author: HESTER, Judge:

text:
    469 A.2d 1104
    COMMONWEALTH of Pennsylvania v. Jerry Lee SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1983.
    Filed Dec. 2, 1983.
    Petition for Allowance of Appeal Denied April 3, 1984.

      Blake E. Dunbar, Jr., Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Com., appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

On February 19, 1981, appellant, Jerry Lee Smith, and his co-conspirator, Brenda Meinkrantz, departed Knob Noster, Missouri by automobile for Schwenksville, Montgomery County, Pennsylvania for the purpose of unlawfully removing money from the apartment of eighty-year-old Martha Thomas. The co-conspirators arrived in Montgomery County the next day and checked into a motel. Late in the evening of February 20, 1981, Meinkrantz drove appellant to the victim’s apartment and left him.

A few hours later, on February 21, 1981, Meinkrantz returned to the victim’s apartment, met appellant and assisted him by carrying a tan overnight-bag which he had handed her. The co-conspirators promptly departed the apartment, drove to the Pennsylvania Turnpike and counted $700.00 in stolen cash inside the overnight bag. Later that day, the victim’s body was discovered by law enforcement officials in her master bedroom. A post-mortem operation revealed that she had died of manual strangulation.

Appellant was apprehended approximately one month later and charged with murder, voluntary manslaughter, involuntary manslaughter, aggravated assault, recklessly endangering another person, robbery, theft by unlawful taking, receiving stolen property, burglary and criminal conspiracy. On September 11, 1981, during the selection of the jury, appellant entered a plea of guilty to the charges of second-degree murder, criminal conspiracy and burglary in return for a recommendation from the prosecution for a life sentence on second-degree murder and suspended sentences on criminal conspiracy and burglary. Remaining charges were nol prossed. Appellant was also sentenced on September 11, 1981.

On October 27, 1981, appellant filed a motion to challenge his guilty plea nunc pro tunc on the alleged grounds that he was not mentally competent to enter his plea nor was he mentally competent to understand his right to challenge his guilty plea within ten days following sentencing. Appellant’s trial counsel withdrew from the case on November 12, 1981, and newly-appointed counsel filed an amended motion to challenge the guilty plea nunc pro tunc. This amended motion included the additional allegations of a defective guilty plea colloquy and ineffectiveness of counsel during the colloquy and for a period of time in excess of ten days thereafter.

On January 12, 1982, a hearing was conducted for the sole purpose of determining whether appellant was competent following the entry of his guilty plea. This hearing was necessary to further determine whether he knowingly, voluntarily and intelligently chose not to challenge his guilty plea within the ten-day period prescribed by Pa.R. Crim.P. No. 321. Following the hearing, the lower court found appellant to be competent for the ten-day period commencing with the day of the guilty plea and sentencing. It also found appellant’s counsel to be effective and the plea voluntarily entered. This appeal was filed from that Order of Court, dated January 12, 1982.

Appellant argues first that the lower court erred in finding him legally competent for the ten-day period immediately following the guilty plea colloquy and sentencing on September 11, 1981. At the January 12th hearing, appellant attempted to demonstrate through the testimony of Dr. Paul A. Grayce, a board certified psychiatrist at Norristown State Hospital, that he was so emotionally distraught that he could neither process information nor make responsible decisions for a significant period following the entry of his plea. Dr. Grayce administered therapy to appellant on three occasions between September 14 and September 21, 1981. Conversely, appellant’s trial counsel and former mother-in-law, both of whom visited with and counseled appellant immediately following his plea, testified that despite his severe distress, appellant was coherent and responding rationally to their comments and advice.

A defendant is mentally competent to enter a plea of guilty providing he had the opportunity at the appropriate time to consult with counsel, understand counsel’s advice and information and understand the nature of the pending criminal proceedings against him. Commonwealth v. Scott, 271 Pa.Super. 545, 414 A.2d 388 (1979); Commonwealth v. Marshall, 454 Pa. 413, 312 A.2d 6 (1973). Although this rule is commonly applied to determine whether a defendant knowingly, voluntarily and intelligently entered a plea of guilty, it can also apply to the defendant’s course of action in choosing or not choosing to challenge his guilty plea.

Dr. Grayce treated appellant and administered therapy for him on September 14, 15 and 21, 1981, consuming four hours. Although he actually saw appellant on a daily basis throughout the ten-day period within which the motion to challenge the plea could be filed, most of these were brief moments not set aside for evaluation, treatment or therapy. We note that Dr. Grayce and other members of his forensic team were of the opinion that appellant was afflicted with a borderline personality disorder causing instability in his emotions, relationships with others and perception of himself. Furthermore, he was subjected to rapid mood changes which bring either suicidal-type depression or baseless elation. More importantly, Dr. Grayce opined that these disorders precluded appellant from understanding his legal status and making the proper decision.

The Commonwealth first responded with the testimony of appellant’s trial counsel. On September 12, 1981, the day following the guilty plea colloquy, counsel visited appellant for forty-five minutes and discussed his pardon rights, appeal rights and the ten-day period within which the motion to challenge the guilty plea must be filed. Furthermore, he reiterated the three bases for challenging the plea. At that time, according to trial counsel, appellant did not want to challenge the plea. Trial counsel further observed that appellant was “very distraught”; however, this did not prevent him from understanding his legal rights and contributing to a meaningful discussion.

Counsel also visited appellant the next day. Although he again discussed the guilty plea with him, most of the time involved a discussion between appellant and his family. Counsel was a passive participant. Counsel was of the opinion that appellant was more agitated that day than during any prior meeting, but that he again understood “the situation” and did not instruct counsel to file a motion to challenge the plea.

On September 16, 1981, counsel was instructed by Dr. Grayce that he found appellant not competent to exercise his rights with respect to challenging the guilty plea. With this in mind, counsel visited appellant the next day for the sole purpose of discussing his procedural rights. Appellant remained upset, but counsel still believed he understood his rights. Appellant again expressed his desire not to challenge the plea.

On October 16, 1981, following the running of the ten-day period within which to challenge the plea, appellant instructed his counsel for the first time that he wished to challenge his plea nunc pro tunc. Counsel prepared that motion and also his motion to withdraw.

The Commonwealth also presented the testimony of Margaret Farris, appellant’s former mother-in-law. She had known appellant for twelve or thirteen years. She spoke with him on the day he entered the guilty plea and the following day in the Norristown State Hospital. She too noted appellant’s severe depression. She encouraged appellant to improve his character in the hope of gaining an early parole. Similarly, she found no deficiency in appellant’s capacity to comprehend and communicate.

We recognize the conflicting testimony of appellant’s expert and the Commonwealth’s two lay witnesses concerning the issue of competency. The lower court evaluated the testimony of the three witnesses and concluded that appellant did not carry his burden of proving his lack of competency. A reviewing court is bound by the lower court’s determination of issues of credibility, unless said determination is a manifest error. Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 307 A.2d 449 (1973). Issues of credibility are resolved through personal observation; therefore, absent clear and manifest error, a lower court’s assessment of witnesses’ integrity is not properly reversed on appeal. Shacreaw v. Shacreaw, 248 Pa.Super. 223, 375 A.2d 68 (1977); Re Estate of Duncan, 426 Pa. 283, 232 A.2d 717 (1967). Although Dr. Grayce qualified as an expert witness on the issue of competency, the lay testimony of appellant’s trial counsel and former mother-in-law is not necessarily less credible. Testimony of lay witnesses may be sufficient to establish the competency of the accused. See Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). The issue was whether appellant could understand the legal and personal advice given him and make responsible decisions based thereon. Scott, supra; Marshall, supra. Trial counsel and Mrs. Farris were quite familiar with appellant. Counsel had met with him on forty or fifty occasions from the moment he was retained, while Mrs. Farris had known appellant for thirteen or fourteen years. Obviously, both were in a position to detect changes in appellant’s behavior that would denote an inability to comprehend. Moreover, counsel spent at least the same amount of time counseling appellant immediately following his plea as Dr. Grayce had devoted to treatment and therapy.

Obviously, Dr. Grayce was qualified to diagnose appellant’s mental condition and form an opinion of appellant’s ability to comprehend and communicate. Although counsel and Mrs. Farris could not diagnose appellant’s condition and implement the appropriate psychiatric therapy and treatment, they were nevertheless closely acquainted with appellant and qualified on that basis to attest to his capacity to understand his legal situation and constructively consult with his attorney. As a result, there, was a basis for the lower court’s refusal to elevate Dr. Grayce’s testimony to a level that would justify finding appellant to have carried his burden of proof. Certainly, we will not find manifest error in the court’s attribution of significant weight to the testimony of two laymen. The Commonwealth was not required to rebut Dr. Grayce’s expert testimony with its own expert witness. Competency may be established through any source whatsoever. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).

Next, appellant argues that the lower court erred in not conducting a hearing at the time of his guilty plea for the purpose of determining his mental competence.

