author: BECK, Judge:

text:
    436 A.2d 220
    COMMONWEALTH of Pennsylvania v. Misael CRUZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1981.
    Filed Oct. 23, 1981.

      Stanley M. Vasiliadis, Assistant Public Defender, Bethlehem, for appellant.
    Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and McEWEN, JJ.
   BECK, Judge:

Appellant pleaded guilty, on a negotiated plea, to Aggravated Assault, 18 Pa.C.S. § 2702(a)(1). The charges arose out of an incident in which appellant entered a restaurant carrying a wooden shovel handle and struck at and hit the victim, causing him contusions on the forearm. Appellant claimed that the victim had threatened him. He claimed, therefore, that he attacked the victim as a preemptive strike, solely out of fear of the victim and his friends.

Appellant was sentenced, on October 10, 1980, to serve a minimum of one and a maximum of three years in a state correctional institution. An Application for Reconsideration of Sentence was denied, and this appeal followed.

Appellant does not challenge the validity of his guilty plea, and appeals solely on the basis of his claim that the sentence is excessive and was not imposed in accordance with the statutory requirements. Appellant asserts that the sentencing judge failed to follow the directive of 42 Pa.C.S. § 9722 directing that weight be accorded certain factors in favor of probation.

The Sentencing Code, 42 Pa.C.S. § 9701 et seq. and Chapter 1400 of the Pennsylvania Rules of Criminal Procedure control the procedure by which sentences are imposed. Within those confines, it is recognized that the sentencing judge has broad sentencing discretion. Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980) and cases cited therein. If the statutory mandates enacted to assure considered and informed sentencing have been followed, this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). If the sentencing judge did not follow the Sentencing Code, then this court may not guess the result if the obligatory procedures had been followed, and must remand for resentencing. Commonwealth v. Butch, 487 Pa. 30, 307 A.2d 1302 (1979); Commonwealth v. Bryner, 285 Pa.Super. 305, 427 A.2d 236 (1981).

In the instant case, the sentencing court had before it a comprehensive pre-sentence report and was informed as to circumstances surrounding the crime, the physical and mental condition of the defendant, defendant’s showing of a lack of any prior criminal record, and defendant’s conduct during the pre-trial period of incarceration. Nonetheless, the only statement made by the sentencing judge as to the basis for sentence was:

“The reasons for the sentence that I have just imposed are that a lesser sentence would unduly depreciate the seriousness of the offense with which the defendant is charged. Secondly, his conduct . . . was of a threatening and violent nature directed at another person.”

Under 42 Pa.C.S. § 9721(b) and Pa.R.Crim.P. 1405(b), the sentencing judge is required to “disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” This requirement was enacted following, and in accordance with, the decisions in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977) and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). The sentencing judge is required to make public “the thought process by which he arrives at a particular sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 895 (1980). The judge’s thought process should demonstrate that the court reflected upon the standards established in the Sentencing Code. His recording of this thought process acts as a safeguard against arbitrary decisions and prevents consideration of improper and irrelevant factors.

The statement by the sentencing judge in the instant case either fails to inform as to the weight accorded factors individual to the defendant as required by 42 Pa.C.S. § 9721(b) or demonstrates that the only factor given any weight by the sentencing court was the nature of the crime. As has been repeatedly held in this Commonwealth, all of the factors set forth in the Sentencing Code must be given due consideration, and a statement of the consideration given to factors individual to the circumstances of the crime and of the defendant must be made in open court.

Sentence was not imposed upon appellant in accordance with the mandates of the Sentencing Code and of Chapter 1400 of the Pennsylvania Rules of Criminal Procedure. We therefore vacate the judgment of sentence and remand to the lower court for resentencing in accordance with the dictates of the applicable statutes, to be demonstrated by a statement in open court as to the reasons for sentence imposed.

      . Appellant speaks only Spanish, and the statements quoted as his were made through an interpreter.

      . “In the Sentencing Code, the Legislature established standards for a court to observe when imposing sentence. Section [9722] ‘while not controlling the discretion of the court,’ lists twelve grounds which ‘shall be accorded weight in favor of an order of probation Section [9725] directs the court to consider ‘the nature and circumstances of the crime and the history, character, and condition of the defendant...’ before imposing total confinement.” Commonwealth v. Butch, supra, 487 Pa. at 32, 307 A.2d 1302. The mere presence in the record of information relating to each of these factors is insufficient to meet the statutory requirement that the sentencing court articulate the reasons for the sentence imposed. See Commonwealth v. Wicks, 265 Pa.Super. 305, 313, 401 A.2d 1223 (1979).

      . As in Commonwealth v. Bryner, supra, 285 Pa.Super. 309, 427 A.2d at 238, “given the paucity of facts in the instant case, we cannot effectively treat appellant’s claim that the sentences were excessive.” To do so would require this court “to guess at the lower court’s reasons for the sentence, and we must not substitute our thought processes for what might have been the thought processes of the lower court.” Commonwealth v. Wicks, supra, 265 Pa.Super. at 314, 401 A.2d 1.223.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    436 A.2d 223
    Janet Anne KLEINTOP v. Clifford T. KLEINTOP and Diane Kleintop, Appellants.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 23, 1981.

      William E. McDonald, Lansford, for appellants.
    Michael Prokup, Allentown, for appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is a direct appeal from an Order entered in a declaratory judgment action creating an equitable lien in favor of appellee against certain residential real estate owned by appellants. Appellants do not quarrel with the finding of an equitable lien, but do here assert that the lower court abused its discretion in interpreting a contract dealing with the disposition of the proceeds of the realty once “sold”, by declaring that the lien becomes “due and payable when any transfer is made of the property.” We agree and, therefore, modify the Order entered by the lower court.

The undisputed facts are these: Appellee, Janet Anne Kleintop, and appellant, Clifford T. Kleintop, were husband and wife but were divorced prior to the commencement of the instant action. Clifford T. Kleintop and appellee were the owners, as tenants by the entireties, of certain real estate located at R.D. # 1, Northampton, Northampton County, Pennsylvania. After the real estate was purchased, Clifford and appellee entered into a “Separation and Property Settlement Agreement” (Agreement) dated December 17, 1973. The Agreement was recorded in the Office of the Recorder of Deeds in and for the County of Northampton in Miscellaneous Book Vol. 250, at page 256, on March 31, 1976. The Agreement sets forth, in paragraph No. 10, that:

“10. Wife agrees to convey her interest in the jointly owned real estate located at R.D. # 1, Northampton, Northampton County, Pennsylvania, to Husband for the sum of Eight Thousand ($8,000.00) Dollars. In the event husband sells said real estate, he agrees to give his wife fifty (50%) percent of the net proceeds of said sale in excess of Twenty Thousand ($20,000.00) Dollars after deducting the cost of settlement.” (Lower Court Opinion at 1)

The parties were ultimately divorced; thereafter, Clifford titled the real estate in his name and that of Diane Kleintop, his present wife and the other appellant in this action. The appellants have resided at and continue to occupy the premises in question.

