author: STRANAHAN, Judge:

text:
    436 A.2d 1024
    COMMONWEALTH of Pennsylvania, v. Lawrence FANELLI, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Oct. 30, 1981.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       President Judge John Q. Stranahan of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   STRANAHAN, Judge:

This matter is an appeal from the judgment of sentence entered by The Court of Common Pleas of Philadelphia County against the appellant, Lawrence Fanelli, following his conviction for unauthorized use of an automobile. The appellant contends, inter alia, that the lower court erred in denying his motion to dismiss under Pa.R.Crim.P. 1100(f) where he asserts, the Commonwealth failed to exercise due diligence in bringing him to trial within 180 days after the criminal complaint was filed as mandated by Pa.R.Crim.P. 1100(a)(2). The Court agrees and, therefore, vacates the judgment of sentence and discharges the appellant.

The appellant was arrested on September 5, 1977, and charged with receiving stolen property and unauthorized use of an automobile. The same day, the criminal complaint in this matter was filed. Hence, the Commonwealth had until March 6, 1978 to bring the appellant to trial.

At the appellant’s preliminary arraignment, bail was set at $2500.00. The appellant was unable to post bond.

A preliminary hearing was held on September 29, 1977. As a result of that hearing, the appellant was ordered held for trial.

On October 20, 1977, the appellant filed a motion to quash the return of the magistrate’s transcript on the basis that the Commonwealth had failed to establish a prima facie case of the appellant’s guilt at the preliminary hearing. The lower court granted the motion to quash and discharged the appellant on November 14, 1977.

On December 14, 1977, the Commonwealth filed a petition for reconsideration of the order granting the appellant’s motion to quash. The same day and without a hearing, the lower court vacated its order granting the appellant’s motion to quash pending reconsideration and entered a Rule on the appellant to show cause why the order granting his motion to quash should not be reversed.

The appellant was never notified of the Commonwealth’s request for reconsideration or the decision of the lower court to vacate its order granting the appellant’s motion to quash pending reconsideration. The appellant’s attorney, a public defender, was notified of the lower court’s decision to vacate pending reconsideration and, as a result, the public defender filed an answer on December 22, 1977 opposing the Commonwealth’s petition for reconsideration. The affidavit attached to that answer, however, was not signed by the appellant. It was signed by the public defender.

After reconsideration, the lower court denied the appellant’s motion to quash. Apparently, the lower court did so on January 31, 1978. The Court uses the term “apparently” because the only indication as to when the lower court finally denied the appellant’s motion to quash is contained in the Commonwealth’s and the appellant’s briefs. The order denying the motion to quash, (if one exists), was not included in the record this Court received from the lower court.

The appellant was not notified of the lower court’s decision, upon reconsideration, to deny his motion to quash.

The trial in the matter was scheduled for February 22, 1978. The Commonwealth did not notify the appellant of that trial date. The Commonwealth did, however, notify the public defender of the trial date.

The appellant failed to appear for trial on February 22, 1978. As a result, a bench warrant was issued for his arrest and the trial was rescheduled for March 10, 1978.

The Commonwealth filed a petition for an extension of time under Pa.R.Crim.P. 1100(c) on February 23, 1978. In support of that petition, the Commonwealth alleged that it had exercised due diligence in trying to bring the appellant to trial within the 180 days but it was prevented from doing so, first, by the appellant’s filing of a motion to quash and, second, by the appellant’s failure to appear for trial on February 22, 1978. The lower court granted the Commonwealth’s petition and extended the time for commencement of the appellant’s trial to March 13, 1978.

On March 10, 1978, the appellant again failed to appear for trial.

The Commonwealth filed a second petition for an extension of time on March 13, 1978.

On April 21, 1978, an investigator for the Commonwealth located the appellant at 2167 East Firth Street and took him into custody. The same day, the lower court held an evidentiary hearing on the Commonwealth’s second petition for an extension of time. At that hearing, the Commonwealth introduced the following evidence in support of its allegation that it had acted with due diligence:

A. On February 24, 1978, a letter was sent to the appellant’s address as of November 14, 1977, 1831 East Orleans Street, Philadelphia, Pennsylvania, to notify him of the March 10, 1978 trial date.

B. On March 10, 1978, a telephone call was placed to 473-1016. There was no answer.

C. On April 4, 1978, the initial field visit was made to 1831 East Orleans Street by an investigator for the Commonwealth. The investigator found no one home at that address. While in the area, the investigator contacted an informant. The informant indicated that the appellant was living with a woman named Sharon in either the 2300 or 2400 block of Firth Street. The investigator went to the 2300 and 2400 blocks of Firth Street and interviewed approximately ten people. None of the individuals interviewed, however, knew of the appellant’s whereabouts.

D. On April 18, 1978, a second field visit was made to 1831 East Orleans Street by an investigator for the Commonwealth. Again, the investigator found no one home at that address.

E. On April 20, 1978, an investigator for the Commonwealth contacted a second informant in the 1800 block of East Orleans Street. That informant indicated that the appellant was living at 2167 East Firth Street.

On the basis of this evidence and the procedural history of this case, the lower court found that the Commonwealth had exercised due diligence in attempting to locate the appellant. Therefore, the lower court extended the time for the commencement of the appellant’s trial to May 20, 1978.

The appellant was tried on May 3, 1978, 238 days after the criminal complaint was filed.

The appellant contends that the Commonwealth failed to act with due diligence in attempting to locate him. Hence, he argues, the lower court erred in denying his motion to dismiss under Pa.R.Crim.P. 1100(f).

Pa.R.Crim.P. 1100(c) provides that a petition for an extension of time “shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” To meet the standard of due diligence, the Commonwealth must take every step that it could reasonably be expected to take in trying to bring a defendant to trial within the prescribed period. Commonwealth v. Brinton, 275 Pa.Super. 311, 418 A.2d 737 (1980). The Commonwealth does not have to exhaust every conceivable avenue open to it to bring a defendant to trial within the prescribed period. Commonwealth v. Brinton, supra.

In the case at hand, the reason the appellant’s trial was not commenced within the prescribed period was because of the appellant’s failure to appear for trial on February 22, 1978. Unlike the typical situation where a defendant fails to appear for trial, however, the appellant was not free on bail nor had he been released on his own recognizance. The appellant was at liberty because he had been discharged from custody when the charges against him were dismissed by the lower court for insufficient evidence.

Under these circumstances, the Court believes that the Commonwealth had a duty to locate and rearrest the appellant after the lower court denied the appellant’s motion to quash after reconsideration.

After the appellant was discharged on November 14, 1977, the appellant was a free man. The appellant had no obligation to keep the Commonwealth appraised of his whereabouts. In essence, his legal status a that point was equivalent to that of an individual who had been discharged for lack of evidence after a preliminary hearing.

After the lower court denied the appellant’s motion to quash on reconsideration, the appellant’s legal status was equivalent to that of an individual who was discharged for lack of evidence after a preliminary hearing and against whom a second criminal complaint has just been filed. Simply, both would have charges pending against them and their momentary freedom would be unrestricted.

Where an individual was discharged for lack of evidence after a preliminary hearing and against whom a second complaint has just been filed, the Commonwealth has a duty to rearrest that individual. See Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). For purposes of Pa.R. Crim.P. 1100, that individual has no duty to keep the Commonwealth appraised of his whereabouts or to surrender himself to authorities.

Given that the legal status of that individual is equivalent to the appellant’s legal status at the times in question, the same rules should apply. Hence, the Commonwealth had a duty to rearrest the appellant after the lower court denied his motion to quash on reconsideration.

In this case, the Commonwealth did not attempt to locate the appellant until April 4, 1977, 41 days after the appellant initially failed to appear for trial and 22 days after the initial extension of the 180 day period expired. The Commonwealth did not even attempt to notify the appellant of February 22, 1978 trial date. The only action the Commonwealth took was to notify the public defender of the February 22,1978 trial date. Under these circumstances, we think there is no question that the Commonwealth failed to exercise due diligence in attempting to bring the appellant to trial within the 180 day period.

Hence, the Court finds that the lower court’s decision to grant the Commonwealth an extension of time was improper and, therefore, its decision to deny the appellant’s motion to dismiss under Pa.R.Crim.P. 1100(f) was in error. As a result, the judgment of sentence is vacated and the appellant is discharged.

      . 18 Pa.C.S. 3928.

      . The appellant also contends that the evidence was insufficient to sustain the verdict. However, since the court finds that the appellant is entitled to be discharged because his trial was not timely, we need not consider that issue.

      . Although captioned a motion to quash, the appellant’s motion was, in reality, a petition for a writ of habeas corpus. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975).

      . The lower court’s decision to vacate its order granting the appellant’s motion to quash pending reconsideration was wrong. Before a court can vacate or modify an order on reconsideration, all of the parties must have notice and the opportunity to be heard. Commonwealth v. Colding, 482 Pa. 112, Fn. 2, 393 A.2d 404, Fn. 2 (1978). The appellant was not given the opportunity to be heard before the lower court vacated its order granting the motion to quash pending reconsideration. Instead of vacating the order pending reconsideration, the lower court should have merely granted the Commonwealth’s request for reconsideration. After each party had the opportunity to be heard, then the lower court should have decided either to affirm its order granting the motion to quash or vacate that order and deny the motion to quash. Unfortunately, the appellant has not raised this issue in his appeal. Hence, the court will not consider it.

      . The Commonwealth does not contend that the time between the lower court’s initial decision to grant the appellant’s motion to quash and its decision, after reconsideration, to deny the motion to quash should be excluded from the 180 day period. Hence, the Court will not consider that issue at this time.

