was such as not to be visible ... [and accordingly maintained that] defects which were not manifest ... when the due bill was given, were not waived as to their effect by the giving of the due bill.” Id. at 519; Raab v. Beatty, 96 Pa.Super.Ct. 574 (1929); accord, Park v. Sohn, 89 Ill.2d 453, 60 Ill.Dec. 609, 433 N.E.2d 651 (1982); Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 225 S.E.2d 557 (1976); Sallinger v. Mayer, 304 So.2d 730 (La.App.1974); see LeDonne v. Kessler, 256 Pa.Super.Ct. 280, 389 A.2d 1123 (1978).

      . The Buyers were not apprised of the crawl space drainage problem and its resultant structural debilitation of the house (rotting floor boards under the house, Record at 151) until they hired an expert witness in preparation for the trial of the present case. See Record at 143-44 and 277 outlining difficulty in detecting standing water in crawl space as explained by Buyers' expert and Vendor Richard Resta, respectively.

      . Neither our review of the record nor the Vendors’ appellate brief indicates an attempt by the Vendors to assert a hearsay claims before the trial court. See Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e).

      . In Gadbois v. Leb-Co Builders, Inc., 312 Pa.Super.Ct. 144, 458 A.2d 555 (1983), this Court recently held
      that the measure of damages in cases where a homeowner sues for defective construction is the difference between the market value that the house would have had if constructed as promised, with the qualification that if it is reasonably practical to cure the defects in construction by repairs, and if the cost of repairs does not exceed the difference in market value, then the measure of damages is the cost of repairs.

        Id., 312 Pa.Superior Ct. at 152, 458 A.2d at 559; accord, Park v. Sohn, 89 Ill.2d 453, 60 Ill.Dec. 609, 433 N.E.2d 651 (1982); see also Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 225 S.E.2d 557 (1976).

      . Vendor Patricia Resta testified that she and her husband did not have a separate business telephone but used their home telephone for receiving and placing both business and personal calls. Record at 415-16.

      . See footnote 1, supra.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    476 A.2d 439
    COMMONWEALTH of Pennsylvania v. Louis BELL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 16, 1983.
    Filed April 19, 1984.
    Petition for Allowance of Appeal Denied Aug. 6, 1984.

      Harold D. Borek, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant was tried before a jury and convicted of rape, involuntary deviate sexual intercourse, indecent assault, criminal attempt-murder, simple assault, aggravated assault, recklessly endangering another person, terroristic threats, instruments of crime and criminal trespass. Post-trial motions were filed, argued and subsequently denied. Appellant was sentenced to a total term of incarceration of twenty-five (25) to fifty (50) years.

Appellant has taken this appeal raising a multitude of issues. His Statement of Questions Involved is clearly in violation of the limitations established by Pa.R.A.P. Rule 2116(a). While we condemn such a flagrant violation of that rule, we will nonetheless address the numerous issues raised here. Appellant’s issues may be divided into four categories: pre-trial errors, trial errors, ineffectiveness of counsel claims, and sentencing errors.

As to a number of issues we find that the trial court’s opinion adequately disposed of appellant’s contentions and therefore we see no need to further elaborate on the court’s decision.

Among the remaining issues, the first ones we will address are those relating to pre-trial motions.

Pre-trial Motions

Appellant complains that his trial did not commence within the prescribed time of Rule 1100, Pa.R.Crim.P. Appellant was arrested and charged on February 25, 1980. Thus the last day for trial under Rule 1100, barring any excluda-ble time, would have been August 23, 1980. On March 7, 1980 appellant was judged incompetent pursuant to the Mental Health Procedures Act and he was admitted to Farview State Hospital on March 27, 1980. On May 5, 1980, appellant was determined to be competent by the staff of Farview and this information was forwarded to the court on May 12, 1980. Appellant was returned to the Montgomery County Prison on June 2, 1980. The Commonwealth filed a petition on August 7, 1980 to extend the time for trial, requesting an additional 87 days to commence trial. A hearing was held on August 7, 1980 after which the Rule 1100 run date was extended from August 23, 1980 (the 180th day from appellant’s arrest) to November 18, 1980 (87 days from August 23). On October 28, 1980, a hearing was held on appellant’s pre-trial motions for change of counsel and change of venue; both motions were denied. On the following day the remaining pre-trial motions were disposed of and jury selection commenced. The jury was sworn in on October 30, 1980 and the taking of testimony began that same day.

Appellant contends that only the period of March 7, 1980 through May 5, 1980 (the day he was determined to be competent) was excludable time under Rule 1100, since he only was unavailable during that period. The prosecution in turn argues that he was unavailable from March 7, 1980 to at least May 12, 1980, when the court was advised of appellant’s competency to stand trial. This period or 66 days would extend the run date to October 28, 1980. The Commonwealth argues that certain pre-trial motions, which had been reserved for the time of trial, were considered on October 28, and hence trial commenced for purposes of Rule 1100 on that day. Therefore, the Commonwealth points out, although an extension of 87 days was granted, 66 days were sufficient since trial began on the 66th day.

While it is clear that a defendant will be deemed unavailable for purpose of Rule 1100 when he is mentally incompetent, see comment to Rule 1100(d)(3)(i), here we must determine when such unavailability ended.

In the case of Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), it was held, that it was proper to exclude a “reasonable period” which was consumed in having an appellant committed. However, once the court deems a defendant is no longer incompetent, the defendant is no longer unavailable and any further delay will not be excluded from the Rule 1100 run period. Commonwealth v. Fisher, 283 Pa.Superior Ct. 370, 424 A.2d 510 (1980); Commonwealth v. Quinlan, 259 Pa.Superior Ct. 536, 393 A.2d 955 (1978).

