author: CIRILLO, Judge: WIEAND, Judge,

text:
    500 A.2d 1221
    COMMONWEALTH of Pennsylvania v. William G. BOYLE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1985.
    Filed Nov. 22, 1985.

      Thomas J. Schuchert, Pittsburgh, for appellant.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Appellant William G. Boyle, an attorney, is owner and sole stockholder of Meadville Foods, Inc., doing business as Palace Fine Foods Restaurant in Crawford County. His residence and law practice is in Allegheny County. The Crawford County restaurant was run by a manager who, in turn, forwarded all paperwork, including sales tax information, to appellant in Allegheny County. Upon receipt of the sales tax data, appellant would prepare the necessary returns himself and would mail or hand deliver the monies due to the Pennsylvania Department of Revenue in Harrisburg (Dauphin County) or the branch office in Pittsburgh (Allegheny County). No returns were allegedly filed or taxes paid for the period between August, 1982 and October, 1983. Appellant was charged in Crawford County with failing to file sales tax returns and make sales tax payments to the Commonwealth in violation of the Tax Reform Code of 1971, 72 Pa.C.S.A. § 7268(b). He subsequently filed a pre-trial motion challenging the jurisdiction of the Crawford County Court of Common Pleas. The motion was denied and an interlocutory appeal was permitted to allow this Court to make the jurisdictional determination.

The sole issue raised in this appeal is whether Crawford County Court of Common Pleas has proper subject matter jurisdiction in this criminal action. We hold it does not and therefore reverse the denial of the pre-trial motion.

The filing of tax returns is governed by 72 Pa.C.S.A. Sections 7219 and 7224 which direct filing to be made at the main office or at any branch office of the Department of Revenue. The importance of knowing where filing was to occur, becomes significant where, as here, we must establish the locus of the alleged criminal conduct. When the locus of the criminal act is discovered, jurisdiction is proper in that district. Pa.R.Crim.P. 21 provides: “All criminal proceedings shall be brought before the issuing authority for the magisterial district where the offense is alleged to have occurred ...” (emphasis added). Each offense has its own situs. Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983); Commonwealth v. Bertels, 260 Pa.Super. 496, 394 A.2d 1036 (1978). Article III Section 2 and the Sixth Amendment of the United States Constitution fix venue “(i)n the state” and “district wherein the crime shall have been committed.” See e.g., Johnson v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1955).

Where, as here, the crime charged is a failure to perform a legally imposed act, the place designated for its execution determines the situs of the crime. Johnston v. United States, supra. Difficulties arise when the acts of the defendant which constitute the violation consist merely of omitting to do something which "is required. United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946).

In the case at bar, appellant is charged with failing to file the returns and make sales tax payments to the Commonwealth. The duty imposed by the Tax Reform Code of 1971, 72 Pa.C.S.A. § 7268(b) requires filing to be made at specific locations throughout the Commonwealth. Liability for failure to file can arise only where specified by the statute. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961); United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1915).

Appellant did collect the sales tax monies in Crawford County, however, filing of the returns could not be accomplished in that County since no branch office of the Department of Revenue is located there. In order for Crawford County to claim jurisdiction for the crime, an essential element of the offense must have been committed in that district. See e.g., Commonwealth v. Bertels, supra. The acts performed must be criminal in nature and not merely incidental thereto. Commonwealth v. Herriott, 265 Pa.Super. 143, 401 A.2d 841 (1979).

Here, the only essential element of the crime charged is the failure to file the required tax returns at the designated locations. In order for appellant to comply with the filing requirements, filing could have been made in Harrisburg, the main office for the Department of Revenue, or any one of the other branch offices. No such branch office is located in Crawford County. Crawford County could not therefore be a regular or customary location for the filing and remitting of appellant’s tax returns. Hence, performance being impossible in Crawford County, non-performance there cannot support a finding of proper venue.

Case remanded, jurisdiction relinquished, venue to be determined consistent with this opinion.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

William G. Boyle, an attorney who practices law in Allegheny County, is the sole stockholder and owner of Mead-ville Foods, Inc., trading and doing business as Palace Fine Foods, a restaurant in Meadville, Crawford County. By an information filed by the District Attorney of Crawford County, Boyle was charged criminally with wilfully failing, neglecting or refusing to file sales tax returns and remit sales taxes payable to the Commonwealth of Pennsylvania. Boyle moved pre-trial to dismiss the information on grounds that the Court of Common Pleas of Crawford County lacked jurisdiction. When Boyle’s pre-trial motion was denied, an interlocutory appeal was allowed so that a determination might be made by this Court of the jurisdictional issue. A majority holds that the Court of Common Pleas of Crawford County lacks subject matter jurisdiction to hear and decide this criminal case. I respectfully dissent.

Sales of food were made and sales taxes were collected by Boyle’s restaurant in Crawford County. Tax monies were deposited in a checking account maintained in a Mead-ville bank. Boyle was the only person authorized to write checks on that account. The manager of the restaurant customarily forwarded the sales tax information to Boyle in Pittsburgh, where Boyle prepared the necessary sales tax returns. He would then mail the returns, together with moneys due, to the Department of Revenue in Harrisburg, Dauphin County. On occasion, he also delivered returns personally to the office which the Department of Revenue maintained in Pittsburgh. According to the Commonwealth’s averments, however, no returns were filed and no taxes were paid for the period between August, 1982 and October, 1983.

The law is clear that “ ‘the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless, by some statute, it need not...Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965), quoting Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). See also: Commonwealth v. Thomas, 305 Pa.Super. 158, 162, 451 A.2d 470, 472 (1982); Commonwealth v. Bertels, 260 Pa.Super. 496, 394 A.2d 1036 (1978), aff'd, 491 Pa. 187, 420 A.2d 404 (1980); Commonwealth v. Creamer, 236 Pa.Super. 168, 172, 345 A.2d 212, 214 (1975). As a general rule, before the courts of a county can assume jurisdiction over a crime, some overt act must have occurred in that county. Commonwealth v. Creamer, supra, 236 Pa.Superior Ct. at 172, 345 A.2d at 214; Commonwealth v. Tumolo, 223 Pa.Super. 189, 192, 299 A.2d 15, 16 (1972), aff'd, 455 Pa. 424, 317 A.2d 295 (1974). In order to base jurisdiction on an overt act, however, the act must have been essential to the crime; an act which is merely incidental to the crime is not sufficient. Commonwealth v. Bertels, supra, 260 Pa.Superior Ct. at 502, 394 A.2d at 1039.

A determination of the locus of a crime becomes more difficult when the crime consists of a failure to act. In determining the locus of a failure to act, it is necessary to consider the nature of the duty and the specific act which the defendant failed to perform. See: United States v. Anderson, 328 U.S. 699, 705, 66 S.Ct. 1213, 1217, 90 L.Ed. 1529, 1533 (1946). In general, jurisdiction to try charges involving a failure to act will lie in the place where the act was required to be performed. Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956) (failure to perform civilian work in lieu of induction into armed forces); United States v. Anderson, supra (refusal to submit to induction into the United States armed forces); Commonwealth v. Creamer, supra (obstruction of justice by failing to divulge knowledge of crime). See also: United States v. Chestnut, 399 F.Supp. 1292 (S.D.N.Y.1975) (receipt of illegal political campaign contributions), aff'd, 533 F.2d 40 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976).

Jurisdiction to try a criminal action where the alleged crime is a failure to act, however, is not necessarily limited to one situs. See and compare: Commonwealth v. Prep, 186 Pa.Super. 442, 142 A.2d 460 (1958). In all instances, we are admonished by decided cases to look to the nature of the offense and the elements thereof to determine whether the crime was sufficiently related to the locus where the defendant is being prosecuted. See: United States v. Anderson, supra 328 U.S. at 703, 66 S.Ct. at 1216, 90 L.Ed. at 1532. In some cases, “ ‘requisite elements of the completed crime may be committed in different jurisdictions, and in such cases any [county] in which an essential part of the crime is committed may take jurisdiction.’ ” Commonwealth v. Bertels, supra, 260 Pa.Superior Ct. at 502, 394 A.2d at 1039, quoting 4 Wharton’s Criminal Law and Procedure § 1507 at 88 (1957).

Section 219 of the Tax Reform Code of 1971, P.L. 6, 72 P.S. § 7219, provides that sales tax “[r]eturns shall be filed with the department at its main office or at any branch office which it may designate for filing returns.” The main office of the Department is in Harrisburg, Dauphin County; a branch office is located in Pittsburgh, Allegheny County. Section 224 of the Act provides that payment of the tax shall be made at the place fixed for filing returns. 72 P.S. § 7224. However, section 220 establishes that compliance may be had by mailing the return and payment on or prior to the day on which payment is to be received. 72 P.S. § 7220. A receipt for registered or certified mail is evidence of compliance. Id. Moreover, section 225 directs that all taxes collected by any person from purchasers shall be held in trust for the Commonwealth. 72 P.S. § 7225. It is a misdemeanor for any person required to do so to “wilfully fail, neglect or refuse to file any return or report required” and/or to “refuse to pay any tax, penalty or interest imposed or provided.” Section 268(b), 72 P.S. § 7268(b).