      . In all fairness, the Commonwealth had an even greater duty to arrest the appellant. When the lower court vacated its order granting the appellant’s motion to quash and then, on reconsideration, denied that motion, the requirement that the appellant post bail of $2500.00 was reinstated. Hence, the appellant was not entitled to be at liberty until he posted bond. The Commonwealth, therefore, had two reasons why it had a duty to rearrest the appellant.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    436 A.2d 1028
    COMMONWEALTH of Pennsylvania, v. Morris E. THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1980.
    Filed Oct. 30, 1981.

      Karl K. Baldys, Williamsport, for appellant.
    Robert F. Banks, Assistant District Attorney, Williams-port, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

Appellant was convicted of driving under the influence of alcohol and recklessly endangering another. The charges arose out of an accident which occurred on May 5, 1977 in Williamsport.

Thompson described the accident as resulting from a dip in the highway causing his car to “bottom out” and subsequently lose control. Witnesses to the accident alter appellant’s story only to the extent that the automobile bottomed out not because of a dip in the road—though a dip was present—but because of the excessive speed at which the vehicle was driven.

•Appellant suffered numerous injuries. Thompson’s wife, who was also injured in the accident, stated her husband was incoherent when taken to the hospital, though conscious. After appellant’s injuries were stabilized, police requested that a blood test be given him to determine the amount of alcohol in his body. Thompson asserts he never gave any consent for blood to be taken. Hospital records include a consent form signed by appellant. Thompson testified he had several beers and a shot before the accident.

A motion was presented to suppress evidence of the blood test on August 4,1977. A hearing was scheduled for August 17, 1977, but the Commonwealth requested and received a continuance because the investigating police officer was suspended and unavailable. The hearing was postponed to the next term of court.

The Commonwealth did not call the case at the next term but waited until the subsequent term to request a suppression hearing be rescheduled. It was scheduled for November 2, 1977. At that hearing, the investigating officer gave testimony, however, was once again unavailable for trial which would have been held between November 8 and November 11.

The Commonwealth received an extension of time under Pennsylvania Rule of Criminal Procedure 1100 (hereinafter Rule 1100) on November 10, 1977. The original Rule 1100 date—November 14, 1977—was extended to the December trial term.

At trial, the judge allegedly incorrectly instructed the jury. “The [appellant] objected to the Judge’s charge which seemed to state that a finding of driving under the influence would result in a conviction of recklessly endangering.” Appellant’s brief, page vii.

Thompson presents four issues for our resolution. First, did the trial court properly extend the time for trial under Rule 1100? Second, did the trial court properly refuse to suppress evidence of the blood test? Third, was the trial judge’s instructions proper. Fourth, was there sufficient evidence to convict Thompson of recklessly endangering?

I.

Rule 1100(a)(2) provides:
Trial in a court case in which a written complaint is filed
against the defendant after June 30, 1974 shall commence
no later than one hundred eighty (180) days from the date
on which the complaint if filed.

The Commonwealth must prove by a preponderance of the evidence that it acted with due diligence to bring the case to trial. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1978); Rule 1100(c).

The Commonwealth must sustain its burden on two grounds. First, whether, in fact, their case required to be postponed because of their witness’ hospitalization. Second, why it did not commence trial during the week of October 3, 1977 or the trial term of October 31 to November 8, 1977.

We dispense with the second contention very easily. Our function on review is not to look through the special vision of hindsight and find that the Commonwealth had an opportunity to come to trial and failed; rather, we view the Commonwealth’s actions as circumstances confronted it. Certainly, the Commonwealth anticipated coming to trial before November 15, 1977. We will not hold the Commonwealth lacked due diligence simply because their witness became unexpectantly unavailable.

The rule was extended because the Commonwealth witness was hospitalized. An extension may be granted under such circumstances because that situation was beyond the Commonwealth’s control. The unavailability of the Commonwealth’s witness occurred despite its due diligence. Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977).

II.

In Commonwealth v. Curtis, 253 Pa.Super. 163, 384 A.2d 1280 (1978)—a case involving the taking of blood for a blood test—we were confronted with a similar issue involving the validity of appellant’s consent to a search. The appellant alleged the search was “in violation of [his] constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution and the applicable state law.” Id., 253 Pa.Super. 166, 384 A.2d 1282. We stated:

The issue of whether a defendant’s consent to a blood alcohol test is knowing and voluntary is a question of fact which must be determined in each case from the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Watkins, 236 Pa.Super. 397, 344 A.2d 678 (1975); Commonwealth v. Kelly, 235 Pa.Super. 299, 341 A.2d 141 (1975).

This court has recently discussed this issue in Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980), where we presented in discussion: burden of proving that the consent was in fact, freely and voluntarily given.” Id. [412 U.S.] at 222, 93 S.Ct. at 2045. In U.S. v. Ruiz-Estrella, 481 F.2d 723 (1973), the Second Circuit stated:

The Supreme Court [also] stated in Schneckloth v. Bustamonte, [supra.]: “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the
. . . While the question of voluntariness is one that must be resolved through an examination of “the totality of all the circumstances” [Schneckloth v. Bustamonte, supra, [412 U.S.] at 227, 93 S.Ct. at 2048] the [Supreme] Court emphasized that the prosecution’s burden could not be met by only showing acquiescence to a claim of lawful authority, id. at 233, 93 S.Ct. 2041. . . (emphasis added)

The test for the validity of consent has been given further explanation in Virgin Islands v. Berry, 385 F.Supp. 134 (1974) where the court set the following guide to the Schneckloth test.

. . . Factors to be considered by a court in assessing the voluntariness of the consent include the nature of the on the scene questioning, the subjective state of mind of the person who consents, his educational background, and the presence or lack of probable cause to arrest or search the subject.

Id. at page 137.

Id., 280 Pa.Super. at 282, 421 A.2d at 723.

At the suppression hearing, the trial court determined the blood test was executed without violating appellant’s constitutional rights, Pa.R.Crim.P. 323(i), and that the Commonwealth had proved this by a preponderance of the evidence. Pa.R.Crim.P. 323(h). Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Our responsibility is to determine if the record supports the findings of the court below. We must determine the legitimacy of inferences and legal conclusions drawn by the court below from these findings. Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). Since the suppression court determined in the instant case that the evidence was admissible, we shall consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). We note, however, that this rule is subject to the exception, applicable here, that whether certain findings by the suppression court are supported by defense testimony, we shall accept those findings as true even though they are in conflict with evidence presented by the prosecution. Commonwealth v. Brown, supra, 473 Pa. at 566, 373 A.2d at 1262.

In the instant case, Thompson sustained various injuries, broken ribs, lacerations to the forehead, and others; he was described by his wife, police and hospital staff as incoherent at times, in fact, his wife was asked to give consent because he was incoherent. However, the appellant apparently initialled a consent form; and the nurse who obtained the initials described him as conscious and coherent at that time. The police testified they sought to have the test completed because they sensed that alcohol played a role in the accident. These facts do not present a clear picture.

Our Supreme Court has stated in Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1966):

It is, of course, quite possible that the challenged confession may have been obtained while appellant was completely lucid and mentally competent. However, our judgment as to the effect of the circumstance under which the confession was obtained upon appellant’s mental capacity to confess must by its nature be one based upon probabilities. See Blackburn v. Alabama, supra [361 U.S. 199], at 208, 80 S.Ct. [274] at 281 [4 L.Ed.2d 242], When the pertinent circumstances are considered—the shock and weakened condition engendered by his wound, the extensive and serious nature of the surgery performed upon him, the quantity of anesthetic and medication administered to him, the occasional lapses into semi-consciousness and incoherence—the probability that appellant’s confession was the product of a rational intellect and a free will appears remote. Cf. Blackburn v. Alabama, supra, at 207-208, 80 S.Ct. at 280-281.

Thus, our determination is essentially one involving drawing the line at which the circumstances surrounding an apparently validly obtained consent renders that consent invalid.

In Commonwealth v. Curtis, supra—a case in which facts were similar to ours—we held that the consent obtained by police in order to perform a blood test was faulty. That case involved an accident in which Curtis suffered several injuries. Police testified that they could smell a distinct odor of alcohol from Curtis’ breath. Curtis, like Thompson, admitted to having a few beers before the accident. Curtis responded to the police request for consent to do a blood test affirmatively. However, like Thompson, there was accompanying evidence portraying Curtis as incompetent. Curtis was described by police as being “in pretty bad shape,” id., 253 Pa.Super. at 167, 384 A.2d 1283, while Thompson was depicted by an officer as being in “a state of shock.” Unlike Curtis, supra, where testimony specifically correlated Curtis’ incoherence with the time of the consent-seeking encounter—here—we are supplied no timetable as to the coexistence of appellant’s coherence or incoherence and his apparent consent.

Like Curtis, supra, it was hospital policy to have a person sign a consent form before blood was let, but as in Curtis, supra, the hospital staff had no recollection of the giving of the signature and like Curtis, supra, Thompson’s initials were illegible. In both cases each man testified they had no recollection of giving consent. The wives of Curtis and Thompson each corroborated their husband’s stories.

These cases are so very similar that it is clear that just as Curtis’ consent was invalid so must we find Thompson’s. We do not find fault with the procedures followed by either the hospital or police, however, the attendant circumstances make a conscious, voluntary consent improbable. Therefore, we must find that consent invalid. Commonwealth ex rel. Gaito v. Maroney, supra.

Appellant also argues that the instruction given the jury allegedly regarding the imputation of recklessness from a finding of intoxication was improper. This is without merit.

Finally, appellant asserts that the trial court had insufficient evidence upon which to convict him of recklessly endangering another. The Commonwealth was required to prove beyond a reasonable doubt that the appellant acted in a manner which involved a conscious disregard of risk.

The standard used by this court when we review the sufficiency of evidence is:

[T]he test to be employed is whether the finder of fact could reasonably have found all elements of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Roux, 465 Pa. 482, 485, 350 A.2d 867, 869 (1976).