Appellee, concerned that appellants might attempt to sell the property and remove themselves from this jurisdiction without paying her the sum called for in the Agreement, filed a “PETITION FOR JUDGMENT INVOLVING A LIEN AGAINST REAL ESTATE.” Therein, appellee contended that her interest, as delineated in the Agreement, “constitute[d] a valid and enforceable lien against the said real estate.” (RR 4a) After a hearing on the merits of appellee’s petition, the Honorable Richard D. Grifo issued an Order on May 23,1980, holding that an equitable lien existed against the property in question in favor of appellee, based upon his interpretation of paragraph No. 10 of the Agreement. Also, from the date of the recording of the Agreement, the lien became immediately due and payable upon the appellants’ transfer, directly or indirectly, voluntarily or involuntarily, of their interest in the real estate.

Both the lower court and appellants agree that paragraph No. 10 of the Agreement is clearly and unambiguously stated. Indeed, the court’s Opinion states that: “In accordance with that provision, [i. e., paragraph No. 10,] the Petitioner [appellee] has a lien against one-half of the net proceeds in excess of $20,000.00, minus the cost of settlement, in the event that the property should be sold.” (Lower Court Opinion at 2-3)

With the foregoing judicial determination appellants do not disagree. However, they do take issue with that portion of the court’s Decree ordering that the lien “shall become immediately due and payable when the respondents [‘appellants’] transfer, directly or indirectly, voluntarily or involuntarily, their interest in the said real estate.’’ (Emphasis added) (Lower Court Opinion at 4) Such language, appellants urge, unduly expands the circumstances under which the obligation to pay the appellee is triggered, if aligned against the terms utilized in paragraph No. 10 of the Agreement; additionally, it inhibits a conveyance of the realty, for instance, as a gift or even a devise to beloved children. Furthermore, appellants posit, the lower court’s interpretation of the word “sell” to embrace any transfer inflates the meaning of the term, which, in effect, constitutes a rewriting of the Agreement in contravention of the clear intent of the parties, as embodied in the unambiguous verbiage of the contract. See New Charter Coal Co. v. McKee, 411 Pa. 307, 312, 191 A.2d 830, 833 (1963) (“Absent some legally recognized infringement of the law of contract by one party, the law will not reform a written contract so as to make a contract for the parties that they did not make be[t]ween themselves. . . .”); Harnish v. Shannnon, 392 Pa. 419, 141 A.2d 347, 351 (1958) (“It has been said that parties sui juris bind themselves by their lawful contracts, and courts cannot alter them because they work a hardship.... The court will not under the guise of interpretation write a new contract for the parties.” [Citations Omitted]). Appellants thus argue essentially that no liability should attach to them in favor of the appellee, nor should the equitable lien attach, in the event that title to the property passes without consideration.

In determining the validity of appellants’ averments, we are guided by principles of law which are well settled and beyond dispute. For example, a property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally. 18 P.L.E. Husband and Wives § 21, at p. 47. Next, when construing an agreement involving clear and unambiguous terms, a court need only examine the writing itself to give effect to the understanding. In re Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977). Finally, a court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Dept. of Transportation v. Acchioni & Canuso, Inc., 14 Pa.Cmwlth. 596, 324 A.2d 828 (1974).

It is interesting to note that both the lower court’s opinion and appellants’ brief cite the very same cases, although obviously reaching different conclusions. Appellee has cited but one case in its brief. None of them is dispositive of the issue before us. Our research, however, has uncovered the case of Herskovitz v. Vespico, 238 Pa.Super. 529, 362 A.2d 394 (1976), which we deem to be instructive. In Herskovitz, the seller sold certain realty to some buyers for a consideration of $30,000.00. The sales agreement included a proviso that in the event the buyers resold the property within five years for a sum in excess of $35,000.00, “the Buyers agree[d] to divide and share equally with the Seller the sum realized in excess of Thirty Five Thousand Dollars ($35,000.00), after deduction of all real estate transfer taxes incurred by the Buyer.” 238 Pa.Super. at 531, 362 A.2d at 395. Subsequently, a public redevelopment authority acquired the property by way of eminent domain proceedings. The buyers received $64,000.00 from the authority but refused to share the monies as contemplated under the initial sales agreement. Thus, in Herskovitz we were confronted with the issue of whether acquisition of the Buyers’ property by eminent domain proceedings constituted a “sale” under the agreement. After reviewing the applicable case law, and the definitive elements of a sale, i. e., that it “comprehends (1) a transfer from one party to another and (2) a valuable recompense[,]” id., 238 Pa.Super. at 533, 362 A.2d at 396, quoting John Whiteman & Co. v. Fidei, 176 Pa.Super. 142, 145, 106 A.2d 644, 645-646 (1954), we held that “the sale of the property ... to the Redevelopment Authority . . . was a ‘sale’ within the meaning of the contract. . . . ” Id., 238 Pa.Super. at 534, 362 A.2d at 397. Consequently, under Herskovitz and Whiteman, the absence of either a “transfer” or “valuable recompense” from any transaction renders it something other than a “sale.”

Applying the aforementioned definition to the case at bar, we conclude that the lower court, in omitting the term “sale” (or an essential element thereof, i. e., the “valuable recompense”) from its Order impermissibly broadened the established definition of the word by extending it to include any transfer of property. Herskovitz, supra; Whiteman, supra. Therefore, consistent with our power to affirm, modify, vacate, set aside or reverse any order brought before us for review, without returning the record for amendment or modification to the court below, 42 Pa.C.S.A. § 706 (Purdon’s 1981), we enter here an Order modifying the Decree of the court below, viz.:

AND NOW, to-wit, this 23rd day of October, 1981, it is hereby ADJUDGED and DECREED that

An equitable lien exists in favor of Janet Anne Kleintop, based upon the provisions of paragraph No. 10 of the property settlement agreement entered into between herself and Clifford T. Kleintop, from the date of the recording of the Agreement, which shall become immediately due and payable when Clifford T. Kleintop and Diane Klientop sell their interest in the real estate located at R.D. # 1, Northampton, Northampton County, Pennsylvania.

Order of the lower court modified, as set forth in the instant Opinion.

      . The action was brought under the provisions of the Declaratory Judgments Act of July 9, 1976, P.L. 586, No. 142, § 2, which became effective June 27, 1978. 42 Pa.C.S.A. § 7531 et seq. (Pamphlet, 1981). The question of availability of the action must be determined on appeal, see Greenberg v. Blumberg, 416 Pa. 226, 206 A.2d 16 (1965); Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1963), and we find, in accordance therewith, that the declaratory judgment adjudicating the rights of the parties is a final judgment from which an appeal lies. See Petition of Baily, 365 Pa. 613, 76 A.2d 645 (1950); 9 Standard Pennsylvania Practice § 96 (1962).