At the time that the court was inquiring into appellant’s psychiatric history, the following dialogue occurred:

BY THE COURT:
Q. Mr. Smith, it seems to me that you are pretty upset at this point, and I’m a little reluctant to proceed further with this guilty plea, in light of your present condition.
A. Please, sir, let’s go on.
Q. You wish to go on?
A. Yes.
MR. SPEERS: Can I just have one minute in back with him?
BY THE COURT:
Q. I want you to take a minute to compose yourself. I realize you are under some stress, but I want to be absolutely certain that you are making this decision voluntarily, intelligently and knowingly, as I have explained .those terms.
A. Yes, sir.
Q. So, why don’t you take a moment and go down and confer with Mr. Speers, and you can compose yourself a little bit further. Do you feel the need to do so?
A. No.
Q. You feel comfortable about going on?
A. Yes, sir.
Q. You are certain of that?
A. Yes, sir.
(N.T. September 11, 1981, pp. 11-12).

It is clear that appellant’s nervous and anxious mental state alarmed the court. In addition to questioning appellant, the court sought information from appellant’s counsel with respect to whether he received any psychiatric evaluation or treatment during the criminal proceedings. Appellant’s counsel explained that two psychiatrists, with the assistance of a psychiatric clinic, evaluated appellant’s neurological condition approximately one and one-half months prior to the guilty plea hearing. These physicians were of the opinion that appellant suffered from no organic ailment. Furthermore, a court-appointed psychiatrist, who participated with the others, opined in a telephone conference with counsel on the day of the guilty plea hearing that appellant remained competent at that time. Although this court-appointed psychiatrist had not seen appellant since early August, he was in receipt of a recent report from a therapist at Norristown State Hospital where appellant was detained. His opinion was based, therefore, on his earlier evaluation and the report of other experts. Equally important, was counsel’s opinion, based upon his numerous meetings and conversations with appellant, that appellant was competent. In addition to this evidence, the court instructed appellant as follows:

BY THE COURT:
Q. Mr. Smith, let me explain to you that the test of competency is whether or not you can understand the charges against you, the nature of the proceedings, and whether you can cooperate with Mr. Speers, your counsel, in making important decisions in- regard to the defense of this matter. That’s the test of competency. Do you feel that you are competent in that sense?
A. Yes. Yes, sir.

We are satisfied that the court’s explanation of the competency test and its seeking from counsel both his opinion and the opinions of licensed psychiatrists who had evaluated appellant satisfied the necessity of determining appellant’s competence. A hearing would have been superfluous.

It is also appellant’s contention that certain defects in the colloquy rendered the guilty plea involuntary. Pennsylvania Rule of Criminal Procedure No. 321 requires a motion challenging the plea of guilty to be filed within ten (10) days following imposition of sentence. Only those issues raised in a motion challenging the plea can be considered on appeal. Commonwealth v. Hunter, 240 Pa.Super. 23, 360 A.2d 702 (1976); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). Having affirmed the lower court’s finding of competence, and in recognition of appellant’s failure to file a motion within ten days, we are compelled to find that appellant waived his appellate right to challenge any defects in the colloquy.

Finally, appellant argues that counsel was ineffective in failing to file a petition challenging the plea within the prescribed period of time. A post-sentence motion challenging a plea of guilty can raise just three issues: 1) whether the lower court possessed jurisdiction; 2) whether the plea was knowingly, voluntarily and intelligently entered; 3) whether counsel effectively represented the defendant. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. den. 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). According to appellant, counsel was ineffective for failing to challenge his plea on grounds that it was involuntarily entered. As discussed earlier, appellant was mentally competent to enter his plea. It cannot be gainsaid, therefore, that counsel’s raising the incompetency of appellant in a motion challenging the plea would be a fruitless effort. Ineffectiveness does not exist where counsel fails to raise meritless claims. Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980); Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980).

There is a critical difference between pre-sentence and post-sentence attempts to withdraw a guilty plea. Attempts to withdraw a guilty plea following sentencing will prove successful only upon “a showing of prejudice on the order of manifest injustice.” Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973); Commonwealth v. Siers, 318 Pa.Super. 215, 464 A.2d 1307 (1983); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Although lower courts have been reversed for failing to engage in an on-the-record explanation of the elements of the crimes charged, Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), said failure is not grounds for reversal where the defendant is apprised of the “nature of the charges.” Shaffer, supra. In Shaffer, supra, the Pennsylvania Supreme Court considered the primary purpose of conducting an on-the-record colloquy as one insuring that the defendant entered his plea voluntarily and intelligently. To this end, the Shaffer court found the Commonwealth’s presentation of its case far more effective than an explanation of the elements of the crimes.

It is evident from the record that the trial judge was derelict in not reviewing the elements of the underlying crime of theft to the burglary charge; nevertheless, he engaged himself in a painstaking and thorough explanation of the elements of each crime to which appellant pled guilty (second degree murder, criminal conspiracy and burglary). Moreover, he referred to the underlying crime of theft and, most importantly, the Commonwealth reviewed the criminal behavior, including the act of theft, simply and completely. In particular, the Commonwealth reviewed appellant’s and co-defendant’s plans to travel from Missouri to Montgomery County, Pennsylvania for the purpose of entering the victim’s apartment and removing her money without authority. Thereafter, the co-conspirators’ acts of checking into a nearby motel, remaining there for a few hours, driving to the victim’s apartment, along with appellant’s entry into the apartment and emerging a short time thereafter with $700.00 in cash were reviewed for the record. Following this summary of the facts, the court asked appellant whether he would acknowledge the Commonwealth’s review as accurate:

Q. Mr. Smith, do you acknowledge what Mr. Williamson has stated as being a summary of the facts, as an accurate summary of the true facts of this case?
A. Basically.
Q. Basically? Do you have any fundamental disagreements with any of the significant portions?
A. Nope.
(N.T. September 11, 1980, p. 59).

With appellant deemed to be competent, we find that he understood the review, and his failure to deny any fact must be taken as genuine and intelligent. Also, the review was so complete as to assure that appellant pled knowingly, voluntarily and intelligently to the charge of burglary. Given the totality of the circumstances, the failure to define the elements of the crime of theft did not constitute manifest injustice. Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982); Shaffer, supra. As a result, counsel cannot be held ineffective for not encouraging appellant to challenge the plea on the lower court’s failure to discuss the statutory elements of the underlying crime of theft. It would have been fruitless to pursue such a baseless claim. See Webb, supra; Tarver, supra.

Similarly, we will not hold counsel ineffective for failing to file a motion challenging the plea on grounds that the court failed to review the nature and elements of the other charges and failed to advise appellant of the court’s option not to honor the terms of the plea agreement. As we alluded to with respect to the Commonwealth’s summary of appellant’s behavior amounting to the underlying crime of theft, the Commonwealth competently and with clarity capsulized the incidents justifying the charges of murder, burglary and criminal conspiracy.

Appellant is correct insofar as the court failed to note its power to disregard the terms of a plea agreement. Obviously, this would amount to a serious defect where the court, in fact, disregarded the agreement and imposed a sentence more severe than that bargained for. However, the lower court suspended sentence on the burglary and criminal conspiracy charges as per the agreement. The agreement also called for life sentence on the second-degree murder bill and the court’s actual sentence was in conformity therewith. Appellant expected and was given the sentence imposed. Once again, we will not impose upon counsel the obligation of challenging a plea, under these circumstances, on the frivolous grounds that the nature and elements of all charges and the court’s right to dishonor an agreement were not discussed. Counsel had a reasonable basis for not pursuing fruitless claims. See Webb, supra; Tarver, supra.

Order affirmed.

      . In Shaffer, supra, a plea of guilty was entered subsequent to the presentation of the Commonwealth’s case-in-chief.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    469 A.2d 1111
    COMMONWEALTH of Pennsylvania v. Allen R. DERRICK, a/k/a Derek Allen, Appellant.
    Superior Court of Pennsylvania.
    Argued May 31, 1983.
    Filed Dec. 16, 1983.
    Petition for Allowance of Appeal Denied May 31, 1984.

      Stanley M. Shingles, Philadelphia, for appellant.
    Mariane E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas, Philadelphia County, dated February 17, 1982. Following a non-jury trial, the appellant was convicted of robbery, theft, simple assault and criminal conspiracy. Post-verdict motions were filed and denied, and the appellant was sentenced to not less than 10 nor more than 23 months in prison on the robbery conviction and to two years concurrent probation on the conspiracy conviction. The court suspended sentence on appellant’s remaining convictions of simple assault and theft.

Appellant asserts that the failure of the Commonwealth to adhere to the requirement of Pa.R.Crim.P. 1100 mandates his discharge. Additionally, appellant asserts that his arrest was illegal, that physical evidence was improperly seized, and that both the on-the-scene identification of the appellant by the complainant and the subsequent in-court identification were violative of due process. We disagree and consequently affirm the judgment of sentence.

At approximately 8:00 p.m. on March 18, 1980, Isiah Thomas, a 77 year old man, was on his way home from buying a quart of milk at a grocery store at 56th Street and Haverford Avenue when he was grabbed from behind by three young men and pushed to the ground. The assailants took Mr. Thomas’s wallet containing his senior citizen identification card and $14.00. The assailants ran off, leaving Mr. Thomas lying on the ground.