Commonwealth v. Richbourg, 260 Pa.Super. 438, 394 A.2d 1007 (1978). This decision is made by us in a light most favorable to the Commonwealth. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

The evidence had at trial which we have not already held impermissibly admitted—the blood test results—included evidence that Thompson was driving at a high speed, that his car “bottom[ed] out” while passing through an underpass and that a passenger in his car, the driver of another car and he were injured. There are all circumstantial facts upon which the trial court may base its verdict only where: “ ‘the theme of guilt must flow from the facts and circumstances proved and be consistent with them all.’ Commonwealth v. Clinton, 391 Pa. 212, 218, 137 A.2d 463, 466 (1958).” As appears in Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970). °

In light of our determination that the blood test results were improperly admitted into evidence, we are unable to find, from a reading of the entire record, that the trial court drew its decision from facts and circumstances consistent with a finding of guilt beyond a reasonable doubt. Thus, it did not have sufficient evidence to reach its decision.

Judgment reversed and remanded for new trial.

VAN der VOORT, J., dissents.

      . 18 P.S. 2705, 18 P.S. 302(3).


author: JOHNSON, Judge:

text:
    436 A.2d 1033
    Linda ROQUE v. NATIONWIDE INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1981.
    Filed Nov. 6, 1981.
    Petition for Allowance of Appeal Granted Feb. 18, 1982.

      Michael J. Donohue, Scranton, for appellant.
    Joseph Papparelli, Scranton, for appellee.
    Before SPAETH, JOHNSON and WIEAND, JJ.
   JOHNSON, Judge:

This is an appeal from an Order of the Court of Common Pleas, Lackawanna County, denying the defendant’s Motion for Summary Judgment and granting Summary Judgment in favor of the plaintiff.

Plaintiff-appellee is the beneficiary of a life insurance policy on the life of Thomas Roque. The policy provided for an additional benefit if the insured’s death resulted from “bodily injury caused solely by external, violent and accidental means.” The insurance company paid on the life insurance policy but denied the additional accidental death benefit. The beneficiary brought suit against the appellant insurance company.

The death of the insured occurred after he was shot by a policeman while apparently burglarizing an unoccupied home. The police had arrived, summoned by a burglar alarm system, while the insured was upstairs. The insured called out a warning to the policeman to get out or he would kill him, and as the insured emerged from the bedroom carrying a gun he had found in the bedroom, the policeman fired, killing the insured.

The insurance company appeals the summary judgment granted to the beneficiary on the grounds that it is entitled to judgment as a matter of law because the death of the insured cannot be considered the result of an accident. Brief for Appellant at 5. The court in its decision relied on Wetzel v. Westinghouse Electric Corporation, 258 Pa.Super.Ct. 500, 393 A.2d 470 (1978). In that case the insured, a karate expert, attacked his son, also a karate expert, with a sword, and was ultimately killed by the son after a lengthy fight. The appellate court found that the death of the insured was due to “violent, external and accidental means” within the meaning of the policy and that the innocent beneficiary must recover. 258 Pa.Super.Ct. at 505, 393 A.2d at 473.

Appellant insurance company further argues that there is a distinction between Wetzel and the instant case in that (1) Wetzel involved a family quarrel and not a “premeditated felony” and (2) the person attacked in Wetzel was not armed with a deadly weapon. These distinctions are not legally significant. In both cases the insured was killed following his attacking, or threatening to attack, the person who, in response, killed him.

The insurance company proceeds to argue that Wetzel is bad law and should be reversed. Brief for Appellant at 6. To support its argument it cites cases from other jurisdictions where deaths occurring in circumstances similar to those of this case were held not to be “accidental”. In light of the direction that Pennsylvania cases have been taking in recent years, however, Wetzel seems to be a natural progression rather than an aberration. In Beckham v. Travelers Insurance Company, 424 Pa. 107, 225 A.2d 532 (1967), the insured died after taking an overdose of narcotics. In allowing recovery of benefits under a double indemnity provision for injury “through accidental means” the court repudiated any attempts to analyze “accidental means” under a theory involving unreasonable risks taken by the insured which resulted in his death. Appellant acknowledges this, Brief for Appellant at 9, but urges instead an “unavoidable consequence” theory whereby if the insured’s death was the inevitable result of his own actions, recovery should be barred. As we read Beckham, we are of the opinion that “unavoidable consequences” is simply another aspect of the “unreasonable risk” test which the Supreme Court preferred to avoid because of its ambiguity and imprecision. As we see it, the Court chose to depart from any doctrine “that recovery should be denied if the insured’s death, although unintentional, resulted from an intentional act of the deceased.” See Beckham, 424 Pa. at 110, 225 A.2d at 533. See also Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974), where the court stated:

As has been indicated the modern legal trend is to abandon the former “reasonably foreseeable” rule and treat the occurrence as accidental even though it resulted from the insured’s criminal conduct. This Court noted its adherence to the modern view in our decision in Beckham v. Travelers Insur. Co., 424 Pa. 107, 225 A.2d 532 (1967). There we stated:
“It has been suggested, however, that we limit our holding to those cases which do not involve an unreasonable risk of harm to the insured and that we therefore affirm the Superior Court’s decision. This argument, of course, assumes that the insured’s action in the instant case did amount to an unreasonable risk of harm. While this assumption might be valid vis-a-vis his general health and well being, there is no basis in the record for concluding that the insured was unduly exposing himself to the risk of death by his action. Moreover, no jurisdiction which has interpreted accidental means and accidental results to be legally synonymous has denied recovery on the basis of the above suggested distinction. Indeed some jurisdictions maintaining the distinction have permitted recovery in similar situations.
More importantly, the attempt to determine, on the basis of the clause in question, what is and what is not an unreasonable risk will return us to the Serbonian bog from which are are attempting to escape. While we see nothing improper in a contractual limitation which would disclaim coverage in cases such as the instant one, we are unwilling to recognize such a restriction on the basis of the ambiguous language contained in this policy which the company knew was susceptible of different interpretations.” (Footnotes omitted). 424 Pa. at 116-117, 225 A.2d at 536-537.

458 Pa. at 585, 326 A.2d at 351. In the Mohn case the insured was shot by police while fleeing a burglary he had been committing. The Pennsylvania Supreme Court held that the insured’s death was the result of “accidental bodily injury” within the coverage of two medical insurance policies.

Appellant next argues that denial of benefits in such circumstances as those of this case would deter such behavior. Brief for Appellant at 8. Appellant acknowledges that our Supreme Court has specifically rejected this public policy argument. See Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673 (1970). In that case the insured was the father of an adolescent who, with another, broke into an unoccupied home and, using matches to light his way around the house, unknowingly dropped one where it eventually started a fire which burned down the house. The court held that a provision in the father’s homeowner’s policy excluding intentionally caused property damage did not exclude the damage caused by the fire.

[Ujnder the facts of this case, we are not confronted with any overriding public policy which would preclude recovery. There is no evidence whatsoever that the policy was procured in contemplation of the crime. Nor can the insurance policy be said to have promoted the unlawful act. Moreover, it seems equally implausible that denying coverage would serve as a crime deterrent.

438 Pa. at 50, 264 A.2d at 675 (additional emphasis supplied). But appellant argues that the cases are distinguishable and the public policy argument should apply here. We refer Appellant to Mohn, supra :

Although admittedly we are here concerned with recovery under an accident policy and not recovery of property damage as was the case in the Eisenman[] decision, nevertheless we believe this distinction to be meaningless and that the reasoning of that decision is particularly appropriate to the facts of the instant appeal. Furthermore, most of those jurisdictions which still embrace the public policy argument as a basis for denying recovery .. . provide an exception where the suit is being brought by an innocent beneficiary as is the instant case. For the reasons set forth we therefore hold that recovery cannot be denied on the basis of public policy.

458 Pa. at 584, 326 A.2d at 351.

Ambiguities in an insurance contract should be resolved against the writer, and there is a presumption in favor of coverage when the extent of coverage is unclear. Evans v. Baltimore Life Insurance Co., 216 Pa.Super.Ct. 425, 268 A.2d 155 (1970). Courts have found that the insurance company could have included a violation of law clause in the policy. See, e. g., Mohn v. American Casualty Co., 458 Pa. at 584, 326 A.2d at 350.

Appellant’s second allegation is that the lower court erred in granting a summary judgment for the plaintiff. Appellant states that there is a jury question as to whether the insurance policy was obtained in contemplation of the crime. (There is a suggestion in Eisenman v. Hornberger, supra, and in Mohn v. American Casualty Co., supra, that procuring the policy in contemplation of crime might bar recovery under the policy.) It is the law that issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a), 42 Pa.C.S.A. (Pamp.1981). See also, Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974); Clark v. Rutecki, 408 Pa. 25, 182 A.2d 687 (1962).

Furthermore, it was appellant who moved for summary judgment. Appellant signed the stipulation of facts. A summary judgment is granted when there is no genuine issue of material fact. Pa.R.C.P. 1035, 42 Pa.C.S.A. (Pamp. 1981). Eisenman v. Hornberger, supra, and Mohn v. American Casualty Co., supra, are not new cases. Appellant cannot now complain that there was a factual question.

The order is affirmed.

      . Eisenman v. Hornberger, supra.


author: MONTGOMERY, Judge:

text:
    436 A.2d 1036
    Robert J. CORBETT, v. Frederick H. HUNTER and Anne H. Hunter, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 22, 1981.
    Filed Nov. 6, 1981.

