author: HESTER, Judge:

text:
    590 A.2d 362
    Jonathan A. BRISKIN and Alice Briskin v. LERRO ELECTRICAL CORPORATION and Frank Kovary, Appellants. Jonathan A. BRISKIN and Alice Briskin, h/w v. LERRO ELECTRICAL CORPORATION and Frank Kovary, Appellants.
    Superior Court of Pennsylvania.
    Argued March 12, 1991.
    Filed May 6, 1991.
    Petition for Allowance of Appeal Denied Oct. 11, 1991.

      Francis T. McDevitt, Philadelphia, for appellants.
    James E. Colleran, Philadelphia, for appellees.
    Before MONTEMURO, JOHNSON and HESTER, JJ.

      . The trial court had granted counsel permission to speak with the jurors.

   HESTER, Judge:

The issue before us is whether the trial court erred in granting plaintiffs-appellees a new trial based upon the court’s improper communications with the jury. We affirm.

This action was instituted following a motor vehicle accident between Jonathan Briskin and Frank Kovary, an employee of defendant-appellant, Lerro Electrical Corporation. Mr. Briskin and his wife, appellees, seek recovery for injuries they allege resulted from the accident. A jury trial began on March 19, 1990, culminating in a verdict for defendants-appellants on March 23, 1990. Appellees requested a new trial in their motion for posttrial relief, which the court granted on July 23, 1990. This appeal followed.

The basis for the trial court’s grant of a new trial was that it had erred in failing to apprise the parties concerning a note from the jury during deliberations. The court concluded that this failure was critical in light of hostilities which had developed between two jurors. The following facts are pertinent. Jury deliberations began at approximately 11:00 a.m. on March 22, 1990. Sometime thereafter the jury submitted a question to the court. Following a discussion with counsel for all parties, the trial court answered the question in open court and then excused the jury to resume its deliberations. At approximately 4:00 p.m., unbeknownst to the parties, the jury submitted a second note to the court, this time indicating that it was deadlocked and requesting further instructions. The trial court, through the court crier, told the jury that both counsel were unavailable and instructed it to continue deliberating. Shortly thereafter, the jury was excused for the day and was instructed to resume its deliberations the next morning.

When Vince DiMezzo, the court crier, excused the jury for that day, in accordance with the trial court’s instructions, four of the female jurors approached him concerning hostilities between two of the jurors. Juror number seven, Mary Lu Chromiec, told DiMezzo, “I’m very upset. I was threatened.” Deposition testimony of Vince DiMezzo, 5/8/ 90, at 18. She told him that one of the male jurors had told her that he hated her, and she further indicated that she was not going to return in the morning. Id. at 19. Ms. Chromiec’s deposition establishes the following. She had been frightened by remarks made to her by the juror, and she had asked Mr. DiMezzo “how to handle it.” Deposition testimony of Mary Lu Chromiec, 4/20/90, at 10. Ms. Chromiec stated that “[ajnother juror had come right out, in a very venomous way, and said that he hated my guts; that I thought I knew everything and he just hated my guts.” Id. at 12. Mr. DiMezzo advised Chromiec to write a letter to the judge and “the judge would advise what to do.” Id. at 13. After leaving the building, Ms. Chromiec saw Mr. DiMezzo on the concourse and approached him again. She was crying and “wanted more support from what—I thought the court at that point should have given me some more support____ I think I more or less said, well, isn’t somebody going to take me home, ...” Id. at 15. She alsp was concerned about her physical safety. Id. Although Ms. Chromiec wrote the note to the trial judge, she never submitted it to the court. Instead, she spoke to the juror herself the next day. Id. at 16.

The trial judge, the Honorable Nelson A. Diaz, stated that Mr. DiMezzo had told him “there were arguments between two jurors,” but “the following day that those arguments were pacified.” The judge also stated that DiMezzo had not told him of his discussions on the concourse with Ms. Chromiec and other jurors. Notes of testimony, 4/8/90, at 19.

Appellees’ counsel discovered the existence of the second note from the jury and learned of the animosity between the two jurors through discussions with the jurors following the verdict. Based on these discussions, appellees filed a motion for post-trial relief, the parties submitted briefs, and the court heard oral argument on the issues. The trial court determined that it had erred in failing to apprise the parties of the existence of the second note from the jury and that the error had been magnified due to the hostilities between the jurors. In support, the trial court reasoned as the follows:

The communications between the court and the jury in reference to the note and the lack of communication between the two concerning juror hostilities creates an environment which precludes proper deliberation. It is this court’s impression that if it had been more responsive to the jury’s previous note and given it the importance and attention it deserved by communicating directly with the jurors in counsel’s presence, Mrs. Chromiec would have confronted the court with her dilemma instead of continuing to deliberate in a hostile atmosphere. This court suspects that its behavior was harmful because it led jurors to believe they would have to continue deliberating indefinitely despite the deadlock and juror hostilities. This court is not convinced that there was no “reasonable possibility” of harm. The court acknowledges its error and in the interest of justice grants plaintiffs motion for a new trial and for recusal.

Trial court opinion, 7/23/90, at 4.

Appellants first contend that the trial court was precluded from addressing the propriety of its ex parte communication with the jury because such consideration necessarily required reliance on a discharged juror’s testimony concerning what occurred among jurors in the jury room. Pittsburgh National Bank v. Mutual Life Insurance Co. of New York, 493 Pa. 96, 425 A.2d 383 (1981). We disagree. Ex parte communications between the court or its officers and the jury are a proper consideration for the trial court when raised in post-verdict motions. If we adopted appellants’ position, parties would be prohibited from proving an alleged prejudicial error simply by the unfortunate fact that they never learned of the ex parte communication (or that it was concealed) until after the verdict was rendered and the jury discharged. Clearly, the law has never contemplated such a result. See, e.g., Commonwealth v. Elmore, 508 Pa. 81, 494 A.2d 1050 (1985) (court considered whether ex parte communication with jury was error when error was asserted by defense counsel who learned of communication through discussion with jury foreman after verdict was rendered). Moreover, appellants’ reliance on Pittsburgh National is misplaced. That case concerned the admissibility of a discharged juror’s testimony concerning his independent inspection of a vehicle similar to the automobile involved in that case and the inspection’s possible effect on jury deliberations. We find it inapplicable to the present case.

The issue presented herein is controlled by our Supreme Court’s decision in Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983), which announced the standard for determining whether contact between a juror and an officer of the court warrants a new trial in both criminal and civil cases. The Bradley Court adopted the reasoning of the dissent in Yarsunas v. Boros, 423 Pa. 364, 223 A.2d 696 (1966), and stated, “The reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur.” Commonwealth v. Bradley, supra, 501 Pa. at 37, 459 A.2d at 739, quoting Yarsunas v. Boros, supra, 423 Pa. at 368, 223 A.2d at 698 (Roberts, J., dissenting). The Bradley Court continued, “We do, however, remind the trial bench that failure to maintain an accurate and reviewable contemporaneous record of all instructions and communications between the court and a jury may force an implication of prejudice where arguably none exists.” Commonwealth v. Bradley, supra, 501 Pa. at 37-38, 459 A.2d at 739. Thus, Bradley holds that only ex parte communications which are likely to prejudice a party will require reversal.

In addition to the above standard, we must consider our scope of review. In reviewing an order granting a new trial, we must assess whether the trial court “clearly,and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Carter v. U.S. Steel Corp., 390 Pa.Super. 265, 272, 568 A.2d 646, 649 (1990), petition for allowance of appeal granted, 525 Pa. 630, 578 A.2d 925 (1990); see also Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989).

In light of our scope of review, we are satisfied that the trial court did not abuse its discretion in concluding that there was a reasonable possibility of harm. The jury submitted to the court a note stating that it was deadlocked, the jury was advised by a court officer that counsel were unavailable when, in fact, they were present, and the jury was told to continue deliberating without the knowledge of the parties and their counsel. The matter was complicated by the fact that Mary Lu Chromiec, juror number seven, feared for her safety due to comments from another juror concerning her manner and views during deliberations, and Ms. Chromiec’s initial attempts to bring the matter to the trial judge’s attention through the court crier failed. Thus, the jury was compelled to deliberate without an answer to its written note to the trial judge, and the court crier failed to communicate to the court the various conversations he had with jurors indicating hostility, rancor, and a menacing environment which pervaded the jury’s deliberations. We conclude the trial court did not abuse its discretion in granting a new trial.

Order affirmed.

      . Although the notes of testimony do not indicate when the note was submitted to the court, the transcript indicates that the jury was excused to resume deliberations at 3:00 p.m.

      . This note apparently has been lost and is not in the record certified to us. The substance of the note has been established through post-verdict deposition testimony of two jurors, the court crier, and the trial judge.

      . We do not consider Ms. Chromiec’s failure to submit a note to the trial court the following day to be controlling, in light of the fact that it was the responsibility of the court crier to bring such a matter to the court’s attention. Furthermore, once the trial court learned of the problem after-the-fact but before the verdict was rendered, the trial court ignored it and did not inform the parties.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    590 A.2d 366
    In re the ESTATE OF G. Robert BILGER. Appeal of Josephine T. BILGER.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed May 7, 1991.

      Adam B. Krafczek, Reading, for appellant.
    Joseph Nelabovige, Hamburg, for G. Robert Bilger, Inc., participating party.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   WIEAND, Judge:

May the sole heir who has joined with the administrator of a decedent’s estate in executing a lease of real estate for a period of ten years maintain a subsequent action to have the lease declared null and void because it was not approved by the Orphans’ Court as required by the provisions of 20 Pa.C.S. § 3352? The Orphans’ Court in Berks County held that the heir’s action to set aside the lease was procedurally and substantively defective and dismissed the action. After careful review, we affirm.