Meanwhile, a little after 8:00 p.m., a Philadelphia police officer stopped at 57th Street and Haverford Avenue, saw three young males running out of the 500 block of North 56th Street. The manner in which the young men were running indicated to the officer, an eight-year veteran of the force, that the men were escaping from the scene of a robbery. The officer drove his vehicle around to a position where he could see what the men were going to do. He drove his car diagonally through 57th Street where, upon seeing the police vehicle, one of the young men threw a wallet on the ground. As the young men continued to run, now up Westminster Street off of Haverford Avenue, the officer got out of his car, picked up the wallet and saw that it contained a senior citizen’s identification. Observing that the runners were in their late teens or early twenties, the officer pursued them. During this time, the young men were desperately trying to get into a nearby recreation center. The officer arrested the three young men in the recreation center playground and radioed for assistance.

The young men were handcuffed and placed in a police wagon which arrived within minutes of the arrest. Since the recreation center, the scene of the arrest, was one block from where the person whose name appeared on the identification card lived, Isiah Thomas, the police officer took the boys to his residence. After asking Mr. Thomas to identify the money and the wallet, Mr. Thomas was asked to take a look at the males in the back of the police van to see if he could identify them. At that point, Mr. Thomas positively identified the appellant.

The tortuous procedural history of this case is as follows. The criminal complaint was filed on March 18, 1980 and thus the originally projected trial run date was September 15, 1980. Pa.R.Crim.P. 1100(a)(2), 42 Pa.C.S.A. Appellant was released on bail. A pre-trial conference was held on May 5, 1980 and the case was listed for trial on June 24, 1980. However, on June 24, 1980, the public defender representing the appellant was permitted to withdraw because of a conflict of interest. New counsel was then appointed, and the case continued to August 26, 1980. Appellant’s counsel was unprepared for trial on August 26, 1980, and the appellant executed a written waiver of his rights under Rule 1100 until October 23, 1980. The case was re-listed for trial on October 16, 1980. Appellant failed to appear for trial on October 16, 1980 and a bench warrant was issued. On October 21, 1980, the Commonwealth timely filed its first petition under Rule 1100(c) to extend the time for commencement of trial. On November 20, 1980, after a hearing, the bench warrant was withdrawn; appellant’s bail was reinstated; and appellant was released. Also at that time, new counsel, appellant’s third, was appointed and the case was re-listed for December 23, 1980. On December 19, 1980, there being no objection by the appellant, the Commonwealth’s petition to extend was granted and the time for commencement of trial extended to January 14, 1981. On December 23, 1980, appellant’s counsel requested and was granted a continuance due to his unavailability for trial on that date because of his involvement in another trial. The present case was therefore continued to February 24, 1981.

The Commonwealth timely filed its second petition to extend on January 6, 1981. Appellant’s counsel failed to appear at the hearing on the Commonwealth’s petition on February 11, 1981, and the court granted the petition and extended the time for commencement of trial to March 18, 1981. The case was listed for trial on February 24, 1981. However, on February 24, 1981 appellant’s counsel was permitted to withdraw and the court ordered the court administrator to appoint new counsel. The case was continued to March 10, 1981. Appellant again appeared without counsel on March 10, 1981, no new counsel having been appointed, and the case was continued to May 12, 1981.

On March 16, 1981, the Commonwealth filed its third timely petition to extend. The record shows that on May 12, 1981 the case was again continued to July 21, 1981 due to the unavailability of appellant’s newest counsel, his fourth. On May 20, 1981, the Commonwealth’s petition to extend was granted and the time for commencement of trial extended to August 12, 1981.

Appellant failed to appear for trial on July 21, 1981 and a bench warrant was issued. The bench warrant was withdrawn on September 2, 1981; appellant’s bail was increased to $1,500.00; and the case was relisted for October 23, 1981. Appellant later met the increased bail and was released. Once again, appellant failed to appear for trial on October 23, 1981 and a bench warrant was issued. Later that day it was discovered that the appellant was in custody in Holmes-burg Prison on another charge, and the present case was set for trial on October 26, 1981. Appellant appeared for trial on October 26, 1981 without counsel. New counsel was appointed and the case set for trial on December 11, 1981, the earliest possible date consistent with the court’s business.

On December 11, 1981, appellant was permitted to make an oral motion to dismiss under Rule 1100(f). Appellant’s motion was denied and the case proceeded to trial.

Rule 1100 requires that a defendant be discharged unless all periods of delay beyond the run date are accounted for either by a valid waiver by the defendant, an extension granted the Commonwealth under Rule 1100(c), or an exclusion of time under Rule 1100(d). See Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). Appellant does not challenge the validity of his waiver of rights under Rule 1100 or the granting of the Commonwealth’s three petitions to extend. Appellant asserts that the Commonwealth’s last extension expired on August 12, 1981 and the Commonwealth did not file another petition to extend. Therefore, appellant argues that unless all the time from August 12, 1981 to December 11, 1981 is excludable under Rule 1100(d), he is entitled to discharge. We agree with the trial court that all the time after August 12, 1981 is properly excludable under Rule 1100(d).

At the time relevant to this case Rule 1100(d) provided:

(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded).

All of the delay from July 12, 1981 to December 11, 1981 is attributable to the unavailability of the appellant of his counsel.

Appellant was free on bail when he failed to appear for trial on July 21, 1981. When appellant failed to appear at that time a bench warrant was issued. The bench warrant was withdrawn on September 2, 1981. In Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978) our Supreme Court said:

We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.

Appellant had notice of the trial scheduled for July 21, 1981. The record in this case contains a subpoena, receipt of which is acknowledged by the appellant’s signature, informing the appellant the trial was scheduled for May 12, 1981. However, on May 12, 1981 appellant’s counsel requested a continuance which was granted and the case continued to July 21, 1981. Since it was appellant’s counsel who requested the continuance appellant can be held to have been properly notified of the July 21, 1981 trial; oral notice to appellant’s counsel was sufficient. See Commonwealth v. Cornish, 311 Pa.Super. 72, 457 A.2d 118 (1983); Commonwealth v. Snyder, 280 Pa.Super. 127, 421 A.2d 438 (1980); Commonwealth v. Bundridge, 268 Pa.Super. 1, 407 A.2d 406 (1979). Therefore, since appellant was free on bail and had proper notice of the July 21, 1981 trial but failed to appear at that time, all the time from July 21, 1981 to September 2, 1981 is excludable under Rule 1100(d)(1). Commonwealth v. Cohen, supra.

Likewise, all the time from September 2, 1981 to October 23, 1981 is excludable under Rule 1100(d)(1). On September 2, 1981 the bench warrant issued for the appellant because of his failure to appear for trial on July 21, 1981 was withdrawn and the appellant’s bail was increased to $1,500.00. Appellant later met the increased bail and was released. The record establishes that the appellant was served with a subpoena, receipt of which is acknowledged by the appellant’s signature, informing him of trial scheduled for October 23, 1981. However, appellant again failed to appear on that date. Later that day it was discovered that the appellant was incarcerated in Holmesburg Prison on other charges. Appellant’s obligation to appear for trial on October 23, 1982 did not change because of his incarceration. Commonwealth v. Colon, supra. Thus, appellant was unavailable for trial from September 2, 1981 to October 23, 1981, and this period is excludable under Rule 1100(d)(1).

The delay from October 23, 1981 to December 11, 1981 is also excludable under Rule 1100(d)(1). When on October 23, 1981 it was discovered that the appellant was in Holmesburg Prison the case was immediately scheduled for trial on October 26, 1981. However, at that time, appellant who previously had been represented by counsel, appeared without counsel. Counsel was immediately appointed and the court listed the trial for December 11, 1981, the earliest possible date consistent with the court’s business. A defendant’s unavailability can result in an excludable delay which is much greater than the actual time he is unavailable. Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982); Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808 (1982). The delay between October 23 and October 26, 1981 was the result of appellant’s failure to appear for trial on October 23. A defendant is unavailable for trial within the meaning of Rule 1100(d)(1) when he is unrepresented by counsel. Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979). Thus appellant was unavailable for trial on October 26, 1981.

Appellant argues that after counsel was appointed on October 26, 1980 both he and his counsel were then available for trial and all the time between October 26, 1981 and December 11, 1981 cannot be excluded under Rule 1100(d)(1). We disagree. In Commonwealth v. Perry, supra, the defendant failed to appear on time for trial and the case was passed and rescheduled for twenty-two days later. On appeal, this Court held that the 22-day delay was the result of the defendant’s unavailability for trial and excluded the entire period under Rule 1100(d)(1). In Commonwealth v. Robinson, supra, the amended Rule 1100 trial run date on the defendant’s case was April 24, 1975. On April 23, the defendant waived the running of the Rule until May 23, 1975. On May 23, the trial court disposed of the defendant’s pre-trial motions. The defendant then requested and was granted a continuance to June 30, 1975, also waiving his Rule 1100 rights until that date. On June 30, 1975, the court put Robinson’s case on “backup” status behind two other cases. On July 15, the defendant moved to dismiss the charges against him pursuant to Rule 1100(f) on the ground that his waiver had been valid only until June 30 and the Rule had since run. The trial court denied the defendant’s motion and trial commenced on July 16, 1975. On appeal, the Superior Court reversed, finding a violation of Rule 1100. Our Supreme Court reversed and reinstated the trial court’s order. In doing so the Supreme Court said:

By making this case turn on the issue of whether appellee waived his Rule 1100 rights during the sixteen-day period of delay between the expiration of the second defense-requested continuance and the commencement of voir dire, both the post-verdict court and the Superior Court assumed that, absent a valid waiver of Rule 1100 rights by appellee, Rule 1100 does not allocate the responsibility for the sixteen-day delay to appellee. At the time of trial, section (d) of Rule 1100 provided:
“In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.”
In interpreting subdivision (1), this Court has made it clear that the period of excludable days is not necessarily measured by the length of time that a defendant was “unavailable.” Instead, once it is determined that the defendant was unavailable, the critical inquiry is whether actual delay resulted from the defendant’s unavailability. “If the ‘unavailability’ results in an actual delay in the proceedings, that delay is automatically excluded.” Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). So, too, under subdivision (2) it must be concluded that although a defense-requested continuance which exceeds thirty days serves as a triggering device for exclusion, the number of days to be excluded is not governed solely by the length of the continuance. Rather, as under subdivision (1), the number of days to be excluded is that “period of delay ... as results from” the continuance. Cf. Commonwealth v. Wade, 475 Pa. 399, 405-406, 380 A.2d 782, 785 (1977) (excludable delay caused by open-ended continuance measured from date of continuance request to end of delay). Here, therefore, the critical question is whether the sixteen-day period of delay “resulted] from” a defense-requested continuance.
On this record, it appears that on May 23, 1975, upon the close of pre-trial motions, this matter would have proceeded to trial if appellee had not requested and been granted a second continuance. That continuance necessitated the placement of the matter of “backup” status behind two cases. Consistent with the court’s business, those two cases were disposed of without undue delay, in sixteen days, and the trial of this case commenced immediately thereafter. The sixteen-day period during which the matter was on “backup” status must, therefore, be attributed to appellee.

Commonwealth v. Robinson, supra 498 Pa. at 385-86, 446 A.2d at 896-97.

Similarly, in the instant case, the entire period from October 23 to December 11, 1981 is the actual delay resulting from the appellant’s failure to appear for trial on October 23 and his appearance without counsel on October 26, 1981. On October 26, 1981, the trial court rescheduled the trial of this case for December 11, 1981 the earliest possible date consistent with the court’s business. The Commonwealth was ready for trial on June 21, 1981 and all subsequent listings of the case. All the delays in this case were the result of the unavailability of the appellant or his counsel.

Because the entire period from June 21, 1981 to December 11, 1981 was the result of the unavailability of the appellant or his counsel and is properly excludable under Rule 1100(d)(1), appellant has not been denied his rights and is not entitled to discharge.

Appellant also contends that he is entitled to discharge because of the delay of 65 days between the filing of the Commonwealth’s third petition to extend on March 16, 1981 and the hearing on that petition on May 20, 1981. However, an unexplained delay in holding a hearing and ruling on a timely-filed application to extend does not warrant a defendant’s discharge absent some prejudice resulting from the delay. Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983); Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748 (1982). Further, it is only when some prejudice is alleged to have resulted to the defendant from the delay that we must inquire into the reasons for the delay. Commonwealth v. Williams, supra; Commonwealth v. Fairley, supra. In the instant case, appellant does not allege any prejudice, nor does the record reveal any prejudice from the delay in holding the hearing on the Commonwealth’s petition. Thus, appellant is not entitled to discharge because of the delay in holding the hearing on the Commonwealth’s petition to extend.

Appellant also argues that the act of the police officer in confronting him and subsequently arresting him constituted a violation of his fourth amendment rights which, in turn, tainted the seizure of the wallet. Additionally, appellant argues that the illegal arrest tainted the on-the-scene identification, which appellant also asserts, was conducted in an impermissibly suggestive manner.

The threshold inquiry is whether there was a valid arrest. A warrantless arrest for a felony will be upheld where police have probable cause to believe (1) that a felony has been committed and (2) that the person to be arrested is the felon. Commonwealth v. Davis, 308 Pa.Super. 204, 454 A.2d 92 (1982). Probable cause is said to exist where facts and circumstances within the knowledge of the arresting officer are reasonably trustworthy and sufficient in themselves to warrant a man of reasonable caution to believe that the person to be arrested has committed the offense. Id. It is certainly true that flight in and of itself is not sufficient to constitute probable cause. Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973). However, flight, coupled with some other fact, may well establish probable cause to arrest. Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Gease, 304 Pa.Super. 433, 450 A.2d 989 (1982); Commonwealth v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976).

In the instant case, the officer saw the defendants fleeing in a manner which indicated to him that they were escaping from the scene of a robbery. At the point of arrest, the officer had sufficient information which would justify a reasonable man to believe that a crime had been committed and that the appellant and his companions had committed it. Therefore, appellant’s fourth amendment rights were not violated and the wallet cannot properly be considered tainted evidence.

Appellant also argues that the wallet should have been excluded because the police officer extracted the wallet from the defendant’s possession against his will due to the alleged menacing position of the officer’s car in relation to the path the young men took fleeing the scene of the crime.

Abandoned property which normally may be obtained and used for evidentiary purposes may not be utilized where the abandonment is coerced by unlawful police conduct. Commonwealth v. Jeffries, supra; Commonwealth v. Horsley, 244 Pa.Super. 91, 366 A.2d 930 (1976). In the instant case, all the officer did was put himself in a better position to observe the young men’s suspicious behavior on a city street. To do otherwise would subject the officer to a criticism of being derelict in the performance of his duties. One of the young men, on the other hand, spontaneously abandoned the property upon the sight of the police. Finding no unlawful act on the part of the police which motivated the abandonment, we hold the evidence to have been properly ruled admissible.

Having already established the appellant’s arrest was legal, the on-the-scene identification therefore cannot properly be termed the fruit of an illegal arrest. We now turn to appellant’s last contention, that the on-the-scene identification was impermissibly suggestive.

Preliminarily, it is well settled that an on-the-scene identification made shortly after the occurrence of the crime does not in and of itself offend a suspect’s due process rights. Commonwealth v. Carter, 271 Pa.Super. 508, 414 A.2d 369 (1979). Absent some special element of unfairness, the close proximity in time and place to the actual offense so enhances the reliability of such an identification as to outweigh any possibility of irreparable misidentification that might arise from the witness’ observance of the suspect in police custody. Commonwealth v. Carter, su pra. The lower court found that the appellant was identified by Mr. Thomas approximately five minutes after the incident. The appellant alleges unfairness resulted from the presentation of the wallet to the victim by the police immediately before the confrontation.

In Commonwealth v. Carter, supra, we held that the simultaneous presentation of appellant and the weapon purported to have been used in the robbery did not render the on-the-scene identification suggestive so as to taint the subsequent in-court identification. Similarly, in the instant case the presentation of the wallet to Mr. Thomas shortly before the on-the-scene identification procedure did not render the identification impermissibly suggestive.

Furthermore, even if the on-the-scene identification had been suggestive, a proposition unsupported by the record, it does not necessarily follow that the trial identification was thereby rendered inadmissible, since we employ a totality of the circumstances approach to determine whether a questioned identification is reliable. Commonwealth v. Satchell, 306 Pa.Super. 364, 452 A.2d 768 (1982). We recently reiterated the relevant standard in Commonwealth v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312 (1982):

“The central concern where any identification is offered is whether, under the totality of circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). A pretrial identification will not be set aside unless the facts demonstrate that the identification procedure ‘was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968).” Commonwealth v. Linder, 284 Pa.Super. 327, 337, 425 A.2d 1126, 1131 (1981). “[S]uggestiveness ... is only one factor to be considered in determining the admissibility of identification testimony. Suggestiveness alone does not warrant exclusion. Instead ‘[i]t is the likelihood of misidentification which violates a defendant’s right to due process....’ ” Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979), quoting from Commonwealth v. Sexton, 485 Pa. 17, 22, 400 A.2d 1289, 1291 (1979). Factors to be considered in evaluating the likelihood of misidentification in a particular instance are:
... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154. See also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).

The most important factor in the totality of the circumstances test is the opportunity of the witness to view the suspect at the time of the crime. Commonwealth v. Davis, 293 Pa.Super. 447, 439 A.2d 195 (1981). This would seem to be particularly so when the witness was the victim, for as we have recently noted, “Whenever the victim of a crime has an opportunity to observe the criminal, the impression of the face of an assailant is etched upon the prey by the terror of the occasion....” Commonwealth v. Bradford, 305 Pa.Super. 593, 598, 451 A.2d 1035, 1037 (1982).

The testimony of the victim in the instant case indicates that he had ample opportunity to view the perpetrator during the crime. The attack occurred near a street light and the victim had a good chance to look at the attackers. Moreover, Mr. Thomas recognized the appellant as a neighborhood youth whom he had seen before.

Given the gap of only five minutes between the crime and the confrontation and the inherent reliability of an identification made after so short a time, we conclude that the identification of the appellant provided by the victim at trial had an independent origin in the observation of the victim at the time of the crime.

Judgment of sentence affirmed.

      . At the time relevant to this case, Rule 1100(a)(2) provided:
      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 is filed.

      . At the time relevant to this case, Rule 1100(c) provided:

        At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . A petition for extension of time under Rule 1100(c) is timely if filed prior to the expiration of the mandatory period prescribed by the Rule or set forth in a previous order granting an extension of time. Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981).

