PA RAP (Rules of Procedure) Superior Court Citations Downloaded March 19, 2007

Pa.R.A.P.
, Rule 1926
Purdon's Pennsylvania Statutes and Consolidated Statutes Annotated Currentness
Pennsylvania Rules of Appellate Procedure (Refs & Annos)
Article II. Appellate Procedure (Refs & Annos)
Chapter 19. Preparation and Transmission of Record and Related Matters
Record on Appeal from Lower Court
Rule 1926. Correction or Modification of the Record
If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be
submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to
conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated
therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate
court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement
be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the
form and content of the record shall be presented to the appellate court.
Note: Based on former Supreme Court Rule 63, and former Superior Court Rule 54. This rule is intended to close a gap
in the prior practice whereby the lower court could not correct an error discovered in writing an opinion under Rule 1925
(opinion in support of order). This rule does not enlarge the power of the lower court to rewrite the record but, together
with Rule 1922(c) (certification and filing), merely postpones the reading and correction by the trial judge of an
unobjected to transcript (except for the charge to the jury in criminal proceedings) from the transcription stage to the
opinion writing stage, so as to conform to actual practice.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended Dec. 11, 1978, effective Dec. 30, 1978.
CROSS REFERENCES
Recording and transcribing juvenile court proceedings, see Pa.R.J.C.P. No. 127.
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
647.
Criminal Law
1110.
Westlaw Topic Nos. 110, 30.
C.J.S. Appeal and Error 542.
C.J.S. Criminal Law 1688.
RESEARCH REFERENCES
2007 Electronic Update
Forms
3 West's Pennsylvania Forms 63.45, Petition for Correction or Modification of the Record.
3 West's Pennsylvania Forms 63.46, Stipulation of Counsel to Correct Record.
Treatises and Practice Aids
Pennsylvania Family Law Practice and Procedure 17-2, Appeals.
Standard Pennsylvania Practice 49:91, Matters Concerning Court and Its Records.
Standard Pennsylvania Practice 88:12, Remand.
Standard Pennsylvania Practice 88:22, Opinion in Support of Order.

2 West's Pennsylvania Practice 16.20, Petition to Supplement the Record and Filing of Reproduced Record.
10 West's Pennsylvania Practice 30:44, Record on Appeal.
17 West's Pennsylvania Practice 17:4, Preserving Issues for Appellate Review.
16A West's Pennsylvania Practice 27:37, Court Reporting and Transcripts.
16B West's Pennsylvania Practice 33:14, Transcript.
16B West's Pennsylvania Practice 33:25, Effect of Appeal.
10 West's Pennsylvania Practice 30:43, Brief-Constitutional Claims.
Will Contests 16:9, Reduced Forms of Record.
Will Contests 16:11, Bond and Supersedeas.
NOTES OF DECISIONS
Disputed issues 1
Errors and omissions 2
1. Disputed issues
Where defendant argued on appeal that court below erred in failing to grant motion for change of venue and record was
devoid of any indication that such motion was ever filed and decided by court below, case was remanded for prompt
determination of whether motion for change of venue was filed and disposed of by court. Com. v. Hobson, 393 A.2d 29,
481 Pa. 526, Sup.1978. Criminal Law
1181.5(3.1)
Case, in which defendant appealed from his conviction of recklessly endangering another person and in which he
claimed that he was denied meaningful appellate review because record did not contain his requested points for charge,
was remanded to trial court for evidentiary hearing on disputed issue whether defendant had filed any requested points
for charge. Com. v. Harbaugh, 384 A.2d 957, 253 Pa.Super. 24, Super.1978. Criminal Law
1181.5(3.1)
2. Errors and omissions
Pennsylvania Rules of Appellate Procedure set forth proper procedures that must be followed in order to correct alleged
discrepancies in record; these procedures, rather than federal civil rights action against court reporter, provided party
claiming that trial testimony was incorrectly transcribed with remedy. Cook v. Smith, E.D.Pa.1993, 812 F.Supp. 561.
Civil Rights
1311
Trial court did not abuse its discretion in issuing supplemental instruction to jury in prosecution for various offenses;
charge did not instruct minority jurors to yield to majority, charge was consistent with American Bar Association (ABA)
standard instruction governing length of deliberations and deadlocked jury, nothing in charge suggested that juror
should disregard his own views or opinion and court merely asked each juror to be open to other jurors' opinions and
arguments, without doing violence to each juror's own convictions, and charge, when read as a whole, neither qualified
as an impermissible Allen charge nor evidenced judicial coercion. Com. v. P.L.S., 894 A.2d 120, Super.2006. Criminal
Law
865(1)
Time-stamped opinion of trial court as to why it granted motorist new trial in personal injury action was part of the
record on appeal, though original record filed with Superior Court did not include such opinion and when opinion was
subsequently issued it was not forwarded to Superior Court, where motorist attached a time-stamped copy of the
opinion to her motion for reargument. Zeigler v. Detweiler, 835 A.2d 764, Super.2003. Appeal And Error
654
Incompleteness of record on appeal from dismissal of noncustodial parent's petition for custody required remand. Supko
v. Monoskey, 461 A.2d 253, 314 Pa.Super. 469, Super.1983. Child Custody
924
Courts have power to correct clerical errors in the record and, hence, although at Post-Conviction Hearing Act
proceeding the trial court found that although petitioner had not been expressly told that he had the right to participate
in jury selection his long criminal court experience including jury trials gave him an adequate knowledge of criminal
procedure to make the colloquy held constitutionally effective, trial court was entitled to correct the record following
appeal to reflect determination that petitioner had in fact been advised that he could personally participate in jury
selection and to certify and transmit the record as supplemented. Com. v. McDonald, 428 A.2d 174, 285 Pa.Super. 534,
Super.1981. Criminal Law
1110(2)
Where the court reporter's stenographic notes and voice tape demonstrate an erroneous or accidental omission in the
trial transcript, the transcript will be corrected upon order of the trial court under this rule prior to the determination of
the appeal in the appellate court. Com. v. McDonald, 13 Pa. D. & C.3d 468 (1979). Criminal Law
1110(3)
Rules App. Proc., Rule 1926, 42 Pa.C.S.A., PA ST RAP Rule 1926
Current with amendments received through Dec. 1, 2006
Pa.R.A.P., Rule 1931

Chapter 19. Preparation and Transmission of Record and Related Matters
Record on Appeal from Lower Court
Rule 1931. Transmission of the Record
(a) Time for transmission. The record on appeal, including the transcript and exhibits necessary for the determination
of the appeal, shall be transmitted to the appellate court within 40 days after the filing of the notice of appeal. If an
appeal has been allowed or if permission to appeal has been granted, the record shall be transmitted as provided by
Rule 1122 (allowance of appeal and transmission of record) or by Rule 1322 (permission to appeal and transmission of
record), as the case may be. The appellate court may shorten or extend the time prescribed by this subdivision.
(b) Duty of lower court. After a notice of appeal has been filed the judge who entered the order appealed from shall
comply with Rule 1925 (opinion in support of order), shall cause the official court reporter to comply with Rule 1922
(transcription of notes of testimony) or shall otherwise settle a statement of the evidence or proceedings as prescribed
by this chapter, and shall take any other action necessary to enable the clerk to assemble and transmit the record as
prescribed by this rule.
(c) Duty of clerk to transmit the record. When the record is complete for purposes of the appeal, the clerk of the
lower court shall transmit it to the prothonotary of the appellate court. The clerk of the lower court shall number the
documents comprising the record and shall transmit with the record a list of the documents correspondingly numbered
and identified with reasonable definiteness. Documents of unusual bulk or weight and physical exhibits other than
documents shall not be transmitted by the clerk unless he is directed to do so by a party or by the prothonotary of the
appellate court. A party must make advance arrangements with the clerk for the transportation and receipt of exhibits
of unusual bulk or weight. Transmission of the record is effected when the clerk of the lower court mails or otherwise
forwards the record to the prothonotary of the appellate court. The clerk of the lower court shall indicate, by
endorsement on the face of the record or otherwise, the date upon which the record is transmitted to the appellate
court.
(d) Service of the list of record documents. The clerk of the lower court shall, at the time of the transmittal of the
record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by
counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of
such notice.
(e) Multiple appeals. Where more than one appeal is taken from the same order, it shall be sufficient to transmit a
single record, without duplication.
Note: Former Supreme Court Rule 22 required the record to be returned forthwith. See also former Superior Court Rule
50 and former Commonwealth Court Rules 22 and 23.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended June 23, 1976, effective July 1, 1976; Dec. 11, 1978, effective
Dec. 30, 1978; April 1, 2004, effective June 1, 2004.
EXPLANATORY COMMENT--1976
2005 Main Volume
This provision makes clear that in multiple appeals only one original record need be transmitted.
2005 Main Volume

It is hoped that the 2004 amendment to Rule 1931 will alleviate the potential waiver problem which results when
counsel is unable to ascertain whether the entire record in a particular case has been transmitted to the appellate court
for review. The rule change is intended to assist counsel in his or her responsibility under the Rules of Appellate
Procedure to provide a full and complete record for effective appellate review. See Commonwealth v. Williams, 552 Pa.
451, 715 A.2d 1101 (1998) ("The fundamental tool for appellate review is the official record of what happened at trial,
and appellate courts are limited to considering only those facts that have been duly certified in the record on appeal.");
Commonwealth v. Wint, 1999 Pa.Super. 81, 730 A.2d 965 (1999) ("Appellant has the responsibility to make sure that
the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious
assessment of the issues raised on appeal."). In order to facilitate counsel's ability to monitor the contents of the
original record which is transmitted from the trial court to the appellate court, new subdivision (d) requires that a copy
of the list of record documents be mailed to all counsel of record, or to the parties themselves if unrepresented, and
that the giving of such notice be noted on the record. Thereafter, in the event that counsel discovers that anything
material to either party has been omitted from the certified record, such omission can be corrected pursuant to
Pa.R.A.P. 1926.
HISTORICAL NOTES
2005 Main Volume
Order of April 1, 2004
The Order of April 1, 2004, in subd. (c), substituted "the date upon which the record" for "the date upon which it";
inserted a new subd. (d); and redesignated former subd. (d) as (e).
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
619 to 625, 632.
Criminal Law
1106(2), 1108.
C.J.S. Appeal and Error 527 to 534.
RESEARCH REFERENCES
Forms
3 West's Pennsylvania Forms 63.41, Statement in Absence of Transcript.
3 West's Pennsylvania Forms 63.45, Petition for Correction or Modification of the Record.
3 West's Pennsylvania Forms 63.46, Stipulation of Counsel to Correct Record.
Standard Pennsylvania Practice 88:10, Agreed Statement of Record.
Standard Pennsylvania Practice 88:28, Generally; Time for Transmission.
Standard Pennsylvania Practice 88:29, Duties of Lower Court.
Standard Pennsylvania Practice 88:30, Duties of Clerk of Lower Court.
Standard Pennsylvania Practice 88:31, Notices and Reports Concerning Delinquent Transmission of Record.
Standard Pennsylvania Practice 88:32, Temporary Retention.
Standard Pennsylvania Practice 85:121, Effect of Grant or Denial of Permission to Appeal; Notice of Entry of Order.
2 West's Pennsylvania Practice 16.19, Petition to Order Lower Court to File an Opinion and Transmit the Record to the
Appellate Court.
2 West's Pennsylvania Practice 16.20, Petition to Supplement the Record and Filing of Reproduced Record.
10 West's Pennsylvania Practice 30:1, Generally.
10 West's Pennsylvania Practice 30:44, Record on Appeal.
16B West's Pennsylvania Practice 33:7, Procedure and Time for Appeals.
16B West's Pennsylvania Practice 33:14, Transcript.
10 West's Pennsylvania Practice 30:43, Brief-Constitutional Claims.
Will Contests 16:8, Perfecting an Appeal.
NOTES OF DECISIONS
Construction and application 1
Duty of court 2
1. Construction and application
Requirement that appellant insure a sufficient record is delivered to appellate court for review is especially important
where counsel had filed an Anders brief and motion to withdraw; the filing of the Anders brief triggers the duty of the
appellate court to conduct an independent review of the entire record to make sure counsel has fully represented his
client's interest, and, thus, when Anders is implicated, the entire record needs to be transmitted. Com. v. Vilsaint, 893
A.2d 753, Super.2006. Criminal Law
1086.4
All appellants are required to insure a sufficient record is delivered to the appellate court for review. Com. v. Vilsaint,
893 A.2d 753, Super.2006. Criminal Law
1086.4
Evidentiary hearing was necessary to determine why record was not transmitted to Superior Court, before judgment of
sentence for drug convictions could be affirmed for failure to provide Court with complete record; critical factual
question remained unresolved, that being whether clerk of quarter session failed to transmit completed record to Court
or whether defense counsel failed to complete the record. Com. v. Williams, 715 A.2d 1101, 552 Pa. 451, Sup.1998.
Criminal Law
1181.5(2)
Delay of trial court in submitting certified record and its opinion did not warrant grant of relief to plaintiff who appealed
from entry of compulsory nonsuit where delay was primarily attributable to misunderstanding by court clerk and was
not unduly excessive, nearly half of delay which occurred in appeal was attributable to plaintiff by filing of premature
appeal and failing to promptly move case for argument, and plaintiff's claims were devoid of merit and it was obvious
that plaintiff would be unable to prove prima facie case through legally admissible, competent, and relevant evidence.
Liles v. Balmer, 653 A.2d 1237, 439 Pa.Super. 238, Super.1994, reargument denied, appeal denied 663 A.2d 692, 541
Pa. 640. Appeal And Error
1062.2
It is inappropriate for counsel for losing party below to be responsible for goading court reporter to transcribe the
testimony notes. Revocation of Restaurant Liquor License No. R-6703 v. Com., Pennsylvania Liquor Control Bd., 441
A.2d 491, 64 Pa.Cmwlth. 566, Cmwlth.1982. Appeal And Error
628(2)
2. Duty of court
The rule requiring the clerk of the lower court to "mail a copy of the list of record documents to all counsel of record, or
if unrepresented by counsel, to the parties" does not absolve an appellant from the duty to see that the reviewing court
receives all documentation necessary to substantively address the claims raised on appeal. Com. v. Bongiorno, 905 A.2d
998, Super.2006. Criminal Law
1086.4
An appellant should not be denied appellate review if the failure to transmit the entire record was caused by an
extraordinary breakdown in the judicial process; however, if the appellant caused a delay or other problems in
transmitting the certified record, then he or she is not entitled to relief and the judgment of the court below should be
affirmed. Com. v. Bongiorno, 905 A.2d 998, Super.2006. Criminal Law
1106(1)
Although appellate rule on order for transcript requires appellants to order all transcripts necessary for their appeals,
rule does not place on appellants the burden to transmit the record to the Superior Court; responsibility for transmitting
the complete record is on clerk of the lower court, when the record is complete for purposes of the appeal. Com. v.
Williams, 715 A.2d 1101, 552 Pa. 451, Sup.1998. Criminal Law
1106(1)
It is appellant's responsibility to certify complete record for purposes of appellate review. Com. v. Edwards, 594 A.2d
720, 406 Pa.Super. 478, Super.1991. Criminal Law
1086.4
It was improper for appellant to be required to goad or cajole court reporter into transcribing notes of testimony and it
was also improper for appellant to be burdened with entire transcription cost. Revocation of Restaurant Liquor License
No. R-6703 v. Com., Pennsylvania Liquor Control Bd., 441 A.2d 491, 64 Pa.Cmwlth. 566, Cmwlth.1982. Appeal And
Error
628(2); Costs
254(1)
It is court's obligation to assure that court reporter's duties are performed without delay and trial judge is expected to
employ the sanctions necessary to assure the orderly administration of justice. Revocation of Restaurant Liquor License
No. R-6703 v. Com., Pennsylvania Liquor Control Bd., 441 A.2d 491, 64 Pa.Cmwlth. 566, Cmwlth.1982. Trial
23

Chapter 21. Briefs and Reproduced Record
Content of Briefs
Rule 2111. Brief of the Appellant
(a) General rule. The brief of the appellant, except as otherwise prescribed by these rules, shall consist of the following
matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Argument for appellant.
(8) A short conclusion stating the precise relief sought.
(9) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule.
(10) In the Superior Court, a copy of the statement of the matters complained of on appeal filed with the trial court
pursuant to Rule 1925(b), or an averment that no order requiring a Rule 1925(b) statement was entered.
(b) Opinions below. There shall be appended to the brief a copy of any opinions delivered by any court or other
government unit below relating to the order or other determination under review, if pertinent to the questions involved.
If an opinion has been reported, that fact and the appropriate citation shall also be set forth.
(c) Pleadings. When pursuant to Rule 2151(c) (original hearing cases) the parties are not required to reproduce the
record, and the questions presented involve an issue raised by the pleadings, a copy of the relevant pleadings in the
case shall be appended to the brief.
(d) Brief of the appellant. In the Superior Court, there shall be appended to the brief of the appellant a copy of the
statement of matters complained of on appeal, filed with the trial court pursuant to Pa.R.A.P. 1925(b). If the trial court
has not entered an order directing the filing of such a statement, the brief shall contain a statement that no order to file
a statement pursuant to Pa.R.A.P. 1925(b) was entered by the trial court.
Note: The 1999 amendment requires a statement of the scope and standard of review. " 'Scope of review' refers to 'the
confines within which an appellate court must conduct its examination.' (Citation omitted.) In other words, it refers to
the matters (or 'what') the appellate court is allowed to examine. In contrast, 'standard of review' refers to the manner
in which (or 'how') that examination is conducted.' "Morrison v. Commonwealth, Dept. of Public Welfare, 538 Pa. 122,
131, 646 A.2d 565, 570 (1994). This amendment incorporates the prior practice of the Superior Court pursuant to
Pa.R.A.P. 3518 which required such statements. Accordingly, Rule 3518 has been rescinded and its requirement is now
subsumed under paragraph (a)(2) of this Rule.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended Dec. 11, 1978, effective Dec. 30, 1978; May 16, 1979, effective
120 days after June 2, 1979; Feb. 27, 1980, effective March 15, 1980; Jan. 14, 1999, imd. effective; March 20, 2003,
imd. effective; April 14, 2003, imd. effective; Oct. 15, 2004, effective Dec. 14, 2004.
2005 Main Volume
The verbatim text of the order or other determination under review is added as a principal element of appellant's brief,
to be included between the statement of jurisdiction and the statement of questions involved. As a result of new Rule
2115, existing Rules 2115, 2116, 2117 and 2118 are appropriately renumbered, and conforming amendments are made
to Rules 2152(a) and 2175(b).
2005 Main Volume
The 2003 amendment adding subdivision 10 to Rule 2111 is intended to replace Rule 3520 adopted by the Superior
Court in 2001. The purpose of this amendment is to consolidate all requirements for briefs into Chapter 21 of the
Appellate Rules. It is anticipated that following adoption of this Rule, the Superior Court will rescind Rule 3520.
Materials attached to appellant's brief pursuant to Pa.R.A.P. 2111(a)(9) and (10) shall not count against the page limits
set forth in Pa.R.A.P. 2135
2005 Main Volume
The 2004 amendment simply reorders subdivision (a)(2) and (a)(3) in order to maintain consistency with Rule 2115,
which requires that the text of the order or determination from which an appeal has been taken shall be set forth
immediately following the statement of jurisdiction.
HISTORICAL NOTES
2005 Main Volume
Order of Jan. 14, 1999
The Order of Jan. 14, 1999, inserted subd. (a)(2) and rewrote the Note, which prior thereto read:
"Based on former Supreme Court Rules 47 and 61, former Superior Court Rules 39, 47 (notice), 51 and 52 and former
Commonwealth Court Rules 81, 90, 110B and 111B. Paragraphs (a)(2), (a)(7) and (a)(8) are new and Paragraph (a)(5)
is extended to the Commonwealth Court. The lower court opinion, if not otherwise available, is generated by the
appellant's notice to the trial judge under Rule 906(2) (service of notice of appeal) and the judge's preparation of an
opinion under Rule 1925(a) (opinion in support of order). Consequently there should always be an opinion attached to
the brief of the appellant."
Order of March 20, 2003
The Order of March 20, 2003, in subd. (a), inserted par. (10); and inserted subd. (d).
Order of April 14, 2003, rescinded the Order of March 20, 2003; in subd. (a), inserted par. (10); and inserted subd. (d).
Order of Oct. 15, 2004
The Order of Oct. 15, 2004, redesignated former subd. (a)(2) as (a)(3); and redesignated former subd. (a)(3) as (a)
(2).
LAW REVIEW AND JOURNAL COMMENTARIES
Standards of review and scopes of review in Pennsylvania--Primer and proposal. Jeffrey P. Bauman, 39 Duq.L.Rev. 513
(2001).
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
756 to 761.
Criminal Law
1130.
C.J.S. Appeal and Error 607 to 618.
RESEARCH REFERENCES
Forms
2 West's Pennsylvania Forms 56.0, Introductory Comment.

3 West's Pennsylvania Forms 63.80, In General.
3 West's Pennsylvania Forms 63.88, Order in Question.
3 West's Pennsylvania Forms 71.19, Appellant's Brief to Superior Court.
Standard Pennsylvania Practice 89:16, Citations and Opinions Below.
Standard Pennsylvania Practice 89:18, Brief of Appellant.
Standard Pennsylvania Practice 90:25, Record in Evidentiary Hearing Cases.
2 West's Pennsylvania Practice 16.34, Brief on the Merits.
9 West's Pennsylvania Practice 23:112, Mechanical Requirements of Appellate Practice Before the Commonwealth
Court.
10 West's Pennsylvania Practice 30:6, Brief.
16B West's Pennsylvania Practice 33:24, Standard and Scope of Review.
16B West's Pennsylvania Practice Form 33:16, Briefs and Reproduced Records.
16C West's Pennsylvania Practice 36:30, Standard, Scope of Review in License Suspension Appeals from the Trial
Court's Decision.
Will Contests 16:12, The Brief.
NOTES OF DECISIONS
Appeals quashed 5
Argument 2
Briefs 6, 7
Briefs - Pro se parties 7
Counsel 3
Noncompliance 4
Pro se parties, briefs 7
Whenever Commonwealth Court's ability to exercise power of review is substantially impaired due to gross deviations
from appellate rules, Court will suppress defective brief and quash appeal. Wicker v. Civil Service Com'n, 460 A.2d 407,
74 Pa.Cmwlth. 548, Cmwlth.1983. Appeal And Error
766
Appellate brief is not proper device for raising an objection not properly made below. Borough of Morrisville v.
Workmen's Compensation Appeal Bd., 419 A.2d 813, 54 Pa.Cmwlth. 41, Cmwlth.1980. Appeal And Error
768
2. Argument
Appellate court would address appellant's claims and furnish the most applicable scope and standard of review in its
analysis of the claims, despite several deficiencies within appellant's brief, including failure to include a statement of
court's scope and standard of review and only sparse citation to relevant case law with respect to the claims, since
appellant provided the court with the barest minimum of legal argument sufficient for review. Ty-Button Tie, Inc. v.
Kincel and Co., Ltd., 814 A.2d 685, Super.2002, reargument denied, appeal denied 845 A.2d 819, 577 Pa. 698. Appeal
And Error
766
Appeal of order denying inmate administrative relief regarding parole revocation and credit for time spent in custody
would be quashed because inmate had failed to conform to the requirements of the Rules of Appellate Procedure, in that
inmate's brief contained no cogent and meaningful statement of the case, virtually no summary of the argument,
effectively no argument, and no citations to statutory or case authority, and statement that panel hearing was not held
for two years without stating fact that he was in a county prison rose almost to level of attempt to deceive court by
omission of critical facts. Copeland v. Pennsylvania Bd. of Probation and Parole, 771 A.2d 86, Cmwlth.2001, as
amended. Pardon And Parole
92
Defendant waived argument that trial court erred by not striking testimony of two witnesses regarding content of
telephone conversations in which caller's identity was not authenticated, where mere 13 lines of text constituted
defendant's argument on issue, lines set forth general legal argument but utterly failed to reference facts of case or cite
to record itself in any meaningful way, and copy of defendant's brief provided to Superior Court was missing first page
of statement of case, leaving only final six lines of that section of brief. Com. v. Miller, 721 A.2d 1121, Super.1998.
Criminal Law
1130(3); Criminal Law
1130(5)
Petitioner failed to provide brief which would allow meaningful judicial review, and therefore appeal of order denying
petition under Post Conviction Relief Act (PCRA) would be quashed, where brief did not include statement of scope and
standard of review, brief did not specify order or determination sought to be reviewed, statement of case and
procedural history contained misrepresentations and omitted material facts, and brief was devoid of both summary of
argument and copy of lower court opinion. Com. v. Rivera, 685 A.2d 1011, 454 Pa.Super. 451, Super.1996. Criminal
Law
1130(3)
Although litigant failed to provide a separate statement of the questions involved as required by the Rules of Appellate
Procedure, issues litigant raised in argument section of his appellate brief suggested the specific issues that Superior
Court was being asked to review and thus, litigant's failure to comply with Rules of Appellate Procedure did not impede
Superior Court's ability to review the issues, such that Superior Court would address merits of appeal. Savoy v. Savoy,
641 A.2d 596, 433 Pa.Super. 549, Super.1994. Appeal And Error
766
Appellate brief of postconviction movant did not contain "proper argument for appellant" section, which had improperly
been labeled as "Reasons for Granting This Petition," where section merely set forth several disjointed paragraphs
alleging ineffectiveness of counsel, but failing to support assertions with factual evidence contained in record containing
largely unsupported legal arguments and inapplicable case law. Com. v. Maris, 629 A.2d 1014, 427 Pa.Super. 566,
1130(5)
Superior Court was not obliged to consider any of defendants' arguments on appeal from denial of postconviction relief
where none of arguments were set forth in a statement of questions involved. Com. v. Maris, 629 A.2d 1014, 427
Pa.Super. 566, Super.1993. Criminal Law
1130(2)
On appeal by former corporate tenant of premises purchased by redeveloper for recovery of relocation benefits as
"displaced person" under Eminent Domain Code, it was entirely appropriate for redeveloper to argue in appellate brief
that former corporate tenant moved from premises only because of condemnation by state department of transportation
and because it needed more space for its operation. Appeal of Radio Broadcasting Co., 423 A.2d 444, 55 Pa.Cmwlth.
147, Cmwlth.1980, certiorari denied 102 S.Ct. 477, 454 U.S. 941, 70 L.Ed.2d 249, rehearing denied 102 S.Ct. 692, 454
U.S. 1117, 70 L.Ed.2d 655. Appeal And Error
761
3. Counsel
Where appellate brief of defense counsel did not meet minimal standards for an advocate's brief on behalf of a criminal
appellant, defendant was entitled to remand to secure different counsel. Com. v. Tracy, 404 A.2d 1328, 266 Pa.Super.
1181.5(6)
Where brief submitted by defendant's counsel on appeal from conviction of murder stated as only question involved
whether counsel should be permitted to withdraw, pointed out several issues which might be raised on behalf of
defendant and suggested that there was no merit to such issues, such brief was not an advocate's brief fulfilling
counsel's responsibility to defendant. Com. v. Oliver, 387 A.2d 1266, 479 Pa. 147, Sup.1978. Criminal Law
1077.3
4. Noncompliance
Superior Court's review of alleged error in action for accounting and constructive trust was not hampered by appellants'
failure to file their designation of the record and failure to include a statement of matters complained of on appeal and a
statement of both the scope and standard of review in the brief, and thus appeal would not be quashed; trial court
discussed the matters the appellants wished to present for review, and trial court did not author a new opinion but
adopted its previous opinion as response to concise statement. Kern v. Kern, 2005 WL 3455815, Super.2005. Appeal
And Error
627.2; Appeal And Error
766
On appeal from trial court's granting of motion for judgment on pleadings in favor of bank in proceedings on bank's
ejectment complaint against mortgagors, mortgagors provided insufficient appellate record and argument, and thus
Superior Court was unable to conduct meaningful review and would quash appeal, where mortgagors' pro se brief failed
to include a scope and standard of review, the order appealed from and its accompanying opinion, and what questions
they wished the Superior Court to resolve. Branch Banking and Trust v. Gesiorski, 904 A.2d 939, Super.2006.
Mortgages
576
Although patient's appellate brief violated the express mandates of the Rules of Appellate Procedure, in that his lengthy
Statement of the Questions Involved exceeded one page and his brief did not contain a statement of both the scope of
review and standard of review, appellate court would review patient's appeal from trial court's decision dismissing his
professional negligence action against doctor because these rule violations did not impede appellate court's ability to
review the issues at hand. Long v. Ostroff, 854 A.2d 524, Super.2004, appeal denied 871 A.2d 192, 582 Pa. 700.
Appeal And Error
766
Although workers' compensation claimant technically failed to comply with appellate rule since his brief did not contain a
statement of questions presented, Commonwealth Court would exercise its discretion and consider issue raised
regarding referee substitution as it was raised before the Workmen's Compensation Appeal Board and both parties
addressed the argument in their briefs. Izzi v. W.C.A.B. (Century Graphics), 654 A.2d 176, Cmwlth.1995. Workers'
Compensation
1907
Issue raised by police chief, who had been discharged for conduct unbecoming an officer, on appeal, that borough
council's adjudication was rendered by individuals who were not members of council when hearings began, was not
presented in police chief's brief, and thus was considered waived. Borough of Riegelsville v. Miller, 639 A.2d 1258, 162
Pa.Cmwlth. 654, Cmwlth.1994, appeal denied 649 A.2d 676, 538 Pa. 675. Municipal Corporations
182
Commonwealth Court would reach merits of police chief's appeal of borough council's decision to terminate him for
conduct unbecoming an officer, even though police chief failed to comply with rules regarding provision of opinions
below, statement of questions involved, statement of case, and argument, where brief nevertheless permitted
meaningful appellate review. Borough of Riegelsville v. Miller, 639 A.2d 1258, 162 Pa.Cmwlth. 654, Cmwlth.1994,
appeal denied 649 A.2d 676, 538 Pa. 675. Municipal Corporations
182
Taxpayer's brief, which did not contain a statement of jurisdiction, order or determination in question, statement of
questions involved, or summary of argument, did not conform to the mandatory requirements of applicable rule and did
not provide the necessary information for court to perform a meaningful review of its appeal from an order of the Board
of Finance and Revenue denying taxpayer's six administrative appeals of six tax settlement reports. Erieview Cartage,
Inc. v. Com., 610 A.2d 1069, 148 Pa.Cmwlth. 1, Cmwlth.1991, affirmed 608 A.2d 492, 530 Pa. 264. Taxation
2699(4)
Although failure of appellant's brief to conform with rule proscribing form and content of brief was inexcusable, it was
not so egregious as to require suppression of brief or quashing of appeal, declining to follow Commonwealth v. Stoppie,
337 Pa.Super. 235, 486 A.2d 994. Big Knob Volunteer Fire Co. v. Lowe & Moyer Garage, Inc., 487 A.2d 953, 338
Pa.Super. 257, Super.1985. Appeal And Error
766
Although brief prepared by defendant's counsel failed utterly to conform with most basic rules governing brief-writing,
Superior Court would decide case on the merits, since defendant's speedy trial argument was diligently presented and
preserved at every stage of trial proceedings and it would be unjust to quash his appeal on grounds of his counsel's
derelictions. Com. v. Colon, 464 A.2d 388, 317 Pa.Super. 412, Super.1983. Criminal Law
1130(3)
5. Appeals quashed
Appellate court would not quash defendant's appeal despite his failure to comply with the rules of appellate procedure,
where the appellate court needed only to review a small subset of the issues raised, since many were waived or were
raised inappropriately. Com. v. Snyder, 870 A.2d 336, Super.2005. Criminal Law
1131(4)
Whenever appellate court's ability to conduct meaningful appellate review is substantially impaired due to gross
deviations from established appellate practice, the court will suppress the defective brief and quash the appeal.
Copeland v. Pennsylvania Bd. of Probation and Parole, 771 A.2d 86, Cmwlth.2001, as amended. Criminal Law
1130(1)
Citizens' failure to file appellate brief in accordance with mandatory briefing requirements, including rules governing
argument and statement of questions involved, precluded review of appeal of dismissal of citizens' pro se complaint
challenging county's jury pool selection method. Robinson v. Schellenberg, 729 A.2d 122, Cmwlth.1999, reargument
denied. Appeal And Error
766; Appeal And Error
774
Commonwealth Court quashes appeals when substantially defective briefs impede it from conducting meaningful
appellate review. Grosskopf v. W.C.A.B. (Kuhns Market), 657 A.2d 124, Cmwlth.1995, appeal denied 668 A.2d 1139,
542 Pa. 677. Appeal And Error
766
Commonwealth Court would quash appeal from decision of Workmen's Compensation Appeal Board without reaching the
merits because of appellant's failure to include in her brief a statement of jurisdiction, the order or other determination
in question, and statement of the questions involved; by failing to include these items in her brief, appellant
substantially deviated from the rules of appellate procedure and these defects and omissions prevented Court from
properly reviewing case. Grosskopf v. W.C.A.B. (Kuhns Market), 657 A.2d 124, Cmwlth.1995, appeal denied 668 A.2d
1139, 542 Pa. 677. Workers' Compensation
1907
Defendant's appeal from denial of postconviction relief would be quashed because of his violation of rule regarding
appellate briefs to degree that precluded Superior Court from conducting meaningful review of claims; brief contained
no statement of jurisdiction, order, or other determination in question, summary of argument or statement of questions
involved. Com. v. Maris, 629 A.2d 1014, 427 Pa.Super. 566, Super.1993. Criminal Law
1130(3)
Unemployment compensation claimant's appeal would be quashed due to substantial defects in appellate brief; brief
lacked six of seven elements required for appellate brief including statement of jurisdiction, order in question, statement
of questions involved on appeal, summary of argument, and argument and statement of relief sought. Dalesandro v.
Unemployment Compensation Bd. of Review, 625 A.2d 1291, 155 Pa.Cmwlth. 605, Cmwlth.1993. Social Security And
Public Welfare
657
Two parties' blatant violations of rules requiring that appellate brief contain statement of jurisdiction, statement of
questions involved, statement of case, summary of argument, short conclusion stating precise relief sought, and any
designated argument section required dismissal of appeal as to those two parties. Rumbaugh v. Beck, 601 A.2d 319,
411 Pa.Super. 220, Super.1991. Appeal And Error
766
Claimant's appeal from order of Workmen's Compensation Appeal Board had to be quashed as result of numerous
substantial defects in brief which impaired ability to conduct meaningful appellate review; claimant's brief did not
include statement of jurisdiction, verbatim text of order in question, statement of questions involved, statement of case,
or summary of argument. Lucarelli v. W.C.A.B. (Emerson Elec.), 546 A.2d 151, 119 Pa.Cmwlth. 72, Cmwlth.1988.
Workers' Compensation
1907
6. Briefs
Defendant failed to provide appellate brief which would allow meaningful judicial review, and thus, appeal of harassment
conviction would be quashed; with exception of what purported to be a statement of the case and an attached trial court
opinion, defendant's brief failed to meet any of the requirements for appellate briefs. Com. v. Greenwalt, 796 A.2d 996,
1130(3)
When issues are not properly raised and developed in briefs, when briefs are wholly inadequate to present specific
issues for review, a court will not consider the merits thereof. Com. v. Miller, 721 A.2d 1121, Super.1998. Criminal Law
1130(5)
Omission in appeal brief of statement of questions presented is particularly grievous since statement defines specific
issues that court is asked to review, and when omission of statement of questions presented is combined with lack of
any organized and developed arguments, brief is insufficient to allow court to conduct meaningful judicial review.
Smathers v. Smathers, 670 A.2d 1159, 448 Pa.Super. 162, Super.1996. Appeal And Error
758.1; Appeal And Error
766
7. ---- Pro se parties
Parties proceeding in forma pauperis should comply with rule requiring appellants to append to their briefs a copy of any
opinion relating to the determination under review, or risk having their appeals dismissed. Hill v. Dragovich, 679 A.2d
1382, Cmwlth.1996, appeal denied 734 A.2d 863, 557 Pa. 656. Appeal And Error
757(1)
Pro se appellant's brief precluded Superior Court from conducting meaningful judicial review, and her appeal in divorce
action would be quashed; brief contained no statement of jurisdiction, reference to order in question, statement of
questions involved, or summary of argument, brief contained no organized and developed arguments, and even liberal
construction of brief based on appellant's pro se status did not remedy brief's inadequacies. Smathers v. Smathers, 670
A.2d 1159, 448 Pa.Super. 162, Super.1996. Divorce
283
Appellate pro se brief which, as statement of case, merely set forth that defendant had been charged with burglary,
theft and criminal conspiracy was inadequate; it did not contain a closely condensed chronological statement, in
narrative form, of all facts which were necessary to be known to determine appeal and contained argument in violation
of rule. Com. v. Maris, 629 A.2d 1014, 427 Pa.Super. 566, Super.1993. Criminal Law
1130(3)
Pro se brief appealing convictions for parking violations, which contained numerous substantial defects, impaired
Commonwealth Court's ability to provide meaningful appellate review and was not considered on its merits. Sudduth v.
Com., 580 A.2d 929, 135 Pa.Cmwlth. 392, Cmwlth.1990. Criminal Law
1130(2)