G. Robert Bilger died intestate on January 26, 1986, leaving his mother, Josephine Bilger, as his only heir. Letters of administration were issued to Evan R. Bilger, the decedent’s brother. On or about November 7, 1986, the administrator, Evan Bilger, and the sole heir, Josephine Bilger, sold all the common stock of G. Robert Bilger, Inc., a corporate automobile agency, to Barry Hawkins, Stephen Moyer, Keith Weiser, and David Gift. The sellers also leased to the corporation for a ten year term, with an option to renew for another ten years, the real estate which had been owned by the decedent and on which the agency’s business had been conducted.

In January, 1987, Evan Bilger was removed as administrator of the estate, and letters of administration d.b.n. were issued to the National Bank of Boyertown. The bank filed the last of five accounts on January 12, 1989. On May 1, 1989, Josephine Bilger filed in the Orphans' Court a “Petition to Set Aside Lease” in which the named respondent was G. Robert Bilger, Inc. It was alleged in this petition that the lease, being in excess of one year in duration, should have been approved by the Orphans’ Court, as required by the Probate, Estates and Fiduciaries Code. Because this had not been done, the petitioner contended, the lease was null and void. A hearing on her petition was held on June 30, 1989, after which the trial court dismissed the same. The court concluded that the petition was procedurally inappropriate and substantively lacking in merit. The petitioner appealed.

We find it unnecessary to unravel the procedural confusion caused by appellant’s untimely petition. Instead, we affirm on substantive grounds.

Subject to an administrator’s power to administer the same, legal title to the real estate of a decedent passes at death to his or her heirs. 20 Pa.C.S. § 301(b). When administering an estate, an administrator is permitted by 20 Pa.C.S. § 3352, to lease real estate “for a term expiring not more than one year after the decedent’s death unless it is terminable by the [administrator] at any later time on 30 days’ notice, or unless a longer term is approved by the court.” This section of the statute was intended to permit the administrator to administer real estate owned by a decedent without undue delay so that the estate could be settled with reasonable celerity. It was also intended to create a stable procedure for disposition of the decedent’s realty and certainty in the marketability of the title thereto. Quality Lumber & Millwork Co. v. Andrus, 414 Pa. 411, 419, 200 A.2d 754, 759 (1964).

In the instant case, both the sole heir and the administrator of the decedent’s estate joined in executing the lease which only the heir now seeks to challenge. This suggests that (1) the administrator did not require continued possession of the real estate in order to administer the estate of the decedent; and (2) the sole heir and legal titleholder of the real estate was willing to encumber it according to the terms of the written lease which she executed.

Appellant, as heir, is bound by this agreement of lease. She cannot escape the terms of her agreement by asserting that she did not understand what she was signing. Bollinger v. Central Pennsylvania Quarry Stripping and Const. Co., 425 Pa. 430, 229 A.2d 741 (1967). Similarly, she cannot escape the terms of the lease by contending that the agreement was imperfectly executed. For more than two years she accepted the benefits of her agreement and will not now be heard to say that it was invalid because the administrator of the estate acted without court approval. Legal title to the real estate, as we have observed, passed to the decedent’s heir, and she could thereafter deal with it as her own. The administrator has not contended that the lease impaired its ability to administer the decedent’s estate and has not joined in requesting the court to declare the lease null and void. Instead, it is the heir and only the heir who, believing there to be economic benefits to be derived from setting aside the lease, attempts to take advantage of the failure to obtain court approval of the administrator’s act in order to avoid her own agreement. This she cannot do. She is bound by her valid contract, and the courts will not assist her- in setting it aside.

Order affirmed.


author: BROSKY, Judge.

text:
    590 A.2d 761
    Suzanne SANDS, Appellant, v. Frank ANDINO and State Farm Insurance Company.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1991.
    Filed May 7, 1991.

      Richard J. Orloski, Allentown, for appellant.
    Charles J. Fonzone, Allentown, for State Farm, appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order of the trial court which granted summary judgment in favor of appellee. The sole issue presented for review is whether the trial court’s grant of summary judgment was proper. For the reasons set forth below, we affirm.

Before proceeding to address the question advanced by appellant, it is necessary to briefly recount the relevant facts of this case. On July 11, 1987, appellant, Suzanne Sands, was operating her vehicle in Allentown, Pennsylvania, when her car collided with or was struck by an automobile operated by Frank Andino. Mr. Andino did not maintain insurance as required by the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701-1798.4. Andino was therefore an uninsured motorist. At the time of the collision, Sands maintained an insurance policy issued by appellee, State Farm Insurance Co., pursuant to which Sands had purchased uninsured motorists’ coverage, with a maximum limit of $50,000.00.

Appellant commenced a civil action against Andino, docketed at No. 87-C2421, on November 5, 1987. Andino never entered an appearance nor otherwise defended the action. Consequently, a default judgment on the issue of liability was entered against Andino on April 4, 1988. A non-jury trial on the issue of appellant’s damages was subsequently held on August 17, 1989. Andino again failed to appear or enter a defense, and appellant was awarded $60,000.00 in damages. Judgment on the award was entered on August 21, 1989.

Following the entry of judgment against Andino, appellant notified appellee of the award and requested that appellee pay her $50,000.00 in uninsured motorist benefits. Appellee denied appellant’s request, and indicated that the question of appellant’s entitlement to uninsured motorists’ coverage must be submitted to arbitration since the policy expressly provided that appellee was not bound by any judgment obtained without its consent. On October 10, 1989, appellant initiated this declaratory judgment action in which appellant sought to have the judgment entered against Andino declared binding on appellee. Each party thereafter filed motions for summary judgment. In granting appellee’s motion and denying appellant’s motion, the trial court concluded that appellee was not bound by the judgment obtained against Andino. This timely appeal followed.

Although not addressed by either of the parties, we must first ascertain whether the declaratory judgment action was properly before the lower court. With regard to this matter, the Declaratory Judgment Act expressly provides that a party is not entitled to declaratory relief with respect to any “[proceeding within the exclusive jurisdiction of a tribunal other than a court.” 42 Pa.C.S.A. § 7541(c)(2). § 7541(c)(2) has been held applicable to arbitration proceedings, and it is well-settled that a declaratory judgment action may not be entertained with respect to matters that are within the jurisdiction of the arbitrators. See Jewelcor, Inc. v. Pre-Fab Panelwall, Inc., 397 Pa.Super. 78, 82-83, 579 A.2d 940, 942 (1990), citing Allstate Insurance Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969). See also, Brennan v. General Accident, Fire & Life Assurance Corp., Ltd., 524 Pa. 542, 549, 574 A.2d 580, 583 (1990) (in which the Supreme Court held that once it has been determined that a substantive dispute is arbitrable, the arbitration panel normally has the authority to decide all matters necessary to dispose of the claim, unless the parties have expressly restricted the matters to be submitted to arbitration); Nationwide Mutual Insurance Co. v. Pitts, 400 Pa.Super. 269, 271, 583 A.2d 489, 491 (1990) (in which this court held that an issue of whether the insurer was contractually bound to provide underinsured motorist coverage was within the jurisdiction of the arbitration panel); and Lamar v. Colonial Penn Insurance Co., 396 Pa.Super. 527, 530-531, 578 A.2d 1337, 1338-1339 (1990) (in which this court held that a question relating to an insured’s intent to select a higher amount of coverage must be submitted to arbitration).

However, the appellate courts have also recognized that “[wjhere ... a claimant challenges a provision of an uninsured motorist clause as being contrary to a statute, the Court of Common Pleas may exercise jurisdiction over the claim.” Azpell v. Old Republic Insurance Co., 526 Pa. 179, 183, 584 A.2d 950, 952 (1991), quoting Davis v. Government Employees Insurance Co., 500 Pa. 84, 88 n. 5, 454 A.2d 973, 975 n. 5 (1982) and United Services Automobile Association Appeal, 227 Pa.Super. 508, 516, 323 A.2d 737, 741 (1974), allocatur refused. As stated by this court:

[t]he law is clear that, although a case turning on the application or construction of an uninsured motorist clause is within the exclusive jurisdiction of the arbitration system, when the issue is whether a particular provision of the contract is contrary to a constitutional, legislative or administrative mandate, the courts properly exercise their jurisdiction over the entire matter.

Kester v. Erie Insurance Exchange, 399 Pa.Super. 206, 209, 582 A.2d 17, 19 (1990), quoting Daley-Sand v. West American Insurance Co., 387 Pa.Super. 630, 637, 564 A.2d 965, 969 (1989).

In applying these principles to the facts of this case, we must first examine the policy and determine whether the parties intended to restrict the jurisdiction of the arbitration panel. With regard to this matter, the policy provides:

Deciding Fault and Amount
Two questions must be decided by agreement between the insured and us:
1. Is the insured legally entitled to collect damages from the owner or driver of an uninsured motor vehicle or underinsured motor vehicle; and
2. If so, in what amount?
If there is no agreement, these questions shall be decided by arbitration at the request of the insured or us. The Pennsylvania Uniform Arbitration Act, as amended from time to time, shall apply____ The written decision of any two arbitrations [sic] shall be binding on each party.

See Appellee’s Cross-Motion for Summary Judgment, Exhibit A (copy of the insurance policy), at 15. Language of this type has been interpreted as providing for broad jurisdiction to be vested in the arbitration panel. See Brennan, supra. Consequently, all issues which relate to appellant’s entitlement to uninsured motorists’ coverage, and the amount of such coverage, must clearly be submitted to arbitration.