      . Under the Declaratory Judgments Act, “[a] contract may be construed either before or after there has been a breach thereof.” 42 Pa.C.S.A § 7534 (Pamphlet, 1981); see also 42 Pa.C.S.A. § 7536.

      . 42 Pa.C.S.A. § 7540 (Pamphlet, 1981) (“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration.... ”); 6A Standard Pennsylvania Practice § 123 (1962).

      . As averred in the appellee’s Petition to the lower court, such apprehension was predicated upon appellants’ informing her that they were intent on moving out of Pennsylvania, selling the property and, if appellee “did not agree to accept a lesser sum than called for in the ... Agreement....”, (RR 4a), to “lease” the real estate. Moreover, appellee was not certain as to the status of her interest in the realty, inasmuch as she claimed, in her Petition, that the appellants had led her “to believe .. . that [she] had[d only] a claim against proceeds and not a lien against the real estate.” Id. Thus, due to the controversy existing between the parties as to the correct interpretation of the Agreement, it was appropriate for the lower court to take jurisdiction of the matter and construe the respective rights of the parties, as manifested in the Agreement. See supra notes 1 and 2.


author: HOFFMAN, Judge:

text:
    436 A.2d 226
    COMMONWEALTH of Pennsylvania v. Amaryllis C. BLAIKLOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed Oct. 23, 1981.

      James F. Crotty, Glenside, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

      Before PRICE, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying her petition to expunge her criminal arrest records concerning an alleged instance of retail theft. For the reasons which follow, we conclude that the lower court abused its discretion in denying appellant’s petition and, accordingly, reverse the order of the court below and direct that the records be expunged.

On January 15, 1979, appellant was charged with the summary offense of retail theft, 18 Pa.C.S.A. § 3929, arising from an incident which had occurred earlier that day in the Bonwit Teller department store in Jenkintown. Appellant was found guilty of that charge following a trial before a magistrate on February 21, 1979. Appellant then appealed to the Court of Common Pleas pursuant to Pa.R.Crim.P. 67. Because a crucial Commonwealth witness failed to appear at appellant’s trial de novo, the Commonwealth was unable to prove its case against appellant. Consequently, the lower court found appellant not guilty of the charge. Appellant subsequently filed the present petition, alleging that her records concerning the retail theft should be expunged because their retention was unjustified due to her acquittal and that their retention would expose her to unwarranted humiliation and harassment. Following a hearing, the lower court denied her petition, reasoning that “[njeither [appellant’s] acquittal nor the record of the expunction hearing satisfied [it] of [her] innocence of the charge.” Opinion of the Lower Court at 4-5. This appeal followed.

Appellant contends that the records of her arrest for the retail theft should have been expunged because she had been found not guilty of the summary charge following a trial de novo in the Court of Common Pleas. We agree. It is now well settled in this Commonwealth that the right to seek expungement of criminal arrest records is an adjunct to substantive due process. Commonwealth v. Wexler, 494 Pa. 325, 330, 431 A.2d 877, 879 (1981); Commonwealth v. Briley, 278 Pa.Super. 363, 365, 420 A.2d 582, 584 (1980); Commonwealth v. Bailey, 278 Pa.Super. 51, 53, 419 A.2d 1351, 1352 (1980); Commonwealth v. Malone, 244 Pa.Super. 62, 67-70, 366 A.2d 584, 587-88 (1976). “[I]n acting on expunction petitions the court must engage in a balancing process, weighing the individual’s due process interest in being free from the stigma of an arrest record against the state’s interest in maintaining accurate records relating to persons suspected of criminal activity.” Commonwealth v. Welford, 279 Pa.Super. 300, 303, 420 A.2d 1344, 1345 (1980), citing Commonwealth v. Briley, supra, 278 Pa.Super. at 365-69, 420 A.2d at 584-85. See also Commonwealth v. Wexler, supra, 494 Pa. at 329, 431 A.2d at 879. In striking that balance, a court should consider a variety of factors, “includpng] the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.” Id., 494 Pa. at 330, 431 A.2d at 879, quoting Commonwealth v. Iacino, 270 Pa.Super. 350, 358, 411 A.2d 754, 759 (1979) (SPAETH, J., concurring). Moreover, “if the Commonwealth does not bear its burden of proof [of the petitioner’s guilt] beyond a reasonable doubt ..., or admits that it is unable to bear its burden of proof . . ., the Commonwealth must bear the burden of justifying [by compelling evidence] why the arrest record should not be expunged.” Commonwealth v. Wexler, supra, 494 Pa. at 331, 431 A.2d at 880 (emphasis in original). See also Commonwealth v. Briley, supra, 278 Pa.Super. at 368, 420 A.2d at 585; Commonwealth v. Rose, 263 Pa.Super. 349, 352, 397 A.2d 1243, 1244 (1979); Wert v. Jennings, 249 Pa.Super. 467, 472, 378 A.2d 390, 393 (1977), aff’d mem., 488 Pa. 124, 411 A.2d 218 (1980); Ober, Expungement of Crimi nal Arrest Records: The State of the Law in Pennsylvania, 83 Dick.L.Rev. 425, 433 (1978). In Rose, this Court ruled that the Commonwealth’s bare assertion of its interest in gathering and maintaining arrest records for retail theft was not such “compelling evidence in favor of retaining appellant’s arrest record [as to] outweigh[ ] appellant’s interest in being free from the unfortunate consequences which result from having an arrest record.” 263 Pa.Super. at 352, 397 A.2d at 1244. See also Commonwealth v. Wexler, supra, 494 Pa. at 332, 431 A.2d at 880-81 (When there has been no analysis of the particular case, nor special facts cited, “[t]he mere assertion of a general interest in maintaining accurate records of those accused of crime is not convincing.”). Here, as in Rose, the petitioner had been acquitted of the summary offense of retail theft and the record adequately demonstrated the untoward consequences which would otherwise flow from the perpetuation of her arrest record for the retail theft. Additionally, as in Wexler, there was no analysis of appellant’s particular case nor any special facts cited by the Commonwealth to justify retention of her records. Consequently, we conclude that the lower court abused its discretion in denying appellant’s petition.

The order of the lower court is reversed and the records of appellant’s arrest for retail theft are hereby ordered expunged.

PRICE, J., did not participate in the consideration or decision of this case.