The tax statute does not specifically determine the county or counties in which prosecutions are to be brought for failures to file returns and pay taxes. However, the legislature has clearly provided that compliance with statutory requirements can be fully effected by acts performed in the county where a person does business and collects the tax. I should conclude, therefore, that a county in which a taxpayer does business, collects sales taxes and maintains sales tax records, and from which the taxpayer can effect full compliance with statutory requirements, is sufficiently related to the crime of wilfully failing or refusing to file returns and pay over taxes collected to vest jurisdiction in the courts of that county.

In the instant case, the crimes which Boyle is alleged to have committed were closely and significantly related to Crawford County. The restaurant and its records were located in Crawford County; the sales had been made in Crawford County; the taxes had been collected in Crawford County; the Commonwealth’s money had been deposited and was being held in a bank in Crawford County; and it was in Crawford County where compliance with the statute could have been effected by mailing completed tax returns and payments for taxes previously collected. Before it can be shown that Boyle violated his statutory obligation to file returns and remit taxes collected, the Commonwealth must show that the restaurant in Crawford County made sales which were subject to the tax and that sales taxes had there been collected. The Commonwealth must also prove that information, to be extracted from records of the restaurant in Crawford County, had not been supplied to the Department of Revenue via returns mailed or delivered to the Department. It must also be shown that taxes collected and deposited in Crawford County had not been remitted to the Department. See: Commonwealth v. Ridall, 280 Pa. Super. 316, 421 A.2d 740 (1980). I would hold, therefore, that Crawford County had a significant connection with the crimes which Boyle committed if, as alleged, he failed to file sales tax returns and remit taxes previously collected. Therefore, the Court of Common Pleas of Crawford County would have jurisdiction to hear and decide the criminal charges brought against William Boyle by the District Attorney of Crawford County. I would affirm the order of the trial court which denied appellant’s motion to dismiss for lack of jurisdiction.

      . Section 220 of the Code is as follows:
      Notwithstanding the provisions of any State tax law to the contrary, whenever a report or payment of all or any portion of a State tax is required by law to be received by the Pennsylvania Department of Revenue or other agency of the Commonwealth on or before a day certain, the taxpayer shall be deemed to have complied with such law if the letter transmitting the report or payment of such tax which has been received by the department is post-marked by the United States Postal Service on or prior to the final day on which the payment is to be received.
      For the purposes of this act, presentation of a receipt indicating that the report or payment was mailed by registered or certified mail on or before the due date shall be evidence of timely filing and payment. 72 P.S. § 7220.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    500 A.2d 1225
    COMMONWEALTH of Pennsylvania v. Keith David CHESTNUT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1985.
    Filed Nov. 22, 1985.

      Robert B. Stewart, III, Huntingdon, for appellant.
    Stewart L. Kurtz, District Attorney, Huntingdon, for Com., appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Huntingdon County. After pleading guilty to a charge of driving under the influence of alcohol, appellant, Keith David Chestnut, was sentenced to a minimum of five days and a maximum of 23 months incarceration. His motion to modify sentence was denied. The sole issue on this appeal is whether the sentence was the result of an unyielding formula which failed to take appellant’s particular circumstances into consideration.

Appellant reasons that since the judge who sentenced him had previously handed down identical sentences to fifteen others convicted of drunk driving, it follows that the court routinely hands down sentences based on nothing more than the crime charged. Initially, we note that the fifteen sentences to which appellant refers do not constitute the sum total of those handed down by the court for driving under the influence. We also observe that all of those sentences fall within the dictates of 75 P.C.S. 3731(e)(1), which explicitly sets forth sentencing parameters for driving under the influence convictions.

We agree with the trial judge that uniformity and consistency are laudable goals, and that it is easier for people to conform their actions to the law when they know what the punishment will be. It is on these very principles that the sentencing guidelines are based. See Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158 (1985). Thus, when two defendants occupy roughly the same position in terms of those factors which bear on the severity of a sentence, there can be nothing suspect about the imposition of identical sentences. Only when the sentencing judge is blind to some important circumstance unique to an accused is uniformity improperly placed at a premium over an individual’s rights.

There is simply no evidence that the sentence is not consonant with the crime. Reliance on past similarities is not enough. Indeed, it may well be that appellant’s circumstances were roughly similar to those of the fifteen other defendants who received a like sentence; thus, even the misplaced analysis of past similarities is incomplete. Appellant has not urged a single specific factor that might necessitate a different sentence. While we agree with appellant that a judge may not summarily hand down a sentence without considering its relationship to the individual accused, we find nothing upon which to conclude that the trial judge was guilty of such shortsightedness.

Appellant was drunk at the time of his arrest, even though at age 20 he was not legally allowed to drink. He was driving under a suspended license. His driving resulted in an auto accident. The court considered all of these factors prior to sentencing.

Sentencing is within the sound discretion of the trial judge. Absent an abuse of that discretion, we refuse to disturb a sentence on appeal. Commonwealth v. Spencer, 344 Pa.Super. 380, 496 A.2d 1156 (1985); Commonwealth v. Scatena, 332 Pa.Super. 415, 481 A.2d 855 (1984). We find no such abuse in this case. The appeal is therefore wholly without merit.

Judgment of sentence affirmed.


author: BROSKY, Judge:

text:
    500 A.2d 1226
    Floyd J. DOBSON, a Minor by Floyd R. and Marian G. DOBSON, His Guardians, Appellants v. WBRE-TV, INC.
    Superior Court of Pennsylvania.
    Submitted Aug. 6, 1985.
    Filed Nov. 29, 1985.

      Edward E. Kopko, Assistant District Attorney, Pottsville, for appellants.
    Edward E. Knauss, IV, Harrisburg, for appellee.
    Before BROSKY, ROWLEY and OLSZEWSKI, JJ.
   BROSKY, Judge:

This is an appeal from the order granting appellee’s motion for summary judgment in this defamation action. Appellant’s sole issue is whether the trial court erred in ruling that the television documentary in question was incapable of a defamatory meaning. After carefully reviewing the record and briefs submitted by counsel and after viewing the documentary in question, we find no error in the trial court’s determination. Accordingly, we affirm the order granting summary judgment.

This action is based on appellant’s brief appearance in a television documentary produced by appellee. The title of the documentary is “Drinking and Smoking in Shamokin” and its purpose was to depict problems facing the youths in rural counties of northeastern Pennsylvania. Appellant was video taped while he was driving down Independence Avenue, Shamokin, along with countless other teenagers, engaged in a widely popular pastime commonly referred to as “cruising.” These street scenes were used to open the documentary as a lead-in to the main story.

The commentary accompanying the opening footage explained that cruising was a favorite pastime with the youth in Shamokin and some interviews conducted with other participants indicated that there was really nothing else to do in town. This set up the main theme of the documentary, that some youths were finding other ways to spend their evenings by drinking and doing drugs. At no time, however, was there any suggestion or inference that the people cruising were the people engaged in the aforementioned illegal behavior. In fact, it was clearly shown that the drug use and the underaged drinking were taking place in isolated “party areas” far from the main street of Shamokin.

It is the function of the trial court, in the first instance, to determine whether the challenged publication is capable of a defamatory meaning, and if the communication is not capable thereof, there is no basis for the matter to proceed to trial. Thomas Merton Center v. Rockwell Intern. Corp., 497 Pa. 460, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). When making the determination, the trial court must consider the publication in its entirety and the impression it would naturally engender in the minds of average persons. Id. Also, under Pennsylvania law:

[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Id., 497 Pa. at 464, 442 A.2d at 215. Finally, a publication cannot be rendered defamatory by an unfair and forced construction on its interpretation. Id.

We agree with the trial court’s determination that the documentary in the instant case is incapable of a defamatory meaning. The documentary is a truthful depiction of an average weekend evening in Shamokin. The documentary does not directly indicate that the youths shown cruising Independence Avenue were involved in criminal activity, nor could an average viewer reasonably infer such meaning from the documentary. It would require a strained and forced construction to find such a meaning.

Therefore, we find that the trial court correctly concluded that the documentary, “Drinking and Smoking in Shamo-kin,” is incapable of defamatory meaning. As such, there remains no basis to proceed to trial in the action, and appellee’s Motion for Summary Judgment was properly granted.

Order affirmed.


author: WIEAND, Judge:

text:
    500 A.2d 1228
    COMMONWEALTH of Pennsylvania, Appellee, v. James F. CAMPITELLI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 29, 1985.

      Lawrence Sager, Pottstown, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and ROBERTS, JJ.
   WIEAND, Judge:

Where a mistrial and continuance have been granted on motion of the defendant following allowance of a Commonwealth request to amend the information, do principles of double jeopardy bar a second trial? Appellant argues that because the trial court suggested in the first instance that a motion for mistrial would receive favorable consideration, a second trial is barred unless the mistrial was manifestly necessary. We reject this argument and affirm the order denying a defense motion to dismiss.