The dispute in this case does not pertain to the above-quoted language. Rather, the parties disagree as to the effect and operation of the following language contained in the policy:

Consent to Be Bound
We are not bound by any judgment against any person or organization obtained without our written consent.

See Appellee’s Cross-Motion for Summary Judgment, Exhibit A at 17. Appellee seeks to invoke this clause so that appellant will be required to prove the amount of her damages, if the arbitrators determine that appellant is entitled to recover uninsured motorists’ benefits under the policy. Appellant, however, objects to the application of the provision on the basis that it contravenes public policy by allowing an insurer to ignore a validly entered judgment. When viewed in this context, it is apparent that the issue in this case does not relate to either of the questions which the parties agreed to submit to arbitration, but involves a question of whether a provision in the insurance policy violates a constitutional, legislative or administrative mandate. Accordingly, we find that the trial court properly exercised jurisdiction over this dispute.

Having reached this conclusion, we must now ascertain whether summary judgment entered in favor of appellee was proper. Summary judgment may only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P., Rule 1035, 42 Pa.C.S.A. In reviewing the trial court’s grant of a motion for summary judgment, “the appellate court examines the record in the light most favorable to the non-moving party, and will not disturb the trial court’s order absent an error of law or manifest abuse of discretion.” Dyer v. The Travelers, Designee of the Pennsylvania Financial Responsibility Assigned Claims Plan, 392 Pa.Super. 202, 204, 572 A.2d 762, 763 (1990). We shall evaluate appellant’s arguments in accordance with this standard.

In support of her claim that the trial court erroneously entered summary judgment in favor of appellee, appellant initially argues that the contract is devoid of any language which would permit the insurer to ignore a verdict entered by the trial court. Essentially, appellant suggests that because the insurance policy only refers to judgments, and not verdicts, appellee is bound by the verdict entered in appellant’s favor. Appellant cites no authority for this novel interpretation, nor has our own research uncovered any cases which have interpreted policies in the manner posited by appellant. We nevertheless find appellant’s reasoning to be fundamentally flawed.

We first note that the record is devoid of any evidence that a verdict was entered against Andino. See Appellant’s Motion for Summary Judgment, Exhibit E (list of docket entries for appellant’s action against Andino). Instead, the record reveals that after the non-jury trial was held on August 17, 1989, a judgment was entered on August 21, 1989. See id., Exhibits A (copy of order, dated 8/21/89, which enters judgment in favor of appellant and against Frank Andino), and E. Further, it was procedurally impossible for a verdict to have been entered in the action against Andino because the case was tried before a judge sitting without a jury. In such instances, the trial court renders a decision, not a verdict. See Pa.R.C.P., Rules 227.4(1)(a) and (b) and 1038(b) and (c) (which make clear the distinction between decisions and verdicts: verdicts are rendered by a jury, whereas decisions are made by a trial judge). Contrary to appellant’s arguments, it is evident that appellant is attempting to bind appellee to a judgment, rather than a verdict.

More importantly, the insurer’s use of the term “judgment” necessarily includes the terms “verdict” or “decision of the trial court”, since a judgment is nothing more than the official entry of a verdict or decision of the trial judge upon the docket. See e.g., Pa.R.C.P., Rules 227.1, 227.4(1)(b), and 1038, 42 Pa.C.S.A. Consequently, if appellee cannot be bound by any judgments which are obtained without its consent, then it follows that appellee cannot be bound by any decisions or verdicts which form the basis of such judgments. Accordingly, appellant’s attempt to avoid application of the consent clause on this basis must fail.

In her next argument, appellant asserts that the clause should not be enforced because it violates public policy, in that the enforcement of such clauses results in a waste of time and judicial resources by forcing claimants to prove liability and damages before two separate tribunals. Appellant again cites no authority in support of this proposition, however, we find her analysis to be erroneous.

Although appellant claims that time and judicial resources will be unnecessarily wasted if consent clauses such as that found in the policy are enforced, appellant’s argument ignores the fact that any waste which may have occurred in this case is solely attributable to herself, and not the insurer. The insurance policy clearly delineates appellant’s duties under the policy and provides:

REPORTING A CLAIM—INSURED’S DUTIES
1. Notice to Us of an Accident or Loss.
The insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible----
4. Other Duties Under Uninsured Motor Vehicle and Underinsured Motor Vehicle and Death, Dismemberment and Loss of Sight Coverages.
The person making claim also shall: ... c. under the uninsured motor vehicle and underinsured motor vehicle coverage: ...
(3) send us at once a copy of all suit papers if the person sues the party liable for the accident for damages.

See Appellee’s Cross-Motion for Summary Judgment, Exhibit A, at 4-5. Further, the consent clause clearly states that the insurer is not bound by any judgments which are obtained without its written consent. See id., at 17.

In examining the policy, it is evident that an insured must notify the insurer of the loss and must further inform the insurer of any action which is commenced against the tortfeasor. The insured is also required to obtain the insurer’s written consent in order to bind the insurer to any judgment which may be obtained. From our review of the record, it does not appear that appellant has attempted to comply with the above procedures. Therefore, any unnecessary delay or waste of judicial time and resources in this case has resulted not from the enforcement of the clause, but from appellant’s failure to follow the procedures delineated in the policy. Thus, appellant cannot now be heard to complain regarding waste and delay which she herself has occasioned.

Aside from her mention of time and judicial resources, appellant is unable to identify any other public policy which would be undermined by the enforcement of the consent clause. Although no case has previously addressed this subject, we find that the consent clause furthers, rather than violates public policy. First, we note that appellant seeks to apply the judgment against appellee, who was not a party to the judgment and who did not have notice of the litigation or an opportunity to participate therein. As appellee correctly observes, such a result would be inimical to appellee’s due process rights. At a minimum, due process requires that parties be accorded notice and an opportunity to be heard, and these rights “must be granted at a meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 569 (1972). Enforcement of the judgment against appellee, who had neither notice or an opportunity to be heard, would thus deprive appellee its right to due process.

More importantly, the enforcement of the judgment against appellee would be contrary to the law of this Commonwealth, which requires an insured to obtain an insurers’ consent before prosecuting an action against an uninsured motorist to judgment. See 40 P.S. § 2000(e)(2) and Nagle v. Allstate Insurance Co., 358 Pa.Super. 82, 88, 516 A.2d 1191, 1194 (1986). Where this requirement has not been met, any judgment secured by the insured cannot be enforced against the insurer. See § 2000(e)(2) and Nagle, supra. See also, Walker v. Pennsylvania Financial Responsibility Assigned Claims Plan, 398 Pa.Super. 125, 580 A.2d 872 (1990) (holding that a claimant was not entitled to recovery from the insurer where the claimant commenced action against the tortfeasor without knowledge of the insurer and caused a final judgment to be entered in favor of the tortfeasor, thereby extinguishing the insurer’s subrogation rights), and Dyer, supra (holding that a claimant was not entitled to recovery where she obtained an arbitration award in her favor, but did not notify the insurer of the action, and had thereby extinguished its subrogation rights). In view of these authorities, it is clear that appellee cannot be bound by a judgment which was procured without its consent.

As discussed above, appellee sets forth additional arguments in its brief as to why it should not be bound by the judgment. These theories relate to the doctrines of res judicata and collateral estoppel, neither of which apply to this case, since the requisite elements have not been met. See City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 522 Pa. 44, 54, 559 A.2d 896, 901 (1989) (identifying the elements of res judicata) and Incollingo v. Maurer, 394 Pa.Super. 352, 356, 575 A.2d 939, 940 (1990), allocatur denied, 526 Pa. 636, 584 A.2d 318 (1990) (which sets forth the elements of collateral estoppel). Because neither of these doctrines is applicable, we need not further address these arguments.

In sum, we reject appellant’s specious suggestion that the consent clause can only be applied to judgments and not verdicts. We further find that the consent clause does not violate public policy. Contrary to appellant’s arguments, any attempt to bind appellee to a judgment that was obtained without its consent would be contrary to the law of this Commonwealth. More importantly, such an attempt would result in the deprivation of appellee’s due process right to notice and an opportunity to be heard. We therefore conclude that the consent clause is valid and enforceable against appellant. Having made this determination, the facts reveal that appellant never obtained appellee’s consent to the judgment. Because appellee cannot be bound by a judgment that was obtained without its prior consent, it is clear that appellee is entitled to judgment as a matter of law. Accordingly, we affirm the trial court’s grant of summary judgment in favor of appellee.

Order affirmed.

      . In reviewing the brief filed by appellee, we note that appellee has filed a counterstatement of questions which purports to contain five separate issues. As previously recognized by this court, " ‘[a]n appellee who files no counter-appeal cannot raise issues not raised by appellant.' ” Arcidiacono v. Timeless Towns of the Americas, Inc., 363 Pa.Super. 528, 531 n. 2, 526 A.2d 804, 806 n. 2 (1987), quoting Philadelphia Bond & Mortgage Co. v. Highland Crest Homes, Inc., 235 Pa.Super. 252, 256 n. 1, 340 A.2d 476, 479 n. 1 (1975), allocatur refused. Because appellee has not filed a cross-appeal, we are precluded from addressing any issues in appellee’s brief which have not been raised by appellant. However, a closer inspection of appellee’s counterstatement reveals that appellee is not attempting to improperly raise additional issues; rather, appellee has merely set forth various arguments which would support an affirmance of the trial court’s order. Thus, it is evident that appellee has merely mislabeled its "arguments" as “issues”. We further observe that appellee’s brief is defective in that the purported counterstatement of questions violates Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A. in that the counterstatement spans two pages. We remind appellee "that the rules [of procedure] are mandatory, not directory, and that in appropriate cases, we will not hesitate to impose sanctions” where a party fails to comply with the rules. See Pleet v. Valley Greene Associates, 371 Pa.Super. 530, 531-532 n. 1, 538 A.2d 567, 568 n. 1 (1988). Despite these deficiencies, the defects in appellee’s brief do not substantially hamper our ability to effectively address the merits of this appeal. Accordingly, we shall consider the arguments raised by appellee insofar as they relate to the issue and arguments which have been properly raised by appellant.