The current facts may be distinguished from Fisher and Quinlan. In both of those cases, it is clear that the delay at issue occurred after the court had either determined that the defendant was competent or had been advised that the defendant was competent. Here, we are concerned with the period between May 5, when the hospital staff found appellant competent and May 12 when the trial court was so apprised. We hold that just as in Ware, where delay was incurred in the commitment process, a reasonable period of time, between when psychiatric professionals determined a defendant is competent and when the court is notified of such determination, should also be excluded for purposes of Rule 1100. Recently, in Commonwealth v. Derrick, 222 Pa.Superior Ct. 517, 469 A.2d 1111 (1982) this court affirmed the principle that a defendant’s unavailability may cause a delay greater than the actual period of unavailability and such entire period may be excluded. Applying such holding to the current case we find the seven day delay in advising the court of appellant’s availability is attributed to appellant’s prior incapacity. Therefore, the Rule 1100 run date was properly extended, at least, to October 28. We must now determine whether trial “commenced” by or on that day.

Relying upon the comment to Rule 1100(b), our Supreme Court has held that where the trial court reserves the resolution of pre-trial motions until the time of trial, and the court after resolving such pre-trial matters proceeds directly into the guilt-determining process, it will be deemed that trial commenced with the hearing of the pre-trial motion. Jones v. Commonwealth, 495 Pa. 490, 484 A.2d 1197 (1981); see also Commonwealth v. Machi, 294 Pa.Superior Ct. 338, 439 A.2d 1230 (1982). In this case, the trial court explicitly reserved the resolution of both the motion for change of venue and the motion to suppress evidence, for the time of trial. The issue of venue was resolved on October 28, followed by the suppression hearing and jury selection on October 29. The “guilt-determining process”, with the jury being sworn and testimony taken, commenced the following day. Therefore, we find that for purpose of the speedy trial rule, trial commenced on October 28, and therefore trial was timely.

Appellant also complains that the court erred in not granting his request for the appointment of new counsel. Prior to trial, appellant had addressed several letters to the president judge (who was not the presiding judge) airing his complaints with counsel. Prior to the hearing on the change of venue, appellant again raised orally before the presiding judge his complaint against his counsel. He contended that counsel was incompetent, unprepared and had not consulted with him often enough. As a demonstration of counsel’s ineffectiveness, he contended that counsel had not filed pre-trial motions until after he had challenged counsel’s stewardship for not doing so. Appellant lacked confidence in counsel and contended that irreconcilable differences existed. The court refused the request.

Appellant claims his request was not based upon “mere shortness of time spent conferring” with him. See Commonwealth v. Weakland, 273 Pa.Superior Ct. 361, 417 A.2d 690 (1979). Instead he complains that counsel did not adequately represent him on pre-trial motions. In particular he refers to counsel’s delay in filing pre-trial motions and his failure to consult with appellant before counsel discussed the possibility of a plea bargain with the district attorney. Appellant concluded that his lack of confidence was justified by the divergence between what he and counsel thought was the best way to proceed. He contends counsel desired a guilty plea, while appellant wanted to go to trial.

At the hearing before the trial court on the request for new counsel, trial counsel explained that the reason he delayed filing pre-trial motions was because the Commonwealth had not provided him with timely discovery, and in exchange for trial counsel’s patience regarding discovery, the Commonwealth agreed to allow counsel to delay the filing of pre-trial motions until discovery had been completed. The Court found that counsel was a competent attorney, who had competently represented appellant on pre-trial matters and counsel was prepared to go to trial. While appellant was free to explain his position, he did not elaborate upon what he perceived to be a disagreement as to the methods of proceeding.

This court, sitting en banc, recently reviewed applicable principles concerning a request for the appointment of hew counsel in Commonwealth v. Egan, 322 Pa.Superior Ct. 71, 469 A.2d 186 (1980). After noting that an indigent defendant does not have a right to counsel of his choice, we went on to state:

Appellant’s mere dissatisfaction with counsel does not work a violation of his Sixth Amendment right to counsel.
This is in accord with the law regarding continuances. The decision whether to grant a continuance is within the discretion of the court below. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). An appellate court cannot disturb a continuance decision absent an abuse of that discretion.
What would make such a request justifiable? All such requests cannot be per se justifiable. That would enable a criminal defendant to indefinitely delay his going to trial. He would simply have to announce to the court at every trial date that he was dissatisfied with his counsel and wanted a continuance to obtain new counsel. Nor, as noted above, can all such requests be considered per se unjustifiable. (322 Pa.Superior Ct. 79, 469 A.2d 190.)

While a defendant may reject appointed counsel “for good cause shown”, Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Pa.R.Crim.P., Rule 318, as noted above “mere dissatisfaction” is not adequate. While Tyler held that “irreconcilable differences”, if proven, equals “good cause shown”, here appellant has failed to show such. See Commonwealth v. Weakland, supra 273 Pa.Superior Ct. at 366 n. 2, 417 A.2d at 692 n. 2; compare, Commonwealth v. Tyler, supra; Commonwealth v. Nicolella, 307 Pa.Superior Ct. 96, 452 A.2d 1055 (1982). The current case is similar to Commonwealth v. Johnson, 309 Pa.Superior Ct. 117, 454 A.2d 1111 (1983), where the defendant asserted a lack of confidence in counsel’s “attitude”. There we found no abuse of discretion in denying a request for new counsel. We here likewise find no abuse of discretion.