       Because the Court of Common Pleas in fact acquitted appellant at her trial de novo, this case is not governed by those cases which have imposed upon a petitioner seeking expungement the burden of establishing his non-culpability. Compare Commonwealth v. Briley, supra, 278 Pa.Super. at 369-71, 420 A.2d at 585-86, with Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979) (plurality opinion) (prosecution terminated on suppression issue); and with Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978) (violation of Pa.R.Crim.P. 1100). We express no view on the continued vitality of Mueller and Iacino in light of the decision of our Supreme Court in Wexler.


author: VAN der VOORT, Judge:

text:
    436 A.2d 228
    COMMONWEALTH of Pennsylvania v. John Guy CARELLI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 10, 1980.
    Filed Oct. 23, 1981.

      Leonard I. Sharon, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from an Order of the Court below denying a motion to dismiss an information which charges the appellant with recklessly endangering another person and with several traffic violations. Dismissal is sought on the ground that appellant is being placed in double jeopardy because he had previously pleaded guilty before a District Justice and paid fines for traffic violations occurring in another municipality but arising out of the same episode. The motion was denied and we affirm that ruling.

The episode began on November 13,1978 in North Fayette Township, Allegheny County. The appellant was stopped by Jeffrey Falconer, a North Fayette Township policeman because he was travelling 45 miles an hour in a 35 mile an hour speed zone. The officer obtained appellant’s driver’s license, returned to his own car, and radioed headquarters for information on appellant. He was advised that South Fayette Township police had an arrest warrant out for appellant, and that the vehicle he was driving was suspected to be a stolen car. On the basis of this information, Officer Falconer asked appellant for his registration card and requested that he get out of his vehicle. Instead, appellant closed the truck window and took off at a high speed toward adjoining Robinson Township, Officer Falconer in pursuit. During the chase, appellant was driving at speeds in excess of 85 miles an hour. Officer Falconer dropped his pursuit at the township border, but radioed Robinson Township police to pick up the chase. Robinson Township police succeeded in apprehending appellant near the Thornburg Bridge in that township.

The Robinson Township police filed charges that same evening, charging appellant with three traffic violations, speeding, running a stop sign, and eluding a police officer, and with the criminal misdemeanor of recklessly endangering two Robinson Township police officers by attempting to force their car off the road. A preliminary arraignment on these charges was held on November 14, 1978, in Night Court in Pittsburgh, at which time appellant was released on bond. A preliminary hearing on these charges was held on November 28, 1978, at which time the charges were all held over for Court, appellant’s bond was continued, and the trial was listed for March 1, 1979. On February 27, 1979, the Commonwealth was granted a postponement and trial was set for April 30, 1979.

On November 16, 1978, three days after the episode and the filing of the Robinson Township charges, Officer Falconer of North Fayette Township, where the chase originated, issued traffic citations for speeding, for illegal passes on the crest of a hill and at a crowded intersection, and for fleeing and eluding the police in North Fayette Township. These citations were sent to appellant through the mail, but were ignored by him until a warrant for his arrest was issued on April 26, 1979.

By a curious coincidence, on April 26, 1979, the same day that the arrest warrant was issued on the North Fayette traffic violations, appellant’s counsel petitioned the Court below to postpone his trial on the Robinson Township charges. The motion was granted and trial was postponed from the previously scheduled date of April 30, to June 18, 1979.

Thereafter appellant’s moves followed a predictable pattern. On May 16, 1979, he appeared before the District Justice for North Fayette Township, pleaded guilty to the charges on his North Fayette traffic citations, and paid the mandated fines.

On June 11, 1979, he filed a motion in the Court below to dismiss the Robinson Township charges on the contention that the North Fayette Township traffic citations to which he had pleaded guilty arose out of the same criminal episode as the actions covered by the Robinson Township charges, thereby placing him in double jeopardy. A hearing on this motion to dismiss was held by the Court below on August 8, 1979, and the motion was denied the same day. This appeal followed.

We start with the recognition of the general rule that a prosecutor must bring in a single proceeding all known charges against a defendant arising from a single episode. This was the principle propounded in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), addendum opinion, 455 Pa. 622, 314 A.2d 854 (1974), and codified two months after the original Campana decision in the Crimes Code, 18 Pa.C.S. § 110. The Supreme Court has ruled that the result reached in Campana is entirely in harmony with Section 110 of our Crimes Code. Campana, addendum opinion, 455 Pa. at 626, 314 A.2d 854. We have previously concluded that the Campana decisions are fully articulated in § 110 of the Crimes Code. Commonwealth v. Erisman, 247 Pa.Super. 476, 477-8, 372 A.2d 925 (1977); Commonwealth v. Green, 232 Pa.Super. 134, 139, 335 A.2d 493, 495 (1975) .

Section 110 states in pertinent portion:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction . . . and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court....

The rationale for the law is two-fold, to protect a criminal defendant from harassment and to conserve Court time. Campana I, supra, 452 Pa. 233, 251-2, 304 A.2d 432, 440; Commonwealth v. Tarver, 467 Pa. 401, 408, 356 A.2d 539 (1976) ; Commonwealth v. Green, supra, 232 Pa.Super. 134, 142, 335 A.2d 493, 496.

The doctrine of double jeopardy was not intended to be applicable to situations where there is a legitimate reason for a separate disposition of multiple charges. Tarver, supra, 467 Pa. 401, 408, 356 A.2d 539. As stated in Campana I, supra, 452 Pa. 233, 250, n. 37, 304 A.2d 432, 440, the rule is “subject to common sense exceptions”.

The appellant has so plainly waived any right he may have had to invoke the .defense of double jeopardy that we do not need to decide whether the chase from North Fayette Township to the Thornburg Bridge was “the same criminal episode”, or whether the statute has any application to the Robinson Township charges pending in the Court below, inasmuch as they represent the initial prosecution instead of the “subsequent prosecution” to which the statute is directed. Erisman, supra, 247 Pa.Super. 476, 372 A.2d 925. See Commonwealth v. Fries, 284 Pa.Super. 421, 426 A.2d 119 (1981).

The appellant twice waived any right to claim double jeopardy. The first waiver was on April 26, 1979, when his counsel appeared before the Court below and obtained a postponement of the trial on the Robinson Township charges from April 30 to June 18, 1979. Curiously enough, this court appearance was on the same day that an arrest warrant was issued for the appellant on the North Fayette summary traffic citations, presumably because of his failure to respond to the summons issued to him five months earlier.

When the appellant appeared before the Court below on April 26 to have the trial on the Robinson Township charges deferred, he knew that the North Fayette traffic citations were outstanding. He could have moved at that time to have had these summary charges consolidated with the action in the Court below on the more serious misdemeanor offense. Pa.R.Cr.P. 101, Comment (1981). He preferred to make certain that the Robinson Township charges would not be reached for trial until he had paid his traffic fines, thereby using these relatively minor charges as a foil to shield him from having to stand trial on the more serious charge of having endangered two Robinson Township police officers.