      . At the time relevant to this case Rule 1100(f) provided:
      (f) At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.

      . On December 11, 1981 appellant was permitted to make oral motions to dismiss the charges under Rule 1100(f) and to suppress evidence. Appellant’s motion to dismiss under Rule 1100(f) was denied and the court proceeded to hear testimony on the motions to suppress. The testimony on the suppression motions continued on December 14, 1981. At the close of the testimony on December 14, 1981, appellant’s motions to suppress were denied. At that time appellant waived his right to a jury trial and the Commonwealth and the appellant agreed to the submission of the case on the basis of the suppression hearing testimony. The trial court found the appellant guilty of robbery, theft, simple assault and conspiracy.

        For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed voir dire or to opening statement, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial.

      Pa.R.Crim.P. 1100 comments (Emphasis supplied). See Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981).
      In the instant case, the taking of testimony on appellant’s motion to suppress constituted the first step in the trial of this case and thus appellant’s trial commenced for purposes of Rule 1100 on December 11, 1981. Commonwealth v. Fisher, 244 Pa.Super. 361, 368 A.2d 762 (1976).

      . Appellant cites Commonwealth v. Manley, 282 Pa.Super. 376, 422 A.2d 1340 (1980) as support for his contention that all the time between October 26 and December 11, 1981 cannot be excluded under Rule 1100(d). In Manley, the defendant appeared for trial on May 30, 1978 without counsel. The court then instructed the defendant to apply for the services of the public defender and continued the case. On September 1, 1978, the public defender was appointed to represent the defendant. There was no regular criminal court term scheduled during the summer months and the next available trial date after May 30 was September 25. A panel of this Court held in Manley that because the delay between May 30 and September 25 was "judicial delay”, it could not be excluded under Rule 1100(d)(1) and could only be the basis of an extension under Rule 1100(c). However, after Commonwealth v. Robinson, supra; Manley is no longer valid precedent.

      . Appellant alleges that the victim’s identification was predicated on his subjective evaluation of what the police told him. However, there is no evidence of any prompting or suggestion.


text:
    469 A.2d 1121
    COMMONWEALTH of Pennsylvania v. Michael J. ROSETTI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Dec. 23, 1983.

      Jack J. Bulkin, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   HESTER, Judge:

This is an appeal from judgment of sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania. Appellant was convicted of criminal trespass and sentenced to a period of between 30 and 60 days to be followed by a period of probation for 3 years, the sentence of probation conditioned upon the attendance by appellant at a drug rehabilitation program and payment of $50.00 restitution. In this appeal, appellant challenges whether the evidence was sufficient to support the conviction.

In reviewing a challenge to the sufficiency of the evidence, we, must view the evidence in the light most favorable to the Commonwealth as verdict winner, together with all inferences flowing therefrom and determine whether the factfinder could have reasonably found all elements of the crime established beyond a reasonable doubt. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797; Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982); Commonwealth v. Everett, 297 Pa.Super. 320, 443 A.2d 1142 (1982).

So viewed, the evidence establishes the following: At approximately 10:30 a.m. on August 20, 1981, Joseph Ritorto, age 12, and his younger brother, were inside their family’s home at 1218 Tasker Street in Philadelphia, when Joseph heard a knocking sound at the front door. Joseph went to the front door and saw appellant about 20 feet from the Ritorto home, near Iseminger Street. Joseph clearly observed appellant for a few seconds, closed the front door and went back upstairs. Joseph again heard a knocking downstairs and returned to a point partially down the stairway, where he saw another man through a small window in the door. The phone rang and Joseph went back upstairs to answer it. He spoke to his mother who was on the line, told her someone was attempting to enter the home and that another man was halfway up the stairs but fled when he heard the phone conversation.

At the time of the aborted break-in, a neighbor of the Ritorto family was exiting a house located around the corner from the Ritorto home when appellant and the other man Joseph had encountered ran past her. The neighbor testified the two men conversed as they ran, although she could not discern what was said. She also observed appellant’s companion hiding something under his shirt. After appellant and the other man ran past her, the witness saw Joseph’s grandfather, whom Joseph had called, running across the street. She went to the Ritorto home and asked if anyone had been there. Joseph told her what had happened. She called the police and gave a description of the two men she saw running.

Shortly thereafter, two police officers on duty in the vicinity responded to a radio call regarding a burglary in progress at 1218 Tasker Street. The broadcast described two white males as suspects, one wearing a white tee-shirt and the other, appellant, wearing a brown striped shirt. The officers proceeded to the scene when they observed a man fitting the description of appellant alight from a car double parked four blocks from Tasker Street on Rosewood Street. The other man in the car also fit the description broadcast. Appellant was observed knocking on a door of a house on Rosewood Street. Appellant, after knocking, returned to the car. The car proceeded down the street until the officers blocked its path, stopped it, and required appellant and his companion to get out of the car. The officers patted them down and discovered a pipe wrench in the possession of appellant’s companion. • The wrench, opened to the exact size of the door knob of the front door of Ritorto home, contained gold flex similar in color to the door knob. The officers took appellant and his companion to the scene where Joseph Ritorto identified appellant as the man who had stood outside of his home. Joseph also identified appellant’s companion as the man who entered the home. Cosimeo Ritorto, Joseph’s father, upon his return home found the front door lock broken and the police present.

Appellant contends his conviction of criminal trespass was rendered a product of mere suspicion and lacked sufficient evidential support. We disagree.

An individual is guilty of criminal trespass if “knowing that he is not licensed or privileged to do so, he ... breaks into any building or occupied structure.” See 18 Pa.C.S.A. § 3503(a)(1)(ii). Appellant was convicted of criminal trespass by virtue of his accomplice status. Section 306 of the Pennsylvania Crimes Code (18 Pa.C.S.A. § 306) imputes criminal responsibility to an individual who “aids, agrees or attempts to aid a person in the planning or commission of a crime, providing such aid, agreement or attempt is done with the purpose of furthering the criminal design.” Commonwealth v. Everett, 297 Pa.Super. 320, 327, 443 A.2d 1142, 1145 (1982). An individual may be the actual perpetrator of the crime; however, “another person is equally criminally liable if he aids that person with the intent of promoting that person’s act.” Id., 297 Pa.Superior Ct. at 327, 443 A.2d 1145. Because of shared criminal intent, an actor and his accomplice share equal criminal responsibility. See, Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978), cert. denied 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498.

To establish complicity, mere presence at the scene of a crime and knowledge of the commission of criminal acts is not sufficient. Commonwealth v. Everett, 297 Pa.Super. 320, 443 A.2d 1142 (1982); See also Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975). Nor is flight from the scene of a crime, without more, enough. Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Wilson, 294 Pa.Super. 101, 439 A.2d 770 (1982). However, those factors combined, along with other direct or circumstantial evidence may provide a sufficient basis for a conviction, see Commonwealth v. Wilson, 294 Pa.Super. 101, 439 A.2d 770 (1982), provided the conviction is predicated upon more than mere suspicion or conjecture. Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973).

In essence, the evidence, viewed in the light most favorable to the Commonwealth, together with all reasonable inferences flowing therefrom establishes Joseph Ritorto saw only appellant outside his home when the. crime began. A few moments later, Joseph observed appellant’s companion breaking into his home. After this discovery by Joseph, appellant and his companion immediately fled. A witness saw both men running and conversing a short time thereafter and only a few blocks from the Ritorto home. She also observed appellant’s companion hiding an object underneath his shirt. Soon thereafter, the police, responding to the burglary at the Ritorto home, observed appellant and his companion conducting suspicious activity in the same neighborhood and detained them. A pipe wrench was discovered on appellant’s companion. Appellant and his companion were taken to the Ritorto home and positively identified by Joseph.

In our view, the evidence sufficiently establishes appellant aided his companion with the intent of facilitating his companion’s criminal acts. It is clear the trial judge, as factfinder, reasonably inferred appellant had knowledge his companion had a pipe wrench and intended to use it to break into the Ritorto home. Moreover, it was reasonable to infer that appellant, observed by Joseph loitering in the front of the home while his companion twice attempted to break-in, served as a lookout during the commission of the crime until fleeing with his companion.

The continuing interaction of appellant and his companion indicates a design on the part of appellant to afford aid and consent to the criminal acts of his companion. But c.f. Commonwealth v. Tilman, 273 Pa.Super. 416, 417 A.2d 717 (1980). As such, his conviction was not based on mere suspicion, conjecture or wholly on inference. Furthermore, no evidence exists which would permit the factfinder to have reasonably inferred appellant innocently happened upon the scene and fled out of fear. See Commonwealth v. Goodwin, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Keller, 249 Pa.Super. 384, 378 A.2d 347 (1977). We therefore find the trial judge properly concluded the evidence established beyond a reasonable doubt appellant’s complicity in the criminal trespass of the Ritorto home.

Judgment of sentence affirmed.