Appellant next complains that the court erred in not permitting appellant to waive trial by jury. The judge refused the attempted waiver of a jury trial because he had heard all of the pre-trial motions and felt he could not “properly” sit as the fact finder. The court inquired of the court administrator and was informed that should the case be reassigned, the administrator was not sure when next the case could be tried. Therefore, the court with an eye to the speedy trial rule, and the fair trial requirement held that the appellant was to be tried by a jury. We find no abuse of the trial court’s discretion in refusing the request for a non-jury trial. See Commonwealth v. Sorrell, 500 Pa. 355, 361, 456 A.2d 1326, 1329 (1982).

Trial Errors

Complaint is made regarding the jury array. Appellant contends that the jury panel was selected from the list of registered voters which he argues systematically excluded certain groups. Additionally, he contends a number of jurors should have been struck for cause. Appellant argues that, taken together, the above circumstances interfered with his right to be tried by an impartial jury representative of the community.

Commonwealth v. Jones, 465 Pa. 473, 479, 350 A.2d 862 (1976), (Jones II) relied upon in Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981), addressed the very issue raised by appellant here.

We reject this argument because we do not believe the Constitution requires a source of prospective jurors other than those names gathered from the voter registration lists simply because an identifiable group of individuals may vote in a proportion lower than that of the general population. As the Fifth Circuit Court of Appeals stated in Camp v. United States, 413 F.2d 419, 421 (5th Cir. 1969), cert. denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969): “Use of [voter registration] lists as the sole source of names for jury duty is constitutionally permissible unless this system results in the systematic exclusion of a ‘cognizable group or class of qualified citizens.’ ” [Emphasis added.] And a group of persons who have failed to register to vote has never been considered to constitute a “cognizable group.” See United States v. Lewis, 472 F.2d 252 (3rd Cir.1973); United States v. Freeman, 514 F.2d 171 (8th Cir.1975); Camp v. United States, supra; Grimes v. United States, 391 F.2d. 709 (5th Cir.1968).

We must observe that in Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973), (Jones I), the court remanded to give the defendant the opportunity to prove his claim. After remand, the Jones II court found no merit to the claim. While appellant has not had a chance to support his claim before the trial court, we see no need to remand.

In his brief, appellant cites figures obtained from a census report indicating that voter registration does not accurately reflect the age or race of the populace as a whole. He concludes that the census figures demonstrated that blacks and young people were systematically excluded from jury duty. Such a claim must fail in light of Jones II where the court held that those who fail to exercise their franchise by failing to register do not constitute a “cognizable group” that is systematically excluded. Appellant has failed here to allege an exclusion that if proven would require the grant of relief, therefore there is no need to remand. See Commonwealth v. McIntosh, 266 Pa.Superior Ct. 425, 405 A.2d 507 (1979).

Appellant also contends that during voir dire three jurors acknowledged reading about appellant’s case; two jurors admitted having a cousin who was a police officer; one juror had a family member killed as a result of a criminal act; and an alternate had been previously attacked with a knife. He would have us infer that such jurors should have been struck for cause ánd therefore counsel was ineffective in failing to attempt to have them struck. However, prior to having the jury sworn in, the trial court inquired individually of the prosecutor, defense counsel, and appellant himself, whether each was satisfied with the jury as impaneled and seated. Appellant, himself, as well as counsel expressed satisfaction with the jurors chosen. Appellant having been given the opportunity to raise any objections to the jurors and having failed to do so is now precluded from raising such question. Commonwealth v. Kubacki, 208 Pa.Superior Ct. 523, 224 A.2d 80 (1966); see also Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1976).

Appellant further argues that he was denied a fair trial because state officials prevented him from preparing for trial. He premises this contention, in great part, on the period he was either at Farview or waiting to be placed at Farview. We see little reason to address this claim in detail. Counsel had been appointed to represent appellant, whom we have found filed various pre-trial motions and was effective at least on pre-trial matters. Therefore, we find appellant suffered no prejudice.

Appellant complains that the Commonwealth violated Rule 305 B(l)(d), Pa.R.Crim.P., which requires the prosecution to disclose to a defendant any identification of a defendant and Rule 305 D imposing a continuing duty to disclose. Shortly before trial, the assistant district attorney advised the trial court and defense counsel that it had just come to his attention that a prosecution witness would testify that she had seen appellant in the victim’s apartment building on the night of the attack. Prior to this disclosure, the witness, who was a neighbor of the victim was expected to merely recite events leading up to the discovery and reporting of the assault. The trial judge held that the witness could not testify as an identification witness, but could testify that she saw a man present and could give a general description of that man.

Appellant argues that such testimony amounted to a “de facto” identification of him. After reviewing the testimony, we must disagree. The description given was general. The jury was advised that the witness had only observed the individual for five seconds and was unable to recall any details concerning his attire. Rule 305 E, Pa.R. Crim.P. provides:

E. Remedy

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, [requiring disclosure] the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

The trial court has broad discretion in determining the proper remedy in such situations. Commonwealth v. Keeler, 302 Pa.Superior Ct. 324, 448 A.2d 1064 (1982); Commonwealth v. Parente, 294 Pa.Superior Ct. 446, 440 A.2d 549 (1982). In the circumstances of this case we can find no abuse of such discretion.

Appellant next combines three unrelated claims and in effect argues that the Commonwealth’s trial methods and the court’s response thereto were improper. First, he contends that the Commonwealth’s attorney was improperly permitted to ask the victim leading questions. He goes on to contend that the Commonwealth’s failure to call a taxi driver amounted to a de facto suppression of that witness’ testimony. And third he implies that the court’s denial of a petition to appoint an investigator for purposes of post-trial motions was improper.