James F. Campitelli, a police officer, was arrested and charged with bribery, accepting bribes, intimidating witnesses, official oppression and indecent assault as a result of an incident in which Campitelli allegedly threatened to arrest a young woman and her boyfriend unless the young woman agreed to engage in sexual intercourse with him. After a jury had been empanelled and sworn, the trial court suggested during a sidebar conference that several counts of the information should be amended to identify the names of the victims. When the Commonwealth moved for leave to amend, the request was opposed by the defense. The trial court overruled the objection and allowed the amendment. The following then occurred:

THE COURT: If you do plead surprise and you want to ask for a Bill of Particulars as it affects each of the alleged victims, that’s another matter.
MR. SAGER: Well, certainly, Your Honor. I shall.
THE COURT: Any objection?
MR. KATZENMOYER: No, Your Honor, if that’s what defense counsel...
THE COURT: I think he is entitled to it.
MR. KATZENMOYER: I understand, Your Honor, and that’s why I have no objection.
THE COURT: I want to protect the Commonwealth’s case; I want to protect the defendant, too.

A mistrial was declared, and trial was continued to a subsequent date. After the defendant had thereafter requested and received a bill of particulars, he filed a motion to dismiss on grounds that another trial was barred by principles of double jeopardy. The motion to dismiss was denied, and this appeal followed.

Appellant argues that we should review the grant of a mistrial as one entered by the trial court sua sponte. The applicable law, he suggests, is that a second trial cannot be held unless the court’s decision to declare a mistrial is based on “manifest necessity.” See: Commonwealth v. Murry, 498 Pa. 504, 447 A.2d 612 (1982); Commonwealth v. Shi-rey, 333 Pa.Super. 85, 481 A.2d 1314 (1984). We reject this argument. The mistrial in this case was granted on motion of the defendant. It was requested in order to obtain a continuance and a pre-trial bill of particulars. That it originated with the defense was not altered merely because the trial court had suggested that a defense request for mistrial and continuance would probably be granted if it were requested. Appellant was entirely free to proceed to trial on the amended information or move for a mistrial and continuance. The decision to move for a mistrial was his; it was not in any way compelled by the trial court. The “manifest necessity” standard, therefore, has no application. See: United, States v. Dinitz, 424 U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 275 (1976) (manifest necessity standard not applicable where defendant moved for mistrial even though he had no reasonable alternative).

Where a defendant requests a mistrial, “ ‘the circumstances under which ... [he] may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.’ ” Commonwealth v. Riffert, 322 Pa.Super. 230, 233, 469 A.2d 267, 269 (1983), quoting Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982). A retrial will not be barred where a mistrial was granted upon a motion of the defendant unless the motion was based upon prosecutorial misconduct “undertaken with the specific intent to precipitate a mistrial.” Commonwealth v. Simons, 342 Pa.Super. 281, 291, 492 A.2d 1119, 1125 (1985) (emphasis in original).

The record in this case does not disclose misconduct by the prosecution or trial judge; much less does it disclose misconduct designed to force the defendant to move for a mistrial so that the Commonwealth might enjoy a better chance to obtain a conviction before another jury. The trial judge merely suggested that the information should be amended to identify the victims before the taking of testimony began. The amendment which was allowed did not charge an additional or different offense. Therefore, it was proper and in accord with Pa.R.Crim.P. 229. Nevertheless, in a display of caution, the trial court inquired whether the defense desired a postponement of the trial in order to assimilate the amendment and prepare to meet the same. This was entirely proper. Indeed, it is the procedure suggested by the language of Rule 229. When the defendant moved for a mistrial thereafter, the motion was not prompted by conduct of the prosecution calculated to obtain a more favorable opportunity to obtain a conviction. It was prompted, rather, by defendant’s desire to obtain additional time and information before proceeding to trial.

Order affirmed.


author: MONTGOMERY, Judge:

text:
    500 A.2d 1230
    GATEWAY MOTELS, INC., a Pennsylvania Corporation, Appellee, v. DUQUESNE LIGHT COMPANY, a Pennsylvania Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Nov. 29, 1985.

      John M. Cramer, Pittsburgh, for appellant.
    Anthony J. Martin, Monroeville, for appellee.

      Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Defendant-Appellant Duquesne Light Company appeals from a judgment entered in the lower court, in an equity case, which ordered Defendant to relocate its electrical transmission system, at its own expense, on property owned by the Plaintiff-Appellee. After careful review of the record, we are constrained to reverse the decision of the lower court.

The facts have been stipulated by the parties and are not in dispute. On September 9, 1954, Defendant, Duquesne Light Company (hereinafter referred to as “Duquesne”) obtained a right-of-way over land owned by Gabriel and Marion Monzo, husband and wife, in order to install an overhead electrical transmission system, including line and supporting poles. The easement was created by an express grant and the easement agreement was duly recorded. The land over which the easement was granted was in an unimproved condition, and the majority of the land surface, at that time, was at a substantially lower elevation than the public thoroughfares which formed the western, eastern, and northern borders of the property. Of particular significance in this dispute, the easement agreement provided, inter alia:

In the event the said Grantors [Monzos] should change the present grade of the land where the poles supporting said transmission system are erected by filling around said poles, the said Grantee [Duquesne], at its expense, shall raise said poles as many times as may, in the judgment of said Grantee, be necessary to provide adequate clearance for the operation of said transmission system.

In the years following the creation of the easement, changes were made in the surface of the subject property by a land-filling operation designed to raise the elevation of the land. From time to time, Duquesne raised its poles pursuant to the agreement. On August 12, 1971, Plaintiff-Appellee Gateway Motel, Inc. acquired the property formerly owned by Gabriel and Marion Monzo, which was subject to the easement agreement with Duquesne. On or about May 2, 1977, Gateway demanded that Duquesne either relocate above ground or place underground the transmission line, with all expense to be borne by Duquesne. Duquesne refused to comply with Gateway’s request.

On May 4, 1977, Gateway filed a Complaint in Equity in this case seeking a determination that the above-mentioned paragraph of the easement agreement required Duquesne to relocate its power lines at Gateway’s request. The Chancellor entered an Adjudication and Decree Nisi, on October 13, 1984, in which he held that the easement agreement required the relocation of the transmission lines and that said relocation was to be at the expense of Du-quesne. Timely exceptions were filed by Duquesne on October 24, 1983. On February 21, 1985, the lower court entered an Opinion dismissing these exceptions. Final judgment was entered thereafter on March 19, 1985, and this appeal followed.

In reaching its conclusion, the lower court reasoned that: (1) the easement was not restricted to a particular corridor on the site; (2) both parties to the easement agreement knew that the land was subject to future development; (3) the same parties contemplated that the transmission lines would need to be relocated periodically; and (4) the parties agreed that the expense of such relocation was to be borne by Duquesne Light Company. The court also considered the cost of easement to the Appellant, which the court decided was low. Finally, the lower court explained that because Duquesne drafted the agreement, it had to be construed against Duquesne.

We must disagree with the lower court, as the clear and unambiguous wording of the easement agreement is not susceptible to the construction which the court adopted. Initially, we must note that the easement contract does set forth an agreed location for the transmission system, as follows:

The said easement and right of way across the land hereinbefore described shall extend from said land of The Allegheny Drive In Theatre Company on the West to Haymaker Road on the East; the center line of the transmission system to be erected thereon to be located substantially as indicated by the red line on print of Duquesne Light Company drawing No. LL-4930 attached hereto and made a part hereof.

The drawing appended to the agreement contains a specific line marking the system’s location referred to in the above-quoted paragraph. While the language does indicate the parties agreed to some small leeway in location, in the use of the words “to be located substantially as indicated”, it may not reasonably be held that the easement was not restricted to a particular corridor on the site.

Although it could be concluded that the parties may have contemplated that the land was subject to future change, the only relocation suggested in the clear language of the agreement is that the supporting poles could be raised by Duquesne, as necessary, to provide for adequate clearance in the event that the easement grantors changed the grade of the land. There is no other language in the agreement that touches upon the subject of a possible movement of the transmission line. In particular, there is certainly no mention of any intent or contemplation by the parties that the system be moved underground or that it be relocated to any place on the property other than the area specifically delineated on the drawing which was made a part of the agreement.

There is a specific undertaking by the Appellant, in the contract, to stand the expense of elevating the poles if necessitated by changes in the grade of the land. However, there is no basis in the language of the document for one to find that the Appellant agreed therein to pay for any other relocation of the transmission system.

Finally, we note that the relative cost of the easement to Duquesne can have no bearing in the construction of the unambiguous language of the contract arrived at between the Appellant and the grantors of the easement. Presumably, both parties to the easement understanding were satisfied with the consideration given when the agreement was made. There is no evidence to suggest a lack of fair dealing by the Appellant when the agreement was reached. Our courts cannot reformulate such agreements, which are otherwise clear, merely because of a change in the value of the land over many years.

In order to ascertain the nature of an easement created by an express grant, the intention of the parties must be determined, if possible, from the language of the instrument of conveyance. Merrill v. Manufacturers Light and Heat Company, 404 Pa. 68, 185 A.2d 573 (1962). We conclude that the language employed in the agreement under consideration in the instant case may not be construed to require the Appellant to relocate the transmission lines in issue, at its own expense, at the demand of the Appellee. The Appellee’s request for relief should have been denied.