        . We have elected to use the copy of the insurance policy attached to appellee’s motion, as it is the only copy of the policy in the certified record which appears to contain a complete version of the policy.


author: HOFFMAN, Judge: POPOVICH, Judge,

text:
    590 A.2d 766
    COMMONWEALTH of Pennsylvania v. Eric DICKERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1991.
    Filed May 8, 1991.
    Petition for Allowance of Appeal Granted Oct. 3, 1991.

      Vincent G. Iannello, Media, for appellant.
    Dennis C. McAndrews, Asst. Dist. Atty., Media, for Com., appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence imposed following appellant’s guilty plea to charges of rape, involuntary deviate sexual intercourse, and possessing instruments of crime. Appellant contends that the sentence imposed was an abuse of discretion because it was harsh and excessive under the circumstances. In addition, he contends that sentencing counsel was ineffective for failing to (1) object to the imposition of a mandatory sentence pursuant to 42 Pa. C.S.A. § 9714, and (2) object to the prosecutor’s erroneous computation of the sentencing guideline ranges. For the reasons that follow, we disallow the appeal as to appellant’s first claim, and we vacate the judgment of sentence and remand for an evidentiary hearing on appellant’s ineffectiveness claims.

The relevant procedural facts have been aptly summarized by the court below, as follows:

On the evening of December 31, 1986, Defendant raped and committed involuntary deviate sexual intercourse on two separate women in the city of Chester. The attacks were similar, but not related. Two separate sets of criminal informations resulted from the attacks. Both attacks were at knife point. In both instances Defendant dragged the women off the street into an abandoned building. One attack occurred at 9:45 p.m. and the other occurred at approximately 11:00 p.m.
On February 11, 1988 Defendant was convicted by a jury of the crimes related to the first attack. (Information No. 8988-86.) On September 13, 1988 Defendant was sentenced to an aggregate term of imprisonment for the first attack of not less than seven and one-half (7V2) years nor more than fifteen (15) years. Defendant filed an appeal. The judgment of sentence in that case was affirmed by the Superior Court on July 31, 198[9]. (See: No. 2917 Philadelphia 1988.)
The instant case involves the second attack. On April 4, 1989, Defendant entered pleas of guilty to three separate criminal informations related to the second attack. [The informations charged appellant with rape, involuntary deviate sexual intercourse, and possessing instruments of crime.] At the time that the guilty pleas were entered, the Defendant was on notice of the fact that the Commonwealth intended to proceed under the mandatory sentencing provisions of 42 Pa. C.S.A. § 9714 related to second and subsequent offenses.
On April 10, 1989 Defendant was sentenced for the crimes related to the second attack. The sentences were designated to run consecutively to the sentences imposed on Information Nos. 8988-86, i.e., those imposed on September 13, 1988 related to the first attack. [The aggregate sentence imposed on these charges was ten-to-twenty years imprisonment.] On April 18, 1989 Defendant filed a Motion To Modify/Motion For Reconsideration. A hearing was scheduled on this Motion for May 15, 1989. On April 27, 1989 an Order was entered vacating the sentences imposed on April 10, 1989. This order was entered so that the Court would retain jurisdiction over the matter until the hearing could be held. At the conclusion of the hearing, which was actually held on May 19, 1989, Defendant was resentenced to a total term of imprisonment of not less than seven and one-half (7V2) years nor more than fifteen (15) years. The sentences were again designated to run consecutively to the sentences imposed under Information No. 8988-86. On May 25, 1989, Defendant filed another Motion To Modify/Motion For Reconsideration. This Motion alleged, inter alia, that the reasons for the Court’s sentence on May 19, 1989 were unclear. On June 13, 1989 a hearing was held on this Motion. At the hearing the Court restated the reasons for its sentence and the Motion was denied. This appeal followed.

Trial Court Opinion at 1-8 (footnotes omitted).

Appellant first contends that the sentence imposed by the court was an abuse of discretion because it was harsh and excessive under the circumstances. Appellant’s brief complies with the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), in that it contains a statement of the reasons relied upon for allowance of appeal from the discretionary aspects of sentencing. However, after close review of this statement, we find that the claim does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tuladziecki, supra; 42 Pa.C.S.A. § 9781(b). The bulk of appellant’s 2119(f) statement is devoted to an argument that the sentence was an abuse of discretion because it exceeded the sentencing guidelines. However, appellant did not include this specific claim in his “Statement of Questions Involved,” and there is no discussion of this point in the argument section of appellant’s brief. Thus, we cannot allow an appeal as to this point. The only other claim identified in the 2119(f) statement is an argument that the sentences were inappropriate in light of certain mitigating factors. Specifically, appellant argues that:

[t]hese grossly excessive sentences were imposed in spite of the fact that (1) the crimes committed on the evening in question constituted Petitioner’s first significant contact with the criminal authorities; (2) he showed remorse for his crime; and (3) ... he pleaded guilty in order to spare the victim the ordeal of testifying again in court.

Brief for Appellant at 9. Appellant does not allege that the sentencing court was unaware of these mitigating circumstances. Instead, he merely suggests that the court did not properly weigh these factors. This type of claim, which simply asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tuladziecki, supra, 513 Pa. at 515, 522 A.2d at 20; Commonwealth v. Rogers, 386 Pa.Super. 476, 481, 563 A.2d 165, 168 (1989); Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988). Accordingly, we must disallow the appeal from the discretionary aspects of sentencing. See, e.g., Commonwealth v. Tuladziecki, supra.

Appellant’s remaining two claims concern the alleged ineffectiveness of his prior counsel. Although these claims were not raised in the court below, appellant is now represented by new counsel, and, because present counsel has raised the ineffectiveness claims at the first opportunity when appellant was no longer represented by trial counsel, we may consider them on direct appeal. See, e.g., Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978); see also Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984). Counsel, of course, is presumed to be effective, and the burden of demonstrating ineffectiveness rests on appellant. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). To prevail on a claim of ineffectiveness, appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. E.g., Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). With this standard in mind, we turn to appellant’s underlying claims.

Both of appellant’s ineffectiveness claims concern counsel’s performance during sentencing. Appellant first contends that counsel should have objected to the court’s imposition of a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9714. At the time pertinent to this appeal, § 9714 provided, in relevant part, as follows:

§ 9714. Sentences for second and subsequent offenses
(a) Mandatory sentence.—Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping or robbery as defined in 18 Pa. C.S. § 3701(a)(1)(i), (ii), or (iii) (relating to robbery), or attempt to commit any of these crimes, or who is convicted of aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, shall, if they have previously been convicted of a crime of violence as specified in subsection (b), be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Prior convictions for crimes of violence.—For the purposes of subsection (a), an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:
(1) The offender was previously convicted in this Commonwealth or any other state or the District of Columbia or in any Federal court of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii), or (iii), arson as defined in 18 Pa. C.S. § 3301(a), kidnapping or aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, an equivalent crime under the laws of the Commonwealth in effect prior to the effective date of Title 18 (relating to crimes and offenses) or an equivalent crime in another jurisdiction. The previous conviction need not be for the same crime as the instant offense for this section to be applicable.
(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention shall not be included in computing the relevant seven-year period. Convictions for other offenses arising from the same criminal episode as the instant offense shall not be considered previous convictions for the purpose of this section. A previous conviction shall include any conviction, whether or not litigation is pending concerning that conviction.

Id. Thus, § 9714 requires that a mandatory minimum sentence of five years imprisonment be imposed on recidivist perpetrators of certain enumerated violent crimes.

Appellant argues that the above enhancement is inapplicable because his first rape conviction was not a previous conviction as contemplated in § 9714. Appellant recognizes that the first conviction resulted from criminal conduct which preceded (albeit by little over an hour) the criminal conduct that led to the charges in this case. He argues, however, that the enhancement cannot apply because a conviction cannot be a previous conviction for purposes of § 9714(b) unless the conviction for the first offense occurs prior to the commission of the second offense. Although our research has revealed no cases directly on point, a careful consideration of cases that have interpreted provisions similar to § 9714 and the principles that animate such recidivist provisions generally, convinces us that appellant’s position must be sustained.