In modern practice, the use of leading questions lies within the discretion of the trial court and a court’s tolerance or intolerance of the leading questions will not be reversed absent an abuse of its discretion. Commonwealth v. Reidenbaugh, 282 Pa.Superior Ct. 300, 422 A.2d 1126 (1980); Commonwealth v. Guess, 266 Pa.Superior Ct. 359, 404 A.2d 1330 (1979). We have reviewed that portion of the notes of testimony of which appellant complains and we can not find an abuse of discretion on the part of the court or any impropriety on the part of the prosecutor requiring any relief. The prosecutor sought to aid the victim in telling her account of the assault upon her by the use of leading questions and the court sustained some objections raised by appellant and overruled others.

The other unrelated two claims which appellate counsel has sought to integrate into this contention were not raised in post-trial motions nor in appellant’s statement of issues complained of on appeal and therefore we are precluded from addressing them. See Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333, (1982); Pa.R.A.P. No. 1925(b).

The last trial error raised by appellant which we must address is whether statements made by the victim to a nurse in the emergency room were objectionable hearsay and whether it was error for the court, upon request by the jury, to read to the jurors from the transcript of the testimony, the nurse’s direct testimony previously given, without including an objection voiced by the defense and, also, without reading the cross-examination of the witness.

As towhether the victim’s statements as related by the nurse fall into the excited utterance exception to the hearsay rule, we will rely upon the trial court’s discussion finding that they do so qualify. For additional support we observe that it was held in Commonwealth v. Gore, 262 Pa.Superior Ct. 540, 396 A.2d 1302 (1978); and Commonwealth v. Dugan, 252 Pa.Superior Ct. 377, 381 A.2d 967 (1977) that even though statements were made several hours later than the incident which cause them to be made, they were still “spontaneous” for purpose to the exception to the hearsay rule.

After the jury had gone out to deliberate it requested that the court read to it a portion of the emergency room nurse’s testimony. The court directed the court reporter to read the following excerpt:

By [District Attorney]

(Q) Will you tell us what, if you can recall, she might have told you about the night before?

(A) At one point she mentioned to me that she was doing her laundry. And she went from her laundry room into her apartment. She found a man sitting in her apartment waiting for her. She did mention knowing this man. And I asked her, I said, you knew him? Because I was surprised looking at her that someone would hurt in this fashion if she knew him. And she said, I have seen him around, he’s been hanging around.

Later on as I was continuing to examine her to see what other bruises or contusions or lacerations she might have had on her body, I did see that she had these two bruised areas behind the ears. And in her rambling she had mentioned that she had been held under water, and I assumed that it was in a bathtub. I don’t remember her telling me it was a bathtub. But, she said she had been held under water and the man thought she was dead. The man thought he had drowned her.
[Defense Attorney]: Objection. I think that is con-clusionary, Your Honor. I don’t think that this witness or another witness could make a conclusion.
THE COURT: I’ll sustain the objection. Ladies and Gentlemen of the Jury, you should disregard that conclusion.

By [District Attorney]

(Q) Did she say anything else to you that you can recall at this time?

(A) Not that I can recall. Like I said, she had been rambling, and things that she was saying were not fitting in. She was trying very hard to remember.

And at this point we did have to try to relax her and tell her, you know, later on it would all come back, but that she shouldn’t think about it right now. Our main concern at this time was making sure that she was all right.

(Q) Thank you. Cross examine.

At that point, the jury foreman indicated that the above portion was sufficient. Prior to the reading, the court reporter had inquired of the court whether the objection and ruling should be included in the reading, the court directed that it be excluded. Therefore, the jury was not reapprised of the objection and of the court’s instruction to disregard the conclusion.

When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court’s discretion to grant or deny such request. Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968); Commonwealth v. McBall, 316 Pa.Superior Ct. 493, 463 A.2d 472 (1983). The court must be careful so as not to place undue emphasis upon those portions which are requested. Peterman, supra, Commonwealth v. Coley, 297 Pa.Superior Ct. 435, 444 A.2d 110 (1982); Commonwealth v. Banks, 267 Pa.Superior Ct. 10, 405 A.2d 1277 (1979). The parameters concerning the extent that testimony should be read to the jury are to be set by the juror’s request. Commonwealth v. Peterman, supra. Hence the court, if it deems it appropriate, may permit the jury to hear only a portion of a witness’ testimony. See Commonwealth v. Coley, supra.

Applied to the facts of this case, we find no abuse of discretion in the court’s initial decision to permit the jury to again hear the testimony of the emergency room nurse. Trial testimony started on October 31, 1980 and was not concluded until November 5, 1980. The trial was interrupted by a weekend and a holiday. The testimony here in question was given two days prior to the case going to the jury, and therefore it was understandable that the jury wished to be refreshed. Such recall of the testimony did not place undue emphasis, beyond its intrinsic value, upon such testimony. While we believe the better practice would have been for the court to have also read the cross-examination of the witness, we do not find that so limiting the reading amount to an abuse of discretion. As noted above the jurors’ request limits what testimony should be read. Here the jurors indicated that they were interested only in the direct examination. While in another context such limitation might place undue influence upon the direct testimony, here it does not. We have reviewed appellant’s cross-examination of the witness and find that it was short in duration and was uneventful.

A more difficult issue is raised in the complaint that the court erroneously omitted appellant’s objection, which had been sustained, from its reading of the nurse’s testimony to the jurors. It is unclear whether counsel objected to the assumption that the attempted drowning occurred in a bathtub or to the conclusion that the actor thought he had drowned the victim, or both. Nonetheless, as the objection was sustained and the jury was directed to disregard the conclusion, the testimony as read back to the jury should have either included the objection and the court’s response or else both the objection and the objectionable testimony should have been edited out. However, we find that any error was harmless beyond a reasonable doubt.