      J. M. Maurizi, Pittsburgh, for appellants.
    David C. Serene, Indiana, for appellee.
    Before CERCONE, President Judge, and MONTGOMERY and VAN der VOORT, JJ.
   MONTGOMERY, Judge:

The Defendant-Appellants file this appeal from a final order of the lower court which dismissed defense exceptions to a Decree Nisi, and granted equitable relief to the Plaintiff-Appellee. That relief ordered the Appellants to account for certain income received by the husband Appellant, including income which might be traced into the value of a residential property owned by Appellants in a tenancy by the entireties. Further, the order appealed from directed that a writ of execution be issued against that property and that Appellants not convey or otherwise dispose of the property or encumber it. On this appeal, the Appellants contend that the lower court erred in finding that deposits of the husband’s income into a joint account shared with his wife, from 1966 to the present, constituted fraudulent conveyances within the meaning of the Uniform Fraudulent Conveyance Act.

A review of the record reveals the following pertinent facts: In 1963, the Plaintiff-Appellee, Robert B. Corbett, loaned the sum of $25,000 to an entity known as the Hunter Corporation. He received a promissory note in return. At that time the Appellant, Frederick H. Hunter, was the Corporation’s chief officer. On September 15, 1965, at the suggestion of Mr. Hunter, 1250 shares of the stock of the Corporation were conveyed to Corbett in exchange for the promissory note. On or about the same date, Mr. Hunter orally agreed to personally repurchase the shares, for $25,-000, and promised that the repurchase would be carried out within a few months thereafter. The promise was not fulfilled. On December 31, 1966, the parties drew up a written agreement which repeated the Appellant’s promise to repurchase the stock, and established a time schedule for payments toward that purchase. The written agreement was never complied with by Hunter, and in 1969, Corbett initiated suit to recover the payments due. In 1975, the suit resulted in the entry of a judgment against Mr. Hunter, which was never satisfied.

Corbett initiated the present action requesting that the Court order a reconveyance of a condominium owned by Mr. and Mrs. Hunter to the husband alone, order that the judgment be a lien on that property, and order other relief, including an accounting and an order to prevent the Appellants from transferring or encumbering the property. The Plaintiff’s request for such relief was grounded upon the theory that Mr. Hunter had engaged in fraudulent conveyances, prohibited by the Act referred to earlier. Plaintiff contended that these occurred when Mr. Hunter deposited his individual income into joint accounts with his wife, which account assets were used to buy entireties properties at times when Hunter was insolvent relative to his debts to creditors. Of course, the Plaintiff was a significant creditor.

The lower court, as noted earlier, found that in 1967, while Mr. Hunter had unpaid debt to the Plaintiff in connection with the stock repurchase agreement, the Appellants purchased a residence in Bear Rocks, which was titled as a tenancy by the entireties. The mortgage payments were paid from the Appellants’ joint bank account. Thereafter, in 1975, the Bear Rocks residence was sold, and the net proceeds used to purchase a condominium in Country Club Estates in Indiana County. Again monthly mortgage payments were made from the Appellants’ joint accounts. At all times material, it was demonstrated that Mr. Hunter’s individual income provided all of the funds in such accounts. The lower court held, in such circumstances, that since deposits were made into the accounts at a time when Mr. Hunter was insolvent as a result of his unpaid debts, both Appellants had to account to the Plaintiff for the value of Mr. Hunter’s individual income traceable into the joint accounts and thereafter into the properties. Further, the court issued restrictions regarding the properties to keep them intact and thereby preserve Corbett's judgment interest, if any, in them.

Appellants maintain on this appeal that the lower court erred when it concluded that deposits of Mr. Hunter’s income into accounts held jointly with his wife constituted fraudulent conveyances within the meaning of the Act. We must disagree. The Hunters first contend there was no “conveyance” within the purview of Section One of the Act. (39 P.S. § 351). That statutory provision defines a “conveyance” as including “. . . every payment of money, assignment, release, transfer, lease, mortgage or pledge of tangible or intangible property, and also the creation of any lien or encumbrance.” Our courts have held that this broad definition of “conveyance” includes the deposit of a debtor’s own funds into an entireties account. See Taylor v. Kauf hold, 379 Pa. 191, 108 A.2d 713 (1954); Patterson v. Hopkins, 247 Pa.Super. 163, 371 A.2d 1378 (1977). Consequently, we must reject the contention that no “conveyance” has occurred, within the meaning of Section One of the Act.

The Appellants also contend that there was no conveyance as contemplated by the Act because Mr. Hunter allegedly did not relinquish his “right, title, or interest” to his earnings as he made deposits into the joint accounts. In response to such contentions, it is appropriate to quote the lower court’s discussion on these points, from its Opinion:

. . . The defendants exhibited some concern in their brief that the husband could not be deemed to have made a conveyance by his deposits into the joint bank accounts because he never relinquished control of the money. But again, the defendants have missed the point. What the Court is dealing with in a fraudulent conveyance contest is the reality of the situation. That reality is that the husband has placed his individual income beyond the reach of his creditors by his deposit into a joint account. The record shows sufficient evidence to raise the presumption that the husband supplied the funds in these accounts. The funds in these accounts are, then, subject to the claims of creditors under the Uniform Fraudulent Conveyance Act as well as under the common law execution remedy of creditors....
. . . Moreover, the defendants’ legal position becomes nonsensical when they want the Court to hold that because the husband did not relinquish complete control over the money he deposited into the joint accounts, neither the accounts nor the real property; purchased with the money in the accounts can now be attached. If the husband’s interest in the accounts was attachable in any year from 1966 through 1978, certainly the plaintiff has the right to trace those attachable assets to their present location. The object of a contest under the Uniform Fraudulent Conveyance Act is, after all, to subject the individual assets of the debtor spouse to the claims of the creditors of the debtor spouse. To hold that there was no fraudulent conveyance because the husband retained some degree of control over his deposits would 1) allow the husband to exempt his own individual assets from the claims of his creditors, and 2) defeat the Uniform Fraudulent Conveyance Act itself.

We find such reasoning to be persuasive, and reject the Appellants’ claims to the contrary.

In their final argument, the Appellants contend that the lower court erred in granting Appellee’s request for relief because the funds which Mr. Hunter had on deposit in joint accounts with his wife were and are subject to execution, levy or attachment pursuant to the Pennsylvania Rules of Civil Procedure. In making such assertion, the Appellants rely upon the decision in Patterson v. Hopkins, supra. That case simply provides no support for such a contention, as is evident from the following excerpt from the decision: “With respect to execution sales, it is well settled that Pennsylvania subscribes to the majority view which regards entireties property as unavailable to creditors of one of the tenants.” [citations omitted] 247 Pa.Super. at 171, 371 A.2d at 1382. The Court in Patterson went on to note that the rule was not immutable, and that such execution was permissable when it was established that the husband or wife conveys his or her individual property to a tenancy by the entireties in a fraud of creditors, the defrauded creditors may in such circumstances execute on the property which has been transferred. The point is clear that a fraudulent conveyance must initially ijje established prior to the right of execution being created as to such joint property. If no fraudulent conveyance is proven, a creditor has no right to execute in any manner contrary to the general rule recognized in Patterson, and other cases cited therein. Thus, we reject the Appellants’ final claim of error.

The order of the lower court is hereby affirmed.

      . See the Act of May 21, 1921, P.L. 1045, No. 379, § 1 et seq., 39 P.S. § 351 et seq.


author: SUGERMAN, Judge:

text:
    436 A.2d 1039
    COMMONWEALTH of Pennsylvania v. William BALLARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Decided Oct. 30, 1981.

      John S. DiGiorgio, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

Appellant contends on appeal that he was denied his right to a speedy probation revocation hearing, in violation of Pa.R.Crim.P. 1409. The facts are easily gleaned from the docket entries and the able opinion of the court below.

On December 4, 1972, Appellant was found guilty at a bench trial of Assault and Battery and Aggravated Robbery. Post trial motions were denied and on March 22, 1973, Appellant was sentenced upon the robbery conviction to probation for a period of five years. Sentence was suspended upon the conviction of assault and battery.

On May 16, 1974, while still on probation, Appellant was convicted of possessing a controlled substance with the intent to deliver it, and sentenced to an additional five year period of probation. Again, on December 19, 1974, Appellant was convicted of theft by receiving stolen property, and sentence was suspended.

As the result of the two latter convictions, a probation revocation hearing was held on January 15,1975. Following the hearing, Appellant’s probation was revoked and the lower court imposed a new term of probation, to run for a further period of five years from the date of the hearing.

On December 18, 1975, Appellant was again convicted of theft by receiving stolen property, and on January 6, 1976, Appellant was convicted of robbery and related offenses. On May 6, Appellant was sentenced upon the robbery conviction to a term of imprisonment of five to ten years.

As the result of these convictions, Appellant appeared before the lower court on June 15, 1976, for yet another probation revocation hearing. Finding Appellant in violation, the court revoked the probation imposed on January 15, 1975, and sentenced Appellant to prison for a term of not less than two nor more than twenty years, the sentence to run consecutively to the sentence imposed upon the last noted robbery conviction.

Appellant thereupon appealed to this Court, contending that he was denied due process at the latter revocation hearing, as he was not provided with written notice of the asserted probation violations in advance of the hearing. We agreed, reversed the lower court’s order revoking Appellant’s probation and remanded the case to the lower court. The record was remanded by the Prothonotary of this Court to the lower court on November 10, 1977.

Following remand, another probation revocation hearing was scheduled by the lower court for January 9, 1978. At the appointed time, Appellant’s counsel appeared and advised the court that written notice of the asserted violations was still not adequate. Counsel further advised the court that he had been provided with additional documentation by Appellant’s probation officer immediately prior to the hearing, and asked for a continuance in order that he and his client might review the additional material. The court continued the hearing for a period of two weeks, and at the same time, directed Appellant’s probation officer to prepare and deliver detailed notice to Appellant.