The Judgment of the lower court is reversed. Jurisdiction is not retained;


author: CAVANAUGH, Judge:

text:
    501 A.2d 250
    COMMONWEALTH of Pennsylvania, Appellee, v. Gerald CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 4, 1985.
    Filed Oct. 4, 1985.
    Reargument Denied Dec. 16, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

In this appeal, Gerald Carter contends that his due process rights and rights under Pa.R.Crim.P. 1101 were violated because he was tried within the Career Criminal Program of the Philadelphia Common Pleas Court. He argues that because the judges in that program are aware that defendants assigned thereto have prior convictions, he was deprived of his right to be tried without a jury before an impartial factfinder, and that the District Attorney’s Office usurped authority which our Supreme Court had previously denied it in creating a situation wherein the trial court had no choice but to grant a jury trial. Appellant’s other contention is that his right to a speedy trial under Pa.R. Crim.P. 1100 was violated. We disagree with these contentions and therefore affirm. .

I.

Appellant was assigned by the Philadelphia District Attorney’s Office to be tried within the “Career Criminal Program” of that county’s Common Pleas Court. According to the lower court, this program was instituted by the District Attorney’s Office and the President Judge for the purpose of more efficiently prosecuting recidivists. In order to be assigned to the program, a defendant must have been convicted of certain enumerated offenses a specified number of times. Once assigned to the program, a defendant is tried before one of three judges. As the lower court stated: “Because of their assignment to the Program, judges know that, generally, defendants coming before them have been designated Career Criminals by the District Attorney.” Lower Court op. at 18 n. 20.

The program’s advantage apparently lies in that, unlike the usual practice in the District Attorney’s Office, individual prosecutors are assigned to cases from pre-trial through the conclusion of the trial. Thus, a single, experienced prosecutor and a special staff deal with all stages of the case. According to the lower court, this procedure of “intensive vertical prosecution” helps to avoid excessive delays and promotes the more efficient prosecution of repeat offenders.

Appellant contends that he was unable to exercise his right to waive a jury trial because the judge before whom he was tried was aware that he had a prior record. This court has previously disposed of this argument in Commonwealth v. Hailey, 332 Pa.Super. 167, 172-73, 480 A.2d 1240, 1242-43 (1984):

Appellant also challenges the administrative procedure employed by the Philadelphia District Attorney’s Office known as the Career Criminal Program. Appellant claims that cases in which the accused has certain prior convictions are assigned to one of three designated judges and this assignment effectively denies an accused his “right” to a non-jury trial because the trial judge knows the accused has prior convictions. Appellant’s argument must fail as it is based on an incorrect premise; an accused does not have an absolute right to a bench trial. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983).

In Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), the United States Supreme Court wrote:

In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury.

In Singer, the court upheld the Federal Rule whereby the defendant’s right to waive a jury trial is conditioned on the consent of both court and prosecutor. “[I]f either of them refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.” Singer, supra, 380 U.S. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638. (In Pennsylvania, Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) denied the prosecutor the absolute right to demand a jury trial.) A defendant simply does not have an absolute right to waive a jury trial. Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983). Therefore, we must conclude that there has been no violation of due process in the instant case.

Appellant also argues that in assigning him to the Career Criminal Program, the District Attorney’s Office has accomplished indirectly what it is not permitted to do directly. In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), our Supreme Court denied the prosecution the absolute right to demand a jury trial (by vetoing a defendant’s attempted jury trial waiver). “While the prosecutor’s concurrence or opposition to a defense request for a non-jury trial is a relevant consideration in determining the mode of trial ... the decision whether to permit a non-jury trial is to be made by the court____” Sorrell, supra, 500 Pa. at 360, 456 A.2d at 1328. This holding was deemed to be consistent with Pa.R.Crim.P. 1101.

In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver____

The appellant argues that by assigning him to the Career Criminal Program, the District Attorney’s Office has left him no alternative but to request a jury trial and that the trial court has also been denied the discretion of granting a non-jury trial. Thus, argues appellant, the assignment to the program is tantamount to giving the prosecution an absolute right to a jury trial and contravenes both Sorrell and Rule 1101. Although we disagree, this contention warrants our careful consideration.

Judges frequently refuse to allow a defendant to waive a jury trial when they would be biased due to their knowledge of the defendant’s previous record. See Commonwealth v. Sorrell, supra. “The trial court is not constitutionally prohibited from denying a defendant’s request to waive a jury trial.” Commonwealth v. Maxwell, 312 Pa.Super. 557, 561, 459 A.2d 362, 364 (1983). However, the Career Criminal Program allows the prosecutor alone the power to designate which recidivists will be assigned to the program. Appellant argues that the prosecutor has usurped authority which Sorrell, supra, and Rule 1101 meant to deny him.

According to Sorrell and Rule 1101, the prosecutor has no absolute right to a jury trial. The Career Criminal Program does not attempt to confer such a right on him. According to the lower court, this program was instituted not by the District Attorney alone, but in conjunction with the President Judge of the Philadelphia Court of Common Pleas. It was instituted in an attempt to control recidivism more effectively and the fact that it impinges upon a defendant’s ability to waive his right to a jury trial is but a by-product of that worthy policy. Appellant and similar repeat offenders are hardly in a position to deny that their actions are the cause of this program. They will not now be heard to complain that they are denied their desired mode of trial. Lest we lose perspective of this issue, we note that as a result of our holding, recidivists will be accorded the very thing which our Constitution guarantees them — the right to a jury trial. Appellant has not asserted that trial by jury — which for centuries has been the cornerstone of our system of jurisprudence — has in any way prejudiced him.

In Sorrell, our Supreme Court denied the prosecution the right to veto a defendant’s attempt to waive a jury trial for several reasons. “By conferring upon the prosecution an absolute right to jury trial, 42 Pa.C.S. § 5104(c) [which the court declared unconstitutional] precludes the trial court the discretion conferred by Rule 1101 in assessing whether a nonjury trial should be permitted.” Sorrell, supra, 500 Pa. at 361, 456 A.2d at 1328-29. In the instant case, the assignment of a defendant to the Career Criminal Program does not absolutely preclude the trial court from exercising the discretion conferred on it by Rule 1101.

Further, the fact that the trial judge is aware of an accused’s prior convictions does not automatically require that judge’s recusal. Commonwealth v. Edney, supra; Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980); see also, Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (admission of evidence of prior convictions harmless error in bench trial since trial judge presumed to disregard inadmissible evidence).

Commonwealth v. Hailey, 332 Pa.Super. 167, 173, 480 A.2d 1240, 1243 (1984). We must, however, express our wariness over the notion that trial judges are presumed to disregard inadmissible evidence. Such a presumption must be applied with caution. “Statements such as these must, however, be read with care, lest we overlook the fact that judges are subject to the same emotions and human frailties as affect all persons, lay jurors or not.” Commonwealth v. Conti, 236 Pa.Super. 488, 499, 345 A.2d 238, 244 (1975). Moreover, we reiterate that according to the lower court, the program was instituted not by the District Attorney alone but in conjunction with the President Judge. We deem this fact important because it suggests that the judiciary, with its inherent accountability to the public, has lent its approval to this program and has not abdicated its responsibilities to the unfettered discretion of the District Attorney’s Office.

Moreover, another of Sorrell’s concerns in forbidding the prosecutor the absolute right to a jury trial was the lack of prosecutorial accountability. “Unlike Rule 1101, which provides for an impartial determination and fosters public accountability on the part of the prosecutor by encouraging him to state his position on the record, 42 Pa.C.S. § 5104(c) [ruled unconstitutional by the court] provides for prosecuto-rial control of the accused’s motion to waive trial by jury without any provision for the prosecutor’s accountability through judicial review.” Sorrell, supra, 500 Pa. at 361, 456 A.2d at 1329. This concern has no application to the instant case. The Career Criminal Program is not the product of an undisclosed and arbitrary prosecutorial policy but is, rather, a policy instituted with the approval of the President Judge which attempts to deal effectively with a serious societal problem. The prosecution is not permitted to designate whomsoever it chooses for inclusion in the program. It can only select from among those recidivists whose previous offenses fall within certain well-defined categories. See note 1 supra. We believe that the policy underlying Sorrell mandates that the District Attorney’s Office be accountable in administering this program. Although appellant has not argued this issue on appeal, inherent in our holding is the requirement that the prosecutor exercise good faith in assigning to the program only those defendants who truly fit the criteria for inclusion, and that the criteria be reasonably adapted to effectuate the stated policy of more effectively prosecuting recidivists. It is imperative that the District Attorney not be permitted to administer this program capriciously lest Sorrell’s policy of guarding against prosecutorial unaccountability be undermined.

Furthermore, appellant alleges that he made a motion in the court below to be transferred out of the program. If we were to hold that the lower court abused its discretion in refusing to transfer appellant out of the Career Criminal program, we would be condoning a practice of “judge shopping.” In the recent case of Commonwealth v. Kel-lum, 339 Pa.Super. 513, 518, 489 A.2d 758, 760 (1985) this court wrote:

We agree with the Commonwealth’s characterization of appellant’s efforts to have his case transferred out of the Career Criminal Program as an example of “judge-shopping.” And it is this practice which has been held to be a valid reason for a trial court’s refusal to grant a defendant a non-jury trial. Commonwealth v. Lee, 262 Pa.Superior Ct. 280, 396 A.2d 755 (1978). In Commonwealth v. Garrison, 242 Pa.Superior Ct. 509, 364 A.2d 388 (1976), this court said,
“[i]n the instant circumstances, we find that the lower court committed no abuse of discretion in denying appellant’s waiver request since it was apparent that the appellant’s only purpose for attempting such waiver was to maneuver for a judge he thought might be more lenient or for other reasons more desirable.” Id. 242 Pa.Super. at 515, 364 A.2d at 390.
It is apparent from the record below that this was also appellant’s reason for requesting such a waiver. Nor do we feel that a colloquy was necessary to discern this. Therefore, we hold that in this case, where appellant’s reason for requesting a non-jury trial was to attempt to avoid prosecution under the Career Criminal Program, such an attempt constituted “judge-shopping,” and the trial court did not abuse its discretion in denying appellant’s request.