This Court long ago articulated the theory underlying habitual criminal legislation, as follows:

It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone, except the incorrigible one, who after being reproved, ‘still hardeneth his neck.’ If the heavier penalty prescribed for the second violation____ is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Commonwealth v. Sutton, 125 Pa.Super. 407, 413, 189 A. 556, 558 (1937) (quoting Morgan v. Commonwealth, 170 Ky. 400, 186 S.W. 132 (1916)). See also, e.g., Commonwealth v. Eyster, 401 Pa.Super. 477, 488-489, 585 A.2d 1027, 1033 (1991) (en banc). In Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), vacated and remanded on other grounds, 517 Pa. 83, 534 A.2d 1050 (1987), this Court, in a per curiam Opinion joined by seven judges, discussed in detail the history and purpose of habitual offender statutes:

[A]t least as long ago as 1860, legislation which addressed the proper disposition of persistent offenders contained language as imprecise as that of the [sentencing] guidelines, as have some regulatory statutes which mandate penal sanctions for multiple violations (and which have found their way into case authority). Contrary to the trial court’s inclusion of immediacy into the concept of priority in this case, in all of the Pennsylvania cases interpreting the prior recidivist statutes the priority of a conviction lies in its preceding commission of the offense to be enhanced. Commonwealth ex rel. Turpack v. Ashe, 339 Pa. 403, 15 A.2d 359 (1940); Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427 (1909); Rouch v. Commonwealth, 78 Pa. 490 (1875); Commonwealth v. Lane, 236 Pa.Super. 462, 345 A.2d 233 (1975); Commonwealth v. Calio, 155 Pa.Super. 355, 38 A.2d 351 (1944); Commonwealth ex rel. Flory v. Ashe, 132 Pa.Super. 405, 1 A.2d 685 (1938); Commonwealth v. Sutton, 125 Pa.Super. 407, 189 A. 556 (1937); Commonwealth v. Neill, 16 Pa.Super. 210 (1901). The antiquity of this concept does nothing to diminish its validity.
The hypothesis that prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers is, in fact, the majority rule in this country, Annot., 24 A.L.R.2d 1247, and not only the traditional approach in this Commonwealth. In fact, the “rule [is] that a second offense, carrying with it a severer penalty is not, in legal contemplation committed until there has been a conviction for a first offense.” Id.
Thirty-one states have habitual criminal statutes, or case authority which expressly defines prior convictions as those which have preceded commission of the principal offense. The reasoning is consistent with the notion that:
Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.
39 Am.Jur.2d Habitual Criminals § 6. The theme is constant and unwavering, with only one exception in this Commonwealth [see Commonwealth v. Vandemark, 65 Pa.D. & C. 351 (1948) ], and can be extrapolated as well from section 303.7(g) [of the sentencing guidelines] as from previous statutory provisions.

Id. 349 Pa.Super. at 589-93, 504 A.2d at 201-03 (footnotes omitted). See also Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986), allocatur granted, 514 Pa. 617, 521 A.2d 932 (1986), appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1987). Accord Commonwealth v. Becker, 366 Pa.Super. 54, 64-65, 530 A.2d 888, 893-94 (1987) (en banc), allocatur denied, 520 Pa. 586, 551 A.2d 213 (1988) (table); Commonwealth v. Kearns, 365 Pa.Super. 13, 18-19, 528 A.2d 992, 994 (1987). Although Mourar and Wolfe involved the sentencing guidelines, the discussion of the general purpose behind such recidivist provisions is no less applicable to § 9714. Indeed, both Mourar and Wolfe recognized that the structure of § 9714 provided further support for the conclusion that convictions for prior crimes must precede commission of the second crime to be included as sentence enhancers. As the Mourar Court noted:

Guidance on this point may be drawn from 42 Pa.C.S. § 9714(b) which designates a five-year enhancement for recidivist perpetrators of certain enumerated violent crimes. Unless this section is read to provide not only a terminus a quo but also ad quern for prior offenses, it makes no sense, and when aligned with section 303.7(g) [of the sentencing guidelines], must require that conviction for the (enhancing) offense predate commission of the principal offense to escape the imputation of a sophistic intent to both.

349 Pa.Super. at 593-94, 504 A.2d at 203 (footnote omitted). See also Commonwealth v. Wolfe, supra 349 Pa.Super. at 421-22, 503 A.2d at 438. Accord Commonwealth v. Kearns, supra 365 Pa.Super. at 19-20, 528 A.2d at 995. We should note that the principles expressed in Mourar and Wolfe were recently reaffirmed by a unanimous en banc panel of this Court. Commonwealth v. Eyster, supra (construing 42 Pa.C.S.A. § 2154).

Consistent with the foregoing authority, we hold that for a prior conviction to serve as an enhancer pursuant to § 9714, the conviction must precede the commission of the later offense. The application of this holding to the case at bar is straightforward. Appellant’s first conviction arose from conduct that preceded the instant offense by little more than an hour. The conviction for the first offense did not occur until February 11, 1988, over thirteen months after commission of the instant offense. On this record, it was error for the trial court to treat appellant’s first conviction as a prior conviction under 42 Pa.C.S.A. § 9714. Because our construction of § 9714 follows logically from the decisions in Mourar and Wolfe, as well as from the language of § 9714 and the longstanding and constant approach to habitual offender legislation in this Commonwealth, appellant’s claim that counsel should have objected to the application of § 9714 possesses arguable merit. In addition, it is apparent that the court based its sentence, at least in part, on the mandatory language of § 9714: the Commonwealth informed appellant and the court that it was seeking a mandatory minimum sentence pursuant to § 9714, and the Court stated on the record that it “considered the mandatory aspects of sentencing in imposing the sentence.” See N.T. June 13, 1989 at 5. We recognize that the actual minimum sentence imposed—seven and one-half years-—exceeded the mandatory minimum term required by § 9714. Nevertheless, the five year minimum served as the basis (and floor) from which the court began its sentencing analysis. Thus, appellant was prejudiced by counsel’s failure to raise a challenge to the applicability of the § 9714 enhancement.

Our inquiry does not end here, however, because there has been no evidentiary hearing on appellant’s ineffectiveness claims. Accordingly, trial counsel has not had an opportunity to explain whether his decision not to object to the application of § 9714 had a reasonable basis designed to effectuate his client’s interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967). Although it is unlikely that a reasonable basis exists for this particular inaction, “we must consider that possibility.” Commonwealth v. Gray, 339 Pa.Super. 385, 390, 489 A.2d 213, 216 (1985). In such circumstances, rather than finding counsel ineffective now and remanding for resentencing, the “better course” is to remand the case for an evidentiary hearing at which counsel will have an opportunity to explain the reasons for the course chosen. See Commonwealth v. Spotts, 341 Pa.Super. 31, 36, 491 A.2d 132, 135 (1985); see also Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976); Commonwealth v. Pursell, 403 Pa.Super. 342, 589 A.2d 217 (1991) (plurality opinion per Wieand, J.); Commonwealth v. Gray, supra.

Appellant’s remaining ineffectiveness claim also concerns the usage of the first rape conviction to enhance his sentence. Specifically, appellant argues that counsel should have objected when the prosecutor handed the sentencing court a guideline sentence form on which appellant’s prior record score was calculated as a “3.” The “3” resulted from appellant’s first rape conviction. In light of the authorities discussed above, appellant’s claim that the first rape conviction was improperly included in calculating the prior record score clearly possesses arguable merit. See Commonwealth v. Eyster, supra; Commonwealth v. Mourar, supra; Commonwealth v. Wolfe, supra. The Commonwealth argues, however, that appellant was not prejudiced by the erroneous calculation because the Sentencing Guidelines in effect at the time appellant committed the instant offenses were declared unconstitutional in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), and thus “the trial court utilized them [the guidelines] only for guidance in imposing sentence.” Brief for Appellee at 12.

In light of Sessoms, there is no question that a defendant is not prejudiced simply because the sentence imposed exceeded the recommendations in the prior sentencing guidelines. However, if the court purports to sentence consistently with the guidelines, but applies the guidelines erroneously, the defendant obviously has been prejudiced. Here, after reviewing the record, it is apparent that the guidelines played a role in the formulation of appellant’s sentence. At the June 13, 1989 hearing on appellant’s second motion to modify sentence, the court stated that it “was aware fully of the guideline implications in this matter and I felt that the sentence that I imposed was called for under all the circumstances.” N.T. June 13, 1989 at 8. In addition, in its opinion, the court explained that, although it was aware that the guidelines had been invalidated by Sessoms, it was also aware that this Court had held that, notwithstanding Sessoms, sentencing courts may consider the guidelines as “a useful reference guide for fashioning appropriate sentences.” See Trial Court Opinion at 8-9 (citing Commonwealth v. Smart, 387 Pa.Super. 518, 521 n. 1, 564 A.2d 512, 513 n. 1 (1989), appeal granted, 525 Pa. 633, 578 A.2d 928 (1990)). The sentencing court then noted that the sentence imposed was within the standard range of the guidelines which had been in effect at the time of the offenses. See id. at 9. The court’s conclusion in this regard, of course, was premised on an erroneously calculated prior record score. In light of these facts, we are satisfied that appellant was prejudiced by counsel’s failure to object to the improper calculation of appellant’s prior record score. Once again, however, we note that counsel has not had an opportunity to explain whether his inaction in this regard had a reasonable basis designed to effectuate his client’s interests. Thus, we remand for an evidentiary hearing on this claim as well so that counsel may have an opportunity to explain the reasons for the course chosen. See Commonwealth v. Spotts, supra; see also Commonwealth v. Turn er, supra; Commonwealth v. Pursell, supra; Commonwealth v. Gray, supra.

For the foregoing reasons, we disallow the appeal as to appellant’s first claim, and we vacate the judgment of sentence and remand for an evidentiary hearing on appellant’s claims of ineffective assistance of counsel. If counsel is found to have been ineffective, a new sentencing hearing must be held. If counsel is determined to have acted reasonably, however, sentence shall be reimposed.

Appeal disallowed in part; judgment of sentence vacated and case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

Having concluded that counsel’s actions prejudiced appellant at the time of sentencing, I would remand for resentencing.

I do not agree with the majority’s conclusion that an evidentiary hearing is needed to determine whether counsel’s failure to object to the application of 42 Pa.C.S.A. § 9714 and his failure to object to the improper calculation of appellant’s prior record score had reasonable bases designed to effect appellant’s interest. This jurist cannot imagine any reasonable basis for counsel to stand silent and permit a sentencing court to misapply the sentencing statutes and guidelines in a manner clearly prejudicial to his client. Undoubtedly, under the present facts, remand for an evidentiary hearing would simply be a waste of precious judicial resources. Cf., Commonwealth v. Schultz, 335 Pa.Super. 306, 310, 484 A.2d 146, 148 n. 4 (1984) (new trial granted rather than evidentiary hearing, where court finds counsel’s actions unsubstantiated and remand for evidentiary hearing would be a waste of judicial time).