      . Appellant also contests the legal consistency of his conviction of criminal trespass because he was acquitted of conspiracy. While the statutory definition of conspiracy (18 Pa.C.S.A. § 903) and complicity (18 Pa.C.S.A. § 306) are similar, one can aid another in the commission of a crime irrespective of whether an agreement to do so existed. Commonwealth v. Boykin, 276 Pa.Super. 56, 419 A.2d 92 (1980), rev’d on other grounds, 501 Pa. 250; 460 A.2d 1101 (1983). Also, we summarily reject appellant's other claim the trial judge relied upon purported inadmissible hearsay by virtue of reference in his opinion to an officer’s testimony explaining the officer’s course of conduct in responding to a radio call regarding the criminal trespass. See Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362 (1983).


text:
    469 A.2d 1124
    Edward BROMLEY and Victorianna Bromley, Individually and as Husband and Wife v. ERIE INSURANCE GROUP, Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1983.
    Filed Dec. 23, 1983.

      Michael B. Kaleugher, Pittsburgh, for appellant.
    James J. Lestitian, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

Appellees, Edward and Yictorianna Bromley, were seriously injured on October 28, 1979 when Kenneth Stewart drove his automobile across the center line and head-on into appellees’ motor vehicle on Route 8 in Allegheny County, Pennsylvania. Theodore Miller was operating his .vehicle behind appellees’ and in the same lane of traffic. He too was injured when the Stewart vehicle caused him to collide with the rear of appellees’ vehicle.

Stewart insured his vehicle through Sentry Insurance Company under a single-limit, fifty thousand dollar policy. Sentry paid the maximum coverage to the injured parties by allocating $33,333.00 to appellees and $16,667.00 to Miller.

Appellees were not fully compensated for their injuries through Stewart’s insurance carrier; consequently, they sought additional compensation from their carrier, Erie Insurance Group, appellant herein. According to appellees, the uninsured motorist clause in their contract of insurance with appellant covered their loss. Appellant denied coverage and the matter was submitted to arbitration.

The majority arbitrators found that appellees’ injuries were compensable to the full extent of the $60,000.00 of uninsured motorist coverage provided by appellant; however, said coverage was reduced by the amount of insurance payable by Stewart’s carrier. As a result, appellees were awarded $26,667.00, a sum representing the difference between appellees’ uninsured motorist coverage and the amount paid by the tortfeasor’s carrier. Thereafter, appellant filed an application to vacate the arbitration award with the Court of Common Pleas of Allegheny County. The lower court denied the application and adopted the majority opinion of the arbitrators in 'an Order of Court dated January 27, 1982. Appellant filed this appeal from that Order.

Frequently in an appeal from an order affirming or vacating arbitration awards, one party raises the issue of whether the lower court had jurisdiction over the application to vacate. Appellees raise that issue here; therefore, prior to any discussion on the merits, we must determine whether this matter is properly before this Court.

Within the uninsured motorist provisions of their contract for motor vehicle insurance; the parties agreed to submit to arbitration any disagreement over the amount of damages or the right to recover damages. It is well-settled that issues arising from uninsured motorist provisions containing an arbitration clause shall be subjected to the exclusive jurisdiction of the arbitrators. Allstate Ins. Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972); Nationwide Mut. Ins. Co. v. Barbera, 443 Pa. 93, 277 A.2d 821 (1971); Preferred Risk Mut. Ins. Co. v. Martin, 436 Pa. 374, 260 A.2d 804 (1970), cert. den., 398 U.S. 905, 90 S.Ct. 1697, 26 L.Ed.2d 65 (1970). Where parties enter into an arms-length contract and choose arbitration as the forum for disputes, they are bound by the arbitration award and courts are not available for review. Pennsylvania General Ins. Co. v. Barr, 435 Pa. 456, 257 A.2d 550 (1969); Allstate Ins. Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969).

Nevertheless, certain errors committed by the arbitrators justify judicial review and reversal. Where the contract for insurance does not specify whether statutory or common law arbitration is controlling and where the parties neither expressly nor impliedly agree subsequent to executing the contract that statutory arbitration applies, common law rules of arbitration apply. In that case, the vacating of a common law arbitration award is proper only where there was a “denial of a hearing or fraud, misconduct, corruption, or similar irregularity leading to an unjust, inequitable, or unconscionable award.” Runewicz v. Keystone Ins. Co., 476 Pa. 456, 461, 383 A.2d 189, 192 (1978); Harwitz v. Adams, 406 Pa. 539, 178 A.2d 617 (1962). On the other hand, where statutory arbitration is expressly provided for in the uninsured motorist provisions of the contract or the parties submit their dispute to statutory arbitration regardless of the contract provisions, the scope of review is somewhat broader than review of common law arbitration awards. This Court in Webb v. United Services Auto. Assoc., 227 Pa.Super. 508, 323 A.2d 737 (1974), examined several decisions concerning judicial review of statutory arbitration of disputes arising under uninsured motorist clauses and adopted the following rule:

.....the courts will take jurisdiction only where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy, or unconscionable. Id., 227 Pa.Superior Ct. at 516, 323 A.2d at 741.

This Court, in companion cases, has recently held that an insured’s claim that “uninsured” motorists include “under-insured” motorists is an attack on the uninsured motorist provisions of a motor vehicle insurance contract for being “contrary to a constitutional, legislative, or administrative mandate.” White v. Concord Mut. Ins. Co., 296 Pa.Super. 171, 442 A.2d 713 (1982), aff'd. 500 Pa. 103, 454 A.2d 982 (1982); Davis v. Government Employees Ins. Co., 296 Pa.Super. 198, 442 A.2d 727 (1982), aff'd. 500 Pa. 84, 454 A.2d 973 (1982).

A second standard of statutory arbitration, or perhaps a rephrasing of the aforementioned statutory arbitration standard of review, is provided by the Pennsylvania Arbitration Act, Act of October 5, 1980, P.L. 693, NO. 142, § 501, 42 Pa.C.S.A. § 7301 et seq. Section 7302 of that Act provides, in pertinent part:

§ 7302. Scope of subchapter
(a) General rule. — An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Sub-chapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.
(d) Special application.—
(1) Paragraph (2) shall be applicable where:
(i) The Commonwealth government submits a controversy with an employee or a representative of employees to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter. (Emphasis added).
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this sub-chapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict. (Emphasis added).

The insurance contract in the instant matter provided for statutory arbitration to “follow the provisions of the Arbitration Act of the jurisdiction where the arbitration takes place.” Accordingly, the Pennsylvania Arbitration Act and its “contrary-to-law” standard of review is applicable. Where an award is issued due to the arbitrators’ misapplication of the law, said award must be vacated. Ragin v. Royal Globe Ins. Co., 315 Pa.Super. 179, 461 A.2d 856 (1983).

Owners of motor vehicles in Pennsylvania are required to insure their motor vehicles for the payment of basic loss benefits and the payment of sums in a minimum amount of $30,000.00, which the owner may be liable to pay due to bodily injury or death resulting from any one accident. A further minimum amount of $15,000.00 for the bodily injury or death of any one person is required also. 40 Pa.S.A. § 1009.104(a). It is undisputed that Stewart’s single-limit, fifty thousand dollar policy surpassed the minimum amount of coverage required by law.

A motorist who insures his motor vehicle in compliance with Pennsylvania law is not an uninsured motorist under 40 Pa.S.A. § 2000(a). This Court has refused to equate “uninsured” motorists with “underinsured” motorists; consequently, an insured is precluded from obtaining compensation from the uninsured motorist’s provisions of his insurance contract where the tortfeasor’s insurance coverage was insufficient to completely redress the injury. White v. Concord Mut. Ins. Co., supra; Ragin v. Royal Globe Ins. Co., supra.

Appellant’s failure to object to the submission of a dispute to the arbitration panel is not material. The Pennsylvania Supreme Court, in Runewicz v. Keystone Ins. Co., supra, applied the common law rules of arbitration due to the fact that the parties did not identify, either in a written agreement to arbitrate or in a subsequent oral agreement, whether common law or statutory arbitration controlled. In that case, common law arbitration applied and the scope of review was limited to the narrow standard defined in Harwitz v. Adams, supra. The insurance company in Runewicz v. Keystone Ins. Co., supra, proceeded to arbitration without objecting that the dispute was not in the proper forum; consequently, it was barred on appeal from arguing for the application of any standard of review other than the standard applicable to common law arbitration appeals. Here, the matter was brought before a statutory arbitration panel as set forth in the parties’ contract of insurance. Appellant’s failure to object to statutory arbitration does not automatically impose a common law arbitration standard of review. Such an interpretation would stretch Runewicz v. Keystone Ins. Co., supra, beyond its logical restraints. At most, appellant’s failure to object to statutory arbitration means only that he is bound by the statutory arbitration standard of review.

Order reversed.

      . The parties’ insurance contract provided for arbitration as follows: ARBITRATION—
      Disagreement over the legal right to recover damages or the amount of damages will be settled by arbitration.
      After written demand for arbitration by either party, each party will select an arbitrator. These two will select a third. If no selection is made within 30 days, either party can request the selection be made by a court having jurisdiction.
      Unless the parties agree otherwise, the arbitration will take place in the county and state where you live, and will follow the local rules of procedure and evidence. In all other respects, any arbitration will follow the provisions of the Arbitration Act of the jurisdiction where the arbitration takes place. If no Arbitration Act exists, the common law of arbitration in the jurisdiction will apply.


text:
    469 A.2d 1128
    Debora Jean CADY v. Bonnie Lou WEBER and Albert T. Weber, Appellants.
    Superior Court of Pennsylvania.
    Argued June 8, 1983.
    Filed Dec. 23, 1983.