The appellant’s second waiver of any claim to double jeopardy took place on May 16, 1979, when he appeared before the District Justice having jurisdiction over the North Fayette traffic citations, pleaded guilty, and paid the fine imposed. Instead of pleading guilty, he could have moved to have these charges consolidated with the Robinson Township charges then scheduled to be tried a month later in the Court below. He preferred to remain silent, plead guilty, and pave the way for his next move.

When appellant moved on June 11, 1979 to have the Robinson Township information dismissed on the basis of double jeopardy, he was dealing with a situation of his own creation. It was his own maneuvering with the trial calendar of the Court below that made this case subsequent to his earlier guilty plea on traffic charges before the District Justice.

We cannot permit games to be played with our criminal law in this fashion. The Supreme Court has held that the principle of waiver is applicable to a claim of double jeopardy. Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1018 (1978). We have found the defense of double jeopardy to have been waived in several situations no more obvious than the one before us: Commonwealth v. Stewart, 257 Pa.Super. 334, 343-5, 390 A.2d 1264, 1269 (1978); Erisman, supra, 247 Pa.Super. 476, 481-2, 372 A.2d 925, 928 (concurring opinion); Green, supra, 232 Pa.Super. 134, 142-5, 335 A.2d 493, 497.

We said in Green
“It is apparent that a defendant who is aware of the charges against him can thus waive his statutory right to have them all brought in a single prosecution. If he himself requests separate trials and obtains a court order to that effect, or if he knowingly acquiesces in what appears to be an advantageous separation, he cannot later raise an objection claiming the statutory protection from multiple trials. The intent of the statute to avoid magnifying an incident of criminal behavior out of proportion, both in terms of hardship to the individual and prejudice to his case, is not lost when an informed defendant chooses of his own to go the route of multiple trials.” (232 Pa.Super. 142-3, 335 A.2d 493).
“In effect, defendant [here] asked for serialized prosecutions in order to gain immunity from the remaining charge. This is not according to the intent of the statute; it was intended to protect an accused, not to allow him a procedural tool for the entrapment of a cooperative judiciary.” (232 Pa.Super. 143, 335 A.2d 493).
“Perhaps counsel saw in the extra trial some advantage for his client, an extra opportunity to be heard and maybe find a more sympathetic forum. Perhaps he merely foresaw an opportunity to gain immunity from the remaining charges by encouraging the separation. In any event, by misleading the hearing judge and the Commonwealth with his silence, and by giving the appearance of consent to the arrangement, the appellee has waived his right to claim harassment by multiple prosecutions. There can be no unjust contravention of the statute intended to protect the accused when a defendant is denied its use as a shield against a prosecution which he himself invited by his own designs.” (232 Pa.Super. 145, 335 A.2d 493).

The same view point was expressed in Erisman, supra, 247 Pa.Super. 481-2, 372 A.2d 925, where it was stated in a concurring opinion:

“So long as two prosecutions are pending concurrently, and neither has gone beyond the stage at which joinder would be inappropriate or impermissible, the accused has an adequate remedy for his problem in seeking joinder of the offenses. If the accused does not request that the offenses be joined, it is fair to conclude that he has waived a claim that Section 110 of the Crimes Code has been violated. On the other hand, it is unfair to dismiss charges for serious offenses on the basis of presumed protections which the accused has not lifted a finger to exercise, especially since the accused is often in a better position to know of a potential conflict with Section 110 of the Crimes Code than the Commonwealth. The relatively drastic remedy of Section 110 should only be applied when an accused has not foregone the opportunity of moving to join all offenses in one prosecution. To hold otherwise is simply to foster chicanery by defense counsel.”

The foregoing comments are quite appropriate to the case before us. There is no evidence to show that the District Attorney who was in charge of the prosecution in the Court below knew anything about the existence of the North Fayette traffic citations until the appellant filed his motion to dismiss. Nor did the police officer who issued the traffic summons on the North Fayette charges have any knowledge that the Robinson Township charges were pending in the Court below. The one person who acted with full knowledge of all the facts was the appellant. It was at his request that the trial of the charges pending in the Court below were postponed until he could plead guilty to the North Fayette traffic summons. It was his decision to plead guilty and pay fines on the North Fayette charges rather than move for a consolidation of the two hearings. It is clear that he has twice waived any right to claim that the proceeding in the Court below constitutes double jeopardy in violation of Section 110 of the Crimes Code.

Affirmed.


author: VAN der VOORT, Judge: BROSKY, Judge, HESTER, Judge,

text:
    436 A.2d 232
    COMMONWEALTH of Pennsylvania v. Stanley STOVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Oct. 23, 1981.

      Salvatore F. Panepinto, Charleroi, for appellant.
    Patrick H. Mahady, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

On August 7, 1978, a Cadillac Coupe de Ville, owned by one Terlecki, was stolen from the Monroeville Mall in Allegheny County. On September 13, 1978, five weeks and two days later, the vehicle was observed by a police officer in front of appellant’s place of business, an auto repair shop, on River Street, Monesson, Westmoreland County. Because the vehicle created an obstruction to traffic the officer ordered appellant to move it. An argument ensued and appellant was arrested for disorderly conduct and ordered by the officer to come to the Police Station. Appellant then said:

“You want my vehicle moved, is that right? How about if I drive it to the station? This way I’ll have the vehicle moved and then you’ll have me in custody at the same time.” (N.T. p. 24)

The officer agreed and appellant drove the car to the police station.

On September 26, 1978, a second officer observed the same Cadillac parked on 6th Street in Monesson, which was neither in the vicinity. of appellant’s home or his place of business. The vehicle was parked illegally, so the officer had the car impounded. Thereafter the car was determined to be stolen. Appellant was arrested on charges of Unauthorized Use of a Motor Vehicle, and Receiving Stolen Property.

The case was heard by the lower court sitting with a jury. Testimony was presented that the vehicle bore, both on September 13 and 26, 1978, a license plate reading 733- -38Z. However, no evidence was presented as to whom such plate was registered. The owner of the vehicle stated that at the time the car was stolen the license plate on the car was F- 66 -132. He further testified that he had not given appellant permission to drive the car. Appellant did not testify. At the end of the testimony, the judge dismissed the charge of unauthorized use. The charge of receiving stolen property was submitted to the jury which returned a verdict of guilty. Post trial motions were denied and appellant was sentenced. This appeal followed.

Appellant’s sole contention raised before this court is that the Commonwealth failed to present sufficient evidence to prove his guilt beyond a reasonable doubt. In particular, appellant argues that the prosecution did not show that he received and retained the automobile in question; or that he knew the automobile to be stolen.