Filing and Service
Rule 2185. Time for Serving and Filing Briefs
(a) General rule. The appellant shall serve appellant's brief not later than the date fixed pursuant to Subdivision (b) of
this rule, or within 40 days after the date on which the record is filed, if no other date is so fixed. The appellee shall
serve appellee's brief within 30 days after service of appellant's brief and reproduced record if proceeding under Rule
2154(a). A party may serve a reply brief permitted by these rules within 14 days after service of the preceding brief
but, except for good cause shown, a reply brief must be served and filed so as to be received at least three days before
argument. In cross appeals, the second brief of the deemed or designated appellant shall be served within 30 days of
service of the deemed or designated appellee's first brief. Except as prescribed by Rule 2187(b) (advance text of briefs),
each brief shall be filed not later than the last day fixed by or pursuant to this rule for its service.
(b) Notice of deferred briefing schedule. When the record is filed the prothonotary of the appellate court shall
estimate the date on which the matter will be argued before or submitted to the court, having regard for the nature of
the case and the status of the calendar of the court. If the prothonotary determines that the matter will probably not be
reached by the court for argument or submission within 30 days after the latest date on which the last paperbook could
be filed under the usual briefing schedule established by these rules, the prothonotary shall fix a specific calendar date
as the last date for the filing of the brief of the appellant in the matter, and shall give notice thereof as required by
these rules. The date so fixed by the prothonotary shall be such that the latest date on which the last paperbook in the
matter could be filed under these rules will fall approximately 30 days before the probable date of argument or
submission of the matter.
(c) Definitive copies. If the record is being reproduced pursuant to Rule 2154(b) (large records) the brief served
pursuant to Subdivision (a) of this rule may be typewritten or page proof copies of the brief, with appropriate references
to pages of the parts of the original record involved. Within 14 days after the reproduced record is filed each party who
served briefs in advance form under this subdivision shall serve and file definitive copies of his brief or briefs containing
references to the pages of the reproduced record in place of or in addition to the initial references to the pages of the
parts of the original record involved (see Rule 2132 (references in the briefs to the record)). No other changes may be
made in the briefs as initially served, except that typographical errors may be corrected.
Note: Unlike the provision for filing other papers, Rule 121(a) provides "paperbooks shall be deemed filed on the day of
mailing if first class mail is utilized." "Paperbooks" are defined in Rule 102 as briefs and reproduced records, but "the
term does not include applications for reconsideration of denial of allowance of appeal under Rule 1123(b)
(reconsideration) or applications for reargument under Chapter 25 (post-submission proceedings)."
The 2002 amendment recognizes that in cross appeals the deemed or designated appellant's second brief is more
extensive than a reply brief and, therefore may require more than 14 days to prepare. See Rule 2136 (briefs in cases
involving cross appeals).
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended May 16, 1979, effective 120 days after June 2, 1979; Feb. 27,
1980, effective March 15, 1980; July 7, 1997, effective in 60 days; Oct. 18, 2002, effective Dec. 2, 2002.
2005 Main Volume
The principal criticism of the new Appellate Rules has been the provisions for deferred preparation of the reproduced
record, and the resulting procedure for the filing of advance copies of briefs (since the page citations to the reproduced
record pages are not then available) followed by the later preparation and filing of definitive briefs with citations to the
reproduced record pages. It has been argued that in the typical state court appeal the record is quite small, with the
result that the pre-1976 practice of reproducing the record in conjunction with the preparation of appellant's definitive
brief is entirely appropriate and would ordinarily be followed if the rules did not imply a preference for the deferred
method. The Committee has been persuaded by these comments, and the rules have been redrafted to imply that the
deferred method is a secondary method particularly appropriate for longer records.
Also, the number of briefs to be filed under the in forma pauperis procedure has been increased from ten to 15 in the
Commonwealth and Superior Courts.
2005 Main Volume
See Comment following Pa.R.A.P., Rule 511.
HISTORICAL NOTES
2005 Main Volume
Order of July 7, 1997
The Order of July 7, 1997, rewrote subd. (a), which prior thereto read:
"General rule. The appellant shall serve his brief not later than the date fixed pursuant to Subdivision (b) of this rule, or
within 40 days after the date on which the record is filed, if no other date is so fixed. The appellee shall serve his brief
within 30 days after service of the brief of the appellant. A party may serve a reply brief permitted by these rules within
14 days after service of the preceding brief but, except for good cause shown, a reply brief must be served and filed so
as to be received at least three days before argument. Except as prescribed by Rule 2187(b) (advance text of briefs)
each brief shall be filed not later than the last day fixed by or pursuant to this rule for its service."
; and rewrote the Note, which prior thereto read:
"Former Supreme Court Rule 57 and former Superior Court Rule 47 provided that the brief of the appellant was to be
filed within 60 days after the issuance of the writ of certiorari. Former Commonwealth Court Rules 32A provided that the
brief of the appellant was to be filed within 30 days of mailing of notice of the filing of the record. To avoid paperwork
relating to continuances because the record is not ready, the time under these rules commences to run from the filing of
the record. The time for filing the brief of the appellee is the same as under the prior practice, except that formerly only
25 days was allowed in the Commonwealth Court.
"Subdivision (b) is necessary because approximately one year can elapse under existing practices before an appellate
court hears a case filed in the Middle or Harrisburg districts, and briefing the case far in advance permits intervening
decisions and legislation to render the briefs stale."
The Order of Oct. 18, 2002, in subd. (a) added text to indicate that in cross appeals the second brief shall be served
within 30 days of the first brief.
CROSS REFERENCES
Reply briefs to be filed in accordance with this rule, see Pa.R.A.P., Rule 2113.
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
764, 765.
Criminal Law
1130(4).
C.J.S. Appeal and Error 621, 624 to 625.
RESEARCH REFERENCES

Forms
3 West's Pennsylvania Forms 63.113, Filing and Service of Briefs and Reproduced Record.
Standard Pennsylvania Practice 88:4, Record for Preliminary Hearing in Appellate Court; Filing of Record.
Standard Pennsylvania Practice 89:5, Reply Briefs.
Standard Pennsylvania Practice 89:9, Time for Service and Filing.
Standard Pennsylvania Practice 88:32, Temporary Retention.
Standard Pennsylvania Practice 88:53, Designation of Contents.
Standard Pennsylvania Practice 89:10, Time for Service and Filing-- Appellee's Briefs, Reply Briefs and Briefs on
Applications for Orders.
Standard Pennsylvania Practice 89:15, References to Parties and to Record.
2 West's Pennsylvania Practice 16.34, Brief on the Merits.
9 West's Pennsylvania Practice 23:112, Mechanical Requirements of Appellate Practice Before the Commonwealth
Court.
10 West's Pennsylvania Practice 30:6, Brief.
10 West's Pennsylvania Practice 30:47, Reply Brief.
16B West's Pennsylvania Practice Form 33:16, Briefs and Reproduced Records.
10 West's Pennsylvania Practice 30:46, Waiver of Issues.

Content of Briefs
Rule 2136. Briefs in Cases Involving Cross Appeals
(a) Designation of parties in cross appeals. If a cross appeal is filed, the plaintiff or moving party in the court or
other government unit below shall be deemed the appellant for the purposes of this chapter and Chapter 23 (sessions
and argument), unless the parties otherwise agree or the appellate court otherwise orders. Where the identity of the
appellant for the purposes of this chapter and Chapter 23 is not readily apparent, the prothonotary of the appellate
court shall designate the appellant for the purposes of those two chapters when giving notice under Rule 1934 (filing of
the record).
(b) Order of briefs. The deemed or designated appellant shall file its principal brief on the merits of its appeal in
accordance with the briefing schedule. The deemed or designated appellee shall then file a brief that addresses (i) the
arguments advanced in the appellant's brief and (ii) the merits of the cross appeal. Thereafter, the appellant shall file its
second brief, which shall (i) reply to issues raised in the appellee's brief and not previously addressed in appellant's
principal brief and (ii) respond to the issues raised by appellee regarding the cross appeal. The appellee may then file a
reply brief limited to issues raised by the appellant that were not previously addressed by the appellee in its principal
brief on the merits of the cross appeal.
Note: For cross appeals, Rule 2136 provides both a method for determining which party shall file the first brief and a
description of the subsequent briefs. Either party may initiate the process described in Subdivision (a) by notifying the
prothonotary by letter that the prothonotary must designate the appellant, that is the party to file the first brief, or that
the parties have agreed which party shall be the appellant.
With regard to the briefing process, when there are cross appeals, there may be up to four briefs: (1) the deemed or
designated appellant's principal brief on the merits of the appeal; (2) the deemed or designated appellee's brief
responding to appellant's arguments and presenting the merits of the cross appeal; (3) the appellant's second brief
replying in support of the appeal and responding to the issues raised in the cross appeal; and (4) appellee's second brief
in support of the cross appeal.
Thus, the deemed or designated appellee's first brief (Brief No. 2 as described above) functions as both a response to
the arguments advanced by the appellant in the first appeal and the primary brief on the merits of the cross appeal.
Similarly, the deemed or designated appellant's second brief (Brief No. 3 as described above) serves the dual purposes
of responding to the merits of the arguments in the cross appeal and replying to arguments raised in opposition to the
first appeal. See generally Rule 2111 (brief of the appellant), Rule 2112 (brief of the appellee), and Rule 2113(a)
(regarding reply briefs).
Rule 2135 (length of briefs) establishes the length of the various briefs. Only appellee's second brief is considered a
reply brief subject to the lesser page limits. There is no provision for a longer principal brief on the merits in cross
appeal situations.
Rule 2185(a) (time for serving and filing briefs) provides that appellant's second brief shall be served within 30 days
after service of the preceding brief. Appellee's second brief is due 14 days later.
Rule 2322 (cross and separate appeals) addresses oral argument in cross appeals.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended May 16, 1979, effective 120 days after June 2, 1979; Dec. 30,
1987, effective Jan. 16, 1988; July 7, 1997, effective in 60 days; Oct. 18, 2002, effective Dec. 2, 2002.
2005 Main Volume
HISTORICAL NOTES
2005 Main Volume

Order of Dec. 30, 1987
The Order of Dec. 30, 1987, 18 Pa.B. 245 (Jan. 16, 1988), provides that these amendments shall become effective upon
publication in the Pennsylvania Bulletin and shall govern all matters thereafter commenced and, insofar as just and
practicable, matters then pending.
The Order of July 7, 1997, in the third sentence, substituted "the cross appeal" for "his appeal"; and rewrote the Note,
which prior thereto read:
"Ordinarily there will be three briefs in a case involving a cross appeal: appellant's main brief, appellee's main brief, and
appellant's reply brief directed to the issues on the cross appeal. However, if the case is submitted without oral
argument. Rule 2113 permits a fourth brief: appellee's reply to appellant's answer on the cross appeal."
The Order of Oct. 18, 2002, rewrote the rule, which prior thereto read:
"If a cross appeal is filed, the plaintiff or moving party in the court or other government unit below shall be deemed the
appellant for the purposes of this chapter and Chapter 23 (sessions and argument), unless the parties otherwise agree
or the appellate court otherwise orders. Where the nature of the matter is such that the identity of the appellant for the
purposes of this chapter and Chapter 23 is not readily apparent the prothonotary of the appellate court shall designate
the appellant for the purposes of this chapter and Chapter 23 when giving notice under Rule 1934 (filing of the record).
The brief of the appellee shall contain the issue and argument involved in the cross appeal, as well as the answer to the
brief of the appellant, and the appellant may file a brief in answer to the brief of the appellee on the cross appeal.
"Note: Ordinarily there will be three briefs in a case involving a cross appeal: appellant's main brief, appellee's main
brief, and appellant's reply brief directed to the issues on the cross appeal. However, Rule 2113 permits a fourth brief:
appellee's reply to appellant's answer on the cross appeal."
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
756.
Criminal Law
1130(3).
C.J.S. Appeal and Error 607 to 608, 616 to 618.
RESEARCH REFERENCES
Forms
3 West's Pennsylvania Forms 63.99, Briefs in Cases Involving Cross-Appeals.
Standard Pennsylvania Practice 89:4, Cross-Appeals.
Standard Pennsylvania Practice 89:5, Reply Briefs.
2 West's Pennsylvania Practice 16.4, Notice of Cross-Appeal.
NOTES OF DECISIONS

Father's appeal of order awarding mother child support would be dismissed where father did not file a brief in support of
his appeal or an answer to mother's cross appeal; father's status as appellee due to filing of cross appeal did not relieve
him from submitting a brief answering mother's cross appeal brief. Moore v. Moore, 568 A.2d 250, 390 Pa.Super. 174,
Super.1990. Child Support
543

Article III. Miscellaneous Provisions
Chapter 35. Business of the Superior Court
Appeals and Argument Lists
Rule 3517. Docketing Statement
Whenever a notice of appeal to the Superior Court is filed, the Prothonotary shall send a docketing statement form
which shall be completed and returned within ten (10) days in order that the Court shall be able to more efficiently and
expeditiously administer the scheduling of argument and submission of cases on appeal. Failure to file a docketing
statement may result in dismissal of the appeal.
CREDIT(S)
Adopted Nov. 29, 1982, effective Jan. 1, 1983. Amended June 5, 2001, effective Sept. 1, 2001.
HISTORICAL NOTES
2005 Main Volume
Order of June 5, 2001
The Order of June 5, 2001, rewrote the rule, which had read:
"Whenever a notice of appeal to the Superior Court is filed, the Prothonotary shall send counsel for appellant a
docketing statement form which counsel shall complete and return within ten (10) days in order that the Court shall be
able to more efficiently and expeditiously administer the scheduling of argument and submission of cases on appeal."
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
431 to 433, 808.
Criminal Law
1082, 1132.
C.J.S. Appeal and Error 390 to 392, 662 to 663.
C.J.S. Criminal Law 1685, 1701.
RESEARCH REFERENCES
Standard Pennsylvania Practice 85:40, Docketing of Appeal; Docketing Statement.