      Robert F. Hawk, Assistant District Attorney, Butler, for appellants.
    Marilyn Horan-Reeder, Butler, for appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

This case is again before us following a remand for the filing of a more comprehensive opinion by the lower court. On October 20, 1983, the hearing judge filed an amended twelve-page opinion awarding custody of the two minor children, who are the subject of this appeal, to appellee. We now conclude that the decision of the lower court to return custody of the children to their natural mother was not error and we affirm.

Appellee initiated this action in order to obtain custody of her two children who had been living with her parents since July 6, 1978. On April 7, 1982, the hearing judge granted custody to appellee. However, appellants filed an appeal arguing that the opinion of the lower court lacked a sufficient analysis of the record to support a custody award. We agreed and directed the lower court to prepare a more comprehensive opinion citing specific reasons for its ultimate decision. Moreover, we recommended that the opinion include a “discussion of the character and fitness of the parties, their respective homes, and their abilities to provide for the children, both emotionally and financially.” Cady v. Weber, supra, 317 Pa.Superior Ct. at 489, 464 A.2d at 427.

The trial court’s amended opinion has provided us with the proper foundation to permit the exercise of our appellate function. The parties and their respective abilities to care for the children were discussed in detail. Appellee was characterized as a mature woman who was now capable of discharging her responsibilities as a wife and mother. She and her husband have established a home life suitable for the children and have the financial means to properly care for them. The social workers and psychologists who were involved in this case uniformly agreed that no reason existed which would prevent the children from being returned to their mother.

The trial judge weighed the above factors against the environment provided by appellants. Although deserving of credit for their devotion to and their care of the children to date, the grandparents could not be endorsed by the lower court for continuing as custodians. The grandmother suffered from physical problems, including a handicapped arm and pinched nerves in her neck, and her condition restricted her movement to a great extent. More importantly, the trial judge characterized the grandmother as manipulative in her efforts to retain custody of the children, and cited numerous instances where she attempted to establish her own fitness as custodian by unwarranted attacks upon appellee and her husband. The lower court viewed this attitude as inapposite to any custodial arrangement necessitating the cooperation of both parties.

On the contrary, the hearing judge was favorably impressed by the fact that appellee exhibited a mature awareness of her mother’s attachment to the children and an appreciation for the attention and love which the children received while in her care. This assessment of appellee was supported by the report of the Nevada State Welfare Division, which observed that the mother would provide a positive nurturing environment for these children.

The trial judge evaluated the demeanor and credibility of the witnesses, the ability of the parties to provide for the children, and the environments each party could offer. He also correctly considered the policy preferred by this Court of uniting siblings in one household whenever feasible. Commonwealth ex rel. Albright v. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); In Re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Finally, as seen above, the lower court opinion contained a thorough discussion of the evidence and stated the reasoning of the trial judge in returning the children to their natural mother. For the aforesaid reasons, the opinion provided us with adequate assurance that the vital facts of this case were carefully explored and weighed, thus enabling us to review this determination of custody. Ray v. Ray, 293 Pa.Super. 216, 438 A.2d 614 (1981); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981); Commonwealth in Interest of Roles, 282 Pa.Super. 360, 422 A.2d 1157 (1980).

Having done so, we are convinced that the conclusions of the lower court are based upon competent evidence and that the decision to award custody to appellee is mandated by the facts at bar. The best interests of the children warrant their return to their natural mother, who is fully capable of nurturing them and providing a loving home where they will be united with their half-siblings as one family.

Order affirmed.

SPAETH, J., concurs in the result.

      . See Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983), for a detailed discussion of the underlying facts.


text:
    December 2, 1983.
    469 A.2d 275
    Commonwealth v. Africa, Appellant.
    Submitted June 16, 1983.
    Frank Africa, appellant; in propria persona;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 275
    Commonwealth v. Africa, Appellant.
    Submitted June 16, 1983.
    Gail Africa, appellant, in propria persona;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 276
    Commonwealth v. Bowers a/k/a Bowens, Appellant.
    Submitted October 3, 1983.
    Joel P. Trigiani, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Order affirmed.


text:
    469 A.2d 276
    Commonwealth v. Brown, Appellant.
    Argued October 26, 1983.
    Raymond N. Bogarty, Assistant Public Defender, for appellant;
    Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 276
    Commonwealth v. Czarnecki, Appellant.
    Petition for Allowance of Appeal Denied May 2, 1984.
    Submitted September 22, 1983.
    Charles B. Coleman, Assistant Public Defender, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 276
    Commonwealth, Appellant v. Dupree.
    Argued September 29, 1983.
    Judith Earns Ciszek, Assistant District Attorney, for Commonwealth, appellant;
    Edward J. Bilik, Assistant Public Defender, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the learned Westmoreland County Common Pleas Court Judge Joseph A. Hudock is affirmed.


text:
    469 A.2d 277
    Commonwealth v. Fitzgerald, Appellant.
    Submitted October 3, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 277
    Commonwealth v. Greer, Appellant.
    Petition for Allowance of Appeal Denied April 3, 1984.
    Argued March 9, 1983.
    Daniel M. Bell, for appellant;
    Floyd Paul Jones, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Judgment of sentence of trial court and order of PCHA court are affirmed..


text:
    469 A.2d 277
    Commonwealth v. Little, Appellant.
    Petition for Allowance of Appeal Denied April 16, 1984.
    Submitted July 28, 1983.
    Daniel Paul Alva, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence for conspiracy vacated; judgment of sentence for attempted theft of automobile affirmed.


text:
    469 A.2d 278
    Commonwealth v. Phillips, Appellant.
    Petition for Allowance of Appeal Denied March 2, 1984.
    Argued October 26, 1983.
    Carl Michael Moses, for appellant;
    Samuel J. Orr, IV, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 278
    Commonwealth v. Presley, Appellant.
    October 3, 1983.
    Norris E. Gelman, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 278
    Commonwealth v. Reese, Appellant.
    Submitted May 20, 1983.
    Edward M. Kopanski, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed as to appellant’s robbery conviction; judgment of sentence vacated as to appellant’s terroristic threats conviction.


text:
    469 A.2d 279
    Commonwealth v. Rodriquez, Appellant.
    Submitted September 21, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 279
    Commonwealth v. Spikes a/k/a Biggins, Appellant.
    Submitted January 27, 1983.
    Susan Claire DeYoung, Assistant Public Defender, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 279
    Commonwealth v. Sullivan, Appellant.
    Submitted September 23, 1983.
    Daniel F. Wolfson, for appellant;
    Gary E. Hartman, District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 279
    Commonwealth ex rel. Bailey v. Bailey, Appellant.

      Submitted October 3, 1983.
    Edward D. Foy, Jr., for appellant;
    David Lake Shenkle; for appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Appeal dismissed as moot.


text:
    469 A.2d 280
    Brooks v. General Accident Group, Appellant.
    Petition for Allowance of Appeal Denied April 16, 1984.
    Argued October 20, 1983.
    Roger Joseph Harrington, for appellant;
    Alvin Frank DeLevie, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 280
    Estate of Shepherd. Appeal of Theresa J. Morabito, Exceptant.
    Argued June 17, 1983.
    Robert W. Costigan, for appellant;
    Gary Alan Rochestie, for appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   The decree of the learned Philadelphia County Common Pleas Court Judge Judith J. Jamison and Theodore S. Gutowicz is affirmed.


text:
    470 A.2d 644
    Huesken, Appellants, v. Gov. Employees, Ins. Co.
    Reargument Denied Feb. 9, 1984.
    Petition for Allowance of Appeal Denied June 7, 1984.
    Argued October 4, 1983.
    Sheldon Nerenberg, for appellants;
    Wayne A. Graver, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Appeal quashed.

WIEAND, J., filed a memorandum dissenting statement.


text:
    469 A.2d 280
    Jackson, Appellant v. State Farm Ins. Co.

      Submitted September 7, 1983.
    Allen L. Feingold, for appellant;
    Byron L. Milner, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    469 A.2d 281
    Lake Latonka Water, Appellant v. Morrison. Lake Latonka Water, Appellant v. Benes, et ux.
    Argued May 25, 1983.
    Gary L. Farren, for appellant;
    W. Dill, for appellees.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    469 A.2d 1144
    McDonnell, III, Appellant v. Harleysville Ins. Co.
    Reargument Denied Jan. 31, 1984.
    Petition for Allowance of Appeal Denied June 8, 1984.
    Argued September 21, 1983.
    James L. Womer, for appellant;
    William D. March, for appellee.

      Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order affirmed.


text:
    469 A.2d 281
    Sopin, Appellant v. Graff.
    Submitted September 22, 1983.
    Craig Sopin, appellant, in propria persona;
    Rudolph J. DiMassa, Jr., for appellees.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order affirmed.


text:
    469 A.2d 281
    Stephens, Appellant v. Prudential Ins. Co.
    Argued October 18, 1983.
    Arthur M. Rosenbaum, for appellant;
    Max Landon Spencer, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    December 9, 1983.
    469 A.2d 281
    Commonwealth v. Baez a/k/a Crespo, Appellant.
    Argued June 8, 1983.
    J. David Underman, for appellant;
    Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   Order affirmed.