The trial court’s opinion recognizes that there is involved in this case a “troublesome issue wrestled with by our Supreme Court” in Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973) and Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976). Specifically, that issue is whether there was presented in this case sufficient evidence to submit to the jury the question of whether appellant, in possession of the stolen car on September 13, 1978, and referring to it as “my vehicle”, knew or should have known at that time that the car was stolen. The court then draws a comparison with Williams, supra in that appellant, like Williams, offered no evidence to explain how he came into possession of the car, and concluded that Williams supported an “inference of guilty knowledge on the defendant”.

Paraphrasing Williams, 468 Pa. 357, at 365, 362 A.2d 244, 247 “a permissible inference of guilty knowledge may be drawn from the unexplained possession of recently stolen goods ... as well as from other circumstances, such as the accused conduct at the time of arrest.” The possession here was not very “recent”, 37 days after the car was stolen, compared to 12 days in Williams. Additionally, in Williams the accused made a clear effort to avoid apprehension. In the present case there was no comparable testimony; in fact, while appellant may have been disorderly on September 13, 1978, he nonetheless volunteered to drive the car to the police station. Compare, Commonwealth v. Williams, 284 Pa.Super. 244, 425 A.2d 795 (1981) (defendant asked police for directions).

Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977), cited by the Commonwealth presents an unusual set of circumstances, not analagous to the facts of the present case. In Commonwealth v. Murray, 246 Pa.Super. 422, 371 A.2d 910 (1977), the accused’s possession of the stolen car was about 3V2 hours after the theft was discovered; the car was being driven without an ignition key, with the ignition wires “pulled down”; and the defendant attempted to flee from police officers. The conviction was affirmed. In Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978), the vehicle was a motorbike stolen a week before it was found in the accused’s possession; and the bike had been repainted and the serial number marred. The evidence was found sufficient.

The present case resembles Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973), reversing our decision at 219 Pa.Super. 454, 281 A.2d 777, on the ground that the evidence was insufficient as a matter of law to sustain a conviction. The accused in Henderson, was found in possession of a car stolen 2lk to 3 weeks after its theft, and the car bore a stolen license plate. Henderson was arrested when observed driving the stolen car with the stolen license plate. He pulled over at an officer’s request. The appellant testified that he had borrowed the car a short time earlier. Our Supreme Court held that the evidence would not support the inference that the defendant knowingly possessed stolen property. In Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975), we reversed a sentence for receiving stolen goods, although we sustained a conviction for unauthorized use of a vehicle, where the car was stolen 17 days earlier and the accused was driving it without an owner’s card. He claimed he borrowed the car from a friend.

Similarly here, we find the evidence insufficient to support a finding that appellant knew or should have known the car was stolen.

Judgment of sentence is reversed and appellant is ordered discharged.

BROSKY, J., files a concurring opinion.

HESTER, J., files a dissenting statement.

BROSKY, Judge,

concurring:

I concur in the result reached by the majority, because of our Supreme Court’s decision in Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). However, I wish to comment upon a significant factual difference between Henderson and the instant case. In Henderson, it was held that the evidence presented was insufficient to sustain appellant’s conviction for receiving stolen property. The court found in that case that other than showing possession of the car by appellant, the Commonwealth had produced little else to support an inference that the defendant had reason to know or knew that the car was stolen. Possession, itself, the court held, without a consideration of other circumstances, is insufficient for conviction. Some of these other circumstances, as set forth by the court in Henderson, are:

[t]he appellant’s conduct, the appellant's relationship to the victim; the elapsed time between the appellant’s possession and the theft; the situs of the theft and the situs of the possession; the kind of property; the quantity of the property; and the identifying characteristics of the property. (Emphasis added.)

Commonwealth v. Henderson, supra, 451 Pa. at 455, 304 A.2d at 156.

In Henderson, appellant took the stand and testified that he had borrowed the car from a man identified named Richard, who had met appellant that day while the two of them were helping a mutual acquaintance move from one apartment to another. Appellant testified that he had asked Richard if he could borrow his car for a short time in order to make a quick trip to a shopping center to purchase an anniversary gift. The court noted that appellant did not contradict any of the facts presented by the prosecution and the prosecution did not contradict any of the facts presented by appellant.

Similarly, in Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975), appellant who was arrested while driving the car alleged to have been stolen, explained to the police that he did not have the owner’s card because the car belonged to a friend. Appellant testified on his own behalf, and produced a witness who corroborated his testimony. The Commonwealth did not offer any rebuttal.

Here, appellant did not take the stand. No explanation was offered at any time by him as to how he came to possess the vehicle in question. The police found the vehicle in front of appellant’s repair garage, where it was blocking traffic, and requested that appellant move the vehicle. Appellant refused, and an argument ensued, resulting in appellant’s arrest for disorderly conduct. Thereafter, appellant asked, “You want my vehicle moved, is that right? How about if I drive it to the station?...”

If it truly were appellant’s vehicle, appellant would have been able to show proof of ownership. He could not do so, however, since in fact the car belonged to someone else. Therefore, appellant’s statement, “You want my vehicle moved?” indicates that appellant wanted to give police the impression that the vehicle belonged to him when in fact he knew or should have known that it did not, since he did not have an owner’s card for it. Since appellant made no other statement in relation to the car, but did initially resist the officers’ request to move the car, it may be inferred that appellant knew or had reasonable cause to know that the car was stolen.

While it is beyond doubt that an accused does not have to take the stand, and that no adverse inferences may be drawn here from appellant’s decision not to testify in his own behalf, appellant’s conduct, in offering no explanation of his possession of the car, is nonetheless significant here, since a reasonable inference that appellant knew or had reasonable cause to know that the car was stolen could be drawn therefrom.

However, because of our Supreme Court’s decision in Commonwealth v. Henderson, supra, I must concur in the result reached by the majority here, since the Commonwealth’s evidence was not sufficiently strong so as to support the inference beyond a reasonable doubt.

HESTER, Judge,

dissenting:

I dissent. I would affirm on the Opinion of Judge Hudock of the court below.

      . 18 Pa.S.C. § 3928.

      . 18 Pa.S.C. § 3925.

      . There appears to be no evidence in the case to tie appellant into the possession of the car on September 26, 1978, when police found it parked improperly and impounded it.

      . In Bailey, the defendant was charged with RSP, involving wire stolen from a telephone company. Some of the wire had been stolen a month prior to the defendant’s possession, some two months earlier. The court found the unexplained possession of wire, which the manufacturer only sold to the phone company, which then sold it to a scrap dealer at the end of its useful life, sufficient evidence for a conviction. The wire had no other use. Similarly, in Commonwealth v. Walters, 250 Pa.Super. 446, 378 A.2d 1232 (1977), the court found possession six days after the theft of items too bulky to have passed through the channels of commerce so quickly, sufficient to support a conviction. The court also noted that the defendant had hurriedly left home upon being informed that the police were looking for him.


author: SUGERMAN, Judge:

text:
    436 A.2d 235
    COMMONWEALTH of Pennsylvania v. Daniel T. STUFFLET, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Oct. 23, 1981.