Article I. Preliminary Provisions (Refs & Annos)
Chapter 3. Orders from Which Appeals May Be Taken
In General
Rule 301. Requisites for an Appealable Order
(a) Entry upon docket below. No order of a court shall be appealable until it has been entered upon the appropriate
docket in the lower court. Where under the applicable practice below an order is entered in two or more dockets, the
order has been entered for the purposes of appeal when it has been entered in the first appropriate docket.
(b) Separate document required. Every order shall be set forth on a separate document.
(c) Nonappealable orders. A direction by the lower court that a specified judgment, sentence or other order shall be
entered, unaccompanied by actual entry of the specified order in the docket, does not constitute an appealable order.
Any such order shall be docketed before an appeal is taken.
(d) Entry of appealable orders. Subject to any inconsistent general rule applicable to particular classes of matters,
the clerk of the lower court shall on praecipe of any party (except a party who by law may not praecipe for entry of an
adverse order) forthwith prepare, sign and enter an appropriate order, judgment or final decree in the docket,
evidencing any action from which an appeal lies either as of right or upon permission to appeal or allowance of appeal.
(e) Emergency appeals. Where the exigency of the case is such as to impel an immediate appeal and the party
intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to the usual
procedures, the party may file in the lower court and serve a praecipe for entry of an adverse order, which action shall
constitute entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action
shall not be affected by this subdivision.
Note: See Rules of Appellate Procedure 311 authorizing interlocutory appeals as of right, 312 authorizing interlocutory
appeals by permission, and 341 to 343 authorizing appeals from final orders.
See also Rules of Appellate Procedure 903 governing time for filing notice of appeal, 1113 governing time for filing
petition for allowance of appeal, 1311(b) governing time for filing petition for permission for appeal, and 1512 governing
time for filing petition for review.
The 1986 Amendment to Rule 301 states that no order shall be appealable until entered in the docket and deletes
reference to reduction of an order to judgment as a prerequisite for appeal in every case. This deletion does not
eliminate the requirement of reduction of an order to judgment in an appropriate case. Due to the variety of orders
issued by courts in different kinds of cases, no single rule can delineate the requirements applicable in all cases. The bar
is cautioned that if the applicable practice or case law requires that an order be reduced to judgment or final decree
before it becomes final, that requirement must still be met before the order can be appealed.
An appeal may be remanded or subject to other appropriate action of the appellate court when the order is such that it
may be reduced to judgment or final decree and entered in the docket but such action has not been taken. Rule 902.
Examples of orders which may be remanded under Rule 902 when the order appealed from has not been reduced to
judgment or final decree include:
1. an order denying a motion for a new trial or judgment notwithstanding the verdict after a trial by jury, Dennis v.
Smith, 288 Pa.Super. 185, 431 A.2d 350 (1981);
2. an order dismissing exceptions to the decision after a trial without jury, Black Top Paving Co., Inc. v. John Carlo, Inc.,
292 Pa.Super. 404, 437 A.2d 446 (1981); and
3. an order dismissing exceptions to the decree nisi in an equity action, Kopchak v. Springer, 292 Pa.Super. 441, 437
A.2d 756 (1981).
An appeal will also be quashed where the order appealed from is interlocutory and the appeal is not authorized by Rule
311 governing interlocutory appeals as of right or Rule 312 governing interlocutory appeals by permission. Examples of
interlocutory orders include:
1. an order granting a petition for appointment of an arbitrator, Cassidy v. Keystone Ins. Co., 297 Pa.Super. 421, 443
A.2d 1193 (1982); and
2. an order relating to alimony pendente lite, and interim counsel fees and expenses is not appealable. Fried v. Fried,
509 Pa. 89, 501 A.2d 211 (1985).
Subdivision (a) extends former Supreme Court Rule 19A and former Commonwealth Court Rule 29A to the Superior
Court. The second sentence of the subdivision codifies Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975).
The requirement of Subdivision (b) for a separate document is patterned after Fed.Rules Civ.Proc. 58, as interpreted in
United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), so as to render certain the date on
which an order is entered for purposes of computing the running of the time for appeal. See also Bankers Trust Co. v.
Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (requirement of separate document may be waived by
appellee). This requirement is intended to control over any inconsistent civil (including orphans' court) or criminal
procedural rule, since such rules are not primarily concerned with the appellate process.
Subdivision (c) sets forth the frequently overlooked requirement for an appealable order that an order must be docketed
before it may be appealed. The subdivision also sets forth the rule that an appeal is premature where the Court directs
that a judgment sentence or order be entered in the docket and the prothonotary fails to do so. Friedman v. Kasser,
293 Pa.Super 294, 438 A.2d 1001 (1981). Moreover, an order of Court then directing that a complaint as set forth will
be dismissed upon the passage of time or occurrence or failure of an event is not appealable; only a subsequent order
of dismissal would be appealable. See Ayre v. Mountaintop Area Joint San. Auth., 58 Pa.Cmwlth. 510, 427 A.2d 1294
(1981).
This rule does not supersede rules such as Pa.R.Civ.P. 237 which impose additional requirements or procedures in
connection with filing a praecipe for a final order.
Subdivision (d) provides a remedy for the appellant where no appealable order has been entered on the docket, and is
similar to Pa.R.Civ.P. 227.4. The exception refers to cases such as certain matrimonial matters, where it has been held
that the defendant is not entitled to cause an adverse decision to be formally entered as judgment. See, e.g., Mirarchi
v. Mirarchi, 226 Pa.Super. 53, 311 A.2d 698 (1973).
The filing in the lower court required by Subdivision (e) may under Rule 121(a) (filing) be made with a judge of the
lower court in connection with an application under Chapter 17 (effect of appeals, supersedeas and stays).
Rule 302. Requisites for Reviewable Issue
(a) General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.
(b) Charge to jury. A general exception to the charge to the jury will not preserve an issue for appeal. Specific
exception shall be taken to the language or omission complained of.
Note: This rule sets forth a frequently overlooked requirement. See, e.g., Commonwealth v. Piper, 458 Pa. 307, 328
A.2d 845 (1974), as to Subdivision (a). See, e.g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114
(1974); Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) as to Subdivision (b). Rule 2117(c) (statement of
place of raising or preservation of issues) and Rule 2119(e) (statement of place of raising or preservation of issues)
require that the brief expressly set forth in both the statement of the case and in the argument reference to the place in
the record where the issue presented for decision on appeal has been raised or preserved below.
See Rule 151 (scope of review) as to requisites for reviewable issue on petition for review.
Interlocutory Appeals
Rule 311. Interlocutory Appeals as of Right
(a) General rule. An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:
(1) Affecting judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating or
striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim
for relief.
(2) Attachments, etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an
attachment, custodianship, receivership or similar matter affecting the possession or control of property, except for
orders pursuant to Sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. 3323(f) and 3505(a).
(3) Change of criminal venue or venire. An order changing venue or venire in a criminal proceeding.
(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions, except for injunctions pursuant to Sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S.
3323(f) and 3505(a). A decree nisi granting or denying an injunction is not appealable as of right under this rule, unless
the decree nisi (i) grants an injunction effective upon the entry of a decree nisi or (ii) dissolves a previously granted
preliminary injunction effective upon the entry of a decree nisi.
(5) Peremptory judgment in mandamus. An order granting peremptory judgment in mandamus.
(6) New trials. An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding
awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute
discharge or where the Commonwealth claims that the lower court committed an error of law.
(7) Partition. An order directing partition.
(8) Estate and Trust Matters. An order determining the validity of a will or trust.
(9) Other Cases. An order which is made appealable by statute or general rule.
(b) Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order
in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal
property if:
(1) the plaintiff, petitioner or other party benefiting from the order files of record within ten days after the entry of the
order an election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of venue or jurisdiction is presented.
(c) Changes of venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing
venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the
basis of forum non conveniens or analogous principles.
(d) Commonwealth appeals in criminal cases. In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.
(e) Orders overruling preliminary objections in eminent domain cases. An appeal may be taken as of right from
an order overruling preliminary objections to a declaration of taking and an order overruling preliminary objections to a
petition for appointment of a board of viewers.
(f) Administrative remand. An appeal may be taken as of right from: (1) an order of a common pleas court or
government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of
the reviewing tribunal in a manner that does not require the exercise of administrative discretion; or (2) an order of a
common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides
an issue which would ultimately evade appellate review if an immediate appeal is not allowed.
(g) Waiver of objections.
(1) Where an interlocutory order is immediately appealable under this rule, failure to appeal:
(i) Under Subdivisions (a)(1)-(7), (a)(9), (b)(2) or (f) of this rule shall not constitute a waiver of the objection to the
order and the objection may be raised on any subsequent appeal in the matter from a determination on the merits.
(ii) Under Subdivisions (b)(1) or (c) of this rule shall constitute a waiver of all objections to jurisdiction over the person
or over the property involved or to venue, etc. and the question of jurisdiction or venue shall not be considered on any
subsequent appellate review of the matter.
(iii) Under Subdivisions (a)(8) or (e) of this rule shall constitute a waiver of all objections to such orders and any
objection may not be raised on any subsequent appeal in the matter from a determination on the merits.
(2) Where no election that an interlocutory order shall be deemed final is filed under Subdivision (b)(1) of this rule, the
objection may be raised on any subsequent appeal in the matter from a determination on the merits.
(h) Further proceedings in lower court. Rule 1701(a) (effect of appeal generally) shall not be applicable to a matter
in which an interlocutory order is appealed under Subdivisions (a)(2) or (a)(4) of this rule.
Note: Authority--This rule implements 42 Pa.C.S. 5105(c) (interlocutory appeals), which provides:
(c) Interlocutory appeals. There shall be a right of appeal from such interlocutory orders of tribunals and other
government units as may be specified by law. The governing authority shall be responsible for a continuous review of
the operation of section 702(b) (relating to interlocutory appeals by permission) and shall from time to time establish by
general rule rights to appeal from such classes of interlocutory orders, if any, from which appeals are regularly allowed
pursuant to section 702(b).
The appeal rights under this rule, and under Rule 312 (interlocutory appeals by permission), Rule 313 (collateral
orders), Rule 341 (final orders generally), and Rule 342 (final distribution orders), are cumulative; and no inference
shall be drawn from the fact that two or more rules may be applicable to an appeal from a given order.
Subdivision (a)--If an order falls under Rule 311, an immediate appeal may be taken as of right simply by filing a notice
of appeal. The procedures set forth in Rules 341(c) and 1311 do not apply to an appeal under Rule 311.
Subdivision (a), paragraph (a)(1) (affecting judgments)--The 1989 amendment to paragraph (a)(1) eliminated
interlocutory appeals of right from orders opening, vacating, or striking off a judgment while retaining the right of
appeal from an order refusing to take any such action.
Paragraph (a)(2) (attachments, etc.)--The 1987 Amendment to paragraph (a)(2) is consistent with appellate court
decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985);
O'Brien v. O'Brien, 359 Pa.Super. 594, 519 A.2d 511 (1987).
Paragraph (a)(3) (change of criminal venue or venire)--Under prior practice, either a defendant or the Commonwealth
could appeal an order changing venue. See former Pa.R.Crim.P. 311(a) (Third sentence) before amendment of June 29,
1977, 471 Pa. XLIV. An order refusing to change venue is not appealable. Commonwealth v. Swanson, 424 Pa. 192, 225
A.2d 231 (1967). This rule makes no change in existing practice.
Change of venire is authorized by 42 Pa.C.S. 8702 (impaneling jury from another county). Pa.R.Crim.P. 584 (motion
for change of venue or change of venire) treats changes of venue and venire the same. Thus an order changing venire
is appealable by the defendant or the Commonwealth, while an order refusing to change venire is not.
See also Rule 903(c)(1) regarding time for appeal.
Paragraph (a)(4) (injunctions)--The 1987 amendment to paragraph (a)(4) is consistent with appellate court decisions
disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); O'Brien v.
O'Brien, 359 Pa.Super. 594, 519 A.2d 511 (1987).
The 1996 amendment to paragraph (a)(4) reconciled two conflicting lines of cases by adopting the position that
generally an appeal may not be taken from a decree nisi granting or denying a permanent injunction. Humphreys v.
Cain, 84 Pa.Cmwlth. 222, 474 A.2d 353 (1984). To the extent that Agra Enterprises Inc. v. Brunozzi, 302 Pa.Super.
166, 170, 448 A.2d 579, 581 (1982); Martin Industrial Supply Corp. v. Riffert, 366 Pa.Super. 89, 91, 530 A.2d 906, 907
(1987); Bolus v. Ryder Truck Rental, Inc., 258 Pa.Super. 387, 388, 517 A.2d 995, 996 (1986); Commonwealth ex. rel.
Lewis v. Allouwill Realty Corp., 330 Pa.Super. 32, 35, 478 A.2d 1334, 1336 (1984); and Neshaminy Constructors, Inc.
v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa.Super. 420, 422 n. 1, 449 A.2d
1389, 1390 n. 1 (1982) permit an immediate appeal from a decree nisi granting or denying prospective injunctive relief,
they are overruled.
The 1996 amendment to paragraph (a)(4) simultaneously recognized two exceptions to the non-appealability of a
decree nisi; these exceptions, identified as phrases (a)(4)(i) and (ii), permit an appeal from a decree nisi if the order
has the immediate effect of changing the status quo. Thus, if the decree nisi grants or denies permanent injunctive
relief to become effective when the decree nisi is made final, no appeal is possible. If, however, the decree nisi provides
for permanent injunctive relief upon entry of the decree nisi, or strikes a previously granted preliminary injunction upon
entry of the decree nisi, the decree nisi is appealable pursuant to phrase (a)(4)(i) or (ii).
Paragraph (a)(5) (peremptory judgment in mandamus)--Paragraph (a)(5), added in 1996, authorizes an interlocutory
appeal as of right from an order granting a motion for peremptory judgment in mandamus without the condition
precedent of a motion to open the peremptory judgment in mandamus. Under prior practice established in Hamby v.
Stoe, 448 Pa. 483, 295 A.2d 309 (1972), an order granting peremptory judgment in mandamus was not appealable;
only the order denying a motion to open the peremptory judgment in mandamus was appealable. The 1996 amendment
eliminated the need to move to open. The January 1, 1996 amendment to Pa.R.C.P. 1098 eliminates the former practice
of filing a petition to open a peremptory judgment in mandamus. The 1996 amendment overrules Hamby v. Stoe and
other decisions that quashed appeals that were taken from the peremptory judgment in mandamus rather than the
order denying the motion to open the judgment, e.g., Butler v. Emerson, 76 Pa.Cmwlth. 156, 463 A.2d 109 (1983);
Mertz v. Lakatos, 21 Pa.Cmwlth. 291 (1975); Ellenbogen v. Larsen, 16 Pa.Cmwlth. 353, 328 A.2d 587 (1974). An order
denying a motion for peremptory judgment in mandamus remains unappealable.
Paragraph (a)(8) [now (a)(9)] (other cases)--Paragraph (a)(8) is directed primarily to statutes and general rules
hereafter enacted or promulgated. The current text of the Pennsylvania Rules of Civil Procedure, the Pennsylvania Rules
of Criminal Procedure, etc., should be consulted to identify any interlocutory appeal rights provided for therein. See
also, e.g., 42 Pa.C.S. 7320 (appeals from court orders), concerning appeals from certain orders in nonjudicial
arbitration proceedings, which section is not suspended by these rules. See Rule 5102(a) (Judicial Code unaffected).
Subdivision (b) (order sustaining venue or personal or in rem jurisdiction)-- Subdivision (b) is based in part on the Act
of March 5, 1925, P.L. 23 (order ruling on question of jurisdiction). The term "civil action or proceeding" is broader than
the term "proceeding at law or in equity" under the prior practice and is intended to include orders entered by the
orphans' court division. Cf. In the Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977).
In paragraph (b)(1), a plaintiff is given a qualified (because it can be overridden by petition for and grant of permission
to appeal under Rule 312 (interlocutory appeals by permission)) option to gamble that the venue of the matter or
personal or in rem jurisdiction will be sustained on appeal. Paragraph (g)(ii) provides that if the plaintiff timely elects
final treatment, the failure of the defendant to appeal constitutes a waiver. The appeal period under Rule 903 (time for
appeal) ordinarily runs from the entry of the order, and not from the date of filing of the election, which procedure will
ordinarily afford at least 20 days within which to appeal. See Rule 903(c) as to treatment of special appeal times. If the
plaintiff does not file an election to treat the order as final, the case will proceed to trial unless (1) the trial court makes
a finding under Paragraph (b)(2) of the existence of a substantial question of jurisdiction and the defendant elects to
appeal, (2) an interlocutory appeal is permitted under Rule 312 or (3) another basis for appeal appears, e.g., under
paragraph (a)(1), and an appeal is taken. Presumably a plaintiff would file such an election where he desires to force
the defendant to decide promptly whether the objection to venue or jurisdiction will be seriously pressed. Subdivision
(b) does not cover orders that do not sustain jurisdiction because they are, of course, final orders appealable under Rule
341.
Subdivision (b)(2) (substantial issue of venue or jurisdiction)--The 1989 amendment to paragraph (b)(2) permits an
interlocutory appeal as of right where the trial court certifies that a substantial question of venue is present. This
eliminated an inconsistency formerly existing between subdivision (b) and paragraph (b)(2).
Subdivision (c) (changes of venue, etc.)--Subdivision (c) is based in part on the act of March 5, 1925 (P.L. 23, No. 15)
(order ruling on question of jurisdiction). The term "civil action or proceeding" is broader than the term "proceeding at
law or in equity" under the prior practice and is intended to include orders entered by the orphans' court division. Cf. In
the Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977).
Subdivision (c) covers orders that do not sustain venue, e.g., orders under Pa.R.C.P. 1006(d) and (e).
However, the subdivision does not relate to a transfer under 42 Pa.C.S. 933(c)(1) (concurrent and exclusive
jurisdiction), 42 Pa.C.S. 5103 (transfer of erroneously filed matter) or under any other similar provision of law,
because such a transfer is not to a "court of coordinate jurisdiction" within the meaning of this rule; it is intended that
there shall be no right of appeal from a transfer order based on improper subject matter jurisdiction. Such orders may
be appealed by permission under Rule 312, or an appeal as of right may be taken from an order dismissing the matter
for lack of jurisdiction. See Balshy v. Rank, 507 Pa. 384, 388, 490 A.2d 415, 416 (1985).
Other orders relating to subject matter jurisdiction (which for this purpose does not include questions as to the form of
action, e.g., as between law and equity, or divisional assignment, see 42 Pa.C.S. 952 (status of court divisions)) will
be appealable under Rule 341 if jurisdiction is not sustained, and otherwise will be subject to Rule 312.
Subdivision (d) (commonwealth appeals in criminal matters)--In subdivision (d), the 1992 amendment permits appeals
by the Commonwealth from certain interlocutory orders that were previously treated as final orders under the pre-1992
version of Rule 341(c). See, e.g., Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v.
Deans, 530 Pa. 514, 610 A.2d 32 (1992); and Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992). The 1996
amendment to Rule 904(e) requires that the Commonwealth assert in the notice of appeal that the trial court's order
will terminate or substantially handicap the prosecution.
Subdivision (e) (orders overruling preliminary objections in eminent domain cases)--In subdivision (e), the 1992
amendment permits interlocutory appeals from orders overruling preliminary objections in eminent domain cases. These
orders were previously appealable as final orders under Rule 341 even though such orders did not dispose of all claims
and all parties. See In Re Certain Parcels of Real Estate, 420 Pa. 289, 216 A.2d 774 (1966); and Central Bucks Joint
School Bldg. Authority v. Rawls, 8 Pa.Cmwlth. 491, 303 A.2d 863 (1973).
Subdivision (f) (administrative remand)--In subdivision (f), the 1992 amendment permitted an immediate appeal as of
right from an order of a common pleas court or government unit remanding a matter to an administrative agency or
hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise
of administrative discretion. Examples of such orders include: (1) a remand by a court of common pleas to the
Department of Transportation for removal of points from a drivers license; and (2) an order of the Workmen's
Compensation Appeal Board reinstating compensation benefits and remanding to a referee for computation of benefits.
Subdivision (f) further permits immediate appeal from an order of a common pleas court or government unit remanding
a matter to an administrative agency or hearing officer that decides an issue that would ultimately evade appellate
review if an immediate appeal is not allowed. See Department of Environmental Resources v. Big B Mining Co., Inc.,
123 Pa.Cmwlth. 591, 554 A.2d 1002 (1989) (order of Environmental Hearing Board reversing D.E.R.'s denial of a
surface mining permit and remanding to D.E.R. for re-evaluation of effluent limitations); Phila. Commission On Human
Relations v. Gold, 95 Pa.Cmwlth. 766, 503 A.2d 1120 (1986) (court of common pleas order reversing a Philadelphia
Human Relations Commission finding of discrimination on ground the commission impermissibly commingled
prosecutorial [or] and adjudicative functions). The 1992 amendment overrules, in part, FMC Corporation v. Workmen's
Compensation Appeal Board, 116 Pa.Cmwlth. 527, 542 A.2d 616 (1988) to the extent that it is inconsistent with
subdivision (f).
Subdivision (h) (further proceedings in lower court)--See note to Rule 1701(a) (effect of appeal generally).
Rule 312. Interlocutory Appeals by Permission
An appeal from an interlocutory order may be taken by permission pursuant to Chapter 13 (interlocutory appeals by
permission).
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower
court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right
involved is too important to be denied review and the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.
Note: Rule 313 is a codification of existing case law with respect to collateral orders. See Pugar v. Greco, 483 Pa. 68,
73, 394 A.2d 542, 545 (1978) (quoting Cohen v. Beneficial Industrial Corp., 337 U.S. 541 (1949)). Examples of
collateral orders include an order denying a pre-trial motion to dismiss based on double jeopardy, Commonwealth v.
Brady, 510 Pa. 363, 508 A.2d 286, 289-91 (1986) (allowing an immediate appeal from denial of double jeopardy claim
under collateral order doctrine where trial court makes a finding that motion is not frivolous); an order denying a
petition to permit the payment of death taxes, Hankin v. Hankin, 338 Pa.Super. 442, 487 A.2d 1363 (1985); and an
order denying a petition for removal of an executor, Re: Estate of Georgianna, 312 Pa.Super. 339, 458 A.2d 989
(1983), aff'd, 504 Pa. 510, 475 A.2d 744. Thorough discussions of the collateral order doctrine as it has been applied by
Pennsylvania appellate courts are found in the following sources: Darlington, McKeon, Schuckers and Brown, 1
Pennsylvania Appellate Practice Second Edition, 313:1-313:201 (1994) and Byer, Appealable Orders under the
Pennsylvania Rules of Appellate Procedures in Practice and Procedures in Pennsylvania Appellate Courts (PBI No. 1994869); Pines, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction, 91 Dick.L.Rev.
55, 107-115 (1986).
If an order falls under Rule 313, an immediate appeal may be taken as of right simply by filing a notice of appeal. The
procedures set forth in Rules 341(c) and 1311 do not apply under Rule 313.
Final Orders
Rule 341. Final Orders; Generally
(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from
any final order of an administrative agency or lower court.
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute; or

(3) is entered as a final order pursuant to subdivision (c) of this rule.
(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other
governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an
express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes
appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of
decision that adjudicates fewer than all the claims and parties shall not constitute a final order. In addition, the following
conditions shall apply:
(1) The trial court or other governmental unit is required to act on an application for a determination of finality under
subdivision (c) within 30 days of entry of the order. During the time an application for a determination of finality is
pending the action is stayed.
amended unless a shorter time period is provided in Rule 903(c). Any denial of such an application shall be reviewable
only for abuse of discretion pursuant to Chapter 15.
(3) Unless the trial court or other governmental unit acts on the application within 30 days of entry of the order, the
trial court or other governmental unit shall no longer consider the application and it shall be deemed denied.
(4) The time for filing a petition for review will begin to run from the date of entry of the order denying the application
for a determination of finality or, if the application is deemed denied, from the 31st day. A petition for review may be
filed within 30 days of the entry of the order denying the application or within 30 days of the deemed denial unless a
shorter time period is provided by Rule 1512(b).
(d) Superior Court and Commonwealth Court orders. Except as prescribed by Rule 1101 (appeals as of right from
the Commonwealth Court) no appeal may be taken as of right from any final order of the Superior Court or of the
Commonwealth Court.
(e) Criminal orders. An appeal may be taken by the Commonwealth from any final order in a criminal matter only in
the circumstances provided by law.
Note: Related Constitutional and Statutory Provisions--Section 9 of Article V of the Constitution of Pennsylvania provides
that "there shall be a right of appeal from a court of record or from an administrative agency to a court of record or to
an appellate court." The term "administrative agency" is not defined in Rule 102 of these rules and as used in this rule is
intended to have the same meaning as the term "administrative agency" in Section 9 of Article V of the Constitution of
Pennsylvania. The constitutional provision is implemented by 2 Pa.C.S. 702 (appeals), 2 Pa.C.S. 752 (appeals), and
42 Pa.C.S. 5105 (right to appellate review.)
Criminal Law Proceedings--Discretionary Aspects of Sentencing--Section 9781 of the Sentencing Code (42 Pa.C.S.
9781) states that the defendant or the Commonwealth may "petition for allowance of appeal" of the discretionary
aspects of a sentence for a felony or a misdemeanor. The practice under these rules is to file a notice of appeal. See
note to Rule 902 (manner of taking appeal). If the defendant has a right to an appeal with respect to the discretionary
aspects of a sentence, the appellate court must, of course, entertain the appeal. Otherwise, such an appeal may be
entertained by an appellate court if, but only if, it appears to the court that there is a substantial question that the
sentence imposed is not appropriate under the applicable guidelines.
Criminal Law Proceedings--Commonwealth Appeals--Orders formerly appealable under Rule 341 by the Commonwealth
in criminal cases as heretofore provided by law, but which do not dispose of the entire case, are now appealable as
interlocutory appeals as of right under Subdivision (d) of Rule 311.
Final Orders--Pre- and Post-1992 Practice--The 1992 amendment generally eliminates appeals as of right under Rule
341 from orders not ending the litigation as to all claims and as to all parties. Formerly, there was case law that orders
not ending the litigation as to all claims and all parties are final orders if such orders have the practical consequence of
putting a litigant out of court.
The 1997 amendments to subdivisions (a) and (c), substituting the conjunction "and" for "or", are not substantive. The
amendments merely clarify that by definition any order which disposes of all claims will dispose of all parties and any
order that disposes of all parties will dispose of all claims.
Final Orders in Declaratory Judgment Matters--In an action taken pursuant to the Declaratory Judgments Act, 42
Pa.C.S. 7531-7541, orders based on a pre-trial motion or petition are considered "final" within the meaning of this
Rule, under subdivision (b)(2), if they affirmatively or negatively declare the rights and duties of the parties. Nationwide
Mut. Ins. Co. v. Wickett, 563 Pa. 595, 604, 763 A.2d 813, 818 (2000). Thus, an order in a declaratory judgment action
sustaining a demurrer and dismissing some, but not all, defendants is considered a final order under subdivision (b)(2)
because it is expressly defined as such by statute. Importantly, however, when a court enters an order in a declaratory
judgment action that overrules preliminary objections in the nature of a demurrer, the order is not "final" under
subdivision (b)(2), because such order merely allows the case to go forward without declaring the rights and duties of
the parties. Safe Harbor Water Power Corp. v. Fajt, 583 Pa. 234, 876 A.2d 954 (2005).
In order to preserve issues for appeal after a trial in a declaratory judgment action, an aggrieved party must file posttrial motions as required by Pa.R.C.P. No. 227.1. Motorists Mutual v. Pinkerton, 574 Pa. 333, 830 A.2d 958 (2003);
Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491 (2002).
Orders Appealable Under Other Rules--Orders which are separable from and collateral to the main cause of action where
the right involved is too important to be denied review, and the question presented is such that if review is postponed
until final judgment in the case, the claim will be irreparably lost, previously appealable as final orders under Rule 341,
are now appealable under Rule 313. See Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (quoting Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)).
The following is a partial list of orders that are no longer appealable as final orders pursuant to Rule 341 but which, in
an appropriate case, might fall under Rules 312 (Interlocutory Appeals by Permission) or 313 (Collateral Orders) of this
Chapter.
(1) a decision transferring an equity action to the law side;
(2) an order denying a defendant leave to amend his answer to plead an affirmative defense;
(3) a pre-trial order refusing to permit a defendant to introduce evidence of an affirmative defense;
(4) an order denying a party the right to intervene;
(5) an order denying a petition to amend a complaint;
(6) an order requiring the withdrawal of counsel;
(7) an order denying class certification in a class action case; and
(8) an order striking a lis pendens.
The dismissal of preliminary objections to a petition for appointment of a board of viewers and the dismissal of
preliminary objections to a declaration of taking, formerly appealable as final orders under Rule 341, are now appealable
as interlocutory appeals as of right under Rule 311.
Subdivision (c)--Determination of Finality--Subdivision (c) permits an immediate appeal from an order dismissing less
than all claims or parties from a case only upon an express determination that an immediate appeal would facilitate
resolution of the entire case. Factors to be considered under Subdivision (c) include, but are not limited to:
(1) whether there is a significant relationship between adjudicated and unadjudicated claims;
(2) whether there is a possibility that an appeal would be mooted by further developments;
(3) whether there is a possibility that the court or administrative agency will consider issues a second time;
(4) whether an immediate appeal will enhance prospects of settlement.
The failure of a party to apply to the administrative agency or lower court for a determination of finality pursuant to
subdivision (c), shall not constitute a waiver and the matter may be raised in a subsequent appeal following the entry of
a final order disposing of all claims and all parties.
Where the administrative agency or lower court refuses to amend its order to include the express determination that an
immediate appeal would facilitate resolution of the entire case and refuses to enter a final order, a petition for review
under Chapter 15 of the unappealable order of denial is the exclusive mode of review to determine whether the case is
so egregious as to justify prerogative appellate correction of the exercise of discretion by the lower tribunal. See, e.g.,
Pa.R.A.P. 1311 Official Note. The filing of such a petition for review does not prevent the lower Court or other
government unit from proceeding further with the matter, pursuant to Pa.R.A.P. 1701(b)(6). Of course, as in any case,
the appellant could apply for a discretionary stay of the proceeding below.
Subsection (c)(2) provides for stay of the action pending determination of an application for determination of finality. If
a petition for review is filed challenging denial, a stay or supersedeas will issue only as provided under Chapter 17 of
these Rules.
In the event that a trial court or other governmental unit enters a final order pursuant to subdivision (c) of this rule, the
trial court or other governmental unit may no longer proceed further in the matter, except as provided in Pa.R.A.P.
1701(b)(1)-(5).
The following is a partial list of orders previously interpreted by the courts as appealable as final orders under Rule 341
that are no longer appealable as of right unless the trial court or administrative agency makes an express determination
that an immediate appeal would facilitate resolution of the entire case and expressly enters a final order pursuant to
Rule 341(c):
(1) an order dismissing one of several causes of action pleaded in a complaint but leaving pending other causes of
action;
(2) an order dismissing a complaint but leaving pending a counterclaim;

(3) an order dismissing a counterclaim but leaving pending the complaint which initiated the action;
(4) an order dismissing an action as to less than all plaintiffs or as to less than all defendants but leaving pending the
action as to other plaintiffs and other defendants; and
(5) an order granting judgment against one defendant but leaving pending the complaint against other defendants; and
(6) an order dismissing a complaint to join an additional defendant or denying a petition to join an additional defendant
or denying a petition for late joinder of an additional defendant.
The 1997 amendment adding subdivision (c)(3) provides for a deemed denial where the trial court or other
governmental unit fails to act on the application within 30 days.
Rule 342. Orphans' Court Orders Appealable. Orders Determining Realty, Personalty and Status of
Individuals or Entities. Orders Making Distribution
An order of the Orphans' Court Division making a distribution, or determining an interest in realty or personalty or the
status of individuals or entities, shall be immediately appealable:
(1) upon a determination of finality by the Orphans' Court Division, or
(2) as otherwise provided by Chapter 3 of these rules.
Note: This rule was amended in 2001 to allow appeals from orders determining an interest in realty, personalty or
status of individuals or entities, upon certification of the Orphans' Court judge. Prior to the 2001 amendment, this rule
only permitted appeals from an order of distribution not final under Rule 341(b). The amendment to the rule was not
intended to preclude immediate appeals in Orphans' Court matters as heretofore permitted under Rule 311
(Interlocutory Appeals as of Right) and Rule 313 (Collateral Orders).
However, Rule 342 may have been ambiguous in that regard because in Estate of Sorber, 2002 Pa.Super. 226, 803
A.2d 767 (2002), a panel of the Superior Court interpreted the 2001 amendment of Rule 342 to preclude immediate
appeals from collateral orders unless determined to be final by the Orphans' Court judge. The holding in Estate of
Sorber, to wit, that Rule 342 precludes collateral order appeals under Rule 313, is now superseded by the 2005
amendment to Rule 342.
The 2005 amendment provides that Rule 342 is not the exclusive means for appealing orders: (a) determining an
interest in realty or personalty or the status of individuals or entities, or (b) making a distribution. An aggrieved party
may appeal such orders under any other Rule in Chapter 3 of the Rules of Appellate Procedure to the extent that the
order meets the requirements for appealability under any such rule.
Rule 343. Rescinded by Order of July 7, 1997, effective in sixty days
Note: The Supreme Court rescinded this Rule in 1997 as obsolete in view of the changes to the Rules of Criminal
Procedure rescinding Pa.R.Crim.P. 321 and adopting new Pa.R.Crim.P. 1410, effective as to cases in which the
determination of guilt occurs on or after January 1, 1994. See Criminal Procedural Rules Committee Final Report at 620621 A.2d (Pennsylvania Reporter Series) pages CVIII-CXXXIII.
Pa.R.A.P., Rule 301