Mr. Carter has had his day in court. He was tried before and convicted by a jury of his peers. We do not believe that his right to an impartial factfinder has been compromised in any way nor do we see any reason to duplicate the jury’s factfinding effort by granting a new trial.

II

Appellant’s final contention is that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated due to the Commonwealth’s failure to try him within 180 days. This argument is without merit. Rule 1100 allows the Commonwealth 180 days from the filing of the written complaint to bring the accused to trial. However, any period of time resulting from the unavailability of the defendant or his attorney is excluded from the 180 day calculation Pa.R. Crim.P. 1100(d)(3)(i). In the instant case, the complaint was filed against the appellant on March 27, 1982. The mere fact that appellant was not tried within 180 days does not necessiate his discharge. “In analyzing whether an appellant’s speedy trial rights have been violated for failure to bring him to trial within 180 days, we must seek guidance in authority beyond the nearest desk calendar.” Commonwealth v. Taylor, 340 Pa.Super. 87, 94-95, 489 A.2d 853, 857 (1985). We accept the lower court’s version of the facts as to this issue.

On July 8, 1982 [the judge] reduced bail and released defendant on his own recognizance.... Although upon his release defendant signed and received a copy of a subpoena ordering his appearance on August 30, 1982 in Courtroom 650, City Hall ... he failed to appear on that date....
[T]he court continued the case to September 20, 1982____ According to [the Assistant District Attorney], the Commonwealth was ready for trial on September 20, 1982, but this Court’s involvement with another case that morning and the Public Defender’s claim of having no one available for trial until November 1, 1982, resulted in the transfer of defendant’s case to the Honorable Marvin Halbert on “back-up” status only to be returned to this Court on September 22, 1982 when Judge Halbert could not locate defendant.... At this time, because it was apparent that defendant’s failures to appear were deliberate, the Court issued a bench warrant....
After learning that defendant was not yet in custody by September 27, 1982, this court issued a regular bench warrant resulting in defendant’s rearrest on Friday, October 1, 1982, but because courts were closed ... Monday, October 4, 1982 would have been the earliest possible date to hold a bench warrant hearing ____ However, since the Court was in chambers that week and only learned of defendant’s arrest on October 13th or 14th, a hearing was scheduled for Friday, October 15....
At this hearing, defendant testified that he left the subpoena at the prison upon his release and, therefore, forgot to appear on August 30th____ Trial was, nevertheless, scheduled for Monday, October 18, 1983____

Appellant contends that the delay from August 30 to September 22 was caused by the unavailability of the courtroom, and that, therefore, this period of time should be charged against the Commonwealth. Even if we were to agree with appellant’s premise we must strongly disagree with his conclusion. We find that the delay was occasioned by appellant’s unavailability. Thus, the delay falls within Pa.R.Crim.P. 1100(d)(3)(i) and since the period results from the unavailability of the defendant, it was properly excluded. Since the delay is not attributable to the court system, there is no need for the court to explain the delay on record. Commonwealth v. Franklin, 306 Pa.Super. 382, 452 A.2d 777 (1982). Moreover, by failing to appear at the designated time and place on August 30,1982, appellant has lost any right he may have had to complain about delays in bringing him to trial. “Once the accused is subject to process of court, a willful act in dereliction of duty is a forfeiture and serves to negate any duty the Commonwealth has to exercise due dilignece in bringing him to trial.” Commonwealth v. Taylor, 340 Pa.Super. 87, 98-99, 489 A.2d 853, 859 (1985). Thus, it has been held that the Commonwealth has no duty to exercise due diligence in bringing to trial within 180 days a defendant who has been released on bail but who fails to appear for his arraignment.

Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis.

Commonwealth v. Cohen, 481 Pa. 349, 355, 392 A.2d 1327, 1331 (1978). The same reasoning applies to one who escapes from prison. Commonwealth v. Taylor, supra. See also Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982). In both Cohen (accused out on bail) and Taylor (escaped prisoner), the appellants had already been subjected to process of court. Their subsequent derelictions of duty (failing to appear for arraignment in the one case and escaping from prison in the other) served to negate any duty owed by the Commonwealth to exercise due diligence in bringing them to trial within 180 days. In the instant case, unlike Cohen and Taylor, the appellant does not allege that the delay is attributable to the prosecution, but rather to the judiciary. Nevertheless, justice requires that the same principles apply.

Importantly, we note that the Commonwealth was under no obligation to bring appellant to trial until September 23 (the 180th day after the complaint was filed). There is no dispute that appellant had not been found by September 23. A bench warrant had been issued the day before and it was not until October 1 that appellant was brought into custody. Two weeks passed before a hearing was held. The appellant shall also be responsible for these two weeks.

Assuming that the revised 180 day period was to expire on April 13, 1981 {see footnote 3), and that the Commonwealth waited until June to file for his extradition even though the appellant may have been “available” earlier, this entire period shall be charged to the appellant. “It is obvious that in many cases the defendant, by his unavailability, can occasion a delay which is much greater than the actual time of his unavailability. The rule charges this delay to the defendant.” Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982). See also Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983).

Commonwealth v. Taylor, 340 Pa.Super. 87, 489 A.2d 853, 860 (1985).

Judgment of sentence affirmed.

      . For example, in 1983, a defendant could be included in the program if he had been convicted three times of certain classes of homicide, rape, burglary, involuntary deviate sexual intercourse, and aggravated assault, or had been twice convicted of robbery. The District Attorney also considered the remoteness of the prior convictions in deciding whether an accused should be given career criminal treatment.


author: WATKINS, Judge:

text:
    501 A.2d 256
    COMMONWEALTH of Pennsylvania, Appellant, v. Calvin McCORD.
    Superior Court of Pennsylvania.
    Argued Aug. 8, 1984.
    Filed Oct. 4, 1985.
    Reargument Denied Dec. 6, 1985.
    Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Com., appellant.
    James B. Lieber, Pittsburgh, for appellee.

      Before BROSKY, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Allegheny County, Criminal Division, granting the defendant’s motion to suppress evidence.

The defendant-appellee, Calvin McCord, was charged with two counts of drug violations under 35 P.S. § 780-113(a)(30) and one count of possession of controlled substance, 35 P.S. § 780-113(a)(16). The drug involved was heroin.

The only question raised on appeal is whether the court below erred in granting the defendant’s motion to suppress the evidence on the ground that the application for a search warrant did not contain probably cause for its issuance.

The defendant filed a motion to suppress the evidence seized pursuant to a search warrant and after hearing the court below held that the affadavit of probable cause failed to meet with the standards established by Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and so suppressed the evidence.

It is well established that where an affidavit in support of a search warrant is based on hearsay information, a two-pronged test must be met. The magistrate must be informed of (1) some of the underlying circumstances from which the informant concluded that contraband was present in the place specified and (2) some of the underlying circumstances from which the affiant concluded that the informant was reliable. Aguilar v. Texas, supra; Spinelli v. United States, supra; Commonwealth v. Minton, 288 Pa.Super. 381, 432 A.2d 212 (181).

However, the United States Supreme Court seems to have abandoned the two-pronged test for evaluating suppression of search warrant affidavits for a totality of circumstances analysis and this could be applied retrospectively to validate search warrants already found defective by the trial court under the two-pronged test. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Price, 318 Pa.Superior Ct. 240, 464 A.2d 1320 (1983).

The search warrant in question here contains a detailed history of all the circumstances in that the police received information from a reliable informant that the defendant was and had been dealing quantities of heroin and that they would be able to observe drug dealing at certain specific locations. A search of the house disclosed drugs for which the defendant was charged. In the warrant the police set forth the surveillance which is also detailed in the warrant’s affidavit of probable cause. During more than an hour’s surveillance, they observed a number of transactions.

The Commonwealth-contends that regardless of the sufficiency of the informant’s tip, where police officers gain additional crucial information from their personal observations which reinforce the tip, probable cause is obtained. Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974).

In Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974), the court agreed with the defendant that the affidavit in the search warrant failed to specify the source from which the informant arrived at the information conveyed to the police officers. However, the court held that the subsequent police surveillance and its results set forth in the affidavit, sufficiently corroborated the informant’s statement and provided an adequate basis for a finding of probable cause.

In United States v. Acarino, 408 F.2d 512 (2d Cir.1969, cert. denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969) the following was set forth:

It is soundly established that an informer’s report which itself fails to establish probable cause may be sufficiently corroborated by independent observation of a suspect’s conduct, if the latter tends to confirm the information in the report or otherwise to support a conclusion that the suspect is engaged in committing a crime.