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


text:
    469 A.2d 282
    Commonwealth v. Dixon, Appellant.
    Submitted October 27, 1983.
    Robert G. Kochems, Assistant Public Defender, for appellant;
    Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 282
    Commonwealth v. Fetters, Appellant.
    Submitted March 3, 1983.
    Daniel McGee, Public Defender, for appellant;
    Robert Allan Mix, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 282
    Commonwealth v. Muroski. Appeal of James Page.
    Submitted September 21, 1983.
    James Page, appellant, in propria persona;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order affirmed.


text:
    469 A.2d 283
    Commonwealth v. Terlesky, Appellant.

      Submitted October 3, 1983.
    James V. Pareri, for appellant;
    Elmer D. Christine, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 283
    Commonwealth v. Williams, Appellant.
    Submitted October 3, 1983.
    Marilyn J. Gelb, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Affirmed.


text:
    469 A.2d 283
    Flannagan, et ux. v. Cernuto, et al., Appellants.

      Argued June 8, 1983.
    George A. Conti, Jr.,-for appellants;
    Gregory T. Nichols, for appellees.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   Affirmed.


text:
    469 A.2d 283
    Henry, Appellants v. Allstate Ins. Co.
    Argued October 25, 1983.
    Anne N. John, for appellants;
    Damon Fadlowski, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    December 16, 1983.
    469 A.2d 284
    Benkert v. Barley Conv. Home North, Appellant.
    Argued November 1, 1983.
    Frank J. Goldenberg, for appellant;
    R. Elliot Katherman, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   Order and judgment affirmed.


text:
    469 A.2d 284
    Commonwealth v. Anderson, Appellant.
    Petition for Allowance of Appeal Denied May 29, 1984.
    Submitted October 7, 1983.
    Brian S. Quinn, for appellant;
    Dennis C. McAndrews, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 284
    Commonwealth v. Brown, Appellant.
    Submitted September 23, 1983.
    Paul Lichtenstein, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Order affirmed.

WIEAND, J., concurred in the result.


text:
    469 A.2d 285
    Commonwealth v. Chester, Appellant.
    Submitted September 13, 1983.
    Thomas W. Moore, for appellant;
    Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 285
    Commonwealth v. DeJesus, Appellant.
    Submitted September 20, 1983.
    Daniel H. Greene, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Judgment of sentence is affirmed.


text:
    469 A.2d 285
    Commonwealth v. DeLange, Appellant.

      Submitted September 13, 1983.
    Kalvin Kahn, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 285
    Commonwealth v. Dell, Appellant.
    Submitted September 23, 1983.
    Michael E. Bortner, Assistant Public Defender, for appellant;
    Douglas H. Gent, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 286
    Commonwealth v. Devlin, Appellant.
    Submitted October 3, 1983.
    Jimmie Moore, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence vacated for aggravated assault, and affirmed in all other respects.


text:
    469 A.2d 286
    Commonwealth v. Evans, Appellant.
    Submitted February 10, 1983.
    Nicholas Mark Panko, for appellant;
    Gailey C. Keller, District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 286
    Commonwealth v. Green, Appellant.
    Petition for Allowance of Appeal Denied April 3, 1984.
    Submitted June 16, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 287
    Commonwealth v. Hoinville, Appellant.
    Submitted September 9, 1983.
    Suzanne B. Ercole, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed in part and remanded with directions to the lower court to make the necessary corrections upon the docket and the bills of information. Jurisdiction is not retained.


text:
    469 A.2d 287
    Commonwealth v. Ice, Appellant.
    Submitted September 23, 1983.
    Allen E. Hench, for appellant;
    R. Scott Cramer, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Judgment of sentence vacated, and case remanded for resentencing in accordance with the requirements of Pa.R. Crim.P. 1405(b).

CIRILLO, J., filed a memorandum dissenting opinion.


text:
    469 A.2d 287
    Commonwealth v. Jamison, Appellant.
    Submitted November 8, 1983.
    Robert G. Yeatts, Assistant Public Defender, for appellant;
    Samuel J. Orr, IV, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.'


text:
    469 A.2d 288
    Commonwealth v. Kimmell, Jr., Appellant.
    Submitted November 8, 1983.
    Daniel Lée Webster, Assistant Public Defender, for appellant;
    Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Affirmed.


text:
    469 A.2d 288
    Commonwealth v. Lantzy, Appellant.
    Petition for Allowance of Appeal Denied May 25, 1984.
    December 1, 1983.
    Morton Jay Earley, for appellant;
    Gregory Allen Olson, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence is affirmed.


text:
    469 A.2d 288
    Commonwealth v. Luther, Appellant.
    Submitted December 1, 1983.
    Kevin Lee Sanders, for appellant;
    Gerald Long, District Attorney, for Commonwealth, appellee.

      Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence is vacated and this case is remanded to the trial court for resentencing.


text:
    469 A.2d 288
    Commonwealth v. McIntosh, Appellant.
    October 7, 1983.
    Robert F. Pappano, Assistant Public Defender, for appellant;
    Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 289
    Commonwealth v. Novitski, Appellant.
    September 21, 1983.
    Patrick J. Flannery, Assistant Public Defender, for appellant;
    Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Jurisdiction of the Superior Court is relinquished, and the lower court judgment is affirmed.


text:
    469 A.2d 289
    Commonwealth v. Orazio, Appellant.
    Submitted June 9, 1983.
    John Allen Roth, for appellant;
    Margaret E. Picking, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   Case remanded. Jurisdiction is retained.


text:
    469 A.2d 289
    Commonwealth v. Patton, Appellant.
    Argued September 15, 1983.
    William G. Brown, Assistant Public Defender, for appellant;
    F. Ned Hand, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 289
    Commonwealth v. Scales, Appellant.

      Submitted September 23, 1983.
    Judith A. Calkin, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    469 A.2d 290
    Commonwealth, Appellant v. Shaw.
    Submitted March 30, 1983.
    John M. Dawson, Assistant District Attorney, for Commonwealth, appellant;
    Philip S. Friedman, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Affirmed.

CAVANAUGH, J., concurred in the result.


text:
    469 A.2d 290
    Commonwealth v. Stone, Appellant.
    Argued October 26, 1983.

      James A. Stranahan, IV, for appellant;
    Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 290
    Commonwealth v. Szumski, Appellant.
    Submitted September 9, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 291
    Commonwealth v. Thomas, Appellant.
    Submitted October 7, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    469 A.2d 291
    Commonwealth v. Wenrick, Appellant.
    Submitted October 7, 1983.
    Daniel McGee, Public Defender, for appellant;
    Robert Allan Mix, District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 291
    Commonwealth v. Williams, Appellant.
    Petition for Allowance of Appeal Denied March 26, 1984.
    Submitted June 9, 1983.
    John H. Corbett, Jr., Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   Affirmed.


author: Affirmed.

text:
    469 A.2d 291
    Commonwealth ex rel. Kane v. Kane, Appellant.
    Submitted September 9, 1983.
    S. Seifert, for appellant;
    James M. McNamara, Jr., for appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    471 A.2d 111
    DuFresne, Appellant, v. State Farm Ins. Co.
    Reargument Denied Feb. 28, 1984.
    Petition for Allowance of Appeal Denied Sept. 5, 1984.
    Argued April 21, 1983.
    Allen L. Feingold, for appellant;
    Frederick Smith, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    469 A.2d 292
    Hedgepeth v. Ross, Appellant.
    Petition for Allowance of Appeal Denied May 2, 1984.
    Argued October 18, 1982.
    David H. Kubert, for appellant;
    Josephine A. Nelson, for appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    469 A.2d 292
    Leinweber, M.D., Appellant v. Gutnick, M.D.
    Argued October 19, 1983.
    Chester S. Tintenfass, for appellant;
    Alan Gershenson, for appellee.
    Before McEWEN, BECK and MONTEMURO, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Stanley M. Greenberg is affirmed.


text:
    469 A.2d 292
    McFeaters, et ux. v. Farchild, Inc., et al., Appellant.

      Argued October 26, 1983.
    William C. Passodelis, for appellant;
    Leonard Fornella, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   The judgment of the lower court is hereby affirmed.


text:
    469 A.2d 293
    Neubert v. E.F. MacDonald Travel Co. et al. Appeal of Abercrombie & Kent International Inc. and Abercrombie & Kent, Ltd.
    Argued December 7, 1982.
    Adrian J. Gordon, for appellants;
    Jeffrey M. Stopford, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    469 A.2d 293
    Richards, Appellants v. Rhoads.

      Argued October 19, 1983.
    John S. Halsted, for appellants;
    John Brian Frock, for appellees.
    Before McEWEN, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    469 A.2d 293
    Yohe, Appellant v. Yohe.
    Submitted September 23, 1983.
    H. Stanley Rebert, for appellant;
    Glenn C. Vaughn, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Order affirmed.

WIEAND, J., filed a memorandum dissenting statement.


text:
    December 23, 1983.
    469 A. 2d 293
    Beam, Appellant v. Kelly.
    Submitted October 14, 1983.
    Christopher F. Sheridan, for appellant;
    Dennis John Stofko, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the Court of Common Pleas of Cambria County is reversed and the case remanded for further proceedings.