The matter was again scheduled to be heard on January 24, 1978, and on that date Appellant’s counsel advised the court that as the result of counsel’s suggestion, Appellant’s probation officer gave the detailed violation notice to counsel, rather than to Appellant, and accordingly, Appellant did not yet have a copy of the violation notice. The court again directed Appellant’s probation officer to give a copy of the notice to Appellant and again continued the hearing. Appellant’s revocation hearing was finally held on February 14, 1978, and at the conclusion of the hearing, probation was revoked and Appellant was sentenced as earlier noted.

As earlier observed, Appellant contends that he was not afforded a speedy probation revocation hearing, and he asks that we again vacate the revocation order. In order to properly dispose of Appellant’s contention we must first compute the length of the delay, and then determine whether that period constituted a reasonable time within which to hold Appellant’s hearing.

I.

In advancing his contention, Appellant would have us compute the period of delay from June 15, 1976, the date of Appellant’s second revocation hearing, to February 14, 1978, the date of Appellant’s third and last revocation hearing. Appellant thus contends that the delay extended for a period of 18 months. Appellant suggests as well that most if not all such period is more properly characterized as “judicial” delay, including as it does the period from the date Appellant filed his earlier appeal in this Court until we remanded the record following our adjudication. Appellant misperceives the law.

It will be recalled that Appellant’s probation violation resulted from two subsequent convictions, and in the usual case, we compute and focus upon the period between the date of the subsequent conviction and the date of the revocation hearing. See, e. g., Commonwealth v. Whitfield, 281 Pa.Super. 51, 55, 421 A.2d 1142, 1145 (1980); Commonwealth v. Williams, 272 Pa.Super. 308, 415 A.2d 903 (1979); Commonwealth v. Martin, 262 Pa.Super. 113, 396 A.2d 671 (1978). This approach is not appropriate, however, when a defendant has appealed from the judgment of sentence resulting from a revocation of probation and obtains a new hearing, as Appellant at bar. As we said in Commonwealth v. Honeyblue, 276 Pa.Super. 107, 419 A.2d 118 (1980):

“When a defendant has appealed from the judgment of sentence resulting from a probation revocation and obtains a new hearing, the court focuses on the period after remand in assessing whether a hearing has been held with reasonable promptness. Commonwealth v. Martin, 262 Pa.Super. 113, 118, 396 A.2d 671, 673 (1978). The period after remand is the focus of attention because during the time the appeal is pending the sentencing court has no jurisdiction over the matter and should not be accountable for the resulting delay. Id., 262 Pa.Super. at 118, [n. 4] 396 A.2d at 673 n. 4.” Id., 276 Pa.Supr. at 111, 419 A.2d at 120.

Instantly, remand occurred on November 10, 1977, and Appellant’s revocation hearing was held on February 14, 1978, 96 days later, a period of little more than three months.

II.

Having computed the period of delay, we must determine whether such delay was unreasonable. In determining whether the time between the date of remand and the probation revocation hearing is reasonable, we consider three factors: (1) the length of the delay; (2) the reasons for the delay; and (3) the prejudice to the defendant resulting from the delay. Commonwealth v. Honeyblue, supra, 262 Pa.Super. at 109-10, 419 A.2d at 119-20; Commonwealth v. Ruff, 272 Pa.Super 50, 414 A.2d 663, 666 (1979). Although Appellant fails to articulate prejudice of any kind, he suggests that we should infer prejudice from the length of the delay alone. It is clear to us, however, that superficially at least, a delay of 96 days is not unreasonable, without further inquiry, and we have frequently found delays of longer periods to have been reasonable. See, e. g., Commonwealth v. Whitfield, supra (4 months); Commonwealth v. Bryant, 273 Pa.Super. 205, 417 A.2d 240 (1979) (five and one-half months); Commonwealth v. Ruff, supra (6 months); Commonwealth v. Long, 264 Pa.Super. 465, 400 A.2d 179 (1979) (5 months); Commonwealth v. Diaz, 258 Pa.Super. 346, 392 A.2d 827 (1978) (4 months, 3 weeks); Commonwealth v. Rios, 255 Pa.Super. 556, 389 A.2d 117 (1978) (4 months); Commonwealth v. Williams, 254 Pa.Super. 202, 385 A.2d 979 (1978) (five and one-half months). And see Mirando v. Cuyler, 50 Pa.Cmwlth. 297, 412 A.2d 916 (1980) (120 days).

At bar, it should again be noted that the court originally scheduled the revocation hearing for January 9, 1978, but continued it at the request of Appellant’s counsel in order that Appellant and his counsel might review the notice of violation at length. On January 24, 1978, the date to which the hearing was continued, counsel again sought a continuance as Appellant’s probation officer, at counsel’s request, had given the detailed notice of violation to counsel rather than to Appellant. The hearing was held on February 14, 1980, and the delay of 21 days between the two latter dates is obviously attributable to Appellant, his counsel, or both.

III.

Finding that the period of delay is not on its face unreasonable, we must lastly address the question of whether such delay, while not unreasonable in itself, resulted some specific prejudice to Appellant. Commonwealth v. Honeyblue, supra. Although Appellant points to no such prejudice, he does assert the following:

“A prison sentence is a continuim which has at its latter section a period in which more leniety is shown toward and more trust placed in the defendant. Any considerable delay such as the instant one will necessarily prejudice the defendant because the latter stages are postponed.” Appellant’s Brief at 10.

We are frank to confess that the logic underlying Appellant’s assertion escapes us. It will be recalled that on May 6,1976, Appellant had been sentenced to a term of imprisonment of five to ten years upon a conviction for robbery, one of the two subsequent convictions constituting the violations resulting in the instant probation revocation. At the date of the revocation hearing, Appellant was yet serving the minimum aspect of that sentence. The delay at bar in no way contributed to or resulted in Appellant’s confinement. Commonwealth v. Williams, supra. As we said pertinently in Commonwealth v. Diaz, supra:

“On the issue of prejudice we note that a probationer awaiting his probation violation hearing while being imprisoned for another offense does not suffer much if there is a delay in holding the revocation hearing, for he is already imprisoned.” Id., 258 Pa.Super. at 350, 392 A.2d at 829.

Both the Supreme Court and this Court have also held that delay can be unreasonable if the revocation hearing is held after the original period of probation has expired. Commonwealth v. Honeyblue, supra; Commonwealth v. Smith, 266 Pa.Super. 234, 403 A.2d 1326 (1979); Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978); Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977); Commonwealth v. White, 218 Pa.Super. 188, 279 A.2d 768 (1971). Compare Commonwealth v. Duff, 201 Pa.Super. 387, 192 A.2d 258 (1963), (rev’d on other grounds) 414 Pa. 471, 200 A.2d 773 (1964). At bar, however, Appellant’s five year probationary period would not have expired until January 15, 1980, nearly two years subsequent to the revocation hearing.

Nor does Appellant contend, and we do not find, that the delay resulted in hampering his ability to present a defense at his revocation hearing, Commonwealth v. Bryant, 273 Pa.Super. 205, 417 A.2d 240 (1979); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977).

The primary purposes of a prompt revocation hearing are to prevent the loss of essential witnesses or documentary evidence and to prevent unnecessary incarceration or other limitations on personal liberty. Commonwealth v. Johnson, 277 Pa.Super. 88, 419 A.2d 674 (1980); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). These purposes were not thwarted instantly.

Judgment of sentence affirmed.

      . On the date Appellant’s probation was revoked, Pa.R.Crim.P. 1409 provided:
      “[Rule 1409]

        Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.”

      . 18 P. S. § 4708 (Repealed).

      . 18 P. S. § 4705 (Repealed).

      . Commonwealth v. Ballard, 250 Pa.Super. 46, 378 A.2d 445 (1977).

      . As earlier noted, Pa.R.Crim.P. 1409 requires that the hearing be held “as speedily as possible”. We have construed this language to mean “within a reasonable time”. Commonwealth v. Williams, 272 Pa.Super. 308, 415 A.2d 903 (1979).

      . We note that our earlier opinion disposing of Appellant’s appeal was filed on October 6, 1980, some thirty-six days before the record was remanded to the lower court. This period is not included in determining the period of delay as the record must remain in our Court for a period of thirty days following our order awaiting the possible filing of a petition for allocatur with the Supreme Court. Pa.R.A.P. 2572; Commonwealth v. Martin, supra 262 Pa.Super. at 118, 396 A.2d at 671.

      . It is of course true that the sentence imposed upon Appellant as the result of the revocation of his probation, by its terms must be served consecutively to the prison term he is serving upon the robbery conviction, and will thus extend his minimum term for a period of at least two years. While this issue might well have been addressed by Appellant to the lower court within the framework of a petition to reconsider or modify the sentence imposed upon revocation, it is irrelevant in our consideration of the issue before us, and in itself presents no valid reason to vacate the order revoking probation.


author: WICKERSHAM, Judge, LIPEZ, Judge,

text:
    436 A.2d 1189
    COMMONWEALTH of Pennsylvania v. Bernard CARR, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed June 19, 1981.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge,

upon reconsideration:

This appeal is before us for reconsideration of appellant’s Pa.R.Crim.P. 1100 claim in light of the Pennsylvania Supreme Court’s recent opinion in Comonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980).

Appellant, Bernard Carr, was convicted of robbery and related offenses after a non-jury trial before the Honorable I. Raymond Kremer of the Court of Common Pleas of Philadelphia County. In his post-verdict motions, Carr alleged that the court had erred in granting two Commonwealth petitions to extend time for trial under Pa.R.Crim.P. 1100(c). In considering Carr’s post-verdict motions, Judge Kremer found that the record with respect to one of the extension hearings was inadequate to permit a meaningful review and that the other had been lost. As a result, Judge Kremer conducted an evidentiary hearing to determine the merits of both petitions to extend and found that they had been properly granted. Judge Kremer accordingly denied Carr’s post-verdict motions and sentenced him to concurrent terms of imprisonment totalling four to ten years. Carr appealed from the judgment of sentence, and this panel vacated the judgment of sentence as to simple assault (No. 417) for reasons unrelated to his Rule 1100 claim and affirmed as to his remaining convictions.