Here the informer’s tip that defendant was dealing in heroin and was in the possession of a large quantity of the drug was corroborated and reinforced by the following police observations which were set forth in the affidavit of probable cause. First, the officers observed the defendant’s automobile in the area specified by the informant where drug dealing would likely take place and where the officers observed several suspected drug transactions. Second, the officers observed a series of automobiles that entered the defendant’s auto body shop, stayed very briefly and then departed. The defendant did not check any of these cars, which would have been usual in the auto body business. Moreover, the officers made these observations at a time which the informant indicated drug deals would take place at defendant’s body shop. Finally, garbage obtained from outside the defendant’s residence yielded a large quantity of paraphernalia used for the cutting and packaging of heroin. One of the numerous plastic bags found in the garbage tested positive for the presence of heroin.

The Commonwealth further contends and we agree that the police surveillance corroborated the informant’s information and together with the garbage they provided probable cause to issue the search warrant. Furthermore, the Commonwealth submits that the informant’s tip, when corroborated by the subsequent police observations, allows an inference that the informant had obtained his information in a reliable way, thus satisfying the first prong of the Aguilar-Spinelli test.

In United States v. Leon, et al, 468 U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), it was recently held that evidence obtained on reasonable reliance on a defective search warrant is admissible.

We have held that an affidavit for a search warrant is to be tested by the court below in a common sense and realistic manner and is not subject to overly technical interpretations. The magistrate’s determination of probable cause is entitled to great deference on review. Common wealth v. Prokopchak, 279 Pa.Superior Ct. 284, 420 A.2d 1335 (1980); Commonwealth v. Nycz, 274 Pa.Superior Ct. 305, 418 A.2d 418 (1980).

The order is reversed and the case remanded for trial. Jurisdiction is relinquished.


author: MONTEMURO, Judge:

text:
    501 A.2d 258
    COMMONWEALTH of Pennsylvania v. Richard WILDERMUTH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1985.
    Filed Nov. 22, 1985.

      Michael Mustokoff, Philadelphia, for appellant.
    Christopher J. Serpico, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   MONTEMURO, Judge:

Appellant, Richard Wildermuth, herein appeals from the judgment of sentence of the Court of Common Pleas of Bucks County. On November 15, 1984, appellant pled guilty to charges of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault and exposure, and corrupting a minor, age 6, and to charges of statutory rape, indecent assault, and corrupting a minor, age 12. Applying the mandatory sentencing provisions of 42 Pa.C.S. § 9718 (relating to offenses against infant persons), the court below thereafter sentenced appellant to two concurrent terms of five to ten years imprisonment. This appeal followed the denial of appellant’s motion for modification of sentence.

Appellant herein raises a plethora of constitutional challenges to the provisions of section 9718, and to their application to the instant circumstances, which we will address seriatim.

Initially, we note that our analysis has been guided by the precepts reiterated in Commonwealth v. Bannister, 345 Pa.Super. 178, 182, 497 A.2d 1362,1364 (1985):

Our analysis of the constitutional challenge to this legislation must begin with a strong presumption of constitutionality. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). We will not strike down a statute unless its violation of the Constitution is so clear, palpable and plain as to preclude doubt or hesitation as to its validity. Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981); Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975); See also Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976).

Appellant first argues that section 9718 violates his right to equal protection in that the legislature failed to limit section 9718’s applicability to offenders under 60 years of age. Directing our attention to the mandatory sentencing provisions of 42 Pa.C.S. § 9717 (relating to offenses against elderly persons), appellant, approximately 80-81 years of age during the period within which the instant offenses occurred, observes that, had his offenses been against persons older than 60, he would not be subject to mandatory sentencing due to the fact that section 9717’s applicability is limited to those offenders under 60 years of age. Appellant therefore specifically contends that the unequal treatment of offenders over 60 years of age based upon the ages of their victims can not pass constitutional muster. We disagree.

Appellant, in his brief, relies upon the standard of review for equal protection challenges set forth in Moyer v. Phillips 462 Pa. 395, 341 A.2d 441 (1975). In Moyer, our supreme court noted that it is not impermissible for a state to statutorily “treat different classes of persons in different ways”; however, “[t]he classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike.” Id., 462 Pa. at 401, 341 A.2d at 443.

Despite appellant’s assertion that the “age cap” included in section 9717 was designed to protect older offenders from mandatory imprisonment, we decline to so interpret the legislature’s intent. We view the apparent legislative intent as being to protect older citizens rendered vulnerable as a result of their advanced age to certain crimes perpetrated by more youthful offenders. In its effort to effectuate this legitimate intent, the legislature reasonably classified the group of offenders to which section 9717 would be applied on the basis of their age or relative youthfulness.

In light of the foregoing analysis, it is clear why in fact section 9718 does not include a similar “age cap”. In imposing mandatory sentences upon those who commit any of the enumerated offenses against infant persons, the legislature was similarly concerned with the vulnerability of individuals under 16 years of age. Appellant herein is no less a threat to a child than a 25 year old person if either is predisposed toward committing one of the offenses provided for in section 9718. While section 9718 does indeed omit language rendering it’s provisions expressly applicable to only those offenders over 16 years of age, we view such a limitation as being implicit, and unnecessary, in that section 9718 could not be applied to an adjudication of delinquency in juvenile court. Furthermore, we note, of course, that the absence or presence of such an express limitation does not impact on the circumstances before us.

Accordingly, we find the instant claim to be meritless.

Appellant’s next contention is that section 9718 violates his right to equal treatment in that, unlike 42 Pa.C.S. § 9712 (relating to offenses committed with firearms), under section 9718 no mitigating circumstances may be considered. Specifically, appellant alleges that in electing whether to invoke section 9712, “the District Attorney may consider the age of the defendant, the nature of the offense and the effect of incarceration on the defendant to determine the appropriateness of mandatory sentencing.” Appellant’s brief at 12. However, quite to the contrary, in a recent opinion, this court held that indeed the Commonwealth is utterly without discretion in electing whether or not to apply section 9712. See Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985). Since we are unable to discern any other basis for appellant’s claim of unequal treatment in this regard, we find the claim to be meritless.

Appellant next argues, in a somewhat vague fashion, that the “arbitrariness” of section 9718 is demonstrated by section 9718’s alleged failure to provide for a right of appeal by the Commonwealth. We decline to reach the merits of this claim in that we find that appellant has no standing to present it.

The question of the constitutionality of a statute cannot generally be determined abstractly but rather is to be determined only as it applies and is sought to be enforced in a particular case before the court____ [A]nd, furthermore, one who is unharmed by a particular feature of a statute will not be heard to complain of its alleged unconstitutionality.

Commonwealth v. Bonadio, 490 Pa. 91, 94 n. 2, 415 A.2d 47, 49 n. 2 (1980); see also, Bannister, supra, 345 Pa.Super. at 183, 497 A.2d at 1365.

Appellant further posits, “The statute provides for other possibilities of arbitrary and unequal treatment of offenders.” In support of this proposition, appellant offers two hypothetical situations and reasserts the claim which we initially addressed and disposed of herein. Regarding appellant’s latter reasserted claim, we see no need for repetition. As to the two scenarios fabricated by appellant, neither is relevant to the circumstances presented herein nor does either overbear our necessarily strong presumption of section 9718’s constitutionality.

A substantial portion of appellant’s brief is devoted to the general contention that the application of section 9718 to the case sub judice violates the constitutional prohibitions against cruel and unusual punishments. In so far as appellant’s arguments generally maintain that mandatory sentences impermissibly preclude individualized sentencing, we are of the opinion that Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), and its recent progeny, have, at least implicitly, laid those arguments to rest. See also Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985).

Additionally, we note that the court below, in its opinion filed on February 14, 1985, cogently observed:

Insofar as 42 Pa.C.S.A. § 9718 is concerned, we do not conclude that the imposition of a mandatory five year minimum prison term is cruel or unusual. The crimes in question here, rape and involuntary deviate sexual intercourse, committed against a minor, are crimes of great severity and the legislature in enacting this statute expressed its grave concern for the protection of minors. Specifically, this act is designed to punish those criminals who prey on the helpless children in our society. Clearly, the nature and severity of the crimes justify the legislature’s rationally based minimum sentence.
In the analysis of the sentence’s effect on individual dignity, we also find no constitutional infirmity. As the U.S. Supreme Court stated in Rhoads [Rhodes] v. Chapman, 452 U.S. 337, 348, 101 Superior [sic] Ct. 2392 [2400], 69 L.Ed.2d 59 (1981), “to the extent that such conditions of confinement are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Defendant’s assertion that Pennsylvania has “no prison facility specially [sic] to meet the needs of the aged and infirm,” does not prove that incarceration per se would be cruel and unusual punishment. Certainly, if the defendant required medical treatment it would be available to him, but to conclude that any prison term violates the 8th Amendment is without foundation. We also do not believe that the legislature had any obligation to consider a defendant such as Mr. Wildermuth is establishing a mandatory minimum sentence.

Lower court opinion at 4-5.

Appellant next alleges that section 9718 is constitutionally infirm in that it denied appellant his right to due process. Contrasting the language of section 9712, appellant argues that section 9718 unconstitutionally fails to (1) provide for the giving of notice of its applicability, (2) indicate during which procedural state its applicability should be established, and (3) designate the standard of proof necessary to determine its applicability. Appellant further asserts that section 9718 is unconstitutionally vague in failing to set forth at what point in time a victim’s age is operative for the purpose of invoking the statute’s provisions.