The often repeated rule is:

Such error is “harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 405-406, 383 A.2d 155, 162 (1978). Unless the court determines that the error could not have contributed to the verdict, the “reasonable possibility” that the error did contribute to the verdict negates any notion of harmlessness. Id., 476 Pa. at 409, 383 A.2d at 164.

Commonwealth v. Turner, 499 Pa. 579, 584, 454 A.2d 537, 540 (1982). In the case before us there was overwhelming evidence that the victim had been raped and then attempts were made to strangle and drown her and finally she was stabbed in the chest with a paring knife. Appellant’s defense was that he had not committed the horrendous deeds since his defense of alibi placed him elsewhere. Accordingly, whether the victim was held under water in her bathtub only to be released because her assailant thought she had, been drowned, was not of importance to his defense and could not have contributed to the verdict.

Ineffectiveness of Counsel

Appellant also contends that trial counsel was ineffective in failing to contact and produce alibi witnesses on his behalf. Among such witnesses are a bartender who supposedly could establish that the prosecutrix knew appellant socially prior to the attack; a case worker who may have been able to establish that the victim knew the appellant prior to the rape; the prosecutrix’s son, who according to defense testimony was familiar with appellant; and a cab driver, who appellant believed would testify that he had delivered a fare, other than appellant, to the victim’s apartment complex on the night in question.

We must first note that none of the above witnesses are alibi witnesses, nor were they present on the night in question at the scene of the crime. As to the case worker and any possible alibi witnesses, an investigator testified he was unable to locate such possible witnesses. We held in Commonwealth v. Hollerbush, 298 Pa.Superior Ct. 397, 444 A.2d 1235 (1982) that where counsel is informed of a possible witness and fails to investigate without explanation and then fails to call such witness ineffectiveness of counsel can be found. Here counsel was not ineffective as to the case worker and any possible alibi witnesses.

The value of the testimony of the victim’s son and the bartender would be limited to the purpose of showing that the victim was familiar with appellant prior to the crimes and therefore was aware of his unusual scars. And further, appellant contends that the victim knew of his place of employment prior to the rape and assault. Appellant argues that the victim was much more familiar with him than she would let the jury believe.

The prosecutrix admitted that she had seen appellant “around” prior to the rape. She indicated that he had even knocked on her door asking to use her bathroom and her phone. She also stated that a man by the name of “Lou” had called her, uninvited and unwanted, on a number of occasions. The caller’s voice matched that of appellant when he came to her door. Trial counsel cross-examined the victim regarding her familiarity with appellant. The defense also called appellant and the victim’s former paramour to testify regarding the relationship between appellant and the prosecutrix. The former paramour testified concerning an incident that occurred where the victim had talked to a man, who met appellant’s general description, outside her apartment door, and also to comments made by the victim’s son involving a person with the same first name as appellant. The witness also related comments made by the victim to the effect that a person with appellant’s first name was going to get her a job at appellant’s place of employment. Appellant argues that had trial counsel also called the above-mentioned bartender and the victim’s son, they would have testified that they saw the victim and appellant together.

While at first glance there may appear to be merit to appellant’s claim of ineffectiveness, upon further reflection it becomes evident that no relief is in order. “[T]he failure to call a possible witness will not be equated with a finding of ineffectiveness absent a positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).” Commonwealth v. Rivera, 309 Pa.Superior Ct. 33, 38, 454 A.2d 1067, 1070 (1982). Here appellant contends that the overlooked witnesses could have shown that the prosecutrix was only able to identify him because she knew him beforehand. However, none of the witnesses could testify that the victim knew of appellant’s scars or work history, hence their testimony is not pertinent to the purpose for which it was to be offered. Additionally, such testimony would have been cumulative to the other defense witnesses’ testimony and counsel will not be- held to be ineffective in not calling every conceivable witness to testify to the same facts. Commonwealth v. Rivera; supra; Commonwealth v. Lochman, 265 Pa.Superior Ct. 429, 402 A.2d 513 (1979).

Sentencing

Appellant first argues that he was denied his right to allocution at the time of sentencing. Furthermore, he believes the court erred when it failed, at the time it imposed sentence, to state the total minimum. Both allegations were raised in a motion to modify sentence.

Rule 1405(a), Pa.R.Crim.P. reads:

At the time of sentencing, the judge shall:

(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing.

In the case at hand the court did not invite appellant to make a statement on his own behalf. However, in an effort to clarify the pre-sentence report, appellant testified regarding the prior treatment programs he had completed.

Recently, in Commonwealth v. Barton, 312 Pa.Superior Ct. 176, 183, 458 A.2d 571, 575 (1983), this court held:

A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed. To require a vacating of the sentence and a subsequent resentencing, appellant will have to show that the sentencing judge was either misinformed or uninformed regarding one or more relevant circumstances. The sentence need not be vacated in order to provide appellant an opportunity to speak if he has nothing significant to say. Commonwealth v. Rivera, [309] Pa.Super. [33], [39], 454 A.2d 1067, 1070 (1982).
The right to allocution is neither constitutional nor jurisdictional. The failure to ask a defendant if he has anything to say before sentence is imposed is not a fundamental defect inconsistent with rudimentary requirements of due process or an error inherently resulting in a miscarriage of justice. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962). Thus, as the Supreme Court held in Hill, collateral relief is not available when a petitioner shows merely a formal failure to comply with a rule requiring the court to invite a defendant to speak before sentence is imposed.
The right of allocution in Pennsylvania is also based upon procedural rule. See: Pa.R.Crim.P. 1405(a). A mere failure to comply formally with the mandate of Rule 1405(a), which requires the court to invite a defendant to speak, does not destroy the validity of an otherwise legal sentence and render it susceptible to collateral attack. Hill v. United State, supra.