Consequently, I respectfully dissent from the opinion of the majority since I conclude an evidentiary hearing is unnecessary, and this case should be remanded for resentencing.

      . When a defendant attempts to challenge the discretionary aspects of sentencing on direct appeal, we will not grant allowance of appeal unless there is a demonstration of a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See 42 Pa.C.S.A. § 9781. Here, however, because appellant challenges counsel’s stewardship for failing to raise the underlying sentencing questions, we must consider whether those questions possess arguable merit. See Commonwealth v. Lee, 401 Pa.Super. 591, 603, 585 A.2d 1084, 1090 (1991) (citing Commonwealth v. Jones, 365 Pa.Super. 57, 528 A.2d 1360 (1987), allocatur denied, 518 Pa. 612, 540 A.2d 534 (1988)). In any event, the underlying sentencing claims raised by appellant, which concern the proper interpretation of recidivist offender legislation, raise a substantial question that the sentence imposed was inappropriate. See Commonwealth v. Eyster, 401 Pa.Super. 477, 480, 585 A.2d 1027, 1028 (1991) (en banc).

      . Section 9714 was amended on December 11, 1986, to be effective in sixty days. The only change was the substitution in sub-section (b)(2) of the phrase "[f]or purposes of this section previous conviction shall include any conviction, whether or not judgment of sentence has been imposed or” for the phrase “[a] previous conviction shall include any conviction, whether or not.” See id.., Historical Note (Purdon Supp. 1990). Because the amendment did not take effect until after the crimes were committed, it is the prior section that controls. In any event, the change, though substantive, would not affect our disposition.

      . We should note that appellant nevertheless argues that the two offenses constituted the same criminal episode. In light of our disposition infra, we need not address this separate argument.

      . The en banc decision in Mourar was remanded by our Supreme Court for reconsideration in light of Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), which had held that the sentencing guidelines were unconstitutional. The Supreme Court decision, however, in no way calls into question the validity of the analysis of recidivist provisions found in the en banc decision in Mourar.

      . This holding, of course, is not meant to suggest that the sentencer cannot consider the fact of the prior offense in fashioning its sentence. As the Wolfe Court noted: “ 'Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].’ ” 349 Pa.Super. at 422, 503 A.2d at 439 (quoting Commonwealth v. Lupatsky, 341 Pa.Super. 338, 340, 491 A.2d 845, 847 (1985)).


author: OPINION PER CURIAM:

text:
    590 A.2d 774
    In the Interest of Darryl BOSKET. Appeal of COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued March 12, 1991.
    Filed May 8, 1991.

      Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Bradley S. Bridge, Philadelphia, for appellee.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   OPINION PER CURIAM:

The Commonwealth appeals from the June 28, 1990 order of the Philadelphia County Court of Common Pleas sentencing appellee to probation without verdict pursuant to section 17 of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.S.A. § 780-117. The sole issue raised on appeal is whether the Juvenile Act authorizes the disposition of a delinquency petition pursuant to section 17 of the Controlled Substance, Drug, Device and Cosmetic Act. As we find that the Juvenile Act authorizes no such disposition, we reverse the order of the trial court and remand for disposition in accordance with the provisions of the Juvenile Act.

The facts surrounding appellee’s arrest may be summarized as follows. On March 26, 1989, Philadelphia Police Officer Richard Flynn was on routine patrol driving a marked police car when he observed appellee standing at a city intersection where drug transactions commonly take place. Officer Flynn testified during a pretrial hearing that appellee first glanced towards him, then turned and walked briskly in the opposite direction. The officer then observed appellee throw a clear plastic bag into a public planter located on the sidewalk. Flynn later testified that the bag contained fifty-three red-topped vials of what he believed to be crack cocaine.

Officer Flynn then drove past the intersection, called for backup officers and minutes later, returned to the same intersection with the backup unit. After observing appellee in the same location, Flynn stopped and searched him unsuccessfully. The officer then proceeded to the public planter and recovered the plastic bag which he had observed appellee drop. Appellee, then seventeen, was arrested by Officer Flynn, and the Commonwealth filed a delinquency petition in juvenile court charging appellee with Possession with Intent to Deliver a Controlled Substance.

Appellee filed a motion to suppress the physical evidence seized by Officer Flynn. On April 18, 1989, following a hearing, the trial court granted appellee’s motion on the basis that the evidence was seized after an unlawful arrest. The Commonwealth appealed, and this court reversed. In the Interest of Bosket, 400 Pa.Super. 629, 576 A.2d 1142 (1990). The case then was remanded to the trial court for an adjudicatory hearing on the delinquency petition.

During the adjudicatory hearing, the Commonwealth moved for appellee to be certified for trial as an adult. The trial court denied the Commonwealth’s motion, but then it granted appellee’s motion that he be sentenced to probation without verdict pursuant to section 17 of the Controlled Substance, Drug, Device and Cosmetic Act. The Commonwealth’s motion for reconsideration was denied by the trial court, and this timely appeal followed.

The Commonwealth contends that the trial court’s ruling in placing appellee on probation without verdict pursuant to section 17 of the Controlled Substance Act, without an adjudication of delinquency and without a plea of nolo contendere, is contrary to the express provisions of the Juvenile Act and section 17 of the Controlled Substance Act and therefore, should be reversed. Appellee maintains that the two statutes are not mutually exclusive and reasonably may be interpreted to permit the trial court to apply that section of the Controlled Substance Act to a juvenile charged with a violation of the same act. Upon our review of both statutes, we are inclined to agree with the Commonwealth.

In enacting the Juvenile Act, the Legislature set forth a comprehensive scheme for the treatment of juveniles who commit offenses which would constitute crimes if committed by adults. The purposes and procedures of the juvenile system differ significantly from those of the adult criminal system. As we stated in In re Leonardo, 291 Pa.Super. 644, 648, 436 A.2d 685, 687 (1981), the purpose of juvenile proceedings is to seek “treatment, reformation and rehabilitation of the youthful offender, not to punish.” A proceeding may be commenced in the juvenile system by the filing of a petition alleging that the juvenile is delinquent. 42 Pa.C.S.A. § 6321. Upon the filing of such a petition, the court must hold an adjudicatory hearing to hear evidence on the petition and following the completion of the hearing, the court is required to make and file its findings as to whether the acts ascribed to the child were committed by him. If the court finds that the allegations of delinquency have not been established, it must dismiss the petition and order the child discharged from detention. 42 Pa.C.S.A. § 6341(a). On the other hand, if the court finds proof beyond a reasonable doubt that the child committed the acts, it must enter such a finding on the record and proceed to hear evidence of whether the child is in need of treatment, supervision, or rehabilitation. Evidence of the commission of a felony is sufficient to sustain a finding that a child is in need of treatment, supervision or rehabilitation. 42 Pa.C.S.A. § 6341(b).

The legislature provided only one alternative to the required disposition scheme described above, the consent decree. When the Juvenile Act originally was enacted, the legislature specified that after the filing of a petition alleging delinquency but before the entry of an adjudicatory order, the court could suspend the proceedings and continue the child under supervision subject to conditions negotiated with the probation services. Under such an order, known as a consent decree, a child was discharged if he fulfilled the terms and conditions of the decree. 42 Pa.C.S.A. § 6340(a). In 1986, however, the legislature amended this section to provide that where the district attorney objects to a consent decree, the court must proceed to findings, adjudication, and disposition. Judicial authority to enter preadjudication dispositions of probation, thus, was limited to those consented to by the Commonwealth.

The trial court ruling which produced the instant appeal involved the imposition of pre-adjudicatory probation on appellee through the use of one section of the Crimes Code which provides for a similar probationary arrangement in the adult criminal justice system. Since this disposition did not require the consent of the Commonwealth, the trial court achieved its objective of placing appellee on preadjudicatory probation over the objection of the Commonwealth. We believe this action is in clear contradiction to the result intended by the legislature when it decided to amend the pre-adjudicatory probation provision of the Juvenile Act in 1986. Consequently, we cannot allow the trial court’s action to stand.

The legislative history surrounding the amendment of section 6340 of the Juvenile Act suggests that the purpose of the amendment was to prohibit the entry of pre-adjudicatory probation in cases where the district attorney, in good faith, believes it to be inappropriate. In the present case, appellee was charged with the possession of fifty-three vials of crack cocaine on a street corner which is notorious for transactions involving controlled substances. The trial court offered no reason for its desire to offer extraordinary leniency to appellee, other than its concern over the lawfulness of the arrest which we reviewed and upheld in a separate memorandum opinion. See In the Interest of Bosket, supra.

While we agree with appellee’s argument that the lenient treatment afforded appellee by the trial court was consistent with the general purposes of the Juvenile Act, it does not change the fact that the trial court failed to comply with the specific provisions of the Juvenile Act regarding the disposition of a delinquency petition. The trial court herein failed to make the required findings concerning whether appellee committed the acts ascribed to him in the petition. Moreover, it failed to dispose of the petition in the manner prescribed by the Juvenile Act, which compels the trial court to either dismiss the petition or adjudicate the juvenile delinquent. By the specific language of section 6341 of the Juvenile Act, the trial court had no alternative but to dispose of the petition in the manner set forth in that section. To dispose of the petition in the manner it did, the trial court not only exceeded the authority vested in it by the legislature, but it also subverted the legislature’s clear intention to require the Commonwealth’s consent to the imposition of pre-adjudicatory probation upon a juvenile charged with a serious delinquent act.