Chapter 3. Orders from Which Appeals May Be Taken
In General
Rule 301. Requisites for an Appealable Order
(a) Entry upon docket below. No order of a court shall be appealable until it has been entered upon the appropriate
docket in the lower court. Where under the applicable practice below an order is entered in two or more dockets, the
order has been entered for the purposes of appeal when it has been entered in the first appropriate docket.
(b) Separate document required. Every order shall be set forth on a separate document.
(c) Nonappealable orders. A direction by the lower court that a specified judgment, sentence or other order shall be
entered, unaccompanied by actual entry of the specified order in the docket, does not constitute an appealable order.
Any such order shall be docketed before an appeal is taken.
(d) Entry of appealable orders. Subject to any inconsistent general rule applicable to particular classes of matters, the
clerk of the lower court shall on praecipe of any party (except a party who by law may not praecipe for entry of an
adverse order) forthwith prepare, sign and enter an appropriate order, judgment or final decree in the docket,
evidencing any action from which an appeal lies either as of right or upon permission to appeal or allowance of appeal.
(e) Emergency appeals. Where the exigency of the case is such as to impel an immediate appeal and the party
intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to the usual
procedures, the party may file in the lower court and serve a praecipe for entry of an adverse order, which action shall
constitute entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action
shall not be affected by this subdivision.
Note: See Rules of Appellate Procedure 311 authorizing interlocutory appeals as of right, 312 authorizing interlocutory
appeals by permission, and 341 to 343 authorizing appeals from final orders.
See also Rules of Appellate Procedure 903 governing time for filing notice of appeal, 1113 governing time for filing
petition for allowance of appeal, 1311(b) governing time for filing petition for permission for appeal, and 1512 governing
time for filing petition for review.
The 1986 Amendment to Rule 301 states that no order shall be appealable until entered in the docket and deletes
reference to reduction of an order to judgment as a prerequisite for appeal in every case. This deletion does not
eliminate the requirement of reduction of an order to judgment in an appropriate case. Due to the variety of orders
issued by courts in different kinds of cases, no single rule can delineate the requirements applicable in all cases. The bar
is cautioned that if the applicable practice or case law requires that an order be reduced to judgment or final decree
before it becomes final, that requirement must still be met before the order can be appealed.
An appeal may be remanded or subject to other appropriate action of the appellate court when the order is such that it
may be reduced to judgment or final decree and entered in the docket but such action has not been taken. Rule 902.
Examples of orders which may be remanded under Rule 902 when the order appealed from has not been reduced to
judgment or final decree include:
1. an order denying a motion for a new trial or judgment notwithstanding the verdict after a trial by jury, Dennis v.
Smith, 288 Pa.Super. 185, 431 A.2d 350 (1981);
2. an order dismissing exceptions to the decision after a trial without jury, Black Top Paving Co., Inc. v. John Carlo, Inc.,
292 Pa.Super. 404, 437 A.2d 446 (1981); and
3. an order dismissing exceptions to the decree nisi in an equity action, Kopchak v. Springer, 292 Pa.Super. 441, 437
A.2d 756 (1981).
An appeal will also be quashed where the order appealed from is interlocutory and the appeal is not authorized by Rule
311 governing interlocutory appeals as of right or Rule 312 governing interlocutory appeals by permission. Examples of
interlocutory orders include:
1. an order granting a petition for appointment of an arbitrator, Cassidy v. Keystone Ins. Co., 297 Pa.Super. 421, 443
A.2d 1193 (1982); and
2. an order relating to alimony pendente lite, and interim counsel fees and expenses is not appealable. Fried v. Fried,
509 Pa. 89, 501 A.2d 211 (1985).
Subdivision (a) extends former Supreme Court Rule 19A and former Commonwealth Court Rule 29A to the Superior
Court. The second sentence of the subdivision codifies Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975).
The requirement of Subdivision (b) for a separate document is patterned after Fed.Rules Civ.Proc. 58, as interpreted in
United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), so as to render certain the date on
which an order is entered for purposes of computing the running of the time for appeal. See also Bankers Trust Co. v.
Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (requirement of separate document may be waived by
appellee). This requirement is intended to control over any inconsistent civil (including orphans' court) or criminal
procedural rule, since such rules are not primarily concerned with the appellate process.
Subdivision (c) sets forth the frequently overlooked requirement for an appealable order that an order must be docketed
before it may be appealed. The subdivision also sets forth the rule that an appeal is premature where the Court directs
that a judgment sentence or order be entered in the docket and the prothonotary fails to do so. Friedman v. Kasser,
293 Pa.Super 294, 438 A.2d 1001 (1981). Moreover, an order of Court then directing that a complaint as set forth will
be dismissed upon the passage of time or occurrence or failure of an event is not appealable; only a subsequent order
of dismissal would be appealable. See Ayre v. Mountaintop Area Joint San. Auth., 58 Pa.Cmwlth. 510, 427 A.2d 1294
(1981).
This rule does not supersede rules such as Pa.R.Civ.P. 237 which impose additional requirements or procedures in
connection with filing a praecipe for a final order.
Subdivision (d) provides a remedy for the appellant where no appealable order has been entered on the docket, and is
similar to Pa.R.Civ.P. 227.4. The exception refers to cases such as certain matrimonial matters, where it has been held
that the defendant is not entitled to cause an adverse decision to be formally entered as judgment. See, e.g., Mirarchi
v. Mirarchi, 226 Pa.Super. 53, 311 A.2d 698 (1973).
The filing in the lower court required by Subdivision (e) may under Rule 121(a) (filing) be made with a judge of the
lower court in connection with an application under Chapter 17 (effect of appeals, supersedeas and stays).
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended June 23, 1976, effective July 1, 1976; May 16, 1979, effective
June 2, 1979; Dec. 10, 1986, effective Jan. 31, 1987.
2005 Main Volume
Language clarified to conform to Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975).
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
134.
Criminal Law
1023(10), 1023(11).
C.J.S. Appeal and Error 150, 152.
RESEARCH REFERENCES
Forms
3 West's Pennsylvania Forms 63.1, Appealable Orders-In General.
3 West's Pennsylvania Forms 63.71, Motion to Quash Appeal-Waiver of Issue.
Am. Jur. Pl. & Pr. Forms Appeal and Error 3, Procedural Rules References.
Standard Pennsylvania Practice 86:5, Separate Document.
Standard Pennsylvania Practice 15:62, Entry.
Standard Pennsylvania Practice 85:36, Effect of Appeal Mistakenly Filed in Appellate Court.
Standard Pennsylvania Practice 85:50, Computation of Periods of Time--Date of Entry of Order.
Standard Pennsylvania Practice 86:10, Notation of Notice--Court's Direction to Make Entry; Prothonotary's Failure to
Do So.
Standard Pennsylvania Practice 86:11, Remedy for Failure to Make Docket Entry--Generally.
Standard Pennsylvania Practice 86:12, Remedy for Failure to Make Docket Entry--Emergency Appeal.
Standard Pennsylvania Practice 86:91, Arbitration, Generally.
Standard Pennsylvania Practice 166:522, Requirement that Common Pleas Court Order be Reduced to Judgment.
2 West's Pennsylvania Practice 16.17, Application for an Immediate Hearing.
16 West's Pennsylvania Practice 9:17, Breach of Bail.
17 West's Pennsylvania Practice 17:2, Appeals.
17 West's Pennsylvania Practice 17:3, Appealable Orders.
Will Contests 16:5, Taking an Appeal in General.
Will Contests 16:7, Jurisdictional Time Limits.
Will Contests 16:14, Motion Practice on Appeal.
UNITED STATES SUPREME COURT
U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., U.S.N.Y.1988, 108 S.Ct. 2268, 487 U.S. 72, 101 L.Ed.2d
69, on remand 885 F.2d 1020.
NOTES OF DECISIONS
Administrative or agency rulings, final orders 3
Arbitration, entry on docket 15
Arbitration orders 6
Denial of posttrial motions 22
Discovery sanctions 24
Dismissals 20
Divorce, judgments 8
Entry on docket 14-17
Entry on docket - In general 14
Entry on docket - Arbitration 15
Entry on docket - Notice of judgment 16
Entry on docket - Time for appeal 17
Final orders 2-4
Final orders - In general 2
Final orders - Administrative or agency rulings 3
Final orders - Preliminary objections 4
JNOV, judgments 11
Judgments 7-13
Judgments - In general 7
Judgments - Divorce 8
Judgments - JNOV 11
Judgments - New trial 9
Judgments - Nonsuit 10
Judgments - Premature judgments 12
Judgments - Summary judgment 13
Jurisdiction 19
Mandamus 23
New trial, judgments 9
Nonsuit, judgments 10
Notice of judgment, entry on docket 16
Praecipe 5
Preliminary objections, final orders 4
Premature judgments 12
Pretrial orders 21
Separate document 18
Summary judgment, judgments 13
Provisions in rules of civil and appellate procedure for the reduction of decisions to judgment do not pertain to zoning
appeals; such matters are governed exclusively by Municipalities Planning Code (MPC). Mountain Protection Alliance v.
Fayette County Zoning Hearing Bd., 757 A.2d 1007, Cmwlth.2000. Zoning And Planning
570
Issue that was not raised before the trial court was waived, for purposes of appeal. Gruenwald v. Advanced Computer
Applications, Inc., 730 A.2d 1004, Super.1999. Appeal And Error
169
Fact that Commonwealth did not follow emergency appeal procedure and file in lower court and serve praecipe for entry
of adverse order did not render its appeal of grant of defendant's motion in limine untimely; procedure was inapplicable,
as case did not involve exigency which impelled immediate appeal, since trial court granted defendant the right to seek
admission of evidence in question at trial. Com. v. Gordon, 652 A.2d 317, 438 Pa.Super. 166, Super.1994, appeal
granted 659 A.2d 985, 540 Pa. 647, affirmed 673 A.2d 866, 543 Pa. 513. Criminal Law
1069(6)
Trial court's order allowing an appeal nunc pro tunc was an interlocutory order, and not immediately appealable. Fetter
v. Schwartz, 602 A.2d 1354, 412 Pa.Super. 152, Super.1992. Appeal And Error
78(1)
Superior Court would treat defect in notice of appeal which erroneously stated appeal was being taken from order
dismissing postverdict motions as harmless and proceed to consider merits as if notice of appeal had correctly referred
to judgment of sentence, where appeal was otherwise proper. Com. v. Lahoud, 488 A.2d 307, 339 Pa.Super. 59,
Super.1985, appeal denied. Criminal Law
1081(1)
Failure to file exceptions to trial court's order and decree did not affect appealability of such order so as to require
quashing of appeal. Estate of Kotz, 406 A.2d 524, 486 Pa. 444, Sup.1979. Appeal And Error
276.1
2. Final orders--In general
An order is generally not a "final order" which may be appealed unless it serves to put litigant out of court either by
litigation or disposing of the case entirely. Foflygen v. R. Zemel, M.D. (PC), 615 A.2d 1345, 420 Pa.Super. 18,
Super.1992, appeal denied 629 A.2d 1380, 535 Pa. 619; Foflygen v. R. Zemel, M.D. (PC), 615 A.2d 1345, 420
Pa.Super. 18, Super.1992, appeal denied 629 A.2d 1380, 535 Pa. 619; Eachus v. Chester County Tax Claim Bureau,
612 A.2d 586, 148 Pa.Cmwlth. 625, Cmwlth.1992, appeal denied 626 A.2d 1161, 534 Pa. 643.
Final order is generally one which ends the litigation or disposes of entire case. Patton v. Hanover Ins. Co., 612 A.2d
517, 417 Pa.Super. 351, Super.1992; Schwartz v. Schwartz, 601 A.2d 349, 411 Pa.Super. 282, Super.1992.
Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court.
Fanning v. Davne, 795 A.2d 388, Super.2002, reargument denied, appeal denied 825 A.2d 1261, 573 Pa. 697. Appeal
And Error
66
Order vacating order terminating defendant from accelerated rehabilitative disposition (ARD) program and reinstating
him to the program terminated Commonwealth's prosecution of the driving under the influence of alcohol (DUI) charges
and was a "final order" for purpose of appeal. Com. v. Boos, 620 A.2d 485, 533 Pa. 124, Sup.1993. Criminal Law
1023(2)
Order directing judgment debtors to post bond within ten days or suffer consequences of having petition to open
confessed judgment stricken was final, appealable order. Grove North America, Div. of Kidde Industries, Inc. v. Arrow
Lift & Const. Equipment Co., Inc., 617 A.2d 369, 421 Pa.Super. 12, Super.1992. Appeal And Error
82(3)
Generally, appeal will be permitted only from final order unless otherwise permitted by statute or rule of court, and
order generally is not a "final order" unless it serves to put litigant out of court either by ending litigation or disposing of
case entirely, but in ascertaining what is a final appealable order, court must look beyond technical effect of adjudication
to its practical ramifications. Grove North America, Div. of Kidde Industries, Inc. v. Arrow Lift & Const. Equipment Co.,
Inc., 617 A.2d 369, 421 Pa.Super. 12, Super.1992. Appeal And Error
76(1)
Trial court order setting aside tax sale was final and appealable, and thus uninvited motion for posttrial relief by
successful bidder was inappropriate to statutory appeal and did not toll time for filing of appeal; bidder was "out-ofcourt" on matter of exception to sale, which was the only matter before the trial court. Eachus v. Chester County Tax
Claim Bureau, 612 A.2d 586, 148 Pa.Cmwlth. 625, Cmwlth.1992, appeal denied 626 A.2d 1161, 534 Pa. 643. Municipal
Corporations
980(9)
Only final order is appealable, unless otherwise provided by statute. Fink v. Delaware Valley HMO, 612 A.2d 485, 417
66
Pivotal factor to consider in determining whether order is final is whether order has put aggrieved plaintiff out of court
on all theories of recovery asserted against given defendant for given loss. Fink v. Delaware Valley HMO, 612 A.2d 485,
417 Pa.Super. 287, Super.1992. Appeal And Error
76(1)
Order denying petition for return of property seized during investigation of alleged violations of liquor laws was final,
appealable order, despite possibility of further litigation surrounding petition for forfeiture of seized items; lower court
effectively decided that appellant had no right in the property seized. In re New 12th Ward Republican Club, 603 A.2d
205, 412 Pa.Super. 255, Super.1992. Intoxicating Liquors
256
Trial court's interim order directing wife to deliver to husband certain funds belonging to husband being held in escrow
by wife's attorney did not end the litigation or dispose of the entire case, and thus was not "final order"; divorce action
remained unfinished since there had been no final distribution of marital property. Schwartz v. Schwartz, 601 A.2d 349,
411 Pa.Super. 282, Super.1992. Divorce
280
Order is considered final and appealable if it is separable from and collateral to main cause of action, right involved is
too important to be denied review, and question presented is such that if review is postponed until final judgment in
case, claimed right will be irreparably lost. Plowman v. Plowman, 597 A.2d 701, 409 Pa.Super. 143, Super.1991. Appeal
And Error
81
Order determining that support provisions of divorce decree were modifiable and directing wife to submit evidence of
her income and expenses did not end litigation between parties and was not final and appealable. Ballestrino v.
Ballestrino, 583 A.2d 474, 400 Pa.Super. 237, Super.1990. Divorce
280
Decree nisi is not final and appealable order; it must be entered as final decree, following denial of posttrial exceptions,
to be both final and appealable. Den-Tal-Ez, Inc. v. Siemens Capital Corp., 566 A.2d 1214, 389 Pa.Super. 219,
Super.1989. Appeal And Error
78(1)
Jury verdict is not "order" which may be appealed. Rellick v. Redevelopment Authority of County of Indiana, 561 A.2d
382, 127 Pa.Cmwlth. 264, Cmwlth.1989. Appeal And Error
123
An order is interlocutory and not final unless it effectively puts defendant out of court. Alessandro v. State Farm Mut.
Auto. Ins. Co., 409 A.2d 347, 487 Pa. 274, Sup.1979. Appeal And Error
80(1)
3. ---- Administrative or agency rulings, final orders
Commonwealth Court would review the trial court's order, denying Housing Authority's request to evict tenant, as a final
order disposing of complaint, where trial court ruled on merits of complaint, and parties consented to adjudication on
merits by not entering an objection. Philadelphia Housing Authority v. Snyder, 816 A.2d 377, Cmwlth.2003. Landlord
And Tenant
285(7)
Order of Public Utility Commission that question regarding local telephone exchange carrier's role in interexchange
customer billing inquiries be resolved by ad hoc committee was not "final order," from which appeal would lie. AT & T
Communications of Pennsylvania, Inc. v. Pennsylvania Public Utility Com'n, 570 A.2d 612, 131 Pa.Cmwlth. 390,
Cmwlth.1990. Telecommunications
977
Action of Public Utility Commission rejecting, by a two-to-two vote, an ad hoc committee's recommendation regarding
local telephone exchange carrier's role in interexchange customer billing inquiries was "final order," from which appeal
would lie, notwithstanding Commission's failure to issue any formal written order. AT & T Communications of
Pennsylvania, Inc. v. Pennsylvania Public Utility Com'n, 570 A.2d 612, 131 Pa.Cmwlth. 390, Cmwlth.1990.
Telecommunications
977
4. ---- Preliminary objections, final orders
Order sustaining preliminary objections to motion to join additional defendant is a final, appealable order. Mutual
Industries, Inc. v. Weinberg, 621 A.2d 140, 423 Pa.Super. 328, Super.1993. Appeal And Error
78(2)
Order overruling preliminary objections to petition for appointment of viewers which alleges de facto taking is final and
appealable. Com., Dept. of Transp. v. Berk, 611 A.2d 349, 148 Pa.Cmwlth. 336, Cmwlth.1992. Eminent Domain
253(2)
"Final order" is one that ends litigation or precludes party from presenting case, and does not include order sustaining
preliminary objections with right to amend. Keesey by Keesey v. Longwood Volunteer Fire Co., Inc., 601 A.2d 921, 144
Pa.Cmwlth. 466, Cmwlth.1992, appeal denied 611 A.2d 713, 531 Pa. 642. Appeal And Error
76(1); Appeal And Error
78(3)
5. Praecipe
Judgments entered upon praecipe of party are included within scope of phrase "appealable order." Clairton Corp. v.
Chicago Title Ins. Co., 652 A.2d 916, 438 Pa.Super. 488, Super.1995, appeal denied 665 A.2d 466, 542 Pa. 631. Appeal
And Error
134(.5)
Failure of Commonwealth to praecipe for entry of order upon the docket within 30 days did not render appeal of grant of
motion in limine untimely; trial court advised Commonwealth that introduction of evidence in question could be sought
at trial despite its grant of motion in limine, and order thus was not immediately appealable at time it was issued
because it neither terminated nor substantially handicapped the prosecution; moreover, rule requires party to praecipe
for entry of order only in event appellate review is sought. Com. v. Gordon, 652 A.2d 317, 438 Pa.Super. 166,
Super.1994, appeal granted 659 A.2d 985, 540 Pa. 647, affirmed 673 A.2d 866, 543 Pa. 513. Criminal Law
994(1);
Criminal Law
1069(6)
Where appeal was taken from collateral order denying issuance of a rule to show cause why interlocutory order,
mistakenly believed to be a final judgment, should not be opened, Superior Court would not direct appellant to praecipe
judgment, nor would it treat notice of appeal as being filed on date judgment was entered; even if praecipe were to be
filed and judgment were to be entered, such events could not affect, retrospectively, propriety of trial court's order
denying petition for rule to show cause why an interlocutory order, mistakenly believed to be a final judgment, should
not be reopened. Melvin v. Melvin, 580 A.2d 811, 398 Pa.Super. 1, Super.1990. Appeal And Error
430(2)
Although decision of trial court dismissing motion for posttrial relief was not reduced to judgment by praecipe of either
party, Supreme Court, in the interest of judicial economy, would regard as done that which ought to have been done.
McCormick v. Northeastern Bank of Pennsylvania, 561 A.2d 328, 522 Pa. 251, Sup.1989, on remand 569 A.2d 971, 391
Pa.Super. 7. Appeal And Error
134(1)
Where order appealed from merely stated that the decree nisi "shall be entered on praecipe," but no final decree was
ever entered, the Superior Court could not reach the merits, and the order was not appealable. Friedman v. Kasser, 438
A.2d 1001, 293 Pa.Super. 294, Super.1981. Appeal And Error
76(2)
Where, following lower court's order denying appellant's motion for new trial, neither appellant nor appellee filed a
praecipe that the lower court's order should be reduced to judgment and docketed, the appeal had to be quashed.
Richard v. Chester Extended Care Center, 430 A.2d 290, 287 Pa.Super. 289, Super.1981. Appeal And Error
134(1)
Order that is not appealable since it is interlocutory is not converted into an appealable order simply because adverse
order is issued pursuant to this rule allowing party to file and serve a praecipe for entry of an appealable order. Kyle v.
Kyle, 421 A.2d 403, 280 Pa.Super. 60, Super.1980. Appeal And Error
68
6. Arbitration orders
Order compelling arbitration is ordinarily considered interlocutory and, thus, nonappealable. Windrim v. Nationwide Mut.
Ins. Co., 602 A.2d 1356, 412 Pa.Super. 155, Super.1992, appeal granted 614 A.2d 1143, 532 Pa. 646, reversed 641
A.2d 1154, 537 Pa. 129, reargument denied. Arbitration
73.2
Trial court order which granted motion to compel uninsured motorist arbitration and declared exclusion of policy invalid
was appealable, given that effect of order was to preclude insurer from litigating its claim that no uninsured motorist
coverage existed. Windrim v. Nationwide Mut. Ins. Co., 602 A.2d 1356, 412 Pa.Super. 155, Super.1992, appeal granted
614 A.2d 1143, 532 Pa. 646, reversed 641 A.2d 1154, 537 Pa. 129, reargument denied. Insurance
3292
7. Judgments--In general
Order denying hospital's posttrial motions following jury trial was properly before Superior Court on appeal, where
prothonotary, at hospital's direction, reduced order denying motions to judgment. Somerset Community Hosp. v. Allan
B. Mitchell & Associates, Inc., 685 A.2d 141, 454 Pa.Super. 188, Super.1996. Appeal And Error
134(1)
Order denying petition to compel executor of wife's estate to file exceptions to husband's estate or to apply for review of
that estate was interlocutory and not appealable inasmuch as final accounting of wife's estate had not been filed and
adjudication or decree of distribution had thus not been filed. In re Estate of Preston, 560 A.2d 160, 385 Pa.Super. 48,
Super.1989. Executors And Administrators
455
Appeal taken before final judgment had been entered was quashed. Kintner v. Claverack Rural Elec. Co-op., Inc., 478
337(2)
Appeal taken in nonjury case, in which verdict had been entered in favor of appellee, would be quashed where no
judgment had been entered. Fernandes v. Warminster Municipal Authority, 442 A.2d 1174, 296 Pa.Super. 523,
123
An order dismissing exceptions following a nonjury trial is interlocutory and nonappealable until judgment has been
entered. Kopchak v. Springer, 437 A.2d 756, 292 Pa.Super. 441, Super.1981. Appeal And Error
76(2)
8. ---- Divorce, judgments
Trial court's order, entered in divorce proceeding, finding wife's antenuptial agreement with husband to be enforceable
was not a final, appealable order; the parties' economic claims on the marital estate remained outstanding, and no
divorce decree had been entered. Kensey v. Kensey, 877 A.2d 1284, Super.2005. Divorce
177
Trial court's order finding wife's antenuptial agreement with husband enforceable was not a final, appealable order
under the Declaratory Judgments Act; under Act, parties to a marriage could bring action for a declaratory judgment
seeking a declaration of the validity or invalidity of the marriage, and trial court's order did not declare the validity or
invalidity of husband's and wife's marriage. Kensey v. Kensey, 877 A.2d 1284, Super.2005. Declaratory Judgment
392.1
Order approving relocation of custodial parent was appealable as final order even though trial court directed parties to
resolve details of new visitation schedule themselves and even though order technically violated statutory requirement
that it be on separate page apart from findings and conclusions of trial court. Vineski v. Vineski, 675 A.2d 722, 450
Pa.Super. 183, Super.1996. Child Custody
902
Where order of trial court in divorce action was not reduced to judgment and docketed, order dismissing his exceptions,
thereby denying his divorce claim, and granting wife's counterclaim for divorce was not yet appealable. Hilliard v.
Hilliard, 441 A.2d 1251, 295 Pa.Super. 317, Super.1982. Divorce
177
9. ---- New trial, judgments
Order refusing a new trial or judgment n.o.v. is not appealable until it has been reduced to judgment and docketed.
Anskis v. Fischer, 439 A.2d 826, 294 Pa.Super. 212, Super.1982. Appeal And Error
78(6)
Order denying motions to strike judgment or judgment n.o.v. or for new trial does not constitute an appealable order.
Mitchell v. United Elevator Co., Inc., 434 A.2d 1243, 290 Pa.Super. 476, Super.1981. Appeal And Error
109; Appeal
And Error
113(1)
An order refusing a new trial is interlocutory and is unappealable; appeal should not be filed and may not be entertained
until a final judgment is entered. Folcarelli v. Transportation Services, Inc., 426 A.2d 152, 284 Pa.Super. 487,
78(6)
10. ---- Nonsuit, judgments
The appealability of an order by the court en banc refusing to remove a compulsory nonsuit has not been impaired by
Pa.R.C.P. No. 227.1, 42 Pa.C.S.A. making uniform the time within which to file all posttrial motions in civil cases since
the rule does not expressly or by necessary implication determine or affect the finality of such order. Bethel Park Mun.
Council v. Simmons Park Properties, Inc., 448 A.2d 661, 68 Pa.Cmwlth. 12, Cmwlth.1982.
This rule that a specified order shall be reduced to judgment and docketed before an appeal is taken was not intended
to alter rule that an appeal lies from an order of a court en banc refusing to remove a compulsory nonsuit. Miller v.
Hurst, 448 A.2d 614, 302 Pa.Super. 235, Super.1982. Appeal And Error
105
Where order refusing appellants' motion to set aside judgment of compulsory nonsuit was not reduced to judgment and
docketed, appeal was untimely. Fisher v. Findlay, 438 A.2d 1000, 293 Pa.Super. 293, Super.1981. Appeal And Error
337(2)
Appeal from order dismissing motion to remove compulsory nonsuit was premature and had to be quashed where order
had not been reduced to judgment and docketed. Lawson v. Bond, 437 A.2d 1264, 293 Pa.Super. 179, Super.1981.
Appeal And Error
337(2)
Where order denying plaintiff's motions to remove compulsory nonsuits and for new trial had not been reduced to
judgment and docketed on basis of applicable rule, appeal from such order was untimely and would be quashed.
McFetridge v. Air Products & Chemicals Co., Inc., 437 A.2d 769, 292 Pa.Super. 468, Super.1981. Appeal And Error
82(3)
11. ---- JNOV, judgments
There are two bases upon which a judgment notwithstanding the verdict (JNOV) can be entered: (1) the movant is
entitled to judgment as a matter of law, in which the court reviews the record and concludes that even with all factual
inferences decided adverse to the movant the law nonetheless requires a verdict in his favor; and/or (2) the evidence is
such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant,
in which court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant
was beyond peradventure. Gorski v. Smith, 812 A.2d 683, Super.2002, reargument denied, appeal denied 856 A.2d
834. Judgment
199(3.5); Judgment
199(3.9)
There are two bases upon which judgment notwithstanding the verdict (JNOV) can be entered: one, the movant is
entitled to a judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could
disagree that the outcome should have been rendered in favor of the movant. Fanning v. Davne, 795 A.2d 388,
Super.2002, reargument denied, appeal denied 825 A.2d 1261, 573 Pa. 697. Judgment
199(3.5); Judgment
199(3.9)
Where order denying motion for new trial and judgment n.o.v. had not been reduced to judgment and docketed, appeal
therefrom was premature, and was quashed. Mitchell's Family Restaurant, Inc. v. Schaeffer, 439 A.2d 205, 293
337(2)
Denial of motion for judgment n.o.v. is final and appealable order and it would appear that, absent some peculiarity in
order itself, appeal from docketed order denying such a motion is proper. Walheim v. Kirkpatrick, 429 A.2d 1134, 287
78(1)
12. ---- Premature judgments
Where judgment was entered before trial court en banc ruled on exceptions to the adjudication, the judgment was
premature, and, thus, void. Centrone v. Tuchinsky, 439 A.2d 1226, 294 Pa.Super. 331, Super.1982. Judgment
272
Appeal does not lie until a court en banc has ruled on exceptions to trial court's adjudication. Centrone v. Tuchinsky,
439 A.2d 1226, 294 Pa.Super. 331, Super.1982. Appeal And Error
347(1)
13. ---- Summary judgment, judgments
Partial summary judgment that borrower's alleged fraud was not defense to lender's claim against mortgage insurer was
appealable. Resolution Trust Corp. v. Urban Redevelopment Authority of Pittsburgh, 603 A.2d 618, 412 Pa.Super. 351,
Super.1992, appeal granted 612 A.2d 985, 531 Pa. 647, affirmed 638 A.2d 972, 536 Pa. 219. Appeal And Error
80(6)
Appeal from order granting partial summary judgment was interlocutory, not final, it did not put defendant out of court
and it was not appealable. Jarrett v. Southeastern Pennsylvania Transp. Authority, 439 A.2d 791, 294 Pa.Super. 142,
Super.1982.
14. Entry on docket--In general
Before order of lower court becomes appealable, it must be entered on the docket. Gavula v. ARA Services, Inc., 756
A.2d 17, Super.2000. Appeal And Error
134(1)
Notwithstanding that, according to certified record submitted to Superior Court on appeal of lower court order denying
motion for new trial after trial by jury, judgment had not been entered on record, Superior Court would, in the interest
of judicial economy, regard as done that which ought to have been done. Randt v. Abex Corp., 671 A.2d 228, 448
134(1)
Before order can be appealed, not only must order be "final," but order must be entered on appropriate court docket.
Rellick v. Redevelopment Authority of County of Indiana, 561 A.2d 382, 127 Pa.Cmwlth. 264, Cmwlth.1989. Appeal And
Error
134(1)
Local prothonotary's refusal to enter judgment on docket against father for arrears on child support order was act of
sufficient finality so as to constitute an appealable order. Barnes v. Barnes, 559 A.2d 980, 126 Pa.Cmwlth. 330,
Cmwlth.1989, appeal granted 568 A.2d 1249, 524 Pa. 599, appeal granted 568 A.2d 1250, 524 Pa. 600, affirmed 597
A.2d 89, 528 Pa. 258. Child Support
537
Oral order denying motion to grant exceptions to order dismissing exception to final account by executor of estate was
not a final appealable order, where it was not docketed. Matter of Estate of Meininger, 532 A.2d 475, 367 Pa.Super.
105, Super.1987. Executors And Administrators
510(2)
Where orders in issue had not been entered on appearance docket or reduced to judgment in any other way prior to
filing of appeals, motion to quash appeals would be granted. Com., Dept. of Transp. v. Jennings, 463 A.2d 1290, 76
Pa.Cmwlth. 453, Cmwlth.1983. Appeal And Error
134(1)
Requirement that judgment be docketed before taking appeal therefrom its jurisdictional and may be raised sua sponte.
Com. ex rel. Nixon v. Nixon, 458 A.2d 976, 312 Pa.Super. 313, Super.1983. Appeal And Error
23
Denial of motion to remove order in trespass action molding the verdict in favor of additional defendants because
plaintiffs' claim was barred under Workmen's Compensation Act and directing that any judgment entered thereon be
marked satisfied was analogous to an order refusing to remove a nonsuit and, because judgment had not been entered
on the docket, appeal would not lie. Anskis v. Fischer, 439 A.2d 826, 294 Pa.Super. 212, Super.1982. Appeal And Error
82(3)
Since docket disclosed that prothonotary had not entered judgment as directed by order and decision had not been
reduced to judgment on praecipe of any party, appeal must be quashed. Enock v. Reifer, 437 A.2d 1245, 293 Pa.Super.
141, Super.1981. Appeal And Error
134(1)
Order dismissing exceptions to findings of fact and conclusions of law following nonjury trial was unappealable where
order had not been reduced to judgment and docketed. Lashner v. Redevelopment Authority of City of Philadelphia, 429
134(1)
Initial order of trial court requiring posting of bonds as a condition to continuing challenge to zoning ordinance and
subsequent order denying reconsideration were both interlocutory and not final orders, and appellant properly filed
praecipe with prothonotary in order to obtain final judgment appealable to Commonwealth Court. In re Warren Borough
Zoning Ordinance No. 1127, 401 A.2d 383, 42 Pa.Cmwlth. 211, Cmwlth.1979. Zoning And Planning
581
15. ---- Arbitration, entry on docket
Where no final decree had been entered in docket, no appeal could be taken from en banc order dismissing exceptions
to chancellor's "order" denying motion to vacate arbitration award, which "order" although identified as "order" was
intended to constitute an adjudication in decree nisi. Hassler v. Columbia Gas Transmission Corp., 439 A.2d 762, 294
Pa.Super. 86, Super.1982. Arbitration
73.2
Order directing prothonotary to enter judgment on award of arbitrators was not appealable unless it had been reduced
to judgment and docketed before appeal was taken and thus, where prothonotary had not entered judgment on docket,
appeal had to be quashed as premature. Novoseller v. Royal Globe Ins. Co., 437 A.2d 1007, 293 Pa.Super. 93,
337(2)
16. ---- Notice of judgment, entry on docket
Order is not appealable until it is entered on docket with required notation that appropriate notice has been given; fact
that parties may have received notice of order does not alter the formal date of its entry and associated commencement
of period allowed for appeal. Frazier v. City of Philadelphia, 735 A.2d 113, 557 Pa. 618, Sup.1999, on remand 756 A.2d
80. Appeal And Error
347(1)
Although civil rights plaintiff received notice of final order entering judgment against former police officer, where there
was no corresponding entry in docket, formal entry of order did not occur under rules of appellate procedure, and
appeal period was not triggered; prothonotary's attempt to post-date the corrective docket entry could not be given
effect, as to do so would act in circumvention of the rules. Frazier v. City of Philadelphia, 735 A.2d 113, 557 Pa. 618,
Sup.1999, on remand 756 A.2d 80. Appeal And Error
347(3)
17. ---- Time for appeal, entry on docket
Tortfeasor was not entitled to an appeal nunc pro tunc under the non-negligent happenstance exception; tortfeasor's
counsel filed a premature appeal after an adverse jury verdict that was quashed, and after judgment was entered and
final, tortfeasor filed motion to strike judgment rather than filing appeal within the permitted time. Raheem v. University
of the Arts, 872 A.2d 1232, Super.2005. Appeal And Error
357(2)
Time for filing appeal does not begin to run until the order has been entered upon the appropriate docket and a notation
appears in the docket that proper notice has been given concerning entry of the order. Jara v. Rexworks Inc., 718 A.2d
788, Super.1998, appeal denied 737 A.2d 743, 558 Pa. 620. Appeal And Error
347(1)
Thirty day appeal period began to run on date that docket reflected that notice was sent to the parties, and thus, notice
of appeal which was filed more than 30 days after entry of trial court order, but within 30 days of entry on the docket of
notice to the parties was timely. Jara v. Rexworks Inc., 718 A.2d 788, Super.1998, appeal denied 737 A.2d 743, 558
428(2)
Appeal from order dismissing exceptions was premature where filed one day before judgment was entered on the
docket, but since defect was only technical reviewing court would reach the merits so as to avoid a waste of judicial
resources. Mancini v. Morrow, 458 A.2d 580, 312 Pa.Super. 192, Super.1983. Appeal And Error
337(2)
Date on which defendant was sentenced was date of entry of judgment of sentence so as to start the running of the 30day period for filing of notice of appeal where entry on docket made order appealable from that date, the court informed
defendant on that date that he had 30 days from that date to appeal, and the record on appeal did not show date of
mailing, date of delivery or date the judgment of sentence was made public. Com. v. Dorman, 414 A.2d 713, 272
1081(4.1)
18. Separate document
Although decisions denying petition for preliminary injunction against closing of police station and dismissing claims
asserted by fraternal organization and city councilman should each have been set forth in a separate document under
appellate rule defining final order, the failure to do so was a waivable defect that did not impair the jurisdiction of the
Commonwealth Court on appeal. West Pittsburgh Partnership ex rel. WEHAV Governing Com'n v. McNeilly, 840 A.2d
498, Cmwlth.2004. Appeal And Error
71(3)
Separate document requirement for appealable orders is waivable defect where trial court clearly intends its opinion to
represent court's final decision in case and appellee does not object to taking of appeal in absence of separate
judgment. Com. v. Flood, 627 A.2d 1193, 426 Pa.Super. 555, Super.1993, appeal denied 641 A.2d 583, 537 Pa. 617.
Criminal Law
1023(11)
While order of court of common pleas was not entered in separate document as required by this rule, opinion was
intended to represent final decision and docket referred to decision as order; therefore parties were deemed to have
waived procedural requirement of separate document. Brandschain v. Lieberman, 466 A.2d 1035, 320 Pa.Super. 10,
123
Where petitioner submitted proposed order to trial court and trial court crossed out petitioner's order and marked his
own order on paper, order was set forth on separate document as required by this rule. Grossman v. Commissioner of
Police, 465 A.2d 1007, 318 Pa.Super. 584, Super.1983. Motions
51
19. Jurisdiction
Trial court did not fail to resentence defendant after denying his motion to withdraw his guilty plea, so as to deprive
Superior Court of jurisdiction to hear defendant's appeal, where docket entries verified reimposition of defendant's
sentence, charge sheets included in quarter sessions file stated that sentences that were initially vacated pending
disposition on defendant's motion to withdraw pleas were reimposed by court, and trial court opinion emphasized
reimposition of sentence. Com. v. Flood, 627 A.2d 1193, 426 Pa.Super. 555, Super.1993, appeal denied 641 A.2d 583,
537 Pa. 617. Criminal Law
1023(14)
Previous order of trial court, that transferred case to county in which noncustodial children and youth services agency
was located, was not final appealable order, but subsequent order of another trial court, that was located in county of
noncustodial agency and that refused custody of dependent child, was final appealable order, in that only trial court in
county in which noncustodial agency was located had jurisdiction to order that agency to accept custody of child. In re
G.B., 530 A.2d 496, 366 Pa.Super. 9, Super.1987. Infants
242
Failure to enter on lower court docket an order vacating protection-from-abuse order which had previously been issued
deprived the superior court of jurisdiction. Schwartz v. Schwartz, 465 A.2d 1024, 319 Pa.Super. 5, Super.1983. Appeal
And Error
134(1)
20. Dismissals
Dismissal of housemates' appeal of permanent protection from abuse orders was required, where housemates failed to
present a live case or controversy to the court given evidence that the permanent protection from abuse orders had
been vacated. Fitzpatrick v. Fitzpatrick, 811 A.2d 1043, Super.2002. Breach Of The Peace
21
Trial court's denial of motion to dismiss pursuant to speedy trial rule is interlocutory order and, hence, not immediately
appealable. Com. v. Branch, 612 A.2d 1085, 417 Pa.Super. 571, Super.1992. Criminal Law
1023(3)
Dismissals of tortious interference with prospective contractual relations and intentional infliction of emotional distress
claims brought by federal employee against health maintenance organization (HMO) were appealable, even though
claim for breach of contract remained; the tortious interference with prospective contractual relations and intentional
infliction of emotional distress claims were separate and distinct from the breach of contract claim. Fink v. Delaware
Valley HMO, 612 A.2d 485, 417 Pa.Super. 287, Super.1992. Appeal And Error
80(6)
Dismissals of claims for fraudulent misrepresentation, common-law deceit, and violation of Unfair Insurance Practices
Act federal employee brought against health maintenance organization (HMO) were appealable, even though claim for
breach of contract remained; the counts for fraudulent misrepresentation, common-law deceit, and violation of Unfair
Insurance Practices Act were separate and distinct cause of action from breach of contract claim. Fink v. Delaware
80(6)
Claims for breach of contract and general negligence were separate and distinct causes of action, in action federal
employee brought against health maintenance organization (HMO) and, thus, dismissal of claim for general negligence
was appealable, even though breach of contract claim remained, and even though portions of negligence count
resembled allegations of breach of contract; remainder of allegations in negligence count suggested that conduct
extended beyond mere nonfeasance and rose to level of misfeasance; moreover, two different measures of damages
were sought under the negligence and breach of contract counts. Fink v. Delaware Valley HMO, 612 A.2d 485, 417
80(6)
Medical malpractice count was separate and distinct from breach of contract count, in action brought by federal
employee against health maintenance organization (HMO), and, thus, dismissal of the medical malpractice claim was
appealable, even though claim for breach of contract remained; in medical malpractice count, allegation was made of
failure of HMO to adequately treat a member, that HMO permitted nonmedical licensed employees to override
professional opinion of four doctors, failed to obtain informed consent of member and failed to supervise medical
performance of its doctors, nurses, and staff. Fink v. Delaware Valley HMO, 612 A.2d 485, 417 Pa.Super. 287,
80(6)
Tortious interference with contractual relations count of complaint brought by federal employee against health
maintenance organization (HMO) constituted merely an alternative theory of recovery from claim for breach of contract,
and, thus, was not appealable following dismissal where claim for breach of contract remained; count alleged that
HMO's employees and/or agents interfered with a member's contract with HMO so as to cause breach of the member's
contract to receive approved medical services, a mere rephrasing of claim for breach of contract. Fink v. Delaware
80(6)
Order dismissing count for punitive damages in action federal employee brought against health maintenance
organization (HMO) was not final and appealable, where there remained a count for breach of contract. Fink v. Delaware
80(6)
Order dismissing some but not all counts in multicount complaint is generally interlocutory and not immediately
appealable. Holmes v. Lado, 602 A.2d 1389, 412 Pa.Super. 218, Super.1992, appeal denied 609 A.2d 168, 530 Pa. 660.
Appeal And Error
80(6)
Order dismissing counterclaim is appealable. Windrim v. Nationwide Mut. Ins. Co., 602 A.2d 1356, 412 Pa.Super. 155,
Super.1992, appeal granted 614 A.2d 1143, 532 Pa. 646, reversed 641 A.2d 1154, 537 Pa. 129, reargument denied.
Appeal And Error
103
Order granting preliminary objections and dismissing complaint is final and appealable because it effectively terminates
case. Trzcinski v. Prudential Property and Cas. Ins. Co., 597 A.2d 687, 409 Pa.Super. 114, Super.1991. Appeal And
Error
78(3)
Order dismissing exceptions is ordinarily interlocutory and nonappealable until judgment has been entered on docket.
F.B. Washburn Candy Corp. v. Fireman's Fund, 541 A.2d 771, 373 Pa.Super. 479, Super.1988. Appeal And Error
134(1)
A trial judge's decision, which dismisses for failure to prosecute a party's exceptions to findings of fact and verdict
entered following nonjury trial, is only a preliminary or interlocutory judgment for final judgment is not entered until
after hearing on exceptions before court en banc and it is only from decision on disposition of exceptions that an appeal
may be taken. First Valley Bank v. Steinmann, 384 A.2d 949, 253 Pa.Super. 8, Super.1978. Appeal And Error
78(4)
21. Pretrial orders
In the context of a single action, a notice of appeal filed from the entry of judgment is viewed as drawing into question
any prior non-final orders that produced the judgment. K.H. v. J.R., 826 A.2d 863, 573 Pa. 481, Sup.2003. Appeal And
Error
418
In the circumstance where each of the defendants in a single action is dismissed prior to trial, an appeal from the order
dismissing the remaining claim or party is sufficient to bring for review the earlier issued orders. K.H. v. J.R., 826 A.2d
863, 573 Pa. 481, Sup.2003. Appeal And Error
870(1)
Order granting school director candidate's motion to quash objectors' petition to set aside his nomination petition was
final, appealable order that objectors did not have to reduce to judgment before filing appeal; order did not dispose of
issues raised by motion for posttrial relief. Matter of Warren, 692 A.2d 1178, Cmwlth.1997. Schools
53(1)
Order denying defendant leave to amend its new matter to include affirmative defense of statute of limitations was
interlocutory and not appealable, where defense simply involved question of law. Marble v. Fred Hill & Son, 624 A.2d
190, 425 Pa.Super. 149, Super.1993. Appeal And Error
78(3)
Pretrial order precluding assertion of affirmative defense which prevented factual proof of matters which trier of fact
could have determined in favor of pleader so as to provide him with complete factual defense is final and thus
appealable. Marble v. Fred Hill & Son, 624 A.2d 190, 425 Pa.Super. 149, Super.1993. Appeal And Error
78(3)
22. Denial of posttrial motions
Although an appeal from an order denying post-trial motions is interlocutory, where judgment is subsequently entered,
the appeal is treated as filed after such entry and on the date thereof. K.H. v. J.R., 826 A.2d 863, 573 Pa. 481,
Sup.2003. Appeal And Error
428(2)
An appellate court's standard of review from a trial court's order denying a litigant's motion for judgment
notwithstanding the verdict (JNOV) is limited to determining whether the trial court abused its discretion or erred as a
matter of law; additionally, the appellate court must view the record in the light most favorable to the verdict winner,
giving him every reasonable inference. Hall v. Kiger, 795 A.2d 497, Cmwlth.2002, appeal denied 813 A.2d 846, 572 Pa.
713. Appeal And Error
949
An appeal from an order denying post-trial motions is interlocutory. Fanning v. Davne, 795 A.2d 388, Super.2002,
reargument denied, appeal denied 825 A.2d 1261, 573 Pa. 697. Appeal And Error
82(1)
An appeal to the Superior Court can only lie from judgments entered subsequent to the trial court's disposition of postverdict motions, not from the order denying post-trial motions. Fanning v. Davne, 795 A.2d 388, Super.2002,
reargument denied, appeal denied 825 A.2d 1261, 573 Pa. 697. Appeal And Error
113(1)
In the interest of judicial economy, defendant could file appeal from order denying defendant's post-trial motions and
ordering entry of judgment in favor of plaintiff, even though judgment against defendant was not actually entered.
Fanning v. Davne, 795 A.2d 388, Super.2002, reargument denied, appeal denied 825 A.2d 1261, 573 Pa. 697. Appeal
And Error
134(1)
Appeal from order denying posttrial motions is interlocutory. Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d
134(1)
Parties could not appeal from trial court order which granted appellee's motion for judgment notwithstanding the verdict
but otherwise denied parties' posttrial motions, as order dismissing posttrial motions is interlocutory and unappealable.
Alfred M. Lutheran Distributors, Inc. v. A.P. Weilersbacher, Inc., 650 A.2d 83, 437 Pa.Super. 391, Super.1994, appeal
denied 658 A.2d 791, 540 Pa. 627. Appeal And Error
78(1)
Order denying posttrial motions is interlocutory. Bonavitacola v. Cluver, 619 A.2d 1363, 422 Pa.Super. 556,
Super.1993, appeal denied 634 A.2d 216, 535 Pa. 652. Appeal And Error
78(1)
It is the order of the trial court disposing of a motion for posttrial relief which has been reduced to judgment which
comprises the final order in a case from which an appeal must be filed within 30 days; appeal is not to be taken from
trial court's opinion and order dismissing action following submission of case on stipulation of facts. McCormick v.
Northeastern Bank of Pennsylvania, 561 A.2d 328, 522 Pa. 251, Sup.1989, on remand 569 A.2d 971, 391 Pa.Super. 7.
Appeal And Error
126
Defendant's appeal following jury verdict was premature and had to be quashed where taken before trial court had
disposed of posttrial motions. Litt v. Rolling Hill Hospital, 437 A.2d 1008, 293 Pa.Super. 97, Super.1981. Appeal And
Error
337(3)
23. Mandamus
County controller did not preserve, for appeal, any objection to proceeding with mandamus hearing which allegedly
occurred on the same day that controller was served with county commissioners' complaint and motion for peremptory
judgment, in action arising from controller's refusal to effect payment of salary increases for county employees, where
controller did not move for continuance or lodge an objection to proceeding, but rather acknowledged that the need to
issue paychecks in a timely fashion required that the matter be determined expeditiously. Reiver v. Kraines, 838 A.2d
814, Cmwlth.2003. Mandamus
187.4
Since actions in mandamus are treated as actions in equity, final orders in mandamus actions need not be reduced to
judgments to be appealable, so long as they are final. Mansfield Hospitality Ltd. Partnership v. Board of Assessment
Appeals of Tioga County, 680 A.2d 916, Cmwlth.1996. Mandamus
187.2
Where trial court's order granting mandamus had no exceptions filed to the order and final judgment was never
entered, appellate review was impossible and even had appellants filed exceptions, appeal would be premature because
final judgment has not been entered. Bethel Park Mun. Council v. Simmons Park Properties, Inc., 448 A.2d 661, 68
Pa.Cmwlth. 12, Cmwlth.1982. Mandamus
187.4; Mandamus
187.5
24. Discovery sanctions
Generally, order granting or denying discovery sanctions is interlocutory in nature and therefore not typically subject to
appeal until underlying case is completed; however, appeal may lie from order imposing or denying sanctions if order
constitutes final order. Christian v. Pennsylvania Financial Responsibility Assigned Claims Plan, 686 A.2d 1, 454
Pa.Super. 512, Super.1996, reargument denied, appeal denied 699 A.2d 733, 548 Pa. 678. Appeal And Error
78(1)
Trial court order denying successful plaintiff's motion for sanctions based on defendant's failure to make requested
admissions was final and appealable. Christian v. Pennsylvania Financial Responsibility Assigned Claims Plan, 686 A.2d
1, 454 Pa.Super. 512, Super.1996, reargument denied, appeal denied 699 A.2d 733, 548 Pa. 678. Appeal And Error
78(1)
Reduction of order to judgment upon praecipe of party is purely ministerial act, and thus, entry of judgment cannot
render appealable otherwise unappealable order. Christian v. Pennsylvania Financial Responsibility Assigned Claims
Plan, 686 A.2d 1, 454 Pa.Super. 512, Super.1996, reargument denied, appeal denied 699 A.2d 733, 548 Pa. 678.
Appeal And Error
134(.5); Judgment
276