After thoroughly reviewing the supreme court’s opinion in Akridge, we have concluded that it does not affect our initial disposition of this case. Akridge must be given purely prospective application only. Even if Akridge were properly applied retrospectively, it would not require a different result in the entirely distinct circumstances of this case where there is already a record incontrovertibly establishing due diligence warranting the extensions granted by the lower court.

Akridge is a summary and an emphatic expression of the supreme court’s desire that Rule 1100(c) extension hearings be conducted in accordance with Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), which was announced years after promulgation of the Rule. Akridge is thus a prophylactic rule to assure the desired administration of Rule 1100, itself a purely procedural rule of convenience designed to prevent a systematic backlog of criminal cases in our trial courts. Akridge will require the discharge of criminal defendants after conviction not because the due diligence required by Rule 1100 has not been exercised in fact, but because appellate courts will lack the power to direct that the necessary record be made.

While such a prophylactic rule in no way implicates the truth determining process at trial, it has a severe impact on the administration of criminal justice. Moreover, the Akridge holding is superimposed on a court rule, the vagaries of which have spawned a plethora of appellate litigation. As a result of the vagaries of the Rule and its extreme and immediate remedy, prosecutors have had to rely on necessarily tenuous and tentative interpretations and enforcement policies which the trial courts have formulated to deal with Rule 1100. Akridge, therefore, must be applied only to the appellate review of Rule 1100 extension hearings conducted after Akridge.

Even if given full retrospective application, Akridge does not suggest, much less require, a different result in this case. Akridge prohibits appellate courts from remanding to determine if Rule 1100 has been complied with. It does not require appellate courts to turn a blind eye to a record establishing compliance with Rule 1100 and to discharge a properly convicted defendant despite actual compliance with Rule 1100 as established by the record certified for review. Cf. Commonwealth v. Kaschik, 235 Pa.Super. 388, 396-97 n.7, 344 A.2d 519, 524 n.7 (1975) (“An appellate court should be able to consider all the testimony on record to determine whether certain evidence was constitutionally admissible at trial, not just the testimony at the suppression hearing.”).

The justice system’s fundamental aim should be the safety of us all. Prophylactic court rules are acceptable to enforce basic fair trial rights necessary to the protection of all members of society, but they are not acceptable when they require the discharge of a properly convicted and sentenced defendant as the result of the failure to comply with a purely procedural rule—a rule which goes far beyond any constitutional rights of the defendant and which was not established until after trial. It makes no sense at all to discharge defendant when it has been established on an ample record that Rule 1100 was complied with in this case. The Commonwealth and its people are entitled to have him serve his sentence.

Judgments of sentence at Nos. 416, 418 and 419 are affirmed.

LIPEZ, J., files a dissenting opinion.

LIPEZ, Judge,

dissenting:

I cannot accept the majority’s interpretation of Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980), which states in full:

This matter comes before us on petitioner’s petition for allowance of appeal from the Superior Court’s order remanding for an evidentiary hearing on the question of whether or not the Commonwealth, at two prior hearings on Commonwealth’s petitions for extension of time under Pa.R.Crim.P. 1100, had sufficient evidence to establish its “due diligence” requirement under that rule, Commonwealth v. Akridge, 275 Pa.Super. 513, 419 A.2d 18 (1980).
In our view, such a remand for a “second bite” of the Commonwealth’s evidentiary burden on the “due diligence” requirement of Rule 1100 is in contradiction to the mandates we set forth in Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979).
We therefore grant the petition for allowance of appeal and reverse the order of the Superior Court with direction that petitioner be discharged.

The majority holds: (1) Akridge must be given purely prospective application; and (2) even if Akridge applies retrospectively, we should nevertheless affirm here because due diligence, which the Commonwealth failed to prove at the pre-trial extension “hearings,” was established in the hearing before Judge Kremer at the post-verdict stage. Regrettably, I can find no basis for either conclusion.

The sole authority for the Supreme Court’s summary reversal in Akridge was Commonwealth v. Ehredt, supra, 485 Pa. at 195-96, 401 A.2d at 361, quoting Commonwealth v. Antonuccio, 257 Pa.Super. 535, 537, 390 A.2d 1366, 1367 (1978): “[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c).” Antonuccio also stated:

Under Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the trial court may grant an extension under Rule 1100(c) only upon a record showing of:
(1) The “due diligence” of the prosecution ....

Id. (emphasis in original).

Hence it is clear under Akridge that after October 8,1976, which was the date of decision in Commonwealth v. Mayfield, supra, no Rule 1100(c) extension is valid unless the court granting the extension has the Commonwealth’s due diligence established on the record before it at the time the extension is granted. Here all extensions were granted long after Mayfield, without a record showing of due diligence. Under our Supreme Court’s interpretation of Rule 1100, appellant is therefore entitled to discharge.

      . It would be repugnant to exclude evidence which the entire record establishes is admissible. It would even be more repugnant and abhorrent to common sense to grant an absolute discharge when the entire record demonstrates compliance with Rule 1100. Defendant’s discharge, despite demonstrated compliance with Rule 1100 would be regarded by the public, whose interests Rule 1100 supposedly fosters, as unrelated to any basic rights necessary to the protection of us all and as hypertechnical, dangerous nonsense. Defendant’s discharge would give the unfortunate impression that the justice system is more interested in formalistic niceties and “delicate” legal analyses than in the ultimate aim of the criminal law which is to prevent or deter criminal violence.


text:
    436 A.2d 1192
    POSH CONSTRUCTION, INC., v. SIMMONS & GREER, INC., and Maryland Casualty Company and Samuel F. Meisenhelder, Trustee in Bankruptcy of Simpson Steel Products Company, Inc., Additional Defendant. Appeal of MARYLAND CASUALTY COMPANY.
    Superior Court of Pennsylvania.
    Argued March 10, 1981.
    Filed Oct. 30, 1981.

      David M. Kozloff, Reading, for appellant.
    Lewis R. Long, Bethlehem, for appellees.
    Before HESTER, DISALLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Appellant in the instant case is one of the original defendants, Maryland Casualty Company (hereinafter referred to as “Maryland Casualty”). The case was tried in the lower court before a jury, which returned a verdict for the plaintiff against Maryland Casualty, and verdicts in favor of the other original defendant and the additional defendant. Maryland Casualty filed a motion for judgment n. o. v., or in. the alternative, for a new trial. The lower court granted a new trial, but Maryland Casualty has filed the instant appeal, claiming that it was entitled to judgment n. o. v.

It is well-established that when a motion for judgment n. o. v. or a new trial is filed, and the lower court grants the new trial but denies the judgment n. o. v., the appellate court is limited to a determination of whether there has been an abuse of discretion by the lower court. Ellerbe v. Steinman, 162 Pa.Super. 440, 58 A.2d 202 (1948); Standard Oil Company of New Jersey v. Graham Oil Transport Corp., 157 Pa.Super. 41, 41 A.2d 414 (1945). However, if the record clearly establishes that the moving party was entitled to judgment n. o. v., the grant of a new trial in such circumstances may be found to have been an abuse of discretion on the part of the lower court. See Matevish v. School District of Borough of Ramey, 167 Pa.Super. 313, 74 A.2d 797 (1950), where there were no factual issues for determination by a jury. Further, we must be mindful that judgment n. o. v. will be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper, and any doubts should be resolved in favor of the verdict. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Bottorf v. Waltz, 245 Pa.Super. 139, 369 A.2d 332 (1976). In the resolution of this appeal, we must consider the evidence available to the lower court in the light most favorable to the verdict winner, giving it the benefit of every reasonable inference of fact arising therefrom, and we must resolve any conflict in evidence in the favor of the verdict winner. See Broxie v. Household Finance Company, supra.

Viewing the evidence in that light, the record shows that the defendant Simmons & Greer, Inc. (hereinafter referred to as “Simmons”) was a general contractor for various building projects. In late January, 1969 Simmons entered into a contract with the General State Authority for the erection of a gymnasium at Kutztown State College in Berks County. Pursuant to the Public Works Contractors Bond Law, Simmons obtained performance and payment bonds for the project, from Maryland Casualty. During the course of the project, Simmons entered into a contract with Simpson Steel Products Company, Inc. (hereinafter referred to as “Simpson”), for certain work on the project. In turn, Simpson hired the plaintiff, Posh Construction, Inc. (hereinafter referred to as “Posh”), to furnish labor, materials, and equipment to Simpson for the project. Thereafter, the Plaintiff commenced work on the gymnasium construction in September, 1969. Posh submitted an initial bill to Simpson for partial work completed on the project and Simpson paid the bill by check. However, the Plaintiff’s next billing to Simpson was not paid and Posh approached the general contractor, Simmons, about the problem. Posh did this by orally notifying the Simmons’ field superintendent at the construction site that it would not continue on the job unless it was paid, as Simpson had not made a payment for work completed to that date, in accordance with the second billing by Posh. Thereafter, a representative of the plaintiff was summoned to Simmons’ home office in Philadelphia. At that time, Posh’s representative received a check from Simmons in the amount of just over $11,000.00, which check was made payable to both Simpson and Posh as co-payees. The Posh representative obtained appropriate signatures on the check from Simpson and deposited the proceeds of the check in its own account. As the work progressed further, Simmons issued another check for almost $21,000.00, in identical circumstances, for the benefit of the plaintiff. In the instant action, Posh claimed a balance due of just over $14,-000.00, representing both the final payment on its work for Simpson on the project, and also including several hundred dollars for work performed directly at the request of Simpson, which work was not covered by plaintiff’s contract with Simpson.