Appellee argues that if he had not been charged as a juvenile, he could have received pre-adjudicatory probation under section 17 of the Controlled Substance Act if he voluntarily agreed to the transfer of his case to adult court. Appellee contends that it would have been “absurd and unreasonable” for the legislature to have intended to provide a juvenile with the option of choosing to receive section 17 probation in adult court upon waiver of certification (or involuntary certification) or remaining in juvenile court with no entitlement to section 17 treatment. Therefore, he argues, we must interpret the two statutes in a manner which would authorize imposition of pre-adjudicatory probation under section 17 to the juvenile whose case remains in juvenile court. Appellee’s brief at 9.

To the contrary, we view the intentions of the legislature with regard to pre-adjudicatory probation as being eminently reasonable. Probation without verdict under section 17 of the Controlled Substance Act indeed is available to adults and juveniles who are certified to be tried as adults. However, all of the other penalties attached to the Controlled Substance Act are available to those individuals as well. Probation under section 17 is not guaranteed in any case and the juvenile who chooses to be tried as an adult takes the risk of not receiving the leniency provided for in section 17. That, in our view, is a high price to pay.

Alternatively, the juvenile who remains within the jurisdiction of juvenile court can receive the benefit of the preadjudicatory disposition provisions of the Juvenile Act if the Commonwealth consents. In the event that the Commonwealth objects due to the serious nature of the delinquent act, the juvenile trial court has only three alternatives: to dismiss the delinquency petition upon a finding of a lack of evidence, to adjudicate the juvenile delinquent, or to certify the juvenile as an adult based on the appropriate factors, thereby exposing him to the full range of benefits and penalties provided in the Crimes Code. It is contrary to the law to deny certification to a juvenile charged with a serious delinquent act and then to utilize a pre-adjudicatory provision of the adult Crimes Code to evade the express provisions of the statute vesting the court with its authority. The action is contrary to the express provisions of the Juvenile Act even if undertaken, ostensibly, in the best interests of the juvenile. See In re Evans, 246 Pa.Super. 430, 371 A.2d 914 (1977) (disposition not authorized in the Juvenile Act unlawful even if in best interest of juvenile).

Order reversed; case remanded for disposition in accordance with the provisions of the Juvenile Act; jurisdiction relinquished.


author: CERCONE, Judge:

text:
    590 A.2d 778
    COMMONWEALTH of Pennsylvania v. Carlos DANIELS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 19, 1991.
    Filed May 8, 1991.

      Robert H. Isbell, Sharon, for appellant.
    Linda H. Barr, Asst. Dist. Atty., Hermitage, for Com., appellee.
    Before HUDOCK, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence. We affirm.

In this case, appellant Carlos Daniels was found guilty by a jury of carrying a firearm without a license, simple assault, recklessly endangering another person, terroristic threats and disorderly conduct. Subsequently, his post-trial motions were denied and appellant was sentenced to serve consecutive terms of not less than two and one-half (2-y2) years nor more than five (5) years for the assault and firearm offenses. Appellant was also sentenced to serve a consecutive term of not less than one (1) nor more than two (2) years for the offense of recklessly endangering another person. This appeal followed.

Appellant presents four issues for our review. First, appellant alleges that the lower court erred in refusing to suppress a statement he made to a police officer prior to receiving Miranda warnings. Next, appellant contests the sufficiency of the evidence presented by the Commonwealth with regard to his convictions of carrying a firearm without a license, simple assault and recklessly endangering another person. For the reasons outlined below, we reject these allegations.

With regard to appellant’s suppression argument, we note that our function is to determine:

[Wjhether the record supports the suppression court’s factual findings and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Moreover, when the evidence viewed in this manner supports the factual finding of the suppression court, this Honorable Court can reverse only if there is an error in the legal conclusion drawn from those factual findings.

Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1043 (1986) (citations omitted).

Aided by this standard of review, we determine that the following lower court findings of facts are adequately supported by the record. On February 17, 1989, Mark Hopson, the alleged victim of the aforementioned crimes, parked his vehicle on Idaho Street in Farrell. Mr. Hopson parked the car with the driver’s side facing the street to enable himself and his two friends to talk to people passing by.

At approximately 10:00 p.m., the victim observed a 1983 Cadillac Seville bearing a personalized California license plate inscribed “Fresh 18” parking in a nearby lot. While he recognized the car as belonging to appellant, Mr. Hopson was unable to ascertain the driver at that time since the automobile had tinted windows. Subsequently, the victim saw appellant standing outside of the car near the trunk area.

Appellant then approached Mr. Hopson and threatened to shoot him 14 times. At the time of this incident, the victim, an eighteen-year-old high school senior, was romantically involved with appellant’s estranged wife, Ms. Kim Daniels. During the encounter, appellant pointed a partially hidden gun in the general direction of the victim. The gun was held in a blue whiskey bag.

Mr. Hopson drove immediately afterwards to the Farrell Municipal Building and recounted the incident for Sergeant Daniel Oster and Officer Jerome Campbell. After hearing appellant’s story, the officers left to survey the scene of the crime. The victim, meanwhile, provided a more detailed version of the encounter to Officer Gordon Frissora. All of the above-named officers were familiar with appellant and associated him with the aforementioned Cadillac.

After arriving at Idaho Street, Sergeant Oster and Officer Campbell noticed that the Cadillac had been moved to an alley near a bar known as Helen’s Grill. Approaching the vehicle, Sergeant Oster was able to observe a blue whiskey bag on the floor of the car between the front seats. The officers entered the bar and approached appellant. The officers then asked appellant to step outside to discuss the complaint. Once outside, they patted him down for weapons and asked appellant for permission to search the automobile. Appellant refused.

Appellant then requested to speak alone with Officer Frissora, who had arrived on the scene after completing his interview with the victim. As the two walked away from the bar, Officer Frissora suggested that appellant might as well surrender the gun and save a towing fee since the police planned to impound the vehicle. In response, appellant told Officer Frissora that the gun was under the front seat.

Appellant argues that the lower court erred in failing to suppress his statement to Officer Frissora concerning the gun since it was obtained in violation of his Miranda rights. The suppression court rejected this argument, finding that Sergeant Oster had given appellant Miranda warnings prior to the accused’s conversation with Officer Frissora. Moreover, the lower court concluded that the exchange could not be deemed a custodial interrogation since appellant had initiated the discussion. Reviewing the record, we find that the Commonwealth failed to demonstrate that appellant was provided with Miranda warnings. As the following excerpts of the suppression hearing transcripts document, neither Officer Frissora or Sergeant Oster testified as to reading appellant his Miranda rights.

On direct examination, Sergeant Oster indicated that Officer Frissora had given appellant his Miranda warnings, stating as follows:

Commonwealth: Now, after looking in the car and seeing the blue whiskey bag, what did you and Officer Campbell do?
Oster: We went into Helen’s Grille to see if [appellant] was there and found him inside.
Commonwealth: What happened then?
Oster: We asked him to step outside, which he did. We patted him down for weapons at that time. Walked over to his car. I explained to him that we had a complaint that he had allegedly pulled a gun on Mr. Hopson and asked permission to search his car.
Commonwealth: What happened then?
Oster: He said no, we couldn’t search the car. At that time, I told him that we were going to impound the car and advised Officer Frissora to read him his rights. Commonwealth: And was [appellant] going to be arrested then?
Oster: Yes, he would have been.
Commonwealth: Now, what happened then after [appellant] was Mirandized by Officer Frissora?
Oster: He wasn’t taken into custody. He was still standing around. We were waiting for the tow truck to come. [Appellant] was quite agitated. He was yelling to several people across the street and causing somewhat of a disturbance. At one point he did go up the alley with Officer Frissora and spoke to him privately. We waited for the wrecker to come. Once the wrecker arrived, I asked [appellant] if he would come to the station and give us a statement concerning what had happened. He said he would. He was placed in a police car and taken to the station and his car was also towed to the police station.

More importantly, Sergeant Oster stated on re-direct examination that he himself had not informed appellant of his rights, testifying as follows:

Commonwealth: Did you read [appellant] his Miranda rights when he got outside?
Oster: Immediately?
Commonwealth: Yes.
Oster: No
Commonwealth: Did you read him his Miranda rights at all?
Oster: Officer Frissora did.
Commonwealth: But Officer Frissora wasn’t on the scene when you were on the scene initially, was he?
Oster: No, he was not.
Commonwealth: How long before Officer Frissora showed up?
Oster: Fifteen seconds, twenty seconds.
Commonwealth: And how long before Officer Frissora came over and talked to [appellant] and read him his rights?
Oster: As long as it would have taken to walk outside, pat him down, walk to the car and ask permission to search.

Further review of the suppression hearing transcripts reveals, however, that Officer Frissora did not advise appellant of his Miranda rights. Officer Frissora testified on direct examination as follows:

Commonwealth: Now, what did you see when when you went to the scene?
Frissora: When I went to the scene, I originally parked in front of Helen’s Grille and looked up the alley, 75 or 100 feet up the alley the car was parked in the middle of the alley and Sergeant Oster, Officer Campbell and [appellant] were there. I walked up to the scene to offer any assistance or anything I could. As I approached the scene, [appellant] looked at me and said, “I’d like to talk to you.”
Commonwealth: Okay, to your knowledge, had he been Mirandized yet?
Frissora: I hadn’t known sir.
Commonwealth: What did you do when [appellant] asked to speak to you?
Frissora: Called me aside, we walked up the alley 20, 25 feet. I explained to him, I said “Carlos, they are going to tow the car. Why don’t you just save yourself $60.00, $70.00 tow bill and storage, you know, unlock the car, he’s going to search it anyhow.”
Commonwealth: Did [appellant] have any response to that?
Frissora: Yes, he said the gun was in the car, under the seat.
Commonwealth: Now, who initiated the conversation? Frissora: [Appellant] as I was walking up, he said, “I want to talk to you.”
Commonwealth: Was [appellant] Mirandized at some point?
Frissora: After that, we walked back to the area. We asked him—I asked him again in front of the sergeant, you know, “will you unlock the car?” No, he wouldn’t. Oster then—Sergeant Oster advised—Mirandized him at that time. He was Mirandized, I think it was 10:20 or 10:21 p.m.