Chapter 13. Interlocutory Appeals by Permission
Rule 1311. Interlocutory Appeals by Permission
(a) General rule. An appeal may be taken by permission under 42 Pa.C.S. 702(b) (interlocutory appeals by
permission) from any interlocutory order of a lower court or other governmental unit. See Rule 312 (interlocutory
appeals by permission).
(b) Petition for permission to appeal. Permission to appeal from an interlocutory order containing the statement
prescribed by 42 Pa.C.S. 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of
the appellate court within 30 days after entry of such order in the lower court or other government unit with proof of
service on all other parties to the matter in the lower court or other government unit and on the government unit or
clerk of the lower court, who shall file the petition of record in such lower court. An application for an amendment of an
interlocutory order to set forth expressly the statement specified in 42 Pa.C.S. 702(b) shall be filed with the lower
court or other government unit within 30 days after the entry of such interlocutory order and permission to appeal may
be sought within 30 days after entry of the order as amended. Unless the trial court or other governmental unit acts on
the application within 30 days after it is filed, the trial court or other governmental unit shall no longer consider the
application and it shall be deemed denied. If the petition for permission to appeal is transmitted to the prothonotary of
the appellate court by means of first class mail, the petition shall be deemed received by the prothonotary for the
purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a U.S. Postal Service Form
3817 certificate of mailing. The certificate of mailing shall show the docket number of the matter in the lower court or
other government unit and shall be either enclosed with the petition or separately mailed to the prothonotary. Upon
actual receipt of the petition for permission to appeal the prothonotary of the appellate court shall immediately stamp it
with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this
subdivision, shall constitute the date when permission to appeal was sought, which date shall be shown on the docket.
The prothonotary of the appellate court shall immediately note the appellate docket number assignment upon the
petition for permission to appeal and give written notice of the docket number assignment in person or by first class
mail to the government unit or clerk of the lower court, to the petitioner and to the other persons named in the proof of
service accompanying the petition.
(c) Fee. The petitioner upon filing the petition for permission to appeal shall pay any fee therefor prescribed by Chapter
27 (fees and costs in appellate courts and on appeal).
(d) Entry of appearance. Upon the filing of the petition for permission to appeal the prothonotary of the appellate court
shall note on the record as counsel for the petitioner the name of [his] counsel, if any, set forth in or endorsed upon the
petition for permission to appeal, and, as counsel for other parties, counsel, if any, named in the proof of service. The
prothonotary shall upon praecipe of any such counsel for other parties, filed at any time within 30 days after filing of the
petition, strike off or correct the record of appearance. Thereafter a counsel's appearance for a party may not be
withdrawn without leave of court, unless another lawyer has entered or simultaneously enters an appearance for the
party.
Note: Based on 42 Pa.C.S. 702(b) (interlocutory appeals by permission). See note to Rule 903 (time for appeal).
Compare 42 Pa.C.S. 5574 (effect of application for amendment to qualify for interlocutory appeal).
See the note to Rule 1112 (appeals by allowance) for an explanation of the procedure when Form 3817 is used.
Where the administrative agency or lower court refuses to amend its order to include the prescribed statement, a
petition for review under Chapter 15 of the unappealable order of denial is the proper mode of determining whether the
case is so egregious as to justify prerogative appellate correction of the exercise of discretion by the lower tribunal. If
the petition for review is granted in such a case, the effect (as in the Federal practice under 28 U.S.C. 1292(b)) is the
same as if a petition for permission to appeal had been filed and granted, and no separate petition for permission to
appeal need be filed.
The 1997 amendment to subdivision (b) provides for a deemed denial where the trial court or other governmental unit
fails to act on the application within 30 days. Under such circumstances, a party may need to file a praecipe for entry of
the deemed denial pursuant to Rule 301(d).
With regard to subdivision (d) and withdrawal of appearance without leave of the appellate court, counsel may
nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904 (relating to Appointment of counsel;
forma pauperis).
With respect to appearances by new counsel following the initial docketing of appearances pursuant to Subdivision (d) of
this rule, please note the requirements of Rule 120.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended Dec. 11, 1978, effective Dec. 30, 1978; Dec. 16, 1983, effective
Jan. 1, 1984; March 12, 1992, effective July 6, 1992; May 6, 1992, effective July 6, 1992; July 7, 1997, effective in 60
days; April 26, 2001, imd. effective; March 15, 2004, effective May 14, 2004.
HISTORICAL NOTES
2005 Main Volume
Order of May 6, 1992
The Order of May 6, 1992, vacated and superseded the Order of March 12, 1992, and in subsec. (b) substituted "An
application for an amendment of an interlocutory order to set forth expressly the statement specified in 42 Pa.C.S.
702(b) shall be filed with the lower court or other government unit within 30 days after the entry of such interlocutory
order and permission to appeal may be sought within 30 days after entry of the order as amended. The trial court must
act on the application within 30 days." for "An order may be amended to include the prescribed statement at any time,
and permission to appeal may be sought within 30 days after the entry of the order as amended."
The Order of May 6, 1992, provides that the amendment of this rule shall become effective July 6, 1992, and shall
govern only actions or administrative proceedings originally commenced in a court, Commonwealth agency or local
agency after that date.
Order of Jan. 10, 1994
Order of the Supreme Court dated Jan. 10, 1994, effective March 1, 1994, provides that the amendment to Pa.R.A.P.,
Rule 1311, adopted May 6, 1992, is made applicable to all orders entered on or after the effective date of said order,
regardless of the date the action or administrative proceeding was originally commenced in a court, Commonwealth
agency or local agency. The order would not affect any orders entered by a court, Commonwealth agency or local
agency after July 6, 1992, and before the effective date of said order in any action or administrative proceeding
originally commenced on or before July 6, 1992.
The Order of July 7, 1997, in subd. (b), rewrote the third sentence; in subd. (d), in the first sentence, deleted "his"
following "the name of", and in the third sentence, substituted "a counsel's appearance for a party may not be
withdrawn without leave of court, unless another lawyer has entered or simultaneously enters an appearance for the
party" for "an entry of appearance may be withdrawn only be leave of court"; and amended the Note.
The Order of April 26, 2001, in the Note, revised a reference to the Rules of Criminal Procedure.
The Order of March 15, 2004, in the Note, added a new sixth paragraph.
CROSS REFERENCES
Appellate jurisdiction petitions for review, see Pa.R.A.P., Rule 1516.
Incorrect use of petition for permission to appeal or petition for review, see Pa.R.A.P., Rule 1316.
Judicial review of governmental determinations, generally, see Pa.R.A.P., Rule 1501.
Similar subject matter, see Pa.R.A.P., Rule 312.
LIBRARY REFERENCES
2005 Main Volume
Administrative Law and Procedure
725.
Appeal and Error
343.1, 358 to 370, 431 to 434.
Criminal Law
1071 to 1075, 1082.
Westlaw Topic Nos. 110, 15A, 30.

C.J.S. Appeal and Error 63, 81, 86, 151, 273, 298, 300 to 318, 320 to 321, 390 to 393.
C.J.S. Public Administrative Law and Procedure 212.
RESEARCH REFERENCES
Forms
3 West's Pennsylvania Forms 63.10, In General.
3 West's Pennsylvania Forms 63.11, Petition for Permission to Appeal from Interlocutory Order.
3 West's Pennsylvania Forms 63.22, Petition for Review-Denial of Motion for Amendment to Certify Interlocutory
Appeal.
3 West's Pennsylvania Forms 63.23, Petition for Review-Denial of Motion for Amendment to Certify Interlocutory
Appeal-Brief in Opposition.
3 West's Pennsylvania Forms 63.10.4, Practice Pointers.
4 West's Pennsylvania Forms 4.64, Discovery Orders Ineligible for Treatment as Collateral Orders.
Standard Pennsylvania Practice 86:31, Petition for Permission.
Standard Pennsylvania Practice 92:31, Nonappealability of Judgment, Order, or Decree.
Standard Pennsylvania Practice 85:122, Filing of Petition.
Standard Pennsylvania Practice 85:123, Transmission of Petition; Action Taken by Prothonotary.
Standard Pennsylvania Practice 114:124, Effect of Petitioner's Failure to Take Steps Other Than Timely Filing of
Petition.
Standard Pennsylvania Practice 166:286, Interlocutory Orders.
Standard Pennsylvania Practice 85:80.5, Entry of Appearance.
2 West's Pennsylvania Practice 16.7, Appeal from an Interlocutory Order by Defendant.
10 West's Pennsylvania Practice 30:49, Interlocutory Appeals.
17 West's Pennsylvania Practice 17:3, Appealable Orders.
16B West's Pennsylvania Practice 33:6, Appeals from Interlocutory Orders.
17A West's Pennsylvania Practice 37:84, Discovery Orders Ineligible for Treatment as Collateral Orders.
Will Contests 16:5, Taking an Appeal in General.
Will Contests 16:14, Motion Practice on Appeal.
NOTES OF DECISIONS
Administrative orders 7
Amendments 12
Collateral orders 10