In addressing these claims, we rely again upon the well-reasoned opinion of the court below:

The challenge relative to § 9712 (offenses committed with firearms) pertains to the due process requirements of notice and an opportunity to be heard. Defendant asserts that the statute is inadequate in that the legislature did not specifically state when applicability of the act will be determined and what burden of proof is required to trigger imposition of the mandatory sentence.
At the outset we note that § 9712 and § 9718 are facially distinguishable in that § 9712 requires proof of an additional element beyond conviction of the crime; namely, that the person ‘visibly possessed a firearm during the commission of the offense’ § 9712(a). The provision for applicability of § 9712 and the burden of proof under (b) specifically deal with this additional element. Application of § 9718 on the contrary is automatic where the defendant is convicted of one of the enumerated crimes against a minor; there is no additional factual element to be proved. Defendant argues that age is a factor to be proved and that the statute is unconstitutionally vague in this requirement. We find no such inadequacy in the statute. The act provides for the mandatory sentence when ‘a person [is] convicted of the following offenses when the victim is under 16 years of age.’ A logical reading of such language indicates that the victim must be under 16 years of age at the time of commission of the offense. Any alleged errors in the victim’s minority status are inappropriately made herein since defendant pled guilty and it was acknowledged that the victims were aged 6 and 12.
Lastly, the defendant asserts that his due process rights were violated in that he did not receive adequate notice of the mandatory penalty to be imposed. We determine this contention to be without merit. Defendant was advised at the time he entered his guilty plea that the mandatory sentence in accordance with § 9718 would be imposed, and did not subsequently request that the plea be withdrawn. There is no merit in the argument that a person of reasonable intelligence would not know such conduct is prohibited by law. Lack of knowledge concerning possible sentence to be imposed does not constitute a lack of notice violative of due process.

Lower court opinion at 7-8 (footnote omitted). We see no need for further comment regarding these claims.

Appellant’s final argument is that section 9718 represents an impermissible interference by the legislature with the sentencing powers of the trial courts. In Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985), we were confronted with the identical contention challenging section 9712’s constitutionality. We concluded therein that “the creation of mandatory minimum sentences which remove judicial sentencing discretion in non-capital cases is not a constitutional violation.” Id., 342 Pa.Superior Ct. at 70, 492 A.2d at 70. See also Wright, supra. Because we are of the opinion that Cooke forecloses appellant’s instant claim, we consider it meritless.

Based on the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . § 9718. Sentences for offenses against infant persons
      (a) Mandatory sentence. — A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:

        18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault)— not less than two years.
      18 Pa.C.S. § 3121 (relating to rápe) — not less than five years.
      18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse) — not less than five years.
      (b) Eligibility for parole. — Parole shall not be granted until the minimum term of imprisonment has been served.

      . We note that, although neither appellant nor the Commonwealth makes any further contentions regarding our standard of review, we are of the opinion that a statute which classifies convicted offenders, for the purpose of mandatory sentencing, on the basis of the relative ages of their victims does not involve a "suspect class” or a "fundamental right” warranting the utilization of a more strict standard of judicial review.


author: CERCONE, Judge:

text:
    501 A.2d 262
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold VANDERHORST a/k/a Harold Vanderhorse.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1985.
    Filed Nov. 22, 1985.

      Susan V. Kahn, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    William T. Cannon, Philadelphia, for appellee.

      Before WIEAND, CERCONE and ROBERTS, JJ.
   CERCONE, Judge:

In August, 1984, appellee was convicted in a non-jury trial of voluntary manslaughter. He was sentenced to serve a ten-year term of probation. The Commonwealth timely filed petitions to reconsider sentence, which were denied. The Commonwealth filed this appeal claiming that the trial court, in imposing sentence, abused its discretion by unreasonably deviating from the sentencing guidelines.

In the evening of May 23, 1983, the victim approached appellee while he was seated on the front steps of his porch and directed insulting remarks at appellee and appellee’s sister. Later that evening, appellee went to the neighborhood bar and while there he was again confronted by the victim. Appellee left the bar and began walking home, followed by the victim who continually harassed and insulted him. Appellee kept telling the victim, “Man, I don’t even know you. Just leave me alone.” As appellee approached his home, he was physically assaulted from behind by the victim. A fistfight ensued which resulted in appellee throwing the victim to the ground and striking his head several times on the asphalt, causing the victim’s death.

The legislature has provided that the appellate courts, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s sentence unless it finds that “the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). In determining whether a particular sentence is “unreasonable”, the appellate court must review the record with regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

The sentencing court is required, when imposing a sentence outside the guidelines, to provide a statement of the reason or reasons for the deviation. In this case, the lower court’s reasons for imposing a sentence outside the guidelines, as set forth in its opinion, were that:

(1) the victim was the aggressor;
(2) appellee had been steadily employed for a period over fourteen (14) years;
(3) appellee came from a hard-working well-respected family;
(4) although he did have six convictions for prior offenses prior to the age of twenty-one (21), there had been no arrests involving serious offenses since 1973;
(5) there was some question in the court’s mind as to whether appellee had made a case for self-defense, but this was overcome by the court’s feeling that appellee had used excessive force in repelling the victim;
(6) the appellee was remorseful; and
(7) incarceration would serve no useful purpose to either the appellee or the community.

In explaining the reason for the sentence imposed, the court noted grounds that the legislature has delineated, in 42 Pa.C.S.A. § 9722, which should be weighed when the court exercises its discretion to imposed probation. They are:

(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.

The Commonwealth argues that the court erred in relying on the fact that appellee acted under strong provocation by the victim. “Serious provocation” is an element of voluntary manslaughter which the court was required to find in order to rule out a conviction of third degree murder. 18 Pa.C.S.A. § 2503(a). Therefore, the Commonwealth argues, to assign the presence of provocation as a reason for deviating from the guidelines is to give appellee credit for provocation twice. See Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985) (court may not deviate from guidelines on basis of lack of prior criminal record because it is already computed in prior record score).

We find that this case is not ruled by Drumgoole because of the underlying factual differences. The mere fact that the victim intentionally followed appellee down the street at night and attacked him from behind would have been sufficient provocation to support his voluntary manslaughter conviction. However, here the victim had twice forced confrontations with appellee prior to the incident which resulted in his death and the victim actually attacked appellee as he was attempting to retreat from the victim’s harassment. The totality of these factors clearly supports the lower court’s consideration of provocation outside the guilt determination stage.

The Commonwealth also argues that the sentencing court erred in basing its deviation from the guidelines on a finding that appellee had led a law-abiding life for a substantial period of time before the commission of the present crime. The lower court did not, as the Commonwealth seems to contend, base its finding on a misunderstanding of the facts. The lower court was fully cognizant of appellee’s previous criminal record, but considered the fact that all convictions, except one, were over ten years old. Further, the most recent conviction was not for a crime of violence. Likewise, the Commonwealth’s contention that appellee has not shown that he would benefit from a probationary sentence is without substance. The lower court did not abuse its discretion when it looked at appellee’s past criminal record in conjunction with the fact that he had a good employment history and a supportive family and that he had rehabilitated himself following his bout of criminal activity during his late teens and early twenties. Such considerations were specifically allowed by the legislature, (see supra at 3).

When faced with the duty of sentencing a defendant, the court must balance

... the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and ... impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Wicks, 265 Pa.Super. 305, 310, 401 A.2d 1223, 1225 (1979) (collecting cases). (Emphasis added.)

Commonwealth v. Young, 229 Pa. Superior Ct. 488, 445 A.2d 1235, 1236 (1982). Considering all of the circumstances particular to this case, we find that the lower court did not abuse its discretion by imposing an unreasonably lenient sentence. Accordingly, the judgment of sentence is affirmed.

      . The reasoning in Drumgoole, relied upon by the Commonwealth, is merely dicta. In that case, the sentencing court imposed a probationary sentence outside the guidelines and gave as a reason the fact that the defendant had no prior record. On appeal, this court noted that defendant did in fact have a prior record and, therefore, the court imposed sentence upon a misconception of the facts. Such a finding was sufficient grounds for this court to remand for resentencing without reading the issue herein.

      . In 1977, appellee was cited for contempt of court. The charges were later dismissed. In 1981 he was sentenced to one year probation for possession of drugs.


author: TROMMER, Judge:

text:
    501 A.2d 265
    COLUMBIA COUNTY FARMERS NATIONAL BANK OF ORANGEVILLE, PA., Appellant, v. James S. FORNEY and Joan N. Forney, Appellees.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed Nov. 22, 1985.

      Rosenn, Jenkins & Greenwald, Donald H. Brobst, and Edward A. Monsky, Wilkes-Barre, for appellant.
    Hourigan, Kluger, Spohrer, Quinn & Myers, P.C., Arthur L. Piccone and Ronald V. Santora, Wilkes-Barre, for appel-lees.
    Ronald J. Santora, Wilkes-Barre, for appellees.
    Before POPOVICH, BECK and TROMMER , JJ.