The plaintiff filed the instant action claiming it supplied its labor, material and equipment in reliance upon Simmons’ promise to pay any debts of Simpson to the plaintiff in connection with the project. The plaintiff claimed that Maryland Casualty was liable to it under Simmons’ payment bond, and in that regard, the plaintiff’s claims were based upon its rights under the Public Works Contractors Bond Law of 1967. In describing the types of bonds required, that Act in § 3(a)(2) [8 P.S. § 193(a)(2)] states that a payment bond “. . . shall be solely for the protection of claimants supplying labor or materials to the prime contractor to whom the contract was awarded, or to any of his subcontractors, in the prosecution of the work provided for in such contract, and shall be conditioned for the prompt payment of all such material furnished or labor supplied or performed in the prosecution of the work.” Further, § 4(b) [8 P.S. § 194(b)] is particularly relevant to the issues presented in this case, and provides:

Any claimant who has a direct contractual relationship with any subcontractor of the prime contractor who gave such payment bond but has no contractual relationship, express or implied, with such prime contractor may bring an action on the payment bond only if he has given written notice to such contractor within ninety days from the date on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished.
Notice shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business or served in any manner in which legal process may be served in the manner now or hereafter provided by law for the service of a summons, except that such service need not be made by a public officer.

It was conceded at trial by the plaintiff that it had not furnished any written notice to Simmons, the defendant general contractor, concerning its claim. At the request of the defendants, the trial judge instructed the jury: (1) that no evidence had been presented to prove that the plaintiff had notified Simmons of its claim in accordance with the provisions of the bond law; (2) that such notice was in fact not given; and (3) that if the jury was to find that such notice was required of plaintiff, then there was no right or entitlement to recovery by plaintiff under the bond. Thus, under the statutory provision cited earlier, it was apparent that the plaintiff could recover from Simmons only if a contractual relationship existed between it and Simmons. Therefore, the trial court charged the jury that it was required to decide whether Posh was a proper claimant under the bond law, and, if so, whether plaintiff had a direct contractual relationship, either expressed or implied, with Simmons.

Maryland Casualty has claimed that it was entitled to judgment n. o. v. in the lower court because there was no evidence upon which the jury could have returned a verdict in favor of the plaintiff and against the Appellant. After a thorough review we are convinced that the lower court acted prudently, and certainly did not abuse its discretion, in denying the motion for judgment n. o. v. It simply could not be said, as a matter of law, that the plaintiff was not a proper claimant under the Bond Law. That Act clearly provides that a payment bond may be applied to the protection of claimants supplying labor and materials to the subcontractor of the prime contractor. The evidence, viewed in a light most favorable to the plaintiff, certainly supported a finding that the statutorily required contractual relationship existed between the plaintiff and Simmons. Such is evident by virtue of the transactions whereby Simmons made payments directly to the plaintiff, at least as a co-payee with Simpson, for the work which the plaintiff performed on the construction project. Moreover, the record is clear that as a result of understandings reached between the plaintiff and Simmons, the former did not discontinue its work on the job, even though Simpson was not making payments on the contract.

A judgment n. o. v. would only have been granted in circumstances where binding instructions would have been proper at the close of trial. See Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). Binding instructions certainly would not have been proper at the close of the trial in the instant case, either on the issue of whether the plaintiff was proper claimant under the bond law, and/or whether a contractual relationship, express or implied, may have existed between the plaintiff and Simmons. Thus, we find that the decision to deny the request for judgment n. o. v. did not constitute error on the part of the lower court.

The lower court found that a new trial was appropriate because the verdict in favor of Simmons, but against its insurer, Maryland Casualty, was inconsistent. The Appellee, Posh, argues on this appeal that the lower court had the power to mold the verdict to eliminate any possible inconsistency, and seeks to have this court amend or mold the jury verdict. Any consideration of such contentions would not be appropriate, as Posh filed no appeal from the lower court’s order granting a new trial. Thus, the questions of whether the new trial was properly granted, or whether the lower court or this court could or should mold the verdict, are simply not before us on this appeal.

The order of the lower court denying the motion for judgment n. o. v. is hereby affirmed.

      . The Complaint was filed in October, 1970 and the additional defendant was joined in the case in November, 1970. In November, 1975 the lower court prothonotary terminated the case for lack of activity. Upon the plaintiff’s request the lower court ordered the reinstatement of the action in May, 1976. The defendants appealed to our Court, which affirmed the reinstatement order. See Posh Construction v. Simmons & Greer, Inc., 252 Pa.Super. 640, 382 A.2d 760 (1978).

      . Act of December 20, 1967, P.L. 869, §1,8 P.S. § 191, et seq.; see § 3, 8 P.S. § 193 in particular.

      . As indicated in the caption of this case, Simpson was in bankruptcy proceedings at the time of its inclusion as an additional defendant in this case. Simpson was not present at trial, either through its trustee in bankruptcy or by counsel.


text:
    436 A.2d 1196
    COMMONWEALTH of Pennsylvania, v. Marie L. ALDINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Oct. 30, 1981.

      Ronald F. O’Driscoll, Assistant Public Defender, Norris-town, for appellant.
    John J. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

Appellant appeals from a judgment of sentence of total confinement imposed by the court below following revocation of probation theretofore granted Appellant.

The facts are not in dispute and it appears that on August 23, 1978, Appellant pleaded guilty to a charge of Retail Theft, Second Offense, and on the same day, was sentenced to pay the costs of prosecution and a fine in the sum of $200.00, and was placed on probation for a term of one year. In addition to complying with the usual terms and conditions required of probationers in Montgomery County, the court directed Appellant to pay the fine and costs not later than September 1, 1978.

On October 19, 1978, the Adult Probation Department of Montgomery County charged Appellant with violating four conditions of probation in that she (1) failed to pay the fine and costs, in the sum of $265.65; (2) failed to appear at the office of the Probation Department, as directed; (3) submitted a urine sample which upon testing reflected the presence of methadone, a controlled substance, and quinine, a commonly-used drug “cutting” agent; and (4) was found in possession of two Talwin tablets which were not the subject of a valid prescription.

On October 10, 1978, Appellant admitted the four violations, waived her right to a Gagnon 7 hearing and on November 2, 1978, appeared with counsel before the lower court for a Gagnon II hearing. At the latter hearing, Appellant testified at length. In addition, the record made at the hearing reflects an earlier discussion among the court, Appellant’s counsel, a probation officer, an assistant District Attorney and a representative of “Cluster House”, a drug rehabilitation center located in Montgomery County. Although the details of the discussion do not appear, the record of the hearing does indicate that Cluster House was willing to accept Appellant in its drug rehabilitation program as an alternative to incarceration, and that Appellant was willing to participate in the program.

At the conclusion of the hearing, the Court stated:
“THE COURT: All right, I am satisfied in my own heart and mind that you are not a good prospect for rehabilitative benefits of Cluster House. I feel that that which you’ve said here under oath is honest and straightforward.
I see an individual twenty-three years old who has been away from her family for five years and hanging around the Norristown area, always involved with drug-related individuals, and probably went for detox at a time when you were down and out, when you needed it. As a result of recommendations made by them you went to Clear-brook, and in essence you busted out of there.
Your activities upon your return indicated that you were right back into the same drug-related individuals that you probably left. The only reason you’re talking about Cluster House is because it’s probably in Norris-town. I don’t think that you have a good grasp of your problems.
The only way that I can resolve that is to get you out of this area and see whether a different kind of environment than what you’ve been experiencing for the last five years will have some benefit to you. And that’s going to be up to you. That which you can make where I’m going to send you is that which you can make here, and it’s all up to you.
And at the end of your minimum, or before your maximum there’s some reason to give you some special consideration for a change in your sentence, then I will consider it at that time, depending on your performance.”

The Court thereupon revoked Appellant’s probation, again ordered her to pay the costs of prosecution and a fine in the sum of $200.00, and sentenced her to a term of total confinement of not less than one or nor more than two years at the State Correctional Institution at Muncy, Pennsylvania.

On appeal, Appellant contends in a two-pronged attack that the lower court failed to articulate on the record the reasons for the sentence imposed reflecting due consideration of the guidelines set forth in the Sentencing Code, and that the sentence was unduly harsh and excessive.

At the outset we note that Appellant’s counsel failed to object to the sentence at the time it was imposed and failed to thereafter file a motion to modify the sentence pursuant to Pa.R.Crim.P. 1410 or a petition for reconsideration. In the usual case, the failure of counsel to interpose a timely objection at the sentencing proceeding results in a waiver of the issue, Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979), as does the failure to file an appropriate motion to modify the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Brown, 288 Pa.Super. 171, 431 A.2d 343 (1981); Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980); Commonwealth v. Marshall, 273 Pa.Super. 370, 417 A.2d 694 (1980); Commonwealth v. Moore, 271 Pa.Super. 494, 414 A.2d 362 (1979). Thus, we should ordinarily find the issues raised by Appellant on this appeal as waived and dismiss the appeal.

On the date sentence was imposed at bar, however, Pa.R.Crim.P. 1405 was and is yet in effect, and subsection (c) of the Rule requires inter alia that at the time of sentencing, the judge shall advise the defendant on the record of the right to file motions challenging the propriety of the sentence within 10 days and that only claims raised in the lower court may be raised on appeal.

Notwithstanding the applicability of the Rule to the instant proceeding, the lower court failed to advise Appellant of any such rights. In Pennsylvania, every person has the right to appellate review of a sentence imposed upon such person, Commonwealth v. Wallace, 229 Pa.Super. 172, 323 A.2d 182, 183 (1974), and while this important right may be waived, the waiver must be an intentional and intelligent relinquishment or abandonment of a known right. Id., 229 Pa.Super. at 174, 323 A.2d at 183. It follows, then, that to intelligently waive a right, such person must first know the nature of that right. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980) (collect cases); Commonwealth v. Wallace, supra; Commonwealth v. Knuckles, 448 Pa. 463, 275 A.2d 653 (1971); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).