As appellant does not demonstrate what other information he would have brought to the court’s attention to supplement counsel’s comments, we see no need to remand for allocution. Compare Commonwealth v. Smillie, 316 Pa.Superior Ct. 83, 92, 462 A.2d 804, 809 (1983).

Appellant’s second issue as to the sentencing is also without merit. While it is true that 18 Pa.C.S.A. § 1357, requires the sentencing court, when it imposes consecutive sentences, to inform the defendant of the total minimum, failure to do so does not require resentencing.

In Blackwell v. Commonwealth, 36 Pa.Cmwlth. 31, 387 A.2d 506 (1978), the defendant had been sentenced to one term of one to two years, and two terms of six months to one year; the three sentences were to be served consecutively. The sentencing court did not establish an aggregate minimum sentence. The Commonwealth Court reasoned:

Thus, when petitioner was sentenced, the judge should have “indicated” an effective minimum sentence and thereby establish a date upon which petitioner would be eligible for parole. This he failed to so specifically. We are of the view, however, that by necessary implication, the sentences were aggregated and. there was imposed upon petitioner a sentence the minimum of which was two years and the maximum of which was four years.

Id., 36 Pa.Cmwlth. at 37-38, 387 A.2d at 509. Accepting the holding of Blackwell, we find that appellant’s consecutive sentences of ten (10) to twenty (20) years, ten (10) to twenty (20) years, and five (5) to ten (10) years by “necessary implication” provided for an aggregate sentence of twenty-five (25) to fifty (50) years. No reason exists to remand for resentencing.

Judgment of sentence is affirmed.

      . Pre-trial errors:
      (1) Did the trial court err in not granting appellant’s pre-trial motion for change of venue?
      (2) Did the trial court err in not granting appellant’s pre-trial motion for suppression of evidence?

        Trial errors relating to fair trial issues: Was appellant denied a fair trial,
      (9) by reason of a denial of permission to introduce testimony of prior sexual relations between the victim and the appellant as rebuttal to identification evidence submitted by the Commonwealth;
      (11) by the denial of appellant's motion for a court ordered polygraph examination of the victim;
      (13) by denial of appellant’s motion for a mistrial when the Commonwealth introduced testimony regarding appellant’s use of drugs;
      (14) by denial of appellant’s motion for a mistrial when after the appellant’s outbreak in the courtroom the Court informed the jury that trial counsel was appointed;
      (16) by allowing the testimony of Gino DiFrederico into the record over defense hearsay objection;
      (17) by denial of appellant’s objection to Dr. Vitelli being qualified as an expert witness in psychiatry;
      (18) by denial of appellant’s objection to the introduction of Commonwealth witness Starling's testimony regarding appellant’s drinking habits;
      (19) by denial of appellant’s objection to the admission of the victim’s robe, Commonwealth’s Exhibit "C-l” the paring knife, Commonwealth’s Exhibit “06", “07" and "C-8” Photographs of the apartment, Commonwealth’s Exhibit "C-l 7" and “C-l 8” photographs of appellant at the time of the strip search into evidence;
      (20) by reason of denial of appellant’s demurrer on bill of information 1612.3 — 80 Criminal Attempt-Murder;
      (21) by reason of the verdict being contrary to the weight of evidence and to the law?
      Sentencing error:
      226b. Was the sentence imposed contrary to law in that each of the minimum and maximum sentences imposed by the trial court on appellant for his conviction on the respective charges of rape, involuntary deviate sexual intercourse and criminal attempt is manifestly excessive?

      . 50 Pa.S.A. § 7101 et seq., in particular § 7304.

      . This represents the amount of time between appellant’s adjudication of incompetency on March 7, and his release from Farview on June 2, 1980.

      . Comment:

        For purposes of subparagraph (3)(i), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for the period of time during which he contested extradition, or a responding jurisdiction delayed or refused to grant extradition; or during which the defendant was physically or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his appearance elsewhere in connection with other judicial proceedings.

      . Due to our holding infra, we need not rule on whether the period between May 12 and June 2 is excludable.

      . The comment reads in part:
      It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.

      . Appellate counsel, who also prepared and argued post-trial motions, was appointed subsequent to the verdict.

      . No sanction was imposed upon appellant for the delayed filing.

      . The trial court found that appellant had not timely raised such claims and therefore they were waived. Appellant goes on to allege that counsel was ineffective as to such claims, therefore we must determine whether counsel had any reasonable basis for not raising them. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

      . He also claims counsel was ineffective regarding jury selection. Having previously addressed such claim and finding no merit to the challenges to the jury we need not review counsel’s stewardship.

      . As to the failure to investigate the cab driver, we likewise can not find counsel was ineffective. Counsel will not be deemed ineffective for not investigating and calling all conceivable witnesses irregardless of the nature of their information. Commonwealth v. Barren, 273 Pa.Superior Ct. 492, 417 A.2d 1156 (1980). Appellant contends that the cabby would have testified that he had taken someone, other than appellant, either to or from the victim’s apartment complex on the night in question. Such testimony would have been merely collateral as to whether appellant was at the scene of the crime and how he may have gotten there. Counsel is not ineffective in not pursuing a collateral matter. Commonwealth v. Tabas, 308 Pa.Superior Ct. 43, 454 A.2d 12 (1982) (Opinion by Van der Voort, J. remanding on other grounds; Wickersham filed Dissenting Statement in which he found no reason to remand; Hoffman, J. filed a Concurring and Dissenting Opinion in which he would remand for reasons in addition to that of Judge Van der Voort.)

      . Since reenacted at 42 Pa.C.S.A. § 9757.


author: CAVANAUGH, Judge:

text:
    476 A.2d 453
    COMMONWEALTH of Pennsylvania v. Keith E. ROYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 25, 1983.
    Filed April 27, 1984.