       Judge Evelyn M. Trommer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   TROMMER, Judge:

The present appeal concerns appellant’s attempt to execute against appellees’ residential real property in order to satisfy two confessed judgments entered against appellees on May 12, 1980. Based on our court’s recent decision in RCK, Inc. v. Katz, 331 Pa.Super. 163, 480 A.2d 295 (1984), and appellees’ nonconformity with the procedures therein outlined, we vacate the trial court’s October 4, 1984, order purporting to grant appellees’ petitions to strike the two confessed judgments of May 12, 1980.

This is a consolidated appeal from an order of the trial court granting appellees’ motion to strike two judgments entered against them. The judgments were entered on two demand notes, payable to appellant, in the amounts of $157,000.83 (No. 1113-N of 1980) and $67,702.22 (No. 1114-N of 1980), plus interest and an attorney’s commission of fifteen percent. The notes were executed, under seal, by appellees on October 17 and 18, 1979, and provided in pertinent part as follows:

The undersigned jointly and severally do hereby authorize and empower any attorney of any Court of Record of Pennsylvania, or elsewhere to appear for them, or any of them, and to confess judgment against them, or any of them, as of any term, with or without declaration filed, for such sum or sums as may be payable hereunder and with costs of suit, release of errors, without stay of execution and with 15% added as attorneys’ collection fees____ |

Contemporaneously with the execution of the demand notes, appellees executed separate declarations with respect to confessions of judgment which provided that appellees:

do hereby declare that I (we) signed said instrument with full knowledge that it contains a Confession of Judgmeht which permits said Bank, or any Prothonotary, or Clerk of any Court of Record of Pennsylvania, to enter judgment against me (us) without notice and regardless of any default by me (us) under said instrument; and I (we) do hereby further declare that I (we) signed said Confession of Judgment for the purpose of indicating my (our) intention, understanding, and voluntary consent that judgment be entered against me (us) as above stated.

The demand notes and declarations were presented to the prothonotary on May 12, 1980. The praecipes to enter judgment upon them were both signed by Dean R. Kelcher, appellant’s vice-president, as “Plaintiff’s Attorney.” That same day, the prothonotary entered the judgments as directed.

On June 24, 1981, appellant filed a complaint at No. 1114-N of 1980, as required by 41 P.S. § 407 as a prerequisite to foreclosing upon appellees’ residential real property. Appellees filed an answer to the complaint on October 5, 1981. Appellant thereafter filed a motion for summary judgment, which was denied by the trial court on May 3, 1983. The trial court granted appellees leave to file an amended answer, and the appellees did so on May 23, 1983. On November 15, 1983, appellant filed a praecipe for a default judgment and a writ of execution on the basis of appellees’ alleged failure to answer the complaint. On February 10, 1984, a sheriff’s sale was held pursuant to the merged confession and default judgments. See discussion, infra, on merger. The deed to the property was conveyed to the buyer shortly thereafter.

On March 7, 1984, appellees filed petitions to open or strike the confessed judgments entered on May 12, 1980. Appellant filed answers where, as new matter, appellant raised, inter alia, the defenses of laches, waiver (Nos. 1113-N and 1114-N of 1980), res judicata and collateral estoppel (No. 1114-N of 1980). On October 3, 1984, after argument, the trial court issued an order striking the confessed judgments of May 12, 1980. This consolidated appeal timely followed.

We find that our court’s disposition in RCK, Inc. controls the resolution of the case sub judice inasmuch as the factual and procedural histories of RCK, Inc. and the present case are nearly identical. In both cases, the creditor acquired a confessed judgment against the debtors and then, as a prerequisite to executing against the debtors’ residential real property in satisfaction of the confessed judgment, the creditor commenced an original action under Section 407(a) of the Act of January 30, 1974, P.L. 13, as amended, 41 P.S. § 407(a). In both instances, the creditors obtained favorable Section 407(a) judgments which were, coincidentally in both cases, default judgments. Thus, we must again examine the relationship between a creditor’s prior confessed judgment and a creditor’s subsequent Section 407(a) default judgment to ascertain how and when the different judgments may be challenged.

It is axiomatic that a confessed judgment may be attacked by the filing of a petition to open and/or strike the confessed judgment. RCK, Inc.; Pa.R.C.P. No. 2959. But where a Section 407(a) action is brought pursuant to the entry of a confessed judgment, the acquisition of a judgment in the Section 407(a) action precludes any further challenge to the underlying, prior confessed judgment. RCK, Inc. Once a Section 407(a) judgment has been obtained, any attack must be directed against the Section 407(a) judgment and not the previously acquired confessed judgment.

The preclusion against contesting the prior confessed judgment occurs because the Section 407(a) action occasions a de novo litigation of the parties’ rights and a resultant de novo judgment which may differ in its terms, such as judgment amount, from the earlier confessed judgment. See Section 407(a); RCK, Inc.; 11 Standard Pennsylvania Practice 2d § 67:45 (1982).

The Section 407(a) judgment may be assailed by the parties in the same manner as judgments in other assumpsit actions are protested. RCK, Inc. Accordingly, if as happened in RCK, Inc. and the case sub judice, the creditor obtains a defaúlt judgment against the debtors in the Section 407(a) action, the debtors may contest the Section 407(a) judgment by filing a petition to open and/or strike the default judgment. RCK, Inc. Subsequently, the parties may appeal the court’s ruling on the petition to open and/or strike the Section 407(a) default judgment. RCK, Inc.

Once the parties have exhausted their opportunities to challenge the Section 407(a) judgment, the Section 407(a) judgment merges with the underlying, prior confessed judgment. RCK, Inc.; Section 407(a). The merger of the two judgments consists of the modification of the terms of the prior confessed judgment so that they conform to the terms of Section 407(a) judgment. RCK, Inc.; Section 407(a); 11 Standard Pennsylvania Practice 2d § 67:45 (1982). The merger “produces a single, integrated confessed judgment (a ‘merged’ confessed judgment) upon which execution ultimately occurs.” RCK, Inc., 331 Pa.Super. at 171, 480 A.2d at 299.

Thus, the terms of the underlying, prior confessed judgment lose their effectiveness once a Section 407(a) judgment has been rendered, see RCK, Inc.; Section 407(a), and any attempt by the parties to attack the prior confessed judgment after the entry of a Section 407(a) judgment is accordingly feckless. Moreover, it logically follows that any court order purporting to rule on the merits of a challenge to an underlying, prior confessed judgment after the entry of a Section 407(a) judgment is without effect inasmuch as the terms of the prior confessed judgment became ineffective upon entry of the Section 407(a) judgment.

In the case on appeal, appellant obtained confessed judgments against appellees and then acquired favorable Section 407(a) judgments in the form of default judgments which appellees did not challenge. After entry of the default judgments, appellees for the first time tried to assail the underlying, prior confessed judgments by filing petitions to open and/or strike the prior confessed judgments of May 12, 1980.

Since appellees’ petitions attacking the May 12, 1980, confessed judgments were filed after appellant’s acquisition of Section 407(a) judgments and hence were untimely, the trial court should have dismissed appellees’ petitions on the procedural ground that they were inopportunely presented to the court. To the contrary, the trial court purported to rule on the merits of the petitions by granting appellees’ petitions to strike the May 12, 1980, confessed judgments.

Accordingly, we vacate the trial court’s October 4, 1984, order granting appellees’ petitions to strike the two May 12, 1980, confessed judgments, and we remand this matter to the trial court for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . According to appellant’s brief, appellees withdrew their answer to the complaint. See Brief of Appellant at 4. Although appellees have not contested this assertion, we note that the record on appeal does not contain a praecipe to withdraw the answer or any other documentary support for the default judgment.

      . "[A] Section 407(a) action is a de novo proceeding wherein the parties are not restricted to claims or defenses raised in conjunction with a creditor’s earlier acquisition of a confessed judgment or a debtors’ petition to open same.” RCK, Inc. v. Katz, 331 Pa.Super. 163, 168, 480 A.2d 295, 297-98 (1984).

      . "The requisites for opening a default judgment are more stringent than the requisites for opening a confessed judgment____ To open a default judgment, a petitioner must show (i) that he promptly filed his petition to open; (ii) that he has a meritorious defense, and (iii) that his failure to defend [here, the alleged withdrawal of appellees’ answer to appellant’s complaint in the Section 407(a) action] was excusable.” RCK, Inc. v. Katz, 331 Pa.Super. 163, 168 n.3, 480 A.2d 295, 297 n.3 (1984).

      . The merged confessed judgment is comprised of the underlying, prior confessed judgment and the Section 407(a) judgment. Since the underlying, prior confessed judgment and the Section 407(a) judgment are each subject to attack by the parties, the parties are fully able to litigate all their claims with respect to both judgments before the judgments merge. Therefore, the parties cannot challenge the merged confessed judgment which is merely the combination of the two previous judgments.

      . The underlying, prior confessed judgment retains its effectiveness in only one respect. “A lien based upon a ‘merged’ confessed judgment relates back to the date of the lien based upon the creditor’s earlier confessed judgment.” RCK, Inc. v. Katz, 331 Pa.Super. 163, 171 n.5, 480 A,2d 295, 299 n.5 (1984).

      . It would be absurd to allow the underlying, prior confessed judgment to be attacked after entry of a Section 407(a) judgment since even if the prior confessed judgment were opened or stricken, the Section 407(a) judgment would remain on the docket.