      William R. Smith, Assistant Public Defender, Stroudsburg, for appellant.
    Ralph A. Matergia, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       President Judge JOHN Q. STRANAHAN, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge LEONARD SUGERMAN, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

On October 14, 1977, Appellant, Daniel T. Stufflet, was found guilty by a jury of Robbery, Burglary, Recklessly Endangering Another Person, and a series of related charges all arising from an incident occurring at a restaurant in Stroudsburg, Pennsylvania. Post trial motions were filed, argued and denied, and on December 27, 1978, Appellant was sentenced upon the Robbery conviction to a term of total confinement of not less than 3V2 nor more than 7 years. Sentence was suspended on the remaining convictions.

At the sentencing proceeding, Appellant’s counsel was invited to examine and comment upon the Presentence Investigation Report that had been prepared. Appellant’s counsel then summarized significant aspects of the Presentence Investigation Report and asked that the Court impose a moderate sentence. Both Appellant’s counsel and an Assistant District Attorney then presented argument and Appellant was afforded the opportunity to speak. The Court then said:

“THE COURT: Well, of course, there’s no question about the fact that we all agree as to the seriousness of the case. Any situation at all when firearms are present creates the potential of death. And because of that, why, it becomes extremely serious. And even though no death or bodily injury actually occurred, it did create the potential for it.”

The Court thereupon imposed the foregoing sentence, and advised Appellant of his right to appeal, without further comment.

On appeal, Appellant contends that the quoted remarks of the lower court failed to comport with the mandates of Com. v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Pa.R.Crim.P. 1405(b), and the Sentencing Code then in effect, 18 Pa.C.S.A. § 1301 et seq., in that the Court failed to articulate on the record the reasons for the sentence imposed, and failed to accord weight to the factors and guidelines set forth in the Sentencing Code.

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

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

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

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

I.

It is apparent that the sentence imposed upon Appellant for Robbery is well within statutory limits. Nevertheless, Appellant contends that the sentencing court failed to follow or accord weight to the sentencing guidelines set forth in the Sentencing Code in effect at the time of the sentencing. We agree.

Although Appellant’s counsel pointed to several apparently relevant portions of the Presentence Investigation Report to support his request for leniency, the sentencing judge made no reference whatever to the Sentencing Code and made no finding of any of the factors justifying a sentence of total confinement as set forth in the Code. The sentencing court must indicate on the record at the time of sentencing that the sentencing guidelines of the Code were considered. Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Skinner, 275 Pa.Super. 251, 418 A.2d 707 (1980); Commonwealth v. Williams, 274 Pa.Super. 464, 418 A.2d 499 (1980).

While we have said that it is better practice for the court to articulate some reference to the guidelines specified in the Sentencing Code, with an explanation of how consideration of those guidelines affected the determination of sentence, Commonwealth v. Williams, supra, 274 Pa.Super. at 477, 418 A.2d at 506, Commonwealth v. Backert, 271 Pa.Super. 68, 412 A.2d 580 (1979); Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978), this Court has not required the trial judge to list those criteria of the Sentencing Code and detail his response to each. Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); Commonwealth v. Williams, supra; Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979).

At bar, it is apparent that the court considered only the seriousness of the crime. Resting a sentence upon this consideration alone reflects a failure on the part of the court to exercise its broad discretion in accordance with the applicable statutory requirements. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).

II.

As earlier observed, Appellant also contends that the sentencing court failed to state on the record at the time of sentencing the reasons it imposed the sentence, contrary to the mandates of Commonwealth v. Riggins, supra and Pa.R. Crim.P. 1405(b). Again we agree.

In Riggins, the court directed that when a trial judge imposes a sentence, he or she must set forth on the record the reasons for imposing such sentence. Id., 474 Pa. at 122, 377 A.2d at 143. The court then set forth the several bases for this requirement:

“The benefits of requiring the trial court to state its reasons for the imposition of its sentence are manifold:16 First, requiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process.17 It will safeguard against arbitrary decisions and prevent consideration of improper and irrelevant factors. It will minimize the risk of reliance upon inaccurate information contained in the presentence report.18 A statement of reasons may aid correction authorities if the sentence results in a commitment, and may have therapeutic value if the sentencing judge explains his or her reasons to the defendant.19 Requiring a trial court to provide a reasoned basis for the sentence imposed may enhance the court’s legitimacy as perceived by judges themselves and participants in the criminal justice system.20 It will aid courts in attaining their institutional objective of dispensing equal and impartial justice and will demonstrate to society that these goals are being met.20a Reasoned sentencing decisions may encourage the development of sentencing criteria 21 and reduce disparity in sentences-decreasing the number of unusually lenient as well as unusually harsh sentences.22 Finally, a statement of reasons will be invaluable in aiding appellate courts to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.23 . . . [Footnotes omitted]” Id., 474 Pa. at 129-131, 377 A.2d at 147-48.

In addition, Pa.R.Crim.P. 1405(b), adopted in response to Riggins and in effect at the date sentence was imposed upon Appellant also requires the sentencing judge, at the time of sentencing, to “. . . state on the record the reasons for the sentence imposed ...”

As it is apparent the lower court failed to comply with the mandates of Riggins and Pa.R.Crim.P. 1405(b), we are, again, unable to determine whether the court considered the guidelines of the Sentencing Code and we are unable to intelligently review Appellant’s sentence. We accordingly vacate the judgment of sentence and remand for resentencing in accordance with Riggins and the Sentencing Code. Vacated and remanded.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.S.C.A. § 2705.

      . 1974, Dec. 30, P.L. 1052, No. 345, § 1, et seq., as amended 1976, Dec. 2, P.L. ___ No. 345, § 1, et seq., 18 Pa.C.S.A. § 1301 et seq.

      . At the time sentence was imposed upon Appellant, 18 Pa.C.S.A. § 1321(b) required the sentencing judge to “. . . follow the general principle that the sentence imposed should call for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant ...” (emphasis added). In the amended code, 18 Pa.C.S.A. § 1321(b) (Supp. 1978-1979) the words “the minimum amount of” were deleted.

      . The Presentence Investigation Report is not part of the record.

      . But see Doyle, supra, 274 Pa.Super. at 384, 418 A.2d at 1342 and Commonwealth v. Wareham, supra.


author:
PER CURIAM:
      SPAETH, Judge,

text:
    436 A.2d 239
    COMMONWEALTH of Pennsylvania v. Charles RITCHIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1979.
    Filed Oct. 23, 1981.