      David M. Axinn, Public Defender, Franklin, for appellant.
    William G. Martin, Jr., Assistant District Attorney, Franklin, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Appellant, Keith E. Royer, entered a guilty plea to the second count of a charge of corruption of the morals of a minor. His sentence included a fine of five hundred dollars and imprisonment of not less than two nor more than four years. Appellant’s petition to modify the sentence was denied and he has appealed from the judgment of sentence.

In this case, the offense occurred on November 25, 1982, and sentence is subject to the sentencing guidelines set forth in 204 Pennsylvania Code, Chapter 303, 42 Pa.C.S. § 9721. The sentence imposed was outside the range of the sentencing guidelines, although within the maximum sentence for the offense committed, and therefore falls within the requirement of the Sentencing Code, 42 Pa.C.S. § 9721(b) which provides:

In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

The appellant contends that although the court gave its reasons for imposition of sentence on the record at the sentencing proceedings there was no “contemporaneous written statement” of the reasons for deviating from the guidelines, sufficient to satisfy the above requirements.

Initially, we note that there are two sets of “guidelines” for imposition of sentence. The earlier legislative “guidelines” are actually factors to be considered in weighing sentencing alternatives found in the Sentencing Code, 42 Pa.C.S. § 9701, and deal in general with the alternatives of (1) probation; (2) determination of guilt without further penalty; (3) partial confinement; (4) total confinement and (5) a fine. 42 Pa.C.S. §§ 9721 to 9726. As noted in Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979):

In imposing sentence the court “must not overlook pertinent facts, disregard the force of the evidence, commit an error of law ... or inflict punishment exceeding that prescribed by statute.” Commonwealth v. Knight, supra, 479 Pa. at 212, 387 A.2d at 1299; see Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp.1977); Commonwealth v. Knight, supra; Commonwealth v. Riggins, supra. [474 Pa. 115, 377 A.2d 140 (1977)]. (Emphasis added).

Many of our cases used the convenient phrase “guidelines” while discussing sentencing alternatives and the factors relevant thereto. Commonwealth v. Riggins, 474 Pa. 115, 134-5, 377 A.2d 140, 150, 151 (1970); referred to “[t]hese [alternative sentencing] factors provide the sentencing court with guidelines for the articulation of the reasons for its sentencing decision”; Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980), which refers to “those general guidelines we have developed in recent cases and which the Legislature has prescribed in the Sentencing Code ...” 490 Pa. 255, 416 A.2d 457; Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981); Commonwealth v. High, 304 Pa.Super. 174, 450 A.2d 158 (1982); Commonwealth v. Townsend, 497 Pa. 604, 443 A.2d 1139 (1982); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982). Perhaps confusion may be avoided in the future if we refer to “guidelines” only when we are considering the guidelines developed by the Pennsylvania Commission on Sentencing.

In addition to the alternative sentence factors for imposing sentence the Sentencing Code also provides at 42 Pa. C.S. § 9721(b):

(b) General standards. — In selecting from the alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing). (Emphasis added).

The guidelines promulgated by the Pennsylvania Commission on Sentencing are set forth in the Pennsylvania Code and found at 42 Pa.C.S. § 9721. They were adopted by the legislature on May 14, 1982, to become effective on July 22, 1982. The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth. Accordingly, the guidelines set forth the minimum range, aggravated minimum range and mitigated minimum range of sentence for the offenses dealt with in the sentencing range chart. The sentence range chart deals with specific offenses and the range of sentence for that offense considering “the offense gravity score” and “prior record score” as well as “weapon enhancement”, if applicable. The sentencing guidelines now include specific as well as general standards which must be considered by the trial court.

In every case where sentence is imposed the court must state on the record at sentencing the reasons for the imposition of the sentence. This rule is applicable whether or not the sentence imposed is within the specific guidelines established by the Pennsylvania Commission on Sentencing. In the instant case the appellant engaged in sexual acts with a twelve-year-old boy for whom he acted as a foster parent. The court pointed out in sentencing that the appellant violated a trust that had been imposed on him by reasons of his agreeing to care for the twelve-year-old. The court noted that this in itself was a very serious consideration for the imposition of sentence. The court considered the effect of the crime upon the victim and society and the seriousness of the offense. In addition, the court recognized the appellant’s need for rehabilitation and stressed that appropriate professional help was to be provided. The court analyzed the medical reports in the appellant’s record. Realizing the appellant’s need for help the court nevertheless felt that it could not give a sentence “to anything but a state correctional institution.” The court sentenced the appellant to Camp Hill for his own protection as the father of the victim was in the state penitentiary at Pittsburgh and the court did not want to risk sending the appellant to the same prison where the victim’s father was confined. The court also considered the appellant’s background and poor financial condition. The fact that the court made no specific reference to the factors set forth in the Sentencing Code is not fatal, as long as it is clear that the court considered the sentencing factors. Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980). We are satisfied that if the sentence imposed had been within the range of recommended sentences under the sentencing guidelines, that the record of the sentencing proceedings would have met the requirements of Commonwealth v. Riggins, supra, which held that the court must set forth on the record at the time of sentence the reasons for the sentence. See also, Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). The requirements of Riggins and Kostka are also imposed by 42 Pa.C.S. § 9721(b) and Pa.R.Crim.P. 1405(b). The appellant’s reliance on Commonwealth v. High, 304 Pa.Super. 174, 450 A.2d 158 (1982) to establish an inadequate statement of reasons on the record is misplaced. In High, the court merely discussed with the defendant the contents of a psychiatric evaluation and then sentenced him to confinement. In our case the court considered factors individual to the appellant, as his needs for rehabilitation and psychiatric assistance. Similarly, in Commonwealth v. Cruz, 291 Pa.Super. 486, 436 A.2d 220 (1981), also relied on by the appellant, a panel of this Court remanded for resen-tencing since it found the court’s statement as to the basis for sentencing inadequate.