Discovery orders 9
Discretion of court 4
Failure to seek permission 3
Injunctions 8
Interlocutory appeals 2
Jurisdiction 5
Petition 6
Remand orders 11
An appeal may be taken from: (1) a final order or an order certified as a final order; (2) an interlocutory order as of
right; (3) an interlocutory order by permission; or (4) a collateral order. Stahl v. Redcay, 2006 WL 668745, Super.2006.
Appeal And Error
358
Under Pennsylvania law, an appeal may be taken from: (1) a final order or an order certified by the trial court as a final
order; (2) an interlocutory order as of right; (3) an interlocutory order by permission; or (4) a collateral order. Com. v.
Steckel, 890 A.2d 410, Super.2005. Criminal Law
1023(3)
The purpose of the interlocutory procedure rule to secure immediate appellate review is not designed to encourage or
authorize the wholesale appeal of difficult issues when appellate review would be better served by having all issues that
are raised in a trial initially reviewed by the trial court and then subject to one review if necessary. Kensey v. Kensey,
877 A.2d 1284, Super.2005. Appeal And Error
366
Seeking permission to appeal was the appropriate procedure to challenge denial of summary judgment motion. Wisniski
v. Brown & Brown Ins. Co. of PA, 852 A.2d 1206, Super.2004, appeal granted 870 A.2d 324, 582 Pa. 688, vacated 887
A.2d 1238. Appeal And Error
358
Defendant did not waive for later appeal issue of whether trial court erred in entering initial order denying defendant's
petition to amend pleadings to add counterclaim and new matter by failing to file petition for review of trial court's
subsequent order denying defendant's motion to amend initial order to certify that interlocutory appeal was appropriate.
Borough of Mifflinburg v. Heim, 705 A.2d 456, Super.1997, appeal denied 794 A.2d 359, 568 Pa. 642. Appeal And Error
195
Defendants whose cases originate in municipal court have avenue for discretionary appeal by filing with Superior Court
petition for permission to appeal. Com. v. Rosario, 648 A.2d 1172, 538 Pa. 400, Sup.1994. Criminal Law
1071
If trial court's order does not include requisite certification of appealable issue then court should be requested to amend
its order, and order denying amendment may then be challenged by filing petition for review rather than petition for
permission to appeal. Hoover v. Welsh, 615 A.2d 45, 419 Pa.Super. 102, Super.1992, appeal denied 634 A.2d 222, 535
358
Where a portion of a case had already been appealed as of right to the Superior Court, the court amended an earlier
order to include a recommendation of an immediate appeal under 17 P.S. 211.501(b), under this rule and Pa.R.A.P.
1312 of this title even though a third portion of the case remained with the court for disposition, since judicial economy
was a dominant factor. Korn v. Avis Rent-a-Car System, Inc., 8 Pa. D. & C.3d 667 (1977). Appeal And Error
80(6)
2. Interlocutory appeals
Under Pennsylvania law, where party seeks interlocutory review of trial court order, rules mandate filing of petition for
review by party aggrieved by lower court's order; party that would defend appeal must be given notice and must be
afforded opportunity to file brief in opposition. Yohn v. Love, E.D.Pa.1995, 887 F.Supp. 773, stay denied 1995 WL
424772, stay granted, affirmed in part, vacated in part 76 F.3d 508.
Order declaring effect of antenuptial agreement on husband's and wife's property rights was not appealable as a
permissive interlocutory appeal, even though trial court certified that its order involved a controlling question of law as
to which there was a substantial ground for difference of opinion and that an immediate appeal would materially
advance ultimate termination of matter, where appellant wife did not file with Superior Court within 30 days of entry of
order a petition for permission to appeal. Kensey v. Kensey, 2004 WL 2749868, Super.2004. Declaratory Judgment
392.1
Wife's appeal from trial court's interlocutory order in divorce proceeding, finding her antenuptial agreement with
husband enforceable, was not properly before appellate court as a permissive appeal from an interlocutory order; while
the order presented a controlling question of law as to which there was substantial ground for difference of opinion,
immediate appeal would not materially advance the ultimate termination of the matter. Kensey v. Kensey, 877 A.2d
1284, Super.2005. Divorce
177
Plaintiff's request for certification of order for interlocutory review was untimely, where plaintiff first sought
reconsideration and waited for its denial; plaintiff should have sought reconsideration and certification at same time.
Mente Chevrolet, Oldsmobile, Inc. v. Swoyer, 710 A.2d 632, Super.1998. Appeal And Error
366
Appeal may only be taken from interlocutory order as of right, from final order, from collateral order, or from
interlocutory order by permission. Smitley v. Holiday Rambler Corp., 707 A.2d 520, Super.1998. Appeal And Error
366
Appeal from interlocutory order denying motion for entry of judgment of non pros was properly before appellate court;
trial court certified order pursuant to rule providing for interlocutory appeal by permission. Herb v. Snyder, 686 A.2d
412, 454 Pa.Super. 612, Super.1996, appeal denied 698 A.2d 67, 548 Pa. 659. Appeal And Error
366
Although interlocutory orders, by definition, are not final, appellate court may, under certain circumstances, entertain
appeal from interlocutory order taken either as matter of right or by permission. H.R. v. Department of Public Welfare,
676 A.2d 755, Cmwlth.1996. Appeal And Error
358
Petition for permission to appeal final or interlocutory order appealable as of right should simply be denied. ThermoGuard, Inc. v. Cochran, 596 A.2d 188, 408 Pa.Super. 54, Super.1991. Appeal And Error
363
Appellant could not appeal pursuant to this rule dealing with interlocutory appeals by permission without first seeking
right to bring interlocutory appeal by permission. Valley Coal Co. v. International Union, United Mine Workers of
America, 586 A.2d 436, 402 Pa.Super. 141, Super.1991. Appeal And Error
358
Where lower court's order did not include certification that order involved controlling question of law and that immediate
appeal from order might materially advance ultimate termination of matter, interlocutory appeal by permission could not
be taken. Casani v. Lincoln Bank, 436 A.2d 1019, 292 Pa.Super. 90, Super.1981. Appeal And Error
358
3. Failure to seek permission
County human services department could not take interlocutory appeal from order of the Orphans' Court denying a final
hearing on department's petition to appoint a permanent plenary guardian for an alleged incapacitated person; the
order was not made appealable by statute or general rule, and department did not seek an interlocutory appeal by
permission pursuant to appellate procedure rule. In re Miscin, 885 A.2d 558, Super.2005. Guardian And Ward
13(8);
Mental Health
150
Petitioners failed to seek permission to take interlocutory appeal from order of attorney examiner of Department of
Welfare, Office of Hearings and Appeals (OHA) and, therefore, examiner's order was not reviewable as permissive
interlocutory appeal. H.R. v. Department of Public Welfare, 676 A.2d 755, Cmwlth.1996. Infants
133
Superior Court properly quashed appeal by defendant from reversal by court of common pleas of suppression motion
granted by municipal court where defendant did not file petition for permission to appeal. Com. v. Rosario, 648 A.2d
1172, 538 Pa. 400, Sup.1994. Criminal Law
1131(4)
Absent petition filed with Superior Court seeking permission to appeal interlocutory order of court of common pleas,
appeal would be quashed and case remanded, notwithstanding that lower court certified issue and appellee had filed no
objection to Superior Court's assumption of jurisdiction over appeal. Gellar v. Chambers, 437 A.2d 406, 292 Pa.Super.
324, Super.1981. Appeal And Error
358
4. Discretion of court
Appellate court, in its discretion, may entertain an appeal of an interlocutory order if it is satisfied with the trial court's
certification that there is a controlling question of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the ultimate termination of the matter. Kensey v.
Kensey, 877 A.2d 1284, Super.2005. Appeal And Error
366
Trial court did not abuse its discretion in denying restaurant owner's petition to amend pleadings to assert affirmative
defense and to add new matter based on owner's discovery of five-year-old appellate opinion in prior case and in
denying owner's subsequent petition to amend court's order denying petition to amend pleadings to certify question for
interlocutory appeal, absent valid reason to explain why owner had not discovered appellate opinion earlier. Borough of
Mifflinburg v. Heim, 705 A.2d 456, Super.1997, appeal denied 794 A.2d 359, 568 Pa. 642. Pleading
236(7)
Appellate court retains discretion to deny petition for permissive interlocutory appeal. In re Kelly, 704 A.2d 172,
Cmwlth.1997, reargument denied. Appeal And Error
358
Appellate court may exercise its discretion to permit appeal from interlocutory order only if order contains requisite
certification pursuant to statute providing for interlocutory appeals by permission, and petition for permission to appeal
is filed pursuant to governing chapter; unless both requirements are met, appeal will be quashed, as appellate court is
without jurisdiction to exercise its discretion in that regard. Herb v. Snyder, 686 A.2d 412, 454 Pa.Super. 612,
Super.1996, appeal denied 698 A.2d 67, 548 Pa. 659. Appeal And Error
366
Superior court may exercise its discretion to permit appeal from interlocutory order if order from which appeal is sought
contains requisite certification by trial court that immediate appeal would facilitate resolution of entire case or if
appellant, within 30 days of entry of order, files request with trial court for amendment of order and trial court acts to
amend order within 30 days thereafter. Redevelopment Authority of Cambria County v. International Ins. Co., 685 A.2d
581, 454 Pa.Super. 374, Super.1996, appeal denied 695 A.2d 787, 548 Pa. 649. Appeal And Error
363; Appeal And
Error
366
Superior Court has discretionary power to hear appeal of interlocutory order that has been certified by lower court as
presenting controlling question of law as to which there is substantial ground for difference of opinion and where
immediate appeal from order may materially advance ultimate determination of matter. Toll v. Toll, 439 A.2d 712, 293
Pa.Super. 549, Super.1981, affirmed 448 A.2d 1379, 498 Pa. 536. Appeal And Error
366
5. Jurisdiction
Judicial Code does not give the Superior Court any "broad discretionary power of review" to take jurisdiction of appeal
from interlocutory order where issue is of "great importance" and decision will provide "guidance" to lower courts;
overruling Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 420 A.2d 620 (1980); Com. v.
Pfender, 421 A.2d 791, 280 Pa.Super. 417, 1980.
No valid jurisdictional basis existed for defendant's appeal of denial of summary judgment motion; application for
permission to appeal was deemed denied by trial court's failure to rule on application within thirty days, and the
Superior Court denied petition for review of "deemed denial." Wisniski v. Brown & Brown Ins. Co. of PA, 852 A.2d 1206,
Super.2004, appeal granted 870 A.2d 324, 582 Pa. 688, vacated 887 A.2d 1238. Appeal And Error
363
Trial court's amending of interlocutory pretrial order denying defendant's motion to preclude his testimony from his first
murder trial as substantive evidence at retrial, to include a determination of finality, did not provide Superior Court with
jurisdiction to review defendant's claim challenging the denial, where defendant failed to follow the procedures set forth
in rule governing interlocutory appeals by permission, and petition court to include a statement that the issue involved a
controlling question of law. Com. v. Strong, 825 A.2d 658, Super.2003, reargument denied, appeal denied 847 A.2d 59,
577 Pa. 702, certiorari denied 125 S.Ct. 1652, 161 L.Ed.2d 489. Criminal Law
1023(3)
Appellate court must quash an interlocutory appeal by permission filed in any manner other than by procedures dictated
by statute and rule, because the filing of a petition for permission of review is jurisdictional in nature. Com. v. Fleming,
1023(3)
Appellate court lacked jurisdiction over appeals from interlocutory orders denying class certification, even though orders
stated that they involved controlling question of law the immediate review of which would advance the litigation, where
order erroneously cited rule governing appeals from final orders in multi-claim or multi-party cases, and where
appellants filed notices of appeal instead of petitions for permission to appeal. In re Kelly, 704 A.2d 172, Cmwlth.1997,
reargument denied. Appeal And Error
358
Jurisdictional requirements for appeal from nonenumerated interlocutory order include that order state that it involves
controlling question of law the immediate review of which will advance the litigation, and that petition for permissive
appeal be filed with appellate court; if these requirements are not met, appeal will be quashed. In re Kelly, 704 A.2d
172, Cmwlth.1997, reargument denied. Appeal And Error
366
Superior court has jurisdiction to entertain appeals taken as of right from final order, from interlocutory orders by
permission, from certain interlocutory orders as of right, and from certain collateral orders. Redevelopment Authority of
Cambria County v. International Ins. Co., 685 A.2d 581, 454 Pa.Super. 374, Super.1996, appeal denied 695 A.2d 787,
548 Pa. 649. Appeal And Error
358
Certification of appealable issue by trial court and filing of petition for permission to appeal were both jurisdictional
prerequisites to appeal interlocutory order which was not appealable as of right. Hoover v. Welsh, 615 A.2d 45, 419
Pa.Super. 102, Super.1992, appeal denied 634 A.2d 222, 535 Pa. 659. Appeal And Error
366
In the absence of request for permission to appeal interlocutory contempt order, Commonwealth Court was without
jurisdiction to hear the appeal. Hurst v. Shaw, 549 A.2d 1349, 121 Pa.Cmwlth. 1, Cmwlth.1988, appeal denied 563 A.2d
889, 522 Pa. 621. Contempt
66(2)
Supreme Court had jurisdiction to consider petition for review of trial court's disqualification of township solicitor from
representing two members of board of supervisors in recall action despite refusal of trial court to certify question for
interlocutory appeal, as this rule provided for petition for review to Supreme Court of trial court's refusal to certify an
order for review, and as 42 Pa.C.S.A. 726 provided Supreme Court with plenary jurisdiction over issues of immediate
public importance. Silver v. Downs, 425 A.2d 359, 493 Pa. 50, Sup.1981. Courts
242(2)
6. Petition
Superior Court could review defendant's incorrectly filed petition to appeal interlocutory order denying his motion to
dismiss based on the compulsory joinder rule as a notice of appeal, where petition was filed within 30 days of trial
court's order, and petition contained all information required in notice of appeal. Com. v. Shull, 811 A.2d 1, Super.2002,
appeal denied 818 A.2d 504, 572 Pa. 756. Criminal Law
1023(8)
Appeal of mental health facility operator from order that denied operator's preliminary objections in negligence action
brought by parents of minor daughter who was sexually molested by mental health facility resident, was quashed in
light of operator's failure to comply with procedures dictated by rule and statute for filing petition for interlocutory
appeal. F.D.P. v. Ferrara, 804 A.2d 1221, Super.2002, reargument denied, appeal denied 847 A.2d 1286, 577 Pa. 721.
Appeal And Error
782
Township's failure, after receiving no response from Public Utility Commission (PUC) as to township's request that PUC
amend its interlocutory order, to file petition for review with Commonwealth Court seeking permission to appeal
precluded review of order, which required township to pay for costs and expenses associated with maintenance, repair,
and inspection of rail-highway bridge prior to its removal and to demolish bridge at township's initial cost and expense.
Township of Middletown v. Pennsylvania Public Utility Com'n, 729 A.2d 640, Cmwlth.1999, reargument denied. Bridges
21(7)
Inclusion in interlocutory order of statement that order involves controlling question of law the immediate review of
which will advance the litigation does not entitle one to file notice of appeal; petition for permission to appeal must also
be filed with appellate court. In re Kelly, 704 A.2d 172, Cmwlth.1997, reargument denied. Appeal And Error
358
Distributor of dragline failed to file petition with Superior Court seeking permission to appeal from interlocutory order so
that Superior Court lacked jurisdiction over appeal from grant of motion for summary judgment in action for breach of
implied warranties and merchantability of fitness for particular purpose, strict liability and negligence, even though
lower court had certified issues raised below as appealable. Vendale Coal Co., Inc. v. Voto Mfg. Sales Co., 510 A.2d
358
7. Administrative orders
Fact that Public Utility Commission (PUC) could not give township fair and impartial hearing with respect to costs and
expenses associated with maintenance, inspection, repair, and demolition of rail-highway bridge as result of PUC's
federal consent decree with Southeastern Pennsylvania Transit Authority (SEPTA) agreeing that PUC would not allocate
any costs against SEPTA in crossing cases did not convert PUC's interlocutory order requiring township to pay for costs
and expenses associated with maintenance, repair, and inspection of bridge prior to its removal and to demolish bridge
at township's initial cost and expense into final order or mitigate township's obligation to bring matter to Commonwealth
Court in conformance with rules of appellate procedure. Township of Middletown v. Pennsylvania Public Utility Com'n,
729 A.2d 640, Cmwlth.1999, reargument denied. Bridges
21(7)
Interlocutory administrative agency appeals were not appealable as of right to Commonwealth Court; rather,
interlocutory administrative orders were appealable only by permission. Columbia Gas of Pennsylvania, Inc. v.
Pennsylvania Public Utility Com'n, 521 A.2d 105, 104 Pa.Cmwlth. 142, Cmwlth.1987, appeal denied 538 A.2d 880, 517
Pa. 628. Administrative Law And Procedure
704
8. Injunctions
Although distributor filed motion to amend its request for injunctive relief against former employees and manufacturer
pursuant to statute and rule governing interlocutory appeals by permission, it was not granted permission to appeal
from interlocutory order denying the request, since trial court failed to rule on its motion. Morgan Trailer Mfg., Co. v.
Hydraroll, Ltd., 804 A.2d 26, Super.2002. Appeal And Error
358
Where order appealed from went simply beyond directing an accounting and granted relief in the form of a reviewable
preliminary injunction, appellate court would rule on propriety of that portion of the order directing an accounting in
interest of judicial economy notwithstanding noncompliance with procedural requisites for obtaining review of order
directing an accounting. Levin v. Barish, 460 A.2d 1174, 314 Pa.Super. 347, Super.1983, affirmed in part, reversed in
part 481 A.2d 1183, 505 Pa. 514. Appeal And Error
863
9. Discovery orders
Commonwealth's failure to seek permissive interlocutory appeal of order directing production of confidential informant
did not waive challenge to disclosure order on appeal from final order imposing discovery sanctions for violation of
production order. Com. v. Jackson, 598 A.2d 568, 409 Pa.Super. 568, Super.1991, appeal denied 605 A.2d 333, 529
Pa. 668. Criminal Law
1134(10)
Superior court did not abuse its discretion in accepting interlocutory appeal of certified order of common pleas court
which denied district attorney's petition for access to confidential information from county health department, even if
order did not deprive Commonwealth of use of evidence such that prosecution of case was substantially handicapped;
order was certified as one involving controlling question of laws to which there was substantial ground for difference of
opinion, immediate appeal of which could materially advance ultimate termination. Com. v. Moore, 584 A.2d 936, 526
Pa. 152, Sup.1991. Criminal Law
1023(3)
Disclosure order of lower court directing Commonwealth to produce confidential format by revealing his identity was not
a suppression order, but a discovery order which was interlocutory in nature, and proper procedure for appeal of order
would have been a petition for permission to appeal from an interlocutory order. Com. v. Redmond, 577 A.2d 547, 395
Pa.Super. 286, Super.1990, appeal granted 584 A.2d 315, 526 Pa. 632, appeal dismissed 600 A.2d 190, 528 Pa. 601
Criminal Law
1071
10. Collateral orders
Appeal may only be taken from interlocutory order as of right, from final order, from collateral order, or from
interlocutory order by permission. Continental Bank v. Andrew Bldg. Co., 648 A.2d 551, 436 Pa.Super. 559,
358
An order disqualifying counsel was not sufficiently collateral or separable from the merits to qualify for interlocutory
appeal. Gamble v. Com., Pennsylvania Turnpike Com'n, 578 A.2d 1366, 135 Pa.Cmwlth. 84, Cmwlth.1990. Appeal And
Error
72
11. Remand orders
Workmen's Compensation Appeal Board's initial order remanding case to referee was interlocutory and, thus, not
appealable except by permission and, accordingly, claimant's failure to appeal order did not present res judicata bar to
claimant's challenging order on appeal once case was properly before Commonwealth Court. Macaluso v. W.C.A.B.
(Philadelphia College of Osteopathic Medicine), 597 A.2d 730, 142 Pa.Cmwlth. 436, Cmwlth.1991. Workers'
Compensation
1834
Remand orders of Workmen's Compensation Appeal Board are interlocutory and not appealable except by permission.
Macaluso v. W.C.A.B. (Philadelphia College of Osteopathic Medicine), 597 A.2d 730, 142 Pa.Cmwlth. 436, Cmwlth.1991.
Workers' Compensation
1834
12. Amendments
Board of public education was not entitled to appeal by permission to Commonwealth Court from interlocutory order of
the Pennsylvania Human Relations Commission (PHRC) denying board's motion to dismiss discrimination complaints,
where the board failed to file an application for an amendment of the PHRC's interlocutory order as a condition
precedent to appealing the PHRC's order to the Commonwealth Court. Pittsburgh Bd. of Public Educ. v. Pennsylvania
Human Relations Com'n, 820 A.2d 838, Cmwlth.2003. Civil Rights
1712
Order granting leave to amend pleadings was interlocutory and therefore not immediately appealable; no one was put
out of court as result of order granting leave to amend complaint. Noll v. Paddock Pool Builders, Inc., 611 A.2d 219, 416
Pa.Super. 284, Super.1992, appeal granted 626 A.2d 1158, 534 Pa. 640, reversed 643 A.2d 81, 537 Pa. 274. Appeal
And Error
78(3)

Chapter 15. Judicial Review of Governmental Determinations
In General
Rule 1501. Scope of Chapter
(a) General rule. Except as otherwise prescribed by Subdivisions (b) and (c) of this rule, this chapter applies to:
(1) Appeals from an administrative agency (within the meaning of Section 9 of Article V of the Constitution of
Pennsylvania) to an appellate court.
(2) Appeals to an appellate court pursuant to 2 Pa.C.S. 702 (appeals), 42 Pa.C.S. 5105 (right to appellate review) or
any other statute providing for judicial review of a determination of a government unit.
(3) Original jurisdiction actions heretofore cognizable in an appellate court by actions in the nature of equity, replevin,
mandamus or quo warranto or for declaratory judgment, or upon writs of certiorari or prohibition.
(4) Matters designated by general rule, e.g., review of orders refusing to certify interlocutory orders for immediate
appeal, release prior to sentence, appeals under Section 17(d) of Article II of the Constitution of Pennsylvania and
review of special prosecutions or investigations.
(b) Appeals governed by other provisions of rules. This chapter does not apply to any appeal within the scope of:
(1) Chapter 9 (appeals from lower courts).
(2) Chapter 11 (appeals from Commonwealth Court and Superior Court).
(3) Chapter 13 (interlocutory appeals by permission), except that the provisions of this chapter and ancillary provisions
of these rules applicable to practice and procedure on petition for review, so far as they may be applied, shall be
applicable: (a) where required by the Note to Rule 341 and the Note to Rule 1311; and (b) after permission to appeal
has been granted from a determination which, if final, would be subject to judicial review pursuant to this chapter.
(4) Rule 1941 (review of death sentences).
(c) Unsuspended statutory procedures. This chapter does not apply to any appeal pursuant to the following
statutory provisions, which are not suspended by these rules:
(1) Section 137 of Title 15 of the Pennsylvania Consolidated Statutes (court to pass upon rejection of documents by
Department of State).
(2) The Pennsylvania Election Code.
(d) Jurisdiction of courts unaffected. This chapter does not enlarge or otherwise modify the jurisdiction and powers
of the Commonwealth Court or any other court.
Note: This chapter applies to review of any "determination" of a "government unit" as defined in Rule 102 assuming, of
course, that the subject matter of the case is within the jurisdiction of a court subject to these rules (see Subdivision (d)
of this rule). A "determination" means "action or inaction by a government unit which action or inaction is subject to
judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term
includes an order entered by a government unit." The term "government unit" is all inclusive and means "the Governor
and the departments, boards, commissions, officers, authorities and other agencies of the Commonwealth, including the
General Assembly and its officers and agencies and any court or other officer or agency of the unified judicial system,
and any political subdivision or municipal or other local authority or any officer or agency of any such political
subdivision or local authority. The term includes a board of arbitrators whose determination is subject to review under
42 Pa.C.S. 763(b) (awards of arbitrators)." The term "administrative agency" is not defined in these rules, although
the term is used in these rules as a result of its appearance in Section 9 of Article V of the Constitution of Pennsylvania.
Subdivision (a)(4) was added in 2004 to recognize the references in various appellate rules and accompanying notes to
petition for review practice. For example, the Notes to Rules 341 and 1311 direct counsel to file a petition for review of
a trial court or government agency order refusing to certify an interlocutory order for immediate appeal. Similarly, Rule
1762 directs the filing of a petition for review when a party seeks release on bail before judgment of sentence is
rendered. See Rule 1762(b). A petition for review is also the proper method by which to seek judicial review pursuant to
Rule 3321 (regarding legislative reapportionment commission) and Rule 3331 (regarding special prosecutions or
investigations). The 2004 amendments clarify the use of petitions for review in these special situations.
Subdivision (b) of this rule is necessary because otherwise conventional appeals from a court (which is included in the
scope of the term "government unit") to an appellate court would fall within the scope of this chapter under the
provisions of Paragraph (a)(2) of this rule.
Subdivision (c) expressly recognizes that some statutory procedures are not replaced by petition for review practice.
Thus, matters brought pursuant to Section 137 of the Associations Code governing judicial review of documents rejected
by the Department of State or pursuant to the Election Code are controlled by the applicable statutory provisions and
not by the rules in Chapter 15. See 15 Pa.C.S. 137; Act of June 3, 1937, P.L. 1333, as amended 25 P.S. 26003591.
In light of Subdivision (d), where the court in which a petition for review is filed lacks subject matter jurisdiction (e.g., a
petition for review of a local government question filed in the Commonwealth Court), Rules 741 (waiver of objections to
jurisdiction), 751 (transfer of erroneously filed cases) and 1504 (improvident petitions for review) will be applicable. See
also 42 Pa.C.S. 5103.
The 2004 amendments are made to petition for review practice to address the evolution of judicial responses to
governmental actions. As indicated in the Note to Rule 1502, when the Rules of Appellate Procedure were initially
adopted, there was a "long history in the Commonwealth ... of relatively complete exercise of the judicial review
function under the traditional labels of equity, mandamus, certiorari and prohibition. " While such original jurisdiction
forms of action are still available, their proper usage is now the exception rather than the rule because appellate
proceedings have become the norm. Thus, the need to rely on Rule 1503 to convert an appellate proceeding to an
original jurisdiction action and vice versa arises less often. Moreover, the emphasis on a petition for review as a generic
pleading that permits the court to simultaneously consider all aspects of the controversy is diminished. The primary
concern became making the practice for appellate proceedings more apparent to the occasional appellate practitioner.
Accordingly, the rules have been amended to more clearly separate procedures for appellate proceedings from those
applicable to original jurisdiction proceedings.
The responsibility of identifying the correct type of proceeding to be used to challenge a governmental action is initially
that of counsel. Where precedent makes the choice clear, counsel can proceed with confidence. Where the choice is
more problematic, then counsel should draft the petition for review so as to satisfy the directives for both appellate and
original jurisdiction proceedings. Then the court can designate the proper course of action regardless of counsel's earlier
assessment.
CREDIT(S)
Dec. 30, 1978; May 16, 1979, effective 120 days after June 2, 1979; July 7, 1997, effective in 60 days; July 8, 2004,
effective Sept. 7, 2004.
HISTORICAL NOTES
2005 Main Volume
The Order of July 7, 1997, in subd. (c), in par. (1), substituted "Section 137" for "Section 135".

The Order of July 8, 2004, rewrote subd. (a)(3) which prior thereto read:
"Objections to a determination by a government unit heretofore cognizable in an appellate court by an action in the
nature of equity, replevin, mandamus or quo warranto or for a declaratory judgment, or upon writs of certiorari or
prohibition."
; added subd. (a)(4); in subd. (b)(3) inserted "(a) where required by the Note to Rule 341 and the Note to Rule 1311;
and (b)"; and rewrote the Note which prior thereto read:
"Note: This chapter applies to review of any "determination" of a "government unit" as defined in Rule 102 assuming, of
course, that the subject matter of the case is within the jurisdiction of a court subject to these rules (see Subdivision (d)
of this rule). A "determination" means "action or inaction by a government unit which action or inaction is subject to
judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term
includes an order entered by a government unit." The term "government unit" is all inclusive and means "the Governor
and the departments, boards, commissions, officers, authorities and other agencies of the Commonwealth, including the
General Assembly and its officers and agencies and any court or other officer or agency of the unified judicial system,
and any political subdivision or municipal or other local authority or any officer or agency of any such political
subdivision or local authority. The term includes a board of arbitrators whose determination is subject to review under
42 Pa.C.S. 763(b) (awards of arbitrators)." The term "administrative agency" is not defined in these rules, although
the term is used in these rules as a result of its appearance in Section 9 of Article V of the Constitution of Pennsylvania.
"Subdivision (b) of this rule is necessary because otherwise conventional appeals from a court (which is included in the
scope of the term "government unit") to an appellate court would fall within the scope of this chapter under the
provisions of Paragraph (a)(2) of this rule.
"Rule 1561 (disposition of petition for review) makes clear that this chapter does not apply to ordinary tort, contract and
post conviction hearing matters.
"Where the court in which a petition for review is filed lacks subject matter jurisdiction (e.g., a petition for review of a
local government question filed in the Commonwealth Court), Rules 741 (waiver of objections to jurisdiction), 751
(transfer of erroneously filed cases) and 1504 (improvident petitions for review) will be applicable."
Appeal provisions of local agency law as exclusive challenge procedure for local agency orders. 15 Duq.L.Rev. 133
(1976).
RESEARCH REFERENCES
Standard Pennsylvania Practice 99:37, Generally; Commencement of Action.
Standard Pennsylvania Practice 100:12, Petition; Hearing.
Standard Pennsylvania Practice 140:19, Before Sentencing.
Standard Pennsylvania Practice 114:120, Generally; Nature of Actions to Which Petitions for Review Are Applicable.
Standard Pennsylvania Practice 114:121, Effect of Proceedings on Petition for Review Upon Jurisdiction of Court.
Standard Pennsylvania Practice 114:126, Applicability of Civil Procedural Rules to Pleading.
Standard Pennsylvania Practice 137:125, Offenses Committed After Conviction for Crime of Violence.
Standard Pennsylvania Practice 137:162, Generally; Eligibility.
Standard Pennsylvania Practice 166:249, Applicability of Pennsylvania Rules of Appellate Procedure.

Standard Pennsylvania Practice 166:273, Petition for Review Embracing All Remedies.
2 West's Pennsylvania Practice 16.5, Petition for Review (e.g., Revocation of State Parole).
2 West's Pennsylvania Practice 19.7, Appealing Revocations of Parole and Other Board Actions.
2 West's Pennsylvania Practice 19.9, Petition for Review.
9 West's Pennsylvania Practice App. D, Critical Provisions of the Rules of Appellate Procedure and Commonwealth Court
Internal Operating Procedures.
16B West's Pennsylvania Practice 32:10, Review of Actions of State Board of Probation and Parole.
Administrative review, exhaustion of administrative remedies, mandate of reviewing court, silence of statute or agency
rules, see Darby v. Cisneros (U.S.S.C. 1993) 113 S.Ct. 2539, 509 U.S. 137, 125 L.Ed.2d 113.
NOTES OF DECISIONS
Appeals from agency or administrative review 2
Petition for review pursuant to this chapter was not proper vehicle for argument that change of venue was ordered only
for convenience of Westmoreland County Court of Common Pleas and was therefore improper. Mash v. Old Home
Manor, Inc., 444 A.2d 147, 298 Pa.Super. 7, Super.1982. Review
1
In a statutory zoning appeal proceeding, zoning hearing board, whose decision was at issue, did not have standing to be
the sole appellant in the Commonwealth Court, nor could it be regarded as being in the court under a "petition for
review." National Development Corp. v. Harrison Tp., 438 A.2d 1053, 64 Pa.Cmwlth. 54, Cmwlth.1982. Zoning And
Planning
571
Petition for review is not available as procedural tool to be employed for judicial review of rights in anticipation of event
which may never occur. Berger v. Com., Dept. of Environmental Resources, 400 A.2d 905, 42 Pa.Cmwlth. 206,
Cmwlth.1979. Declaratory Judgment
62
2. Appeals from agency or administrative review
Department of public welfare administrative review procedure whereby an opportunity for hearing was provided to
nursing facilities aggrieved by a reimbursement rate for Medicaid services set by department and decision of hearing
officer was subject to reversal by department secretary or his designee, was an adequate administrative review process
which must be resorted to as a prerequisite to obtaining judicial review. Delaware Valley Convalescent Center, Inc. v.
Beal, 382 A.2d 1290, 34 Pa.Cmwlth. 177, Cmwlth.1978, affirmed 412 A.2d 514, 488 Pa. 292. Health
509
In view of fact that 71 P.S. 1710.41 by its express language makes the right of appeal from an administrative agency
decision dependent on the existence of an "adjudication," where department of public welfare, in declining to review
determination of county board of assistance that 15 patients treated by certain hospitals were not eligible for medical
assistance, stated that the department could not "discuss these cases" because of the individual patients' failure to
appeal, the department's action constituted a refusal to hear the merits of the hospitals' grievance and not an
"adjudication" and, therefore, department's decision was unappealable. Com. Dept. of Public Welfare v. Thomas
Jefferson University Hospital, 379 A.2d 911, 32 Pa.Cmwlth. 458, Cmwlth.1977. Health
507
Form of suit which seeks review of agency action does not involve question of jurisdiction and actions brought in wrong
form should not be dismissed, but should be regarded as having been filed in proper form, although amendment may be
required if necessary for clarification. Com., Auditor General v. Borough of East Washington, 378 A.2d 301, 474 Pa. 226,
Sup.1977. Administrative Law And Procedure
663
Appeal may be taken from any action of administrative agency which is adjudicatory in nature and which affects current
property rights. Redmond v. Com., Milk Marketing Bd., 363 A.2d 840, 26 Pa.Cmwlth. 368, Cmwlth.1976. Administrative
Law And Procedure
701
42 Pa.C.S.A. 9781
Title 42 Pa.C.S.A. Judiciary and Judicial Procedure (Refs & Annos)
Part VIII. Criminal Proceedings (Refs & Annos)
Chapter 97. Sentencing (Refs & Annos)
Subchapter G. Appellate Review of Sentence
9781. Appellate review of sentence
(a) Right to appeal.--The defendant or the Commonwealth may appeal as of right the legality of the sentence.
(b) Allowance of appeal.--The defendant or the Commonwealth may file a petition for allowance of appeal of the
discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for
such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is
a substantial question that the sentence imposed is not appropriate under this chapter.
(c) Determination on appeal.--The appellate court shall vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.
(d)
(1)
(2)
(3)
(4)
Review of record.--In reviewing the record the appellate court shall have regard for:
The nature and circumstances of the offense and the history and characteristics of the defendant.
The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
The findings upon which the sentence was based.
The guidelines promulgated by the commission.
(e) Right to bail not enlarged.--Nothing in this chapter shall be construed to enlarge the defendant's right to bail
pending appeal.
(f) Limitation on additional appellate review.--No appeal of the discretionary aspects of the sentence shall be permitted
beyond the appellate court that has initial jurisdiction for such appeals.
(g) Repealed. Act 1980, Oct. 5, P.L. 693, No. 142, 330, effective in 60 days.
CREDIT(S)
1978, Nov. 26, P.L. 1316, No. 319, 3, effective Jan. 1, 1979. Renumbered from 18 Pa.C.S.A. 1386 by 1980, Oct. 5,
P.L. 693, No. 142, 401(a), effective in 60 days.
HISTORICAL AND STATUTORY NOTES
2007 Main Volume
Act 1978-319 legislation
Section 8 of Act 1978, Nov. 26, P.L. 1316, No. 319, provides:
"(a) Except as provided in subsections (b) and (c), this act shall take effect January 1, 1979.
"(b) The provisions of 18 Pa.C.S. 1386 [now, this section] (relating to appellate review of sentence) shall take effect
upon the effective date of the initial guidelines adopted by the Pennsylvania Commission on Sentencing and taking
effect pursuant to 18 Pa.C.S. 1385 (relating to publication of guidelines for sentencing) [repealed; see, now, 2155 of
this title].
"(c) The amendatory provisions of section 1 insofar as such provisions relate to the functions and authority of the
Pennsylvania Commission on Sentencing and the provisions of sections 3, 6 and 7 of this amendatory act shall expire
and be deemed null and void four years from the date on which the initial guidelines are adopted pursuant to 18 Pa.C.S.
1385."
Section 218(b) of 1980, Oct. 5, P.L. 693, No. 142, provides that the provisions of 18 Pa.C.S. 1386 (redesignated by
this act as 42 Pa.C.S. 9781) shall take effect upon the effective date of initial sentencing guidelines pursuant to 42
Pa.C.S. 2155(c). The initial sentencing guidelines, as revised, were adopted Jan. 5, 1982, and became effective July
22, 1982.
Section 218(d)(1) of 1980, Oct. 5, P.L. 693, No. 142, expressly saves this section from repeal and provides for its
redesignation as directed by 401(a) of said act (which redesignates it to this title and section from 18 Pa.C.S.A.
1386).
CROSS REFERENCES
Criminal rules on sentencing, see Pa.R.Crim.P. Rule 700 et seq., 42 Pa.C.S.A.
Final orders generally, see Pa.R.A.P., Rule 341, 42 Pa.C.S.A.
Manner of taking appeal, see Pa.R.A.P., Rule 902, 42 Pa.C.S.A.
Motion to modify sentence, see Pa.R.Crim.P. Rule 720, 42 Pa.C.S.A.
Supreme Court, appeals allowed from Superior and Commonwealth Courts, see 42 Pa.C.S.A. 724.
Criminal procedure rights under the Pennsylvania Constitution: Examining the present and exploring the future. Leonard
Sosnov, 3 Widener J.Pub.L. 217 (1993).
Sentencing of adult offenders in cases involving sexual abuse of children: Too little, too late? A view from the
Pennsylvania bench. Debra Todd, 109 Penn St. L. Rev. 487 (2004).
Structuring sentencing discretion in Pennsylvania: Are guidelines still a viable option in light of Commonwealth v.
Devers? 69 Temp.L.Rev. 941 (1996).
LIBRARY REFERENCES
2007 Main Volume
Criminal Law
1026, 1072, 1181.
Westlaw Topic No. 110.
RESEARCH REFERENCES
2007 Main Volume
ALR Library
21 ALR, Federal 655, Direct Review by United States Court of Appeals of Duration of Sentence Imposed by District Court
in Federal Criminal Prosecution, Where Duration Does Not Exceed Statutorily Authorized Maximum.
89 ALR 3rd 864, Validity and Effect of Criminal Defendant's Express Waiver of Right to Appeal as Part of Negotiated Plea
Agreement.
Standard Pennsylvania Practice 2:139, Appeals from Commonwealth Court and Superior Court.
Standard Pennsylvania Practice 132:481, Release Pending Appeal.
Standard Pennsylvania Practice 132:490, Appeals by Commonwealth.