      Dennis V. Williams, Assistant Public Defender, Erie, for appellant.
    Frank J. Scutella, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Following a jury trial, appellant was convicted of robbery. The trial court subsequently denied appellant’s post-verdict .motions and imposed sentence. No direct appeal was taken. Thereafter, appellant filed a petition pursuant to the Post Conviction Hearing Act (PCHA). After a hearing, the post-conviction court concluded that appellant had been denied his right to appeal from judgment of . sentence and granted him permission to file this appeal nunc pro tunc.

Appellant contends first that the trial court abused its discretion in refusing to grant a continuance which his trial counsel had requested on January 19, 1976, the scheduled trial date. Trial counsel sought the continuance in order to secure the presence of four witnesses who resided in Mississippi. Counsel believed that those witnesses would testify that at the time the robbery was committed appellant was with them in Mississippi. He stated also that he had just learned that they would not attend appellant’s trial because one of them, appellant’s grandmother, was seriously ill. In response to the trial judge’s questioning, counsel stated that he had not attempted to verify that the grandmother was in fact ill. Counsel acknowledged that during the May, 1975 and September, 1975 court terms, appellant’s previous counsel had been granted continuances to enable him to attempt to secure the testimony of the same witnesses. Counsel stated also that he could not assure the court “that [the witnesses] would be present if the trial [were] put off until the month of February . . . . ”

“ ‘It is well settled that the grant of a continuance rests within the sound discretion of the trial court and that the decision to deny the continuance will not be reversed unless a clear abuse of discretion is shown.’ ” Commonwealth v. Waters, 276 Pa.Super. 584, 591, 419 A.2d 612, 615 (1980) (quoting Commonwealth v. Hughes, 264 Pa.Super. 118, 126, 399 A.2d 694, 698 (1979)). “When there is no assurance that a witness can be procured, . . . then denial of a continuance is proper.” Commonwealth v. Plath, 267 Pa.Super. 1, 6, 405 A.2d 1273, 1275 (1979) (citing Commonwealth v. Foreman, 248 Pa.Super. 369, 375 A.2d 142 (1977)).

In the instant case, we conclude that the trial court did not abuse its discretion in refusing to grant a continuance. Despite the granting of two previous continuances, appellant’s counsel had been unable to secure the witnesses’ presence. Additionally, trial counsel was unable to assure the trial judge that he could procure the witnesses if a continuance were granted. Under these circumstances, we decline to reverse the trial court’s refusal to grant a continuance.

Alternatively, appellant contends that his trial counsel was ineffective for failing to act diligently to secure the presence of the witnesses. “[C]ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). If we cannot determine from the record whether counsel had a reasonable basis for not pursuing a claim, we must remand for an evidentiary hearing on that issue. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

We are unable to determine on the present record whether trial counsel was ineffective. In arguing that the record supports a finding that trial counsel was effective, the Commonwealth cites counsel’s statements to the trial court in support of his request for a continuance. Because appellant has not had an opportunity to cross-examine trial counsel and to present evidence in support of his ineffectiveness claim, however, we cannot rely upon counsel’s statements to find that he was effective. On the other hand, we cannot find counsel ineffective because we do not know whether the witnesses would have been available to testify at appellant’s trial had counsel exerted a greater effort to secure their presence. Consequently, we must remand this case for an evidentiary hearing on this issue. If, following the hearing, the court determines that appellant was denied effective assistance of counsel, it shall enter an order granting appropriate relief. If, on the other hand, the court determines that appellant received effective assistance of counsel, it shall reinstate judgment of sentence. Either party aggrieved by the court’s decision may take a new appeal to this Court, as provided by law.

Judgment of sentence vacated and case remanded for proceedings in accordance with this opinion.

SPAETH, J., files a concurring and dissenting opinion.

SPAETH, Judge,

concurring and dissenting:

I agree with the majority that we must remand this case for an evidentiary hearing on whether trial counsel was ineffective in failing to secure the presence of certain witnesses. I am unable, however, to join in footnote 3 of the majority’s opinion, in which the majority summarily rejects as without merit appellant’s other contentions. I believe that before we may make such a decision we need to know the basis of the lower court’s rulings. Here we do not know that basis because the lower court has not supplied us with an opinion. I should therefore remand the matter to the lower court and order it “forthwith [to] file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or [to] specify in writing the place in the record where such reasons may be found.” Pa.R.A.P. 1925(a).

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq.; 19 P.S. § 1180-1 et seq.

      . Additionally, counsel stated that during the last term of court he had unsuccessfully sought a continuance on the same ground.

      . Appellant contends also that (1) the trial court abused its discretion in not sustaining his challenge for cause of two prospective jurors; (2) the trial court abused its discretion in recessing after closing arguments of counsel until the following morning; (3) trial counsel was ineffective for failing to object to testimony that the police had shown appellant’s photograph to the victim; and (4) after-discovered evidence warrants the grant of a new trial. We have thoroughly reviewed each of these contentions and conclude that they are without merit.


author: PER CURIAM:

text:
    436 A.2d 242
    David S. ESH and Mary L. Clinton, Agent v. Emil AWGLIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 23, 1981.

      Emil Awglis, in pro. per.
    Michael J. Minney, Lancaster, did not file a brief on behalf of appellees.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   PER CURIAM:

The appeal is hereby quashed since it is from an interlocutory order.

An appeal to the Superior Court may be taken from final orders; interlocutory orders appealable as of right, Pa.R.A.P. 311; interlocutory orders appealable by statute or general rule, Pa.R.A.P. 311(a)(7); or interlocutory orders appealable by permission, Pa.R.A.P. 1311. See T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). If the order appealed from in the instant case is not final, the appeal must be quashed because the order does not fall within any of the other categories which have just been specified.

A final order is one which ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974). An order will also be treated as final if the practical consequence is effectively to put an appellant out of court or if it precludes an appellant from presenting the merits of the claim to the lower court. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). The final order rule represents a “policy of precluding ‘piecemeal determinations and the consequent protraction of litigation’.” Id., 483 Pa. at 75, 394 A.2d at 546.

In the instant case the order appealed from granted plaintiff judgment on the pleadings on one count of a two count complaint and it denied judgment on the pleadings as to count two of the complaint. The order appealed from does not end the litigation or dispose of the entire case, nor does it put the appellant out of court; nor does it preclude appellant from presenting the merits of a defense to the lower court. Thus the order is not final. Appellant can still defend the second count of plaintiff’s complaint. Moreover, consideration of an analogous situation supports this view.

We have held that an order dismissing some but not all of the counts in a multi-count complaint is interlocutory and is not appealable since appellant is not out of court. Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981); Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980). This reasoning should also apply when an order grants judgment to the plaintiff on one count of a multicount complaint; in such a case the defendant is not out of court.

The appeal is hereby quashed since it is from an interlocutory order.