The applicability of the sentencing guidelines involves different considerations. Since the sentence imposed was outside the guidelines provided by the Pennsylvania Commission on Sentencing, two issues are raised: (1) was the statement of the court made at sentencing in the defendant’s presence, and recorded, a “contemporaneous written statement”; and if so then, (2) is the statement sufficient to meet the requirements of the act. The first issue deals with the meaning of “contemporaneous written statement”, which requirement is mandatory and “not discretionary.” Commonwealth v. Love, 295 Pa.Super. 276, 280, 441 A.2d 1230, 1232 (1982). In Commonwealth v. Tomasso, 311 Pa.Super. 103, 457 A.2d 514 (1983), the Commonwealth appealed when the court imposed a sentence below the minimum guidelines. This Court noted at 311 Pa.Super. 107, 457 A.2d 516: “Where the court sentences the individual to a term less than that stated in the guidelines, the act requires that the court provide a contemporaneous written statement describing the reasons for the sentence. This was done.” The opinion does not discuss the nature of the contemporaneous written statement. The following opinions also refer to the “contemporaneous written statement” of the reasons for the deviation from the guidelines. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982); Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983). However, none of these cases sheds light on the question of what constitutes an adequate “contemporaneous written statement.” In Commonwealth v. Nixon, supra, the Commonwealth appealed under Section 5 of the Act of November 26, 1978, P.L. 1316, No. 319 (Act 319) which provides for interim sentencing pending adoption of guidelines by the Pennsylvania Commission on Sentencing. This Court held that the Commonwealth waived its claim that the sentence was unreasonable as it did not file a motion to modify sentence as required under Pa.R.Crim.P. 1410. The Court stated at footnote 4, 311 Pa.Super. 453, 457 A.2d 974:

4. Because of our determination, infra, that the Commonwealth waived its Act 319 claim, we need not determine the effect, if any, of the fact that the judge’s statement of reasons was neither “contemporaneous” nor “written” as required by section 5(b) of Act 319.

In the instant case, the judge gave his reasons for imposing sentence at the sentencing proceedings, in the appellant’s presence, and his statement was recorded and ultimately transcribed as part of the record. We hold that the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitutes a “contemporaneous written statement”, within the meaning of the act. The purpose of the contemporaneous written requirement would appear to be to advise the defendant of the reasons for deviating from the guideline and provide a memorial for his use and for appellate review. It would be unreasonable to conclude that the legislature intended that the court do more than that when the sentence imposed is outside the sentencing guidelines.

Having established that the court provided a contemporaneous written statement for his reasons for the sentence we must now determine if they were adequate, and we find that they were not. Nowhere does the record indicate that the judge was aware of the guideline range. The following colloquy between defense counsel and the court is the extent of the court’s reference to the sentencing guidelines as far as the permissible range of sentence is concerned:

MR. AXINN: Please the Court? Your Honor, we ask the Court to consider also the guidelines of the Pennsylvania Sentencing Commission since this offense did occur in November of 1982, that it could be applied. And for corrupting the morals of minors, I believe' the guidelines’ sentence, without rating or mitigating factors, would be between zero and twelve months. The minimum term with aggravated factors, it would be—
THE COURT: That’s a guide line but it’s not a mandate, you see.

The sentencing guidelines are complex, including as they do references to “prior record score”, “offense gravity score”, “statutory classification”, “minimum range”, “aggravated minimum range”, and “mitigated minimum range.” 42 Pa.C.S. § 9721. At the minimum, the court must indicate that it understands the sentencing guideline range, in those cases in which the court deviates from the guidelines.

As noted above, in every case where sentence has been imposed, the court then must make as part of the record and disclose in open court at the time of sentencing, a statement for the reasons for the sentence. However, the Sentencing Code imposes an additional requirement where the sentence is outside the guidelines and that is there must be a contemporaneous written statement of the reasons for deviation from the guidelines. Where the trial judge deviates from the sentencing guidelines set forth in 204 Pennsylvania Code, Chapter 303, he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range. The Act states that failure to provide an appropriate contemporaneous written statement shall be grounds for vacating the sentence and resentencing the defendant. In the instant case the court did not advise the defendant what the sentencing guidelines provided as far as the range of sentence, and did not state why he deviated from the sentencing guidelines.

Judgment of sentence vacated and case remanded for resentencing. We do not retain jurisdiction.

      . The sentence imposed by the court was as follows:
      "It is the Order and Sentence of this Court that the said defendant shall pay a fine of five hundred dollars ($500.00), together with the costs of prosecution, Crime Victim’s Compensation in the sum of $10.00, Domestic Violence Costs in the sum of $10.00, and shall be committed ..." for a minimum term of two and a maximum term of four years.

      . The appellant was sentenced to two to four years imprisonment for corruption of the morals of a minor, which is a first degree misdemeanor. 18 Pa.C.S. § 6301(a). Since this offense is not subclassified by the guidelines, it has an offense gravity score of three. Because the defendant has no prior record, the prior record score is zero. The guidelines indicate in these circumstances a minimum range of zero to twelve months confinement; an aggravated minimum range of twelve to eighteen months; and a mitigated minimum range of non-confinement. The sentence imposed in this case having a minimum term of twenty-four months, is a deviation from the guidelines.

      . Our recent en banc decision in Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983) holds that the reasons for imposing sentence be recorded during the sentencing proceedings and that the defendant be present.