Standard Pennsylvania Practice 132:515, Legality of Sentence.
Standard Pennsylvania Practice 132:521, What Constitutes "Substantial Question".
Standard Pennsylvania Practice 132:522, Prohibition Against Multilevel Review of Discretionary Aspects.
Standard Pennsylvania Practice 132:588, Generally--Departure from Sentencing Guidelines.
Standard Pennsylvania Practice 135:398, Disposition of Motions.
Standard Pennsylvania Practice 135:420, Weight of Evidence.
Standard Pennsylvania Practice 137:87, Discretion of Court as Authorized by Law.
Standard Pennsylvania Practice 137:118, Need for Rehabilitation; Other Characteristics of Defendant.
Standard Pennsylvania Practice 137:133, Sentence Within Mitigated and Aggravated Ranges of Sentencing Guidelines.
2 West's Pennsylvania Practice 14.0, Introductory Comment.
2 West's Pennsylvania Practice 16.24, Motion to Dismiss Appeal.
2 West's Pennsylvania Practice 16.35, Statement of Reasons in Brief for Allowance of Appeal With Respect to the
Discretionary Aspects of a Sentence (Tuladziecki Statement).
10 West's Pennsylvania Practice 30:3, Appeal of Legality of Sentence.
10 West's Pennsylvania Practice 30:4, Appeal of Discretionary Aspects of Sentence.
12 West's Pennsylvania Practice 9:4.1, Challenging Conditions.
12 West's Pennsylvania Practice 18:11, Judicial Review of Orders Granting Probation.
20 West's Pennsylvania Practice R 341, Final Orders; Generally.
20 West's Pennsylvania Practice R 902, Manner of Taking Appeal.
20 West's Pennsylvania Practice 21:1, Appeals from Commonwealth and Superior Courts--Introduction.
20 West's Pennsylvania Practice 21:2, Statutory Language.
20 West's Pennsylvania Practice 21:3, Section 9781(F) of the Sentencing Code (42 Pa.C.S. 9781(F)).
20 West's Pennsylvania Practice 27:119, Costs Act (71 P.S. 2031-2035)--Unique Discretionary Appeal.
20 West's Pennsylvania Practice 902:6, Discretionary Aspects of Sentence.
16A West's Pennsylvania Practice 22:5, Sentencing.
16B West's Pennsylvania Practice 31:1, Sentences and Sentencing Generally.
16B West's Pennsylvania Practice 31:20, Propriety of Sentence in Noncapital Cases.
16B West's Pennsylvania Practice 31:22, Sentencing Guidelines.
16B West's Pennsylvania Practice 31:32, Defense Challenges to Sentence.
16B West's Pennsylvania Practice 33:2, Right to Appeal.
16B West's Pennsylvania Practice 33:8, Discretionary Appeals of Sentences.
20A West's Pennsylvania Practice 2116:10, Relationship of Pa.R.A.P. 2116(B) to Section 9781 of the Judicial Code
(Appellate Review of Sentence) (Pa.R.A.P. 2116(B)).
20A West's Pennsylvania Practice 2119:15, Discretionary Aspects of Sentencing (Pa.R.A.P. 2119(F)).
20B West's Pennsylvania Practice App. A, Forms.
20B West's Pennsylvania Practice App. F, Commentary to Pre-July 6, 1992 Version of Rule 341.
Appellate review of sentencing guidelines, incorrect application of guidelines, see Williams v. U.S., U.S.Wis.1992, 112
S.Ct. 1112, 503 U.S. 193, 117 L.Ed.2d 341, on remand 966 F.2d 208.
NOTES OF DECISIONS
In general 2
Abuse of discretion, scope of review 32
Amendment of sentence on appeal 36
Brief, discretionary sentencing aspects 6
Brief, waiver or preservation of error 26
Burden of proof 34
Consecutive sentences, substantial question of appropriateness 10
Consideration of evidence, scope of review 31
Consideration of evidence, substantial question of appropriateness 13
Deviation from guidelines 15
Discretionary sentencing aspects 5, 6
Discretionary sentencing aspects - In general 5
Discretionary sentencing aspects - Statement of questions and brief 6
Enhancement, substantial question of appropriateness 11
Erroneous application of guidelines 16
Excessiveness or reasonableness, substantial question of appropriateness 9
Excessiveness, scope of review 33
Final orders 21
Guidelines 14-16
Guidelines - In general 14
Guidelines - Erroneous application of guidelines 16
Guidelines - Sentencing outside guidelines 15
Illegal sentence, generally 4
Illegal sentence, remand 41
Illegal sentence, waiver or preservation of error 24
Ineffective assistance of counsel, waiver or preservation of error 27
Jurisdiction 18
Mitigation, substantial question of appropriateness 12
Moot questions 22
Nunc pro tunc review 20
Objections, waiver or preservation of error 25
Parties to appeal 3
Petition for reconsideration, waiver or preservation of error 28
Plea agreements, remand 42
Preservation of error 23-28
Procedural error generally, remand 39
Reasonableness, substantial question of appropriateness 9
Record, scope of review 30
Remand 37-42
Remand - In general 37
Remand - Illegal sentence 41
Remand - Plea agreements 42
Remand - Procedural error generally 39
Remand - Reversal of conviction 38
Remand - Statement of reasons for sentence 40
Remedy, generally 35
Reversal of conviction, remand 38