As we stated in Reddix, supra, we may only consider the evidence of the prosecution’s witnesses and that of appellant which, read in the context of the record as a whole, remains uncontradicted. Id. Despite this strict standard of review, we find the lower court’s conclusion that appellant was given his Miranda warnings unsupported by the evidence proffered at the suppression hearing. Considering the prosecution’s evidence, we find that neither police officer testified as to advising appellant of his Miranda rights prior to the pertinent discussion. This testimony is consistent with appellant’s contention that he was not advised of his Miranda rights prior to his discussion with Officer Frissora. Accordingly, we find that appellant was not advised of his Miranda rights.

Nevertheless, we still find that the lower court properly declined to suppress appellant’s statement to Officer Frissora. As we noted in Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987), Miranda warnings are only necessary when a suspect is undergoing actual custodial interrogation. Id., 363 Pa.Superior Ct. at 492, 526 A.2d at 786. A brief review of the law of this Commonwealth demonstrates that such is not the case here.

In Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969), our supreme court defined interrogation as police conduct “calculated to, expected to, or likely to evoke admission.” Id., 434 Pa. at 226, 252 A.2d at 578. Our supreme court further explained that “... absent any notion of interrogation, [a] statement [should be] classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted).

In this case, appellant initially requested to speak alone with Officer Frissora. Subsequently, the officer suggested to appellant that he should permit the police to search his car in order to avoid towing costs. Despite appellant’s protestations, we are unable to define such an encounter as police conduct calculated to evoke an admission. Simply put, we find that Officer Frissora’s statement was not advanced with the goal of ascertaining appellant’s innocence or guilt, but with the hope that appellant would grant the police permission to examine his car. As such, appellant’s utterance must be deemed a voluntary statement. Accordingly, we find that the lower court did not err in denying appellant’s motion to deny his statement to Officer Frissora.

As noted supra, appellant also contests the sufficiency of the evidence presented by the Commonwealth with regard to his convictions of carrying a firearm without a license, simple assault and recklessly endangering another person. Reviewing the record, however, we find that the lower court has concisely refuted each of these contentions in its opinion dated November 1, 1990. Hence, we affirm the judgment of the lower court with regard to these issues on that basis.

Judgement of sentence affirmed.


text:
    590 A.2d 782
    COMMONWEALTH of Pennsylvania, Appellant, v. Jesse FORD-BEY.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed May 9, 1991.

      Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellant.
    Kathleen J. Boyer, Asst. Public Defender, West Chester, for appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from an order of Common Pleas Court dismissing a bench warrant for appellee for parole violations relating to appellee’s conviction on Bill No. 1190-86. For the following reasons, we affirm.

On May 11, 1986, as part of a plea bargain agreement, appellee defendant, Jesse Ford-Bey, pled guilty to one count of statutory rape (Bill No. 2424-85) for which the court sentenced him to a minimum prison term of not less than eleven and one-half (II-V2) months and not more than fifty-nine (59) months. Appellee also pled guilty to one count of intimidation of witnesses (Bill No. 1190-86) for which the court sentenced him to a prison term of not less than eighty-three (83) days and not more than twenty-three (23) months. The trial judge granted appellee an immediate parole on the latter sentence since appellee had already served the eighty-three (83) day period before sentencing. He then ordered that the sentence for Bill No. 2424-85 be served consecutively to the sentence for Bill No. 1190-86.

Defendant was subsequently granted parole on Bill No. 2424-85 by the State Board of Probation and Parole. Since that time, the Chester County Office of Adult Probation supervised appellee’s parole on Bill No. 1190-86 simultaneously with the State Board’s supervision of his parole on Bill No. 2424-85. Lower Court Opinion at 1. On March 11, 1988, the trial judge issued a bench warrant for appellee’s violations of his parole on Bill No. 1190-86. On June 30, 1988, the trial judge ordered an immediate parole on Bill No. 1190-86 subject to four special conditions.

On August 22, 1989, the court issued another bench warrant for appellee because of his subsequent violation of the parole order. At a hearing on the bench warrant on May 2, 1990, appellee, represented by the public defender, argued that because the trial judge had ordered the sentences at Bill No. 1190-86 and Bill No. 2424-85 be served consecutively, exclusive parole jurisdiction was vested in the State Board of Parole and Probation. The trial judge agreed and on May 8, 1990, he dismissed the bench warrant and declared that defendant was not subject to the court’s parole authority. The Commonwealth filed this timely appeal.

The sole issue raised by the instant appeal is whether the trial court retains parole jurisdiction over a defendant when the court sentences him on two convictions to be served consecutively, even though parole is granted on one sentence.

Under Pennsylvania law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole. When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant and revoke parole is vested in the Parole Board.

Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239 (1988) (parenthetical omitted); See 61 P.S. § 331.17. Therefore, in order to ascertain whether the trial judge has power to parole appellee, we must consider whether the maximum term of imprisonment imposed on appellee is less than two years.

Pennsylvania statutory law provides:

Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.

42 Pa. C.S.A. § 9757. Our Commonwealth Court has interpreted this statute to mandate automatic aggregation of sentences once the trial court imposes a consecutive sentence. Gillespie v. Commonwealth Department of Corrections, 106 Pa.Commw. 500, 508, 527 A.2d 1061, 1065 (1987).

By his actions, the trial judge ostensibly imposed a concurrent sentence. He pronounced sentence first on the charge of statutory rape ordering a minimum prison term of eleven and one-half (11-V2) months to a maximum term of fifty-nine (59) months. Then he imposed a sentence on the intimidation of witnesses charge ordering a minimum prison term of eighty-three (83) days to a maximum term of twenty-three (23) months. He granted an immediate parole from the latter sentence. Only after he sentenced the defendant and granted the parole did the judge state his intention to impose a consecutive sentence. Because consecutive sentences must be aggregated, the total maximum term of imprisonment is eighty-two (82) months. Since the total maximum sentence exceeds two years, parole authority is vested in the Parole Board. However, because the trial court’s sentence is inconsistent with his grant of parole, we must determine whether the trial judge intended to impose a consecutive sentence, or a concurrent sentence which would vest him with power to grant parole on Bill No. 1190-86.

We find that the sentences imposed were to run consecutively. Both parties agreed that the sentence on Bill No. 2424-85 would be served consecutively to the sentence imposed on Bill No. 1190-86. N.T. 8/11/86 at 3. This is also reflected in the guilty plea colloquy which appellee signed. This evidence, along with the trial judge’s statement regarding his subsequent intention to have the sentences served consecutively compels us to find such an intent. Accordingly, the consecutive sentences imposed must be aggregated. Id.; 42 Pa. C.S.A. § 9757.

The Commonwealth asks this court not to aggregate the sentences because once the trial judge sentenced appellee on Bill No. 1190-86 and then immediately paroled him, there was no longer a sentence of imprisonment for defendant to serve. This argument is misplaced, however, because it misinterprets the nature of a parole. As this court has held previously:

A “parole” is not an act of clemency obliterating the crime or forgiving the offender, but is a penological measure for disciplinary treatment of prisoners apparently capable of rehabilitation outside prison, and it does not set aside or affect the sentence.

Commonwealth ex rel. Forsythe v. Myers, 200 Pa.Super. 636, 639, 189 A.2d 920, 921 (1963).

The aggregated sentences therefore impose a total sentence of approximately fourteen and one half months to eighty two months imprisonment. Since the total maximum term of appellee’s sentence continued for more than two years, exclusive power to parole for such a sentence is vested in the State Board of Probation and Parole. Commonwealth v. Call, 249 Pa.Super. 511, 518, 378 A.2d 412, 416 (1977). Thus, the trial judge’s grant of parole is void ab initio. Tillman v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, 48 Pa.Commw. 325, 329, 409 A.2d 949, 951 (1980). We therefore affirm the order of Common Pleas Court dated May 14, 1990, vacate parole granted on Chester County Criminal Bill No. 1190-86, and direct the Chester County Office of Adult Probation to forward its files on this matter to the Pennsylvania Board of Probation and Parole.

Order affirmed; Parole granted on Chester County Criminal Bill No. 1190-86 vacated; The Chester County Office of Adult Probation is hereby ordered to forward appellee’s record to the Pennsylvania Board of Probation and Parole.

      . Various related charges against appellee were dismissed at that time as part of the plea bargain. Appellee was also sentenced to a four year term of probation to run concurrently with his sentence for statutory rape. As this case only concerns the maximum term appellee must serve in prison, these charges have no bearing on this case.

      . Reviewing the testimony from the sentencing hearing we find the following colloquy:
      Mr. Mahon [prosecuting attorney]:

        And, sir, since they were taken out of order, either taken in chronological or the complaint order, the eleven and a half to 59 months on the statutory rape and the corruption of minors is consecutive to the time served plea in the intimidation of witnesses charge.
      By the Court:
      Yes, that’s true. I said the one began today and the other was served, and I signed a parole order on the intimidation charge.
      N.T. 5/2/89 at 15.

      . We need not determine the effect of divesting the trial court of control over this matter as the State Board of Probation and Parole has the authority to prosecute appellee’s parole violations.