In the circumstances at bar we cannot say that Appellant was aware that she had the right to file a motion for modification of sentence with the lower court within 10 days of the date sentence was imposed or suffer a waiver of the issue on appeal. We thus address the merits.

I.

The Supreme Court in Commonwealth v. Riggins, supra, made clear that a trial court at the time sentence is imposed, must articulate the reasons for the imposition of its sentence. In Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), the same court mandated that such statement of reasons, or at least the record of the sentencing proceeding itself, must reveal that the court considered and accorded weight to the statutory guidelines set forth in the Sentencing Code. Id., 475 Pa. at 91-93, 379 A.2d at 887-88.

The requirements of Riggins and Kostka are equally applicable when a court imposes sentence following the revocation of probation. Commonwealth v. Plutko, 286 Pa. Super. 400, 428 A.2d 1390 (1981); Commonwealth v. Cappiello, 284 Pa.Super. 476, 426 A.2d 146 (1981); Commonwealth v. Steward, 276 Pa.Super. 64, 419 A.2d 96 (1980); Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669 (1980); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979); Commonwealth v. Reggie, 264 Pa.Super. 427, 399 A.2d 1125 (1979); Commonwealth v. Cottle, 260 Pa.Super. 85, 393 A.2d 1024 (1978).

Thus, at the time the trial judge imposes sentence following the revocation of probation, he or she must articulate on the record the reasons for the particular sentence imposed, and those reasons,

“. . . should reflect the judges consideration not only of those sentencing criteria enumerated in the Sentencing Code . .. but also the circumstances of the offense and the character of the offender . . . [citations omitted]”. Commonwealth v. DeLuca, supra, 275 Pa.Super. at 179, 418 A.2d at 671.

This Court has not, however, required the trial judge to list those criteria of the Sentencing Code and detail his or her response to each. Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). We insist only that the record indicate the trial judge’s cognizance and consideration of these factors at the time of sentencing. Commonwealth v. DeLuca, supra, 275 Pa.Super. at 179, 418 A.2d at 671.

At bar, it is clear from an examination of the quoted statements of the trial judge, supra, that the reasons for imposition of Appellant’s sentence were articulated on the record at the time sentence was imposed. Judge MOSS, the sentencing judge identified on the record, the several factors underlying the sentence, in compliance with Riggins.

Our inquiry, then, must focus upon the question of whether such reasons reveal a cognizance and consideration of the criteria of the Sentencing Code.

Upon revocation of probation, a court may not impose a sentence of total confinement unless it finds that:

“(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.” 18 Pa.C.S.A. § 1371(c)

Here, it is clear that subsection (1) was not implicated as Appellant had not been convicted of another crime. We do find, however, that the sentence falls within the purview of subsection (2). The court expressly found and the record reflects that Appellant was not responding to probationary treatment and within a few weeks of the commencement of probation, had ingested a controlled substance and was again involved in the drug culture. Although the Court did not so state, it is apparent that the Court determined that unless incarcerated, Appellant would in all likelihood commit another crime.

It is also clear from the record that the sentencing judge considered not only the factors enumerated in the Sentencing Code, but the circumstances giving rise to the revocation proceeding and the character of Appellant. Commonwealth v. DeLuca, supra 275 Pa.Super. at 179, 418 A.2d at 671. Although counsel for Appellant and the prosecutor took part in the revocation hearing, much of the record consists of a dialogue between Appellant and the sentencing judge. In the course of the court’s inquiry, in addition to its, concern about Appellant’s probation violations, it is apparent that the court was concerned about Appellant’s continued use of drugs while on probation (N.T. 12, 14); her failure to complete a drug rehabilitation program in which she had earlier enrolled, (N.T. 11-12); her failure to seek or maintain employment and an appropriate residence (N.T. 13-14); and her continued association with a shoplifter and others in the drug culture (N.T. 14-15, 20). In addition, the court was familiar with Appellant’s circumstances at the time probation was granted. We are more than satisfied that the lower court complied with the letter and spirit of Riggins, and the Sentencing Code, and considered and accorded appropriate weight to the pertinent sentencing factors. We discern no error.

II.

Appellant also asserts that the sentence imposed upon her was “unduly harsh and excessive” in view of her desire to attend, and her acceptance into a drug rehabilitation program at Cluster House. Appellant argues that the drug program, in her view an appropriate alternative to a sentence of total confinement, was not considered by the sentencing judge.

It is first of all apparent that Judge MOSS did consider and ultimately reject the program as an alternative to the sentence he imposed. As we earlier observed, the record indicates that the judge and counsel discussed the program with a representative of Cluster House. (N.T. 22). In addition, the judge noted on the record that he had received an evaluation of Appellant as prepared by Cluster House. Finally, Judge MOSS expressly referred to Cluster House and Appellant’s desire to attend. He found her expressed desire to be less than sincere and he specifically referred to her prior failure to complete a similar program. (N.T. 24). The record also indicated that the judge was aware of another occasion when Appellant failed to complete a drug program. (N.T. 17). We cannot say, in the circumstances, that rejection of the alternative offered by Appellant was in any manner an abuse of discretion.

Apart from the refusal of the sentencing judge to place Appellant in a drug program, she asserts no other basis underlying her contention that the sentence was excessive. We were confronted by a similar record in Commonwealth v. DeLuca, supra, and we said pertinently:

“Appellant argues, however, that even conceding compliance with Riggins and Kostka, the sentence imposed was patently too severe. While it is true that this court and our supreme court have the power and responsibility to vacate a sentence determined to be so manifestly excessive as to constitute too severe a punishment, Commonwealth v. Martin, [466 Pa. 118, 351 A.2d 650 (1976)], it is insufficient to simply assert an unduly harsh sentence, the record must show it. See Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). We must constantly recall that when it becomes apparent that the probationary order is not serving the desired end, the court’s discretion in imposing a more appropriate order should not be fettered, Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973), and we should not be hasty in constraining the discretion of the trial judge ...” Id., 275 Pa.Super. at 180, 418 A.2d at 671.

And see Commonwealth v. Roberts, 263 Pa.Super. 237, 397 A.2d 1187, (1978); Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935, 937 (1978).

In sum, we do not find the sentence imposed upon Appellant excessive or unduly harsh, and as it does not exceed any legislative limitation, we will not disturb it on appeal.

Affirmed.

      . 18 Pa.C.S.A. § 3929.

      . Methadone is a controlled substance, 35 P.S. § 780-I04(2)(ii), and possessing it unlawfully constitutes a misdemeanor, 35 P.S. § 780-113(a)(16) and 35 P.S. § 780-113(b).

      . Talwin is described in The Physicians’ Desk Reference (35th ed. 1981) as a potent analgesic, similar in effect to codeine. The substance is obtained only by prescription and dispensers are warned that psychological and physical dependence can result from the use of Talwin by patients with a history of abuse. Id. at 1909. Instantly the record reveals that Appellant has a history of drug abuse.

      . Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . 1974, Dec. 30, P.L. 1052, No. 345, §§ 1 et seq., 18 Pa.C.S.A. §§ 1301 et seq. (latter amended 1980, Oct. 5, P.L. 693, No. 142, § 401(a), and transferred to the Judicial Code, 42 Pa.C.S.A. §§ 9701 et seq.)

      . In Commonwealth v. Rush, 281 Pa.Super. 92, 421 A.2d 1163 (1980), the record, as here, was silent on the question of whether appellant had been advised of his right to file a motion to modify a sentence within 10 days. Nevertheless, appellant did file such motion approximately one month subsequent to the date sentence was imposed. The lower court dismissed the motion as untimely. In the face of the silent record, we pointed out that the burden was upon the Commonwealth to show the defendant waived or abandoned a mandated right, Id., 281 Pa.Super. at 93, 421 A.2d at 1164, and finding that the Commonwealth had failed to carry that burden, we remanded to the lower court with instructions to entertain appellant’s petition for modification of sentence. We do not remand instantly as the record is adequate to permit a meaningful review. We are also aware that the sentencing judge is now deceased.

      . Pa.R.Crim.P. 1405(b), adopted in response to Riggins, requires the sentencing judge, at the time of sentencing, to “state on the record the reasons for the sentence imposed.”

      . 18 Pa.C.S.A. § 1321, et seq.

      . But see Commonwealth v. Doyle, supra 275 Pa.Super. at 384-385, 418 A.2d at 1342 and Commonwealth v. Wareham, 259 Pa.Super. 527, 533-34, 393 A.2d 951, 954 (1978).

      . At the date sentence was imposed upon Appellant, we considered a sentencing proceeding to be in compliance with Riggins if the reasons underlying the sentence, although not stated on the record by the sentencing judge at the time sentence was imposed, were at least set forth in his opinion. See, e. g., Commonwealth v. Cottle, 260 Pa.Super. 85, 393 A.2d 1024 (1978). It is important to note, however, that we have since held that the reasons for the sentence must be placed upon the record at the time sentence is imposed and that setting forth such reasons in an opinion filed later is not an acceptable substitute. See, e. g., Commonwealth v. Cappiello, supra; Commonwealth v. Young, 272 Pa.Super. 82, 414 A.2d 679 (1979). And see Commonwealth v. Giffin, 279 Pa.Super. 264, 420 A.2d 1134 (1980) (HOFFMAN and SPAETH, JJ., concurring) and compare Commonwealth v. Turecki, supra.

      . In all likelihood, Appellant did in fact commit another crime during probation as she conceded that she ingested methadone 27 days subsequent to the imposition of probation. As we have observed, the possession of methadone, a controlled substance, is a misdemeanor.

      . It appears from the record that the sentencing judge repeatedly expressed a desire to remove Appellant from her environment while on probation to a regulated and controlled setting.