Scope of review 29-33
Scope of review - In general 29
Scope of review - Abuse of discretion 32
Scope of review - Excessiveness 33
Scope of review - Record 30
Scope of review - Weight or consideration of evidence 31
Sentencing factors, substantial question of appropriateness 8
Sentencing guidelines 14-16
Sentencing outside guidelines 15
Statement of questions and brief, discretionary sentencing aspects 6
Statement of reasons for sentence, remand 40
Sua sponte review 19
Substantial question of appropriateness 7-13
Substantial question of appropriateness - In general 7
Substantial question of appropriateness - Consecutive sentences 10
Substantial question of appropriateness - Enhancement 11
Substantial question of appropriateness - Excessiveness or reasonableness 9
Substantial question of appropriateness - Mitigation 12
Substantial question of appropriateness - Sentencing factors 8
Substantial question of appropriateness - Weight or consideration of evidence
13
Time for appeal 17
Validity 1
Waiver or preservation of error 23-28
Waiver or preservation of error - In general 23
Waiver or preservation of error - Brief 26
Waiver or preservation of error - Illegal sentence 24
Waiver or preservation of error - Ineffective assistance of counsel 27
Waiver or preservation of error - Objections 25
Waiver or preservation of error - Petition for reconsideration 28
Weight or consideration of evidence, scope of review 31
Weight or consideration of evidence, substantial question of appropriateness
13
1. Validity
While it is true that legislature granted Superior Court discretion to decide whether it will review a challenge to
discretionary aspects of sentencing, sentencing appeals statute does not grant Superior Court discretion to exclude an
entire class of challenges from having the opportunity to receive appellate review on the merits; legislature has set forth
terms of review of sentences, and Superior Court cannot sua sponte alter requirements regarding whether a claim may
receive review on merits, nor can it legislate its own exclusions. Com. v. Mouzon, 812 A.2d 617, 571 Pa. 419, Sup.2002,
on remand 828 A.2d 1126. Criminal Law
1072
Statute denying right to petition for allowance of appeal in Supreme Court of any unsuccessful sentence challenge in
Superior Court does not violate constitutional guarantee of individual's right of appeal; statute merely allocates to which
appellate court appeal could be taken. Com. v. Chilcote, 578 A.2d 429, 396 Pa.Super. 106, Super.1990, appeal denied
590 A.2d 756, 527 Pa. 615, reconsideration granted, appeal dismissed as improvidently granted 625 A.2d 614, 533 Pa.
357. Criminal Law
1005
This section establishing threshold burden before reviewing court will consider appeal from discretionary aspect of
sentence does not conflict with Pennsylvania constitutional guarantee of individual's right to appeal; rather, statute
imposes procedural mechanism whereby court is able to determine whether questions posed are of sufficient import to
warrant further review. Com. v. Chilcote, 578 A.2d 429, 396 Pa.Super. 106, Super.1990, appeal denied 590 A.2d 756,
527 Pa. 615, reconsideration granted, appeal dismissed as improvidently granted 625 A.2d 614, 533 Pa. 357. Criminal
Law
1005
This section establishing threshold burden to be satisfied before reviewing court will consider appeal from discretionary
aspects of sentence does not unconstitutionally restrict rule providing for appeals from discretionary aspects of
sentences; Supreme Court rule could not constitutionally supersede legislatively determined jurisdiction of appellate
court. Com. v. Chilcote, 578 A.2d 429, 396 Pa.Super. 106, Super.1990, appeal denied 590 A.2d 756, 527 Pa. 615,
reconsideration granted, appeal dismissed as improvidently granted 625 A.2d 614, 533 Pa. 357. Criminal Law
1005
Limitation on appellate review of discretionary aspects of sentencing to those appellants who raise a substantial
question as to whether sentence imposed is inconsistent with a specific provision of sentencing code or contrary to
norms underlying the sentencing process did not violate provision of Const. Art. 5, 9 concerning the right to appeal.
Com. v. Smith, 575 A.2d 150, 394 Pa.Super. 164, Super.1990. Criminal Law
1147
2. In general
Appellate review of sentencing issues is discretionary as to all aspects of sentencing except legality of sentence. Com. v.
Rodda, 723 A.2d 212, Super.1999. Criminal Law
1072
While defendant may appeal legality of sentence as of right, right to appeal from discretionary aspect of sentence is not
absolute. Com. v. Barzyk, 692 A.2d 211, Super.1997. Criminal Law
1024(9)
Only where party can articulate reasons why a particular sentence raises doubts that sentencing scheme as a whole has
been compromised should Appellate Court review manner in which trial court exercised its discretion. Com. v. Jones,
637 A.2d 1001, 432 Pa.Super. 97, Super.1994. Criminal Law
1147
Appeal can be taken from judgment of sentence as of right only when there is question of legality of sentence. Com. v.
Chase, 530 A.2d 458, 365 Pa.Super. 572, Super.1987, appeal granted, cause remanded 548 A.2d 1224, 519 Pa. 440.
Criminal Law
1023(11)
Conviction for which judgment of sentence has been suspended is appealable. Com. v. Ford-Bey, 452 A.2d 729, 306
Pa.Super. 288, Super.1982, reversed in part 472 A.2d 1062, 504 Pa. 284. Criminal Law
1023(16)
Where Court of Common Pleas fully advised petitioner of his appellate rights and then, only minutes later, amended its
sentence without again advising petitioner of his appellate rights, petitioner was adequately notified of his right to
appeal. Com. v. Nero, 378 A.2d 430, 250 Pa.Super. 17, Super.1977. Criminal Law
1068.5
3. Parties to appeal
Prisoner's sentence after escape was recomputed by records officer at state correctional institution, an employee under
supervision of Department of Justice, Bureau of Corrections, not an employee of the Board of Probation and Parole;
therefore, because there was no involvement by the Board it was not a proper party in petition by prisoner to review
recomputation of his sentence. Mickens v. Jeffes, 453 A.2d 1092, 71 Pa.Cmwlth. 68, Cmwlth.1983. Criminal Law
1070
Where Court of Common Pleas entered order reducing original sentence of not less than two nor more than 24 months
to term of one to 23 months and where appeal from such order concerned legality of amended sentence imposed upon
defendant and not parole, district attorney, and not parole board, was proper party to appeal district court's amended
order reducing sentence. Com. v. Yoder, 378 A.2d 350, 249 Pa.Super. 389, Super.1977. Criminal Law
1024(9)
4. Illegal sentence, generally
If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. Com. v.
Randal, 837 A.2d 1211, Super.2003. Sentencing And Punishment
2255
Illegal sentence must be vacated. Com. v. Alexander, 811 A.2d 1064, Super.2002, appeal denied 822 A.2d 703, 573 Pa.
676. Criminal Law
1181.5(8)
Although defendant's conviction for simple assault merged with his conviction for reckless endangerment, for sentencing
purposes, remand was not required for resentencing; the sentences were concurrent, and the Court of Appeals could
vacate the reckless endangerment sentence. Com. v. Klein, 795 A.2d 424, Super.2002. Criminal Law
1181.5(8)
An illegal sentence is one that exceeds the statutory limits. Com. v. Hunter, 768 A.2d 1136, Super.2001, appeal denied
796 A.2d 979, 568 Pa. 695. Sentencing And Punishment
34
Appellate review of sentencing issues is prescribed by statute, and is discretionary as to all aspects of sentencing except
legality of the sentence. Com. v. Harclerode, 768 A.2d 1132, Super.2001, appeal denied 786 A.2d 985, 567 Pa. 721.
Criminal Law
1072
Where issue on appeal is improper calculation of prior record score or offense gravity score, direct appeal lies because
these are legal questions, and discretionary review is not appropriate. Com. v. Johnson, 618 A.2d 415, 421 Pa.Super.
433, Super.1992, affirmed 646 A.2d 1170, 538 Pa. 148. Criminal Law
1134(3)
Commonwealth's contention, that sentences imposed by court of common pleas were illegal, was properly appealable to
Superior Court as of right. Com. v. Ferguson, 552 A.2d 1075, 381 Pa.Super. 23, Super.1988. Criminal Law
1024(9)
If sentence is legislatively permitted, legality of sentence is not implicated, and appeal is discretionary, but if legality of
sentence is implicated, then appeal can be taken as of right. Com. v. Black, 531 A.2d 492, 366 Pa.Super. 425,
1026; Criminal Law
1072
5. Discretionary sentencing aspects--In general
When determining adequacy of defendant's statement of reasons relied upon for allowance of appeal, so as to allow
appeal of discretionary aspects of sentence, appellate court's inquiry must focus on reasons for which appeal is sought,
in contrast to facts underlying appeal, which are necessary only to decide appeal on merits. Com. v. McNabb, 819 A.2d
1072
When the discretionary aspects of a judgment of sentence are questioned, an appeal is not guaranteed as of right, and
two criteria must first be met before a challenge to a judgment of sentence will be heard on the merits: (1) first, an
appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect
to the discretionary aspects of his sentence; and (2) second, an appeal will be granted only where it appears that there
is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Com. v. Hartman,
908 A.2d 316, Super.2006.
Matters relating to the discretionary aspects of sentencing are not appealable as of right. Com. v. P.L.S., 894 A.2d 120,
1023(11)
The appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall vacate the trial court's
sentence and remand the case with instructions if: (1) the guidelines were erroneously applied; (2) the sentence, even
though within the guidelines, is clearly unreasonable; or (3) the sentence, if outside the guidelines, is unreasonable.
Com. v. Fiascki, 886 A.2d 261, Super.2005. Criminal Law
1147; Criminal Law
1181.5(8)
Trial court was within its discretion in comparing victims of defendant's securities fraud scheme to victims of other forms
of thievery, in imposing sentence for defendant's conviction by guilty plea; sentencing transcript reflected that victims
lost retirement money or college funds set aside for their children, many were no longer able to live in lifestyle to which
they were accustomed prior to defendant's crimes, and sentencing transcript and trial court's opinion made clear that
trial court properly considered unique circumstances of crimes and their effect on victims. Com. v. Fiascki, 886 A.2d
261, Super.2005. Sentencing And Punishment
84
Claims challenging discretionary aspects of defendant's sentence are not appealable as of right; rather, defendant must
petition for allowance of appeal pursuant to statute on appellate review of sentence. Com. v. Hanson, 856 A.2d 1254,
1072
Superior Court was required to consider defendant's brief on issue of whether trial court improperly calculated his prior
record score under sentencing guidelines when determining his sentence as petition for permission to appeal, as
defendant was challenging discretionary aspects of his sentence, in rape prosecution. Com. v. O'Bidos, 849 A.2d 243,
Super.2004, appeal denied 860 A.2d 123, 580 Pa. 696. Criminal Law
1071
To reach the merits of a discretionary sentencing issue, the superior court conducts a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence;(3) whether appellant's brief has a fatal defect; and (4) whether there is
a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Com. v.
Anderson, 830 A.2d 1013, Super.2003. Criminal Law
1072
The discretionary aspects of a defendant's sentence are not reviewable as a matter of right. 42 Pa. C.S.A. Com. v.
Anderson, 830 A.2d 1013, Super.2003. Criminal Law
1072
There is no absolute right to direct appellate review of discretionary sentencing claim, and party wishing to raise such
issue must petition Superior Court for permission to appeal and demonstrate that there is substantial question that
sentence is inappropriate. Com. v. Khalil, 806 A.2d 415, Super.2002, reargument denied, appeal denied 818 A.2d 503,
1026; Criminal Law
1072
Right to appeal a discretionary aspect of sentence is not absolute, and party who desires to raise such a challenge must
petition Superior Court for permission to appeal and demonstrate that there is a substantial question that the sentence
is inappropriate and warrants appellate review. Com. v. Cunningham, 805 A.2d 566, 125 A.L.R.5th 719, Super.2002,
1071
To reach the merits of a discretionary sentencing issue, an appellate court must determine: (1) whether the defendant
has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether the defendant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is inappropriate under the sentencing code. Com. v. Williams, 787
A.2d 1085, Super.2001, appeal denied 803 A.2d 735, 569 Pa. 693.
Appeals of discretionary aspects of a sentence are not guaranteed of right. Com. v. Burton, 770 A.2d 771, Super.2001,
1147
Appeals of discretionary aspects of a sentence are not guaranteed of right. Com. v. Hunter, 768 A.2d 1136, Super.2001,
1147
In challenging discretionary aspects of a sentence, defendant must articulate a substantial question as to the propriety
of his sentence. Com. v. Hunter, 768 A.2d 1136, Super.2001, appeal denied 796 A.2d 979, 568 Pa. 695. Criminal Law
1147
Defendant waived argument that his sentence was an abuse of discretion, in light of defendant's failure to include
statement of reasons to allow appeal of discretionary aspects of a sentence and the Commonwealth's objection to that
omission. Com. v. Hunter, 768 A.2d 1136, Super.2001, appeal denied 796 A.2d 979, 568 Pa. 695. Criminal Law
1072
Sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed on
appeal absent an abuse of discretion. Com. v. Harclerode, 768 A.2d 1132, Super.2001, appeal denied 786 A.2d 985,
1147
Issue of whether maximum sentence for aggravated assault conviction imposed upon revocation of probation for
technical parole/probation violations was manifestly excessive presented a challenge to discretionary aspects of
sentence rather than its legality and, thus, was not an appeal of right; rather, to effect an appeal, defendant was
required to demonstrate that there was a substantial question that the sentence was inappropriate. Com. v. Sierra, 752
1072
With respect to challenge to discretionary aspects of sentence, the determination of whether there was a substantial
question that sentence was inappropriate is made on a case-by-case basis, and Superior Court will grant appeal only
when appellant advances colorable argument that sentencing judge's actions were either: (1) inconsistent with specific
provision of Sentencing Code, or (2) contrary to fundamental norms which underlie sentencing process. Com. v. Sierra,
1072
A party appealing the discretionary aspects of a criminal sentence is required only to make a plausible argument, in his
statement of the reasons relied upon for allowance of appeal, as to the manner in which the sentence violates either a
particular provision of the sentencing scheme set forth in the sentencing code or a particular fundamental norm
underlying the sentencing process. Com. v. Goggins, 748 A.2d 721, Super.2000, appeal denied 759 A.2d 920, 563 Pa.
672. Criminal Law
1072
Defendant's statement of the reasons relied upon for allowance of appeal, in appeals involving the discretionary aspects
of a criminal sentence, must specify where the sentence falls in relation to the sentencing guidelines and what particular
provision of the code the sentence violates, and must specify what fundamental norm the sentence violates and the
manner in which it violates that norm. Com. v. Goggins, 748 A.2d 721, Super.2000, appeal denied 759 A.2d 920, 563
1072
When discretionary aspects of judgment of sentence are questioned, appeal is not guaranteed as of right; rather,
appellant must set forth in his brief a concise statement of reasons relied upon for allowance of appeal, and appeal will
only be granted when a substantial question has been presented. Com. v. Zugay, 745 A.2d 639, Super.2000, appeal
denied 795 A.2d 976, 568 Pa. 662. Criminal Law
1072
From statement of reasons relied upon for allowance of appeal of discretionary aspect of sentence, Superior Court
decides whether to review the discretionary portions of a sentence based upon a determination that a substantial
question concerning the sentence exists. Com. v. Shaw, 744 A.2d 739, 560 Pa. 296, Sup.2000. Criminal Law
1147
The right to appeal a discretionary aspect of sentence is not absolute; rather, a party who desires to raise such matters
must petition the Superior Court for permission to appeal and demonstrate that there is a substantial question that the
sentence is inappropriate. Com. v. Brown, 741 A.2d 726, Super.1999, revised, appeal denied 790 A.2d 1013, 567 Pa.
755. Criminal Law
1072
Claim that sentence was unreasonable and that trial court failed to provide sufficient explanation of record to justify
imposing sentence outside ranges of sentencing guidelines goes to discretionary aspects of sentence, from which appeal
may be allowed only upon showing of substantial question. Com. v. Davis, 737 A.2d 792, Super.1999. Criminal Law
1072
From appellant's statement of reasons relied upon for allowance of appeal, Superior Court decides whether to review
discretionary portions of sentence based upon determination that substantial question concerning sentence exists. In re
M.W., 725 A.2d 729, 555 Pa. 505, Sup.1999. Criminal Law
1134(3)
Unlike challenge to legality of sentence, there is no absolute right to direct appellate review of discretionary sentencing
claim; rather, party who desires to raise such matters must petition Superior Court for permission to appeal and
demonstrate that there is substantial question that sentence is inappropriate. Com. v. Greene, 702 A.2d 547,
Super.1997, reargument denied. Criminal Law
1071; Criminal Law
1072
Superior court will be inclined to allow appeal of discretionary aspects of sentence where appellant advances colorable
argument that trial judge's actions were inconsistent with specific provision of Sentencing Code, or contrary to
fundamental norms underlying sentencing process. Com. v. Wright, 702 A.2d 362, Super.1997, appeal denied 727 A.2d
1120, 556 Pa. 691. Criminal Law
1072
Imposition of total confinement following revocation of probation without verdict, as opposed to permitting defendant to
continue on probation without verdict, was discretionary, and therefore defendant could not appeal that aspect of
sentencing as of right; rather, Superior Court was required to determine whether defendant had raised a substantial
question that sentence imposed upon him was not appropriate under Sentencing Guidelines as a whole. Com. v.
Cappellini, 690 A.2d 1220, 456 Pa.Super. 498, Super.1997. Criminal Law
1072
Where defendant was challenging discretionary aspect of sentencing--proper consideration of mitigating factors--there
was no right to appeal to Superior Court, and appeal had to be considered as petition for permission to appeal. Com. v.
Yanoff, 690 A.2d 260, 456 Pa.Super. 222, Super.1997, appeal denied 699 A.2d 735, 548 Pa. 681. Criminal Law
1071
There are four prerequisites to proper preservation of issue regarding discretionary aspects of sentencing: issue must be
specifically preserved in timely motion to modify sentence; timely notice of appeal must be filed; issue must be set forth
in issues to be raised on appeal in statement of questions presented; and issue must be included within concise
statement of reasons for allowance of appeal which demonstrates substantial question that the sentence imposed was
not appropriate under the sentencing code. Com. v. Yanoff, 690 A.2d 260, 456 Pa.Super. 222, Super.1997, appeal
1044.1(1); Criminal Law
1072; Criminal Law
1081(4.1)
When defendant challenges discretionary aspects of his sentence, not legality of sentence, threshold inquiry is whether
he has raised substantial question whether his sentence is appropriate under Sentencing Code; failure to raise
substantial question bars appellate review of sentence. Com. v. Maneval, 688 A.2d 1198, 455 Pa.Super. 483,
1072
Superior Court will review challenge to discretionary aspects of sentence if colorable argument is made that the actions
of sentencing court were either inconsistent with specific provision of the Sentencing Code or contrary to fundamental
norms which underlie sentencing process. Com. v. Maneval, 688 A.2d 1198, 455 Pa.Super. 483, Super.1997. Criminal
Law
1147
Appellant who challenged discretionary aspects of his sentencing, rather than legality of sentence imposed, was not
entitled to appeal of sentence as of right, but, rather could seek allowance of appeal at discretion of superior court,
dependent on two conditions: setting forth of concise statement in brief of reasons relied upon for allowance of appeal,
and demonstration of substantial question that sentence imposed was not appropriate under sentencing statute. Com.
v. Hermanson, 674 A.2d 281, 449 Pa.Super. 443, Super.1996. Criminal Law
1072
Superior court's standard of review when appellant challenges discretionary aspects of his sentencing is very narrow; it
will reverse only where appellant can demonstrate manifest abuse of discretion by sentencing judge. Com. v.
Hermanson, 674 A.2d 281, 449 Pa.Super. 443, Super.1996. Criminal Law
1147
Challenge to discretionary aspects of sentence, including alleged harshness and excessiveness of sentence and
imposition of disparate sentences on codefendants, is not guaranteed as of right; before appellate court may reach
merits of such challenge, appellant must demonstrate that there is substantial question that sentence imposed is
inappropriate under sentencing guidelines. Com. v. Rodriquez, 673 A.2d 962, 449 Pa.Super. 319, Super.1996, appeal
1147
Supreme Court may not review discretionary aspects of sentence, but Court may review whether Superior Court
correctly interpreted and applied holding in prior case when it vacated sentence representing departure from state
sentencing guidelines. Com. v. Smith, 673 A.2d 893, 543 Pa. 566, Sup.1996. Criminal Law
1023(11)
Superior Court will generally review discretionary aspects of sentencing when colorable argument is made that actions
of sentencing court were either inconsistent with specific portion of Sentencing Code or contrary to fundamental norms
which underlying sentencing process. Com. v. Cruz-Centeno, 668 A.2d 536, 447 Pa.Super. 98, Super.1995, appeal
denied 676 A.2d 1195, 544 Pa. 653, habeas corpus denied 1997 WL 16626, affirmed 142 F.3d 427. Criminal Law
1147
Defendant's challenge that his sentence was excessive addressed discretionary aspects of sentence, from which appeal
could be taken only with permission. Com. v. Hoag, 665 A.2d 1212, 445 Pa.Super. 455, Super.1995. Criminal Law
1072
Right to appeal discretionary aspects of sentence is not absolute; such appeal is considered to be petition for permission
to appeal. Com. v. Hoag, 665 A.2d 1212, 445 Pa.Super. 455, Super.1995. Criminal Law
1072
Defendant's challenge that consecutive sentence of three-to-six years' imprisonment for unlawful delivery of .25 grams
of cocaine was too severe, and that sentencing court failed to properly consider that sentences imposed for unlawful
delivery of 6.12 grams and 12.8 grams of cocaine were one-to-three years and six-to-three years, was not
extraordinary circumstance meriting appellate review. Com. v. Hoag, 665 A.2d 1212, 445 Pa.Super. 455, Super.1995.
Criminal Law
1072
Appeal which challenges discretionary aspects of sentencing will be granted only if defendant raises substantial question
as to the appropriateness of his or her sentence. Com. v. Byrd, 657 A.2d 961, 441 Pa.Super. 351, Super.1995. Criminal
Law
1072
Review of discretionary aspects of sentence is not matter of right, but will only be entertained where superior court is
convinced that substantial question exists that sentence imposed is not appropriate under sentence code. Com. v. Wells,
657 A.2d 507, 441 Pa.Super. 272, Super.1995, reargument denied, appeal denied 668 A.2d 1131, 542 Pa. 668.
Criminal Law
1072
Review of discretionary aspects of sentencing is not available as of right, and appellate court may only reach merits of
such appeal where it appears that there is substantial question that sentence imposed is not appropriate under
sentencing code; although what constitutes substantial question must be evaluated on case-by-case basis, appellate
court will be inclined to allow appeal where defendant advances colorable argument that trial judge's actions were
inconsistent with specific provision of code or contrary to fundamental norms that underlie sentencing process. Com. v.
Urrutia, 653 A.2d 706, 439 Pa.Super. 227, Super.1995, appeal denied 661 A.2d 873, 541 Pa. 625. Criminal Law
1072; Criminal Law
1147
Where there are specific penalties outlined in plea agreement, appeal from discretionary sentence will not stand;
however, where there have been no sentencing restrictions in plea agreement, entry of guilty plea will not preclude
challenge to discretionary aspects of sentencing. Com. v. Dalberto, 648 A.2d 16, 436 Pa.Super. 391, Super.1994,
appeal denied 655 A.2d 983, 540 Pa. 594, certiorari denied 116 S.Ct. 75, 516 U.S. 818, 133 L.Ed.2d 34, rehearing
denied 116 S.Ct. 550, 516 U.S. 1002, 133 L.Ed.2d 452. Criminal Law
1026.10(4)
Plea agreement that recommends that consecutive sentences be imposed, standing alone, will not prevent subsequent
challenge to discretionary aspects of sentence; however, appeal is allowed only as to those discretionary aspects of
sentence that have not been agreed upon during negotiation process. Com. v. Dalberto, 648 A.2d 16, 436 Pa.Super.
391, Super.1994, appeal denied 655 A.2d 983, 540 Pa. 594, certiorari denied 116 S.Ct. 75, 516 U.S. 818, 133 L.Ed.2d
34, rehearing denied 116 S.Ct. 550, 516 U.S. 1002, 133 L.Ed.2d 452. Criminal Law
1026.10(4)
Defendant who entered guilty plea under plea bargain contemplating that consecutive sentences would be imposed on
no more than two of eight counts was not precluded by such plea from appealing discretionary aspects of sentence,
e.g., length of sentence; plea was negotiated only as to consecutive-concurrent nature of sentences, but was open as to
duration, and justice required that such hybrid plea agreement be treated as open so as to permit appeal of
discretionary aspects. Com. v. Dalberto, 648 A.2d 16, 436 Pa.Super. 391, Super.1994, appeal denied 655 A.2d 983,
540 Pa. 594, certiorari denied 116 S.Ct. 75, 516 U.S. 818, 133 L.Ed.2d 34, rehearing denied 116 S.Ct. 550, 516 U.S.
1002, 133 L.Ed.2d 452. Criminal Law
1026.10(4)
Appeal is not guaranteed as of right to challenge discretionary aspects of judgment of sentence, in light of statutory
requirements that defendant set forth concise statement of reasons relied upon for allowance of appeal, and that appeal
be granted only if there is substantial question of whether sentence imposed is appropriate under applicable statutes.
Com. v. Koren, 646 A.2d 1205, 435 Pa.Super. 499, Super.1994. Criminal Law
1072; Criminal Law
1147
Discretionary aspects of judgment of sentence will be reversed only if defendant can demonstrate manifest abuse of
discretion on part of sentencing judge. Com. v. Koren, 646 A.2d 1205, 435 Pa.Super. 499, Super.1994. Criminal Law
1147
For purposes of review, claim that sentencing court was in possession of factual information, but failed to properly apply
it, goes to discretionary aspects of sentence imposed. Com. v. Montalvo, 641 A.2d 1176, 434 Pa.Super. 14, Super.1994.
Criminal Law
1147
Challenge to discretionary aspects of sentencing requires, as initial matter, that defendant set forth in brief separate
concise statement of the reasons relied on for allowance of appeal and that defendant raise substantial question as to
appropriateness of sentence, which would permit Superior Court to accept appeal as to that issue, and to establish
substantial question, defendant generally must show actions by sentencing court inconsistent with sentencing code or
contrary to fundamental norms underlying the sentencing process. Com. v. Gaddis, 639 A.2d 462, 432 Pa.Super. 523,
1071
Defendants were not entitled to consideration on merits of whether sentences were improper and should have fallen
within mitigated range where defendants did not provide concise statement of reasons relied on for allowance of appeal.
Com. v. Birdseye, 637 A.2d 1036, 432 Pa.Super. 167, Super.1994, appeal granted 649 A.2d 667, 538 Pa. 664, affirmed
670 A.2d 1124, 543 Pa. 251, certiorari denied 116 S.Ct. 2552, 518 U.S. 1019, 135 L.Ed.2d 1071. Criminal Law
1072
Supreme Court lacks jurisdiction to address discretionary aspects of sentence. Com. v. Rosario, 635 A.2d 109, 535 Pa.
282, Sup.1993. Criminal Law
1147
Where issue on appeal was sufficiency of evidence presented at sentence to justify amount of award and ability of
defendant to pay, discretionary aspects of sentencing were not implicated, and requirements dealing with discretionary
aspects of appeals from sentencing were not applicable. Com. v. Gardner, 632 A.2d 556, 429 Pa.Super. 261,
1072; Criminal Law
1147
In order to obtain permission to appeal from discretionary aspects of sentence, defendant must advance colorable
argument that trial judge's actions were inconsistent with specific provision of Sentencing Code, or were contrary to
fundamental norms which underlie sentencing process. Com. v. McKiel, 629 A.2d 1012, 427 Pa.Super. 561, Super.1993.
Criminal Law
1072
It is only when party can articulate reasons why particular sentence raises doubts that sentencing scheme as a whole
has been compromised that appellate court should review manner in which trial court exercised its discretion in
sentencing. Com. v. Hlatky, 626 A.2d 575, 426 Pa.Super. 66, Super.1993, appeal denied 644 A.2d 1200, 537 Pa. 663.
Criminal Law
1072
Superior Court will be inclined to allow appeal from discretionary aspects of sentence where defendant advances
colorable argument that trial judge's actions were inconsistent with specific provision of sentencing code or contrary to
fundamental norms which underlie sentencing process. Com. v. Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992,
1072
Superior Court will be inclined to allow appeal based on discretionary aspects of sentence where defendant advances
colorable argument that trial judge's actions were inconsistent with specific provision of Sentencing Code, or contrary to
fundamental norms which underlie the sentencing process. Com. v. Hobson, 604 A.2d 717, 413 Pa.Super. 29,
1072
As defendant was challenging discretionary aspects of sentencing when he claimed that his sentence was excessive,
there was no right to appeal to the Superior Court and defendant's appeal had to be considered as petition for
permission to appeal. Com. v. Kopp, 591 A.2d 1122, 405 Pa.Super. 110, Super.1991. Criminal Law
1026; Criminal
Law
1072
While appearance of substantial question under this section permitting appeal from discretionary aspects of sentence
determines whether appeal may be granted, sound discretion of Commonwealth Court determines whether it will be
granted. Cullenen v. Com., 588 A.2d 988, 138 Pa.Cmwlth. 508, Cmwlth.1991. Criminal Law
1072
Appellate court has discretion whether to grant allowance of appeal where it appears that there is substantial question
that sentence is not appropriate under Sentencing Code. Cullenen v. Com., 588 A.2d 988, 138 Pa.Cmwlth. 508,
Cmwlth.1991. Criminal Law
1072
Discretionary aspects of sentence are normally left undisturbed on appeal unless trial court manifestly abuses its
discretion; "abuse of discretion" consists of overlooking pertinent facts, disregarding force of evidence, committing error
of law, or imposing sentence which exceeds statutory maximum. Com. v. McFarlin, 587 A.2d 732, 402 Pa.Super. 502,
Super.1991, affirmed 607 A.2d 730, 530 Pa. 167. Criminal Law
1147
This section which requires defendant who appeals discretionary aspects of sentence to indicate how trial court possibly
abused its discretion before appellate court will consider merits of contentions was reasonable regulation of defendant's
constitutional right to appeal sentence. Com. v. McFarlin, 587 A.2d 732, 402 Pa.Super. 502, Super.1991, affirmed 607
A.2d 730, 530 Pa. 167. Criminal Law
1072
This section which prevented appellate review of discretionary aspects of defendant's sentence for multiple convictions
of theft by deception and conspiracy because defendant failed to present substantial question as to appropriateness of
sentence imposed did not violate defendant's right to appeal since statute was reasonable regulation of exercise of
defendant's right to appeal. Com. v. McFarlin, 587 A.2d 732, 402 Pa.Super. 502, Super.1991, affirmed 607 A.2d 730,
1072
Issue of whether sentence imposed on defendant was too harsh under circumstances could not be considered on appeal,
where defendant's challenge to discretionary aspect of sentence had not been made in compliance with pertinent
procedural requirements, and Commonwealth objected to manner in which defendant's claim was raised. Com. v.
Rochon, 581 A.2d 239, 398 Pa.Super. 494, Super.1990. Criminal Law
1178
Issue of whether sentence imposed on defendant was too harsh under circumstances could not be considered on appeal,
where defendant's challenge to discretionary aspect of sentence had not been made in compliance with pertinent
procedural requirements, and Commonwealth objected to manner in which defendant's claim was raised. Com. v.
Rochon, 581 A.2d 239, 398 Pa.Super. 494, Super.1990. Criminal Law
1178
Averments challenging discretionary aspects of sentence advanced at least colorable argument that fundamental norms
underlying sentencing process were compromised, permitting review of merits of defendant's claim with respect to
sentence of two and one-half to five years for conviction of one count of corruption of minors. Com. v. Clever, 576 A.2d
1147
A right to appeal from the discretionary aspect of sentencing is not absolute. Com. v. Ennis, 574 A.2d 1116, 394
1147
Allowance of appeal of discretionary aspect of sentence would not be granted, as record did not support allegation that
trial court had determined sentence in indecent assault and burglary case without properly considering mental
retardation and learning disabilities of defendant; trial court expressed sympathy for defendant and his "terrible
upbringing" but stated incarceration was necessary to protect young girls from attack while they were sleeping in their
bedrooms, and trial court had determined that no other alternatives were available or appropriate. Com. v. Vosburg,
574 A.2d 679, 393 Pa.Super. 416, Super.1990, appeal denied 602 A.2d 859, 529 Pa. 648. Criminal Law
1072
6. ---- Statement of questions and brief, discretionary sentencing aspects
Appeal from discretionary aspect of sentence is allowed only if appellant includes in his brief, immediately preceding
argument in support of challenge, separate concise statement of reasons for allowance of appeal. Com. v. Dotzman, 588
A.2d 1312, 403 Pa.Super. 325, Super.1991; Com. v. Zelinski, 573 A.2d 569, 392 Pa.Super. 489, Super.1990, appeal
denied 593 A.2d 419, 527 Pa. 646.
Defendant satisfied requirements for a challenge to the discretionary aspects of a sentence, so as to permit Superior
Court to review the merits of defendant's sentencing claim following his conviction for making terroristic threats, where
defendant included concise statement in his brief that the trial court failed to sufficiently state its reasons for the
sentence imposed, and that the it relied on impermissible factors, by considering factors already included in the
sentencing guidelines. Com. v. Simpson, 829 A.2d 334, Super.2003. Criminal Law
1072
There is no absolute right to appeal discretionary aspects of sentence; defendant must demonstrate in brief that
substantial question exists concerning discretionary aspects of sentence, and substantial question exists where
statement in brief sets forth plausible argument that sentence violates particular provision of sentencing code or is
contrary to fundamental norms underlying sentencing scheme. Com. v. McNabb, 819 A.2d 54, Super.2003. Criminal
Law
1072
There is no absolute right to challenge the discretionary aspects of a sentence; there is, however, a right to seek
appellate review of the discretionary aspects of a sentence by including in the appellate brief a concise statement of the
reasons relied upon for allowance of appeal. Com. v. Johnson, 889 A.2d 620, Super.2005. Criminal Law
1023(11)
Defendant's appellate brief made evident a substantial question that sentence imposed for robbery and other offenses
was not appropriate under Sentencing Code, and thus appellate court would review discretionary aspects of sentence
despite defendant's failure to provide statement of reasons relied on in support of granting allowance of appeal with
respect to the discretionary aspects of a sentence; the Commonwealth did not object to omission of statement, and
defendant essentially contended in his brief that reasons for sentence offered by trial court did not justify sentence,
which was upward deviation from sentencing guidelines. Com. v. Robertson, 874 A.2d 1200, Super.2005. Criminal Law
1072
When challenging the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by
including in his appellate brief separate concise statement demonstrating that there is a substantial question as to the
appropriateness of the sentence under the Sentencing Code. Com. v. McNear, 852 A.2d 401, Super.2004. Criminal Law
1072
Pursuant to rule requiring appellant challenging the discretionary aspects of a sentence to set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, the
statement must specify where sentence falls in relation to the sentencing guidelines and what particular provision of
Sentencing Code is violated, and the statement must specify what fundamental norm the sentence violates and the
manner in which it violates the norm. Com. v. Reynolds, 835 A.2d 720, Super.2003. Criminal Law
1072
The right to appeal the discretionary aspects of a sentence is not absolute, but rather is granted only where defendant
demonstrates that whether his sentence was inappropriate presents a substantial question, and in fulfilling this
requirement, includes in his brief a concise statement of the reasons relied on in support of the petition for allowance of
appeal. Com. v. Druce, 796 A.2d 321, Super.2002, reargument denied, appeal granted in part 809 A.2d 243, 570 Pa.
241, affirmed 848 A.2d 104, 577 Pa. 581.
Defendant who appeals the discretionary aspects of sentence must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal and must articulate a substantial question as to the propriety of his
sentence. Com. v. Burton, 770 A.2d 771, Super.2001, appeal denied 868 A.2d 1197, 582 Pa. 669.
Before a challenge to the judgment of sentence will be heard on the merits, an appellant must demonstrate there is a
substantial question that the sentence imposed is inappropriate under the sentencing guidelines; appellant must set
forth in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence. Com. v. Harclerode, 768 A.2d 1132, Super.2001, appeal denied 786 A.2d 985, 567 Pa. 721.
Criminal Law
1072; Criminal Law
1134(3)
Issue of whether New York offense of driving while ability impaired (DWAI) was an equivalent offense to Pennsylvania
offense of driving while under influence of alcohol (DUI), for purposes of determining defendant's mandatory minimum
sentence as a repeat offender, implicated the legality of defendant's sentence, and not its discretionary aspects, and
thus, defendant was not required to include in his brief a separate statement of reasons relied upon for allowance of
appeal. Com. v. Shaw, 744 A.2d 739, 560 Pa. 296, Sup.2000. Criminal Law
1130(.5); Criminal Law
1072
Failure to set forth in a brief a concise statement of reasons relied upon for allowance of appeal with respect to
discretionary aspects of sentence is not fatal to claim if presence or absence of substantial question that sentence is
inappropriate under sentencing guidelines can easily be determined from the brief. Com. v. Davis, 734 A.2d 879,
1072
Juvenile challenging legality of order requiring him to pay restitution following his adjudication as delinquent upon
admission of acts constituting offense of criminal trespass was not required to include statement of reasons relied upon
for allowance of appeal in his Superior Court brief, as his appeal did not challenge juvenile court's exercise of discretion,
but rather its statutory authority to order restitution. In re M.W., 725 A.2d 729, 555 Pa. 505, Sup.1999. Infants
241
Defendant waived challenge to application of offense gravity score as it implicated discretionary aspects of sentencing,
by failing to comply with rule requiring statement of reasons relied on in appellate brief. Com. v. Archer, 722 A.2d 203,
1130(5)
Although Supreme Court is permitted to overlook party's failure to provide prefatory statement on appeal from
discretionary aspects of sentence when Commonwealth fails to object to that omission, it should only do so in situations
where substantial question presented on appeal is evident from appellant's brief. Com. v. Saranchak, 675 A.2d 268, 544
Pa. 158, Sup.1996, certiorari denied 117 S.Ct. 695, 519 U.S. 1061, 136 L.Ed.2d 617, denial of post-conviction relief
vacated 739 A.2d 162, 559 Pa. 111, dismissal of post-conviction relief affirmed 866 A.2d 292, 581 Pa. 490. Criminal
Law
1072
Superior court would review appellant's arguments regarding discretionary aspects of sentencing, even though he failed
to include concise statement of reasons for allowance of his appeal in his brief, where Commonwealth failed to object to
the defect. Com. v. Hermanson, 674 A.2d 281, 449 Pa.Super. 443, Super.1996. Criminal Law
1178
In order to demonstrate that there is substantial question that sentence imposed is inappropriate under sentencing
guidelines, appellant challenging discretionary aspects of sentence must set forth in his brief on appeal concise
statement of reasons relied upon for allowance of appeal with respect to discretionary aspects of sentence. Com. v.
Rodriquez, 673 A.2d 962, 449 Pa.Super. 319, Super.1996, appeal denied 692 A.2d 565, 547 Pa. 754. Criminal Law
1072
Before superior court could review merits of defendants' challenges to discretionary aspects of their sentence,
defendants had to include in their brief a concise statement of reasons relied upon for allowance of appeal, and had to
indicate that substantial question existed as to whether sentence imposed was appropriate under Sentencing Code.
Com. v. Cottam, 616 A.2d 988, 420 Pa.Super. 311, Super.1992, appeal denied 636 A.2d 632, 535 Pa. 673. Criminal
Law
1072
Issue of whether drug trafficking sentencing statute prevented trial court from sentencing defendant to program for
female offenders rather than prison was not discretionary sentencing question, but question of law, so that defendant
was not required to include in her appellate brief statement of reasons relied upon for allowance of her appeal as
required by rule concerning appeal of discretionary aspects of sentence. Com. v. Acie, 614 A.2d 308, 418 Pa.Super.
351, Super.1992, appeal denied 625 A.2d 1190, 533 Pa. 655. Criminal Law
1072
Defendant waived claim that trial court erroneously included deadly weapon enhancement in sentence for recklessly
endangering another person, where defendant failed to file petition for allowance of appeal of discretionary aspects of
sentence and did not set forth in brief concise statement of reasons for allowance of appeal with respect to discretionary
aspects of sentence. Com. v. Batterson, 601 A.2d 335, 411 Pa.Super. 252, Super.1992. Criminal Law
1072
Deadly weapon enhancement in sentence for recklessly endangering another person was part of "discretionary aspects
of a sentence" within meaning of statute governing appeal of discretionary aspects of sentence and rule requiring
appellate brief to set forth concise statement of reasons for allowance of appeal with respect to discretionary aspects of
sentence. Com. v. Batterson, 601 A.2d 335, 411 Pa.Super. 252, Super.1992. Criminal Law
1072; Criminal Law
1147
Superior Court could not consider defendant's challenge of discretionary aspects of sentencing where defendant failed to
include in his brief concise statement setting out substantial question as to appropriateness of sentence under
sentencing code, and Commonwealth raised objection to that failure. Com. v. English, 597 A.2d 122, 408 Pa.Super.
457, Super.1991, appeal denied 602 A.2d 856, 529 Pa. 645. Criminal Law
1130(2)
Three distinct steps must be taken to properly raise challenge to discretionary aspects of sentence: there must be
timely notice of appeal; challenge must be set forth in statement of questions presented; and appellant must include in
brief separate, concise statement of reasons for allowance of appeal. Cullenen v. Com., 588 A.2d 988, 138 Pa.Cmwlth.
508, Cmwlth.1991. Criminal Law
1130(5)
Superior Court would exercise its discretion and quash portion of appeal from discretionary aspects of sentence
concerning allegations not contained in defendant's statement of questions involved. Com. v. Chilcote, 578 A.2d 429,
396 Pa.Super. 106, Super.1990, appeal denied 590 A.2d 756, 527 Pa. 615, reconsideration granted, appeal dismissed
as improvidently granted 625 A.2d 614, 533 Pa. 357. Criminal Law
1131(4)
Defect in defendant's appellate brief challenging discretionary aspect of sentence was waived due to Commonwealth's
failure to object to omission of statement of reasons relied upon for allowance of appeal. Com. v. Zelinski, 573 A.2d
569, 392 Pa.Super. 489, Super.1990, appeal denied 593 A.2d 419, 527 Pa. 646. Criminal Law
1130(1)
When challenging discretionary aspects of sentencing, courts require: (1) timely notice of appeal; (2) setting forth of
challenge in statement of questions presented; and (3) concise statement of reasons for allowance of appeal under this
section. Com. v. Thomas, 563 A.2d 1249, 387 Pa.Super. 191, Super.1989. Criminal Law
1068.5
Defendant's failure to include in his brief separate, concise statement of reasons for allowance of appeal on discretionary
aspects of sentence was not fatal to consideration of whether substantial question for review was presented where
Commonwealth did not object to procedural defect. Com. v. Hall, 554 A.2d 919, 382 Pa.Super. 6, Super.1989, appeal
denied 575 A.2d 109, 525 Pa. 577, certiorari denied 111 S.Ct. 1012, 498 U.S. 1107, 112 L.Ed.2d 1095. Criminal Law
1130(5)
In order to challenge discretionary aspects of criminal sentence, appealing defendant must submit brief containing
concise statement of reasons relied on for appeal. Com. v. Stalnaker, 545 A.2d 886, 376 Pa.Super. 181, Super.1988.
Criminal Law
1130(5)
Where record reveals that appellant's assertions are unfounded, or where material omissions have been made with
regard to basis for sentence, Superior Court may deny allowance of appeal on discretionary aspect of sentence. Com. v.
Felix, 539 A.2d 371, 372 Pa.Super. 145, Super.1988, appeal denied 581 A.2d 568, 525 Pa. 642. Criminal Law
1072
Defect in defendant's brief, which omitted statement of reasons relied on for allowance of appeal with respect to
discretionary aspects of sentence, did not require dismissal of appeal, where Commonwealth's brief was silent as to
defect. Com. v. Thomas, 537 A.2d 9, 370 Pa.Super. 544, Super.1988. Criminal Law
1130(5)
When appealing discretionary aspects of sentence, defendant must invoke appellate court's jurisdiction by including in
his brief separate concise statement demonstrating that there was substantial question as to appropriateness of
sentence under sentencing code; only after having fulfilled these requirements will Superior Court review merits of case.
Com. v. Cummings, 534 A.2d 114, 368 Pa.Super. 341, Super.1987. Criminal Law
1072
7. Substantial question of appropriateness--In general
Defendant raised substantial question concerning discretionary aspects of sentence, warranting appellate review, where
defendant alleged that sentencing court did not sufficiently state its reasons for sentence and that sentence was
excessive due to court's reliance on impermissible factors. Com. v. McNabb, 819 A.2d 54, Super.2003. Criminal Law
1072
Defendant, who appealed sentence of concurrent terms of two to 15 years for convictions of two counts of delivery of
controlled substance, raised substantial question, and thus, appellate court would hear appeal challenging discretionary
aspects of sentencing; defendant's issue was that judge had announced blanket policy that imposition of maximum
sentences on drug delivery cases would serve as deterrent to those who dealt drugs, and colorable claim of blanket
sentencing policy raised substantial question whether sentence violated Sentencing Code, which required sentences
tailored to each case. Com. v. Mola, 838 A.2d 791, Super.2003. Criminal Law
1072
It is only where an aggrieved party can articulate clear reasons why sentence imposed by a trial court compromises
sentencing scheme as a whole that an appellate court will find a substantial question and review the decision of the trial
court. Com. v. Celestin, 825 A.2d 670, Super.2003, reargument denied, appeal denied 844 A.2d 551, 577 Pa. 686.
Criminal Law
1072
Superior Court only reviews the discretionary aspects of a sentence if appellant raises a substantial question that her
sentence is inappropriate under the Sentencing Code. Com. v. Parlante, 823 A.2d 927, Super.2003. Criminal Law
1023(11)
Two requirements must be met before a challenge to the judgment of sentence will be heard on the merits: (1)
defendant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect
to the discretionary aspects of his sentence, and (2) defendant must show that there is a substantial question that the
sentence imposed is not appropriate under the sentencing code. Com. v. Titus, 816 A.2d 251, Super.2003. Criminal Law
1072
For purposes of allowing a defendant's challenge to judgment of sentence, determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case basis. Com. v. Titus, 816 A.2d 251, Super.2003.
Criminal Law
1072
Superior Court's dismissal of defendant's claim based on defendant's failure to raise a substantial question as to
appropriateness of sentence, under statute governing sentencing appeals, did not constitute appellate review on the
merits. Com. v. Mouzon, 812 A.2d 617, 571 Pa. 419, Sup.2002, on remand 828 A.2d 1126. Criminal Law
1072
The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence
must be evaluated on a case-by-case basis for purposes of statute providing that defendant or the Commonwealth may
file a petition for allowance of appeal of the discretionary aspects of sentence and allowance of appeal may be granted
at the discretion of the appellate court where it appears that there is a substantial question that sentence imposed is not
appropriate. Com. v. Cunningham, 805 A.2d 566, 125 A.L.R.5th 719, Super.2002, appeal denied 820 A.2d 703, 573 Pa.
663. Criminal Law
1072
In order to raise a substantial question that sentence imposed is not appropriate and warrants allowance of appellate
review, appellant must advance a colorable argument that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the
sentencing process. Com. v. Cunningham, 805 A.2d 566, 125 A.L.R.5th 719, Super.2002, appeal denied 820 A.2d 703,
1072
A substantial question will be found, thus rendering a defendant's challenge to a sentence imposed an appropriate
subject for appellate review, where the defendant advances a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the code or is contrary to the fundamental norms which underlie the sentencing
process. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125
S.Ct. 2984, 162 L.Ed.2d 902. Criminal Law
1072
Unlike challenge to legality of sentence, right to appeal discretionary aspect of sentence is not absolute; rather, party
who desires to raise such matters must petition Superior Court for permission to appeal and demonstrate that there is
substantial question that sentence is inappropriate. Com. v. Kenner, 784 A.2d 808, Super.2001, appeal denied 796 A.2d
1071; Criminal Law
1072
Determination of whether particular issue constitutes substantial question as to appropriateness of sentence, for
purpose of determining whether discretionary aspect of sentence may be appealed, must be evaluated on case-by-case
basis. Com. v. Kenner, 784 A.2d 808, Super.2001, appeal denied 796 A.2d 979, 568 Pa. 695. Criminal Law
1072
For the purpose of challenging the discretionary aspects of sentencing, a "substantial question" will be found where the
defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of
the code or is contrary to the fundamental norms which underlie the sentencing process. Com. v. Eby, 784 A.2d 204,
1072
A defendant raises a substantial question, as required for appellate review of the discretionary aspects of a sentence,
with a colorable argument that the sentencing judge's actions were either inconsistent with a specific provision of the
sentencing code, or contrary to the fundamental norms which underlie the sentencing process. Com. v. Pennington, 751
A.2d 212, Super.2000, appeal denied 766 A.2d 1246, 564 Pa. 729. Criminal Law
1072
Appellate court will find a "substantial question" and review decision of trial court with respect to discretionary aspect of
sentence only where aggrieved party can articulate clear reasons why sentence compromises the sentencing scheme as
a whole. Com. v. Zugay, 745 A.2d 639, Super.2000, appeal denied 795 A.2d 976, 568 Pa. 662. Criminal Law
1072
An allegation that the sentencing court did not adequately set forth its reasons on the record does present a substantial
question as to the appropriateness of sentence so as to warrant appeal from discretionary aspect of sentence. Com. v.
Brown, 741 A.2d 726, Super.1999, revised, appeal denied 790 A.2d 1013, 567 Pa. 755. Criminal Law
1072
Whether claim constitutes substantial question that sentence imposed is not appropriate under sentencing code, so as
to allow appeal from discretionary aspects of sentencing, must be evaluated on case by case basis. Com. v. Guth, 735
1072
Where sentencing court sentenced defendant above aggravated range outlined in sentencing code for attempted
burglary, substantial question was raised as to whether sentence was appropriate under sentencing code, so as to allow
appeal from discretionary aspects of sentencing, only if sentence was unreasonable. Com. v. Guth, 735 A.2d 709,
1072
Superior Court will be inclined to allow appeal of discretionary aspect of sentence where appellant advances colorable
argument that trial court's sentence is inconsistent with sentencing code or fundamentally contradicts norms which
underlie sentencing process. Com. v. Davis, 734 A.2d 879, Super.1999. Criminal Law
1072
Right to appeal discretionary aspect of sentence is not absolute; rather, party who desires to raise such matters must
petition Superior Court for permission to appeal and demonstrate that there is substantial question that sentence is
inappropriate. Com. v. Martin, 727 A.2d 1136, Super.1999, reargument denied, appeal denied 745 A.2d 1220, 560 Pa.
722. Criminal Law
1072
Superior Court will grant appeal as to discretionary aspect of sentence only when defendant advances colorable
argument that sentencing judge's actions were either: (1) inconsistent with specific provision of Sentencing Code; or (2)
contrary to fundamental norms which underlie sentencing process. Com. v. Martin, 727 A.2d 1136, Super.1999,
reargument denied, appeal denied 745 A.2d 1220, 560 Pa. 722. Criminal Law
1072
Determination of whether particular issue constitutes substantial question regarding appropriateness of sentence
imposed, so as to permit appellate review, must be evaluated on case by case basis; however, appeal will likely be
allowed where appellant advances colorable argument that trial judge's actions were inconsistent with specific provisions
of sentencing code or contrary to fundamental norms which underlie sentencing process. Com. v. Andrews, 720 A.2d
764, Super.1998, reargument denied, appeal granted in part 739 A.2d 1053, 559 Pa. 284, affirmed 768 A.2d 309, 564
1072
Defendant's contention that his receipt of highest sentence possible under standard range constituted abuse of
sentencing court's discretion did not raise "substantial question" as required to qualify for appellate review on merits of
his challenge to judgment of sentence. Com. v. Coss, 695 A.2d 831, Super.1997. Criminal Law
1072
Determination of whether particular issue constitutes substantial question as to appropriateness of sentence, so that
discretionary appeal may be granted, must be evaluated on case-by-case basis. Com. v. Barzyk, 692 A.2d 211,
1072
Reviewing court will grant discretionary appeal based on substantial question as to whether sentence is appropriate
under sentencing code only when defendant shows that trial judge's actions were either (1) inconsistent with specific
provision of sentencing code or (2) contrary to fundamental norms which underlie sentencing process; stated
differently, it is only where aggrieved party can articulate clear reasons why sentence imposed by trial court
compromises sentencing scheme as a whole that substantial question allowing discretionary review will be found. Com.
v. Barzyk, 692 A.2d 211, Super.1997. Criminal Law
1072
Finding that defendant convicted of harassment had engaged in course of conduct which essentially terrorized former
wife, and that no one should have to fear kind of conduct that defendant engaged in, was sufficient to support judge's
determination that lesser sentence would have depreciated crime, so that sentence of total confinement was permissible
under sentencing code, and thus, claim that sentence of 30-day term of imprisonment and $300 fine was excessive did
not present substantial question under sentencing code which would allow discretionary appeal. Com. v. Barzyk, 692
1072; Extortion And Threats
33
Defendant presented substantial challenge to discretionary sentence of 45 days to one year of confinement imposed
upon revocation of probation without verdict, and thus his appeal of sentence would be allowed, where defendant
asserted that trial court abused its discretion by failing to state of record any reason for the sentence imposed or any
reason for not continuing defendant on probation without verdict. Com. v. Cappellini, 690 A.2d 1220, 456 Pa.Super.
1072
Determination of what constitutes a substantial question for purposes of petition for permission to appeal from
discretionary aspects of sentencing must be evaluated on a case-by-case basis; however, Superior Court will be inclined
to allow appeal where defendant advances a colorable argument that sentencing judge's actions were either inconsistent
with a specific provision of the sentencing code or contrary to fundamental norms which underlie sentencing process.
Com. v. Yanoff, 690 A.2d 260, 456 Pa.Super. 222, Super.1997, appeal denied 699 A.2d 735, 548 Pa. 681. Criminal Law
1072
To show that substantial sentencing question exists, and, thus, to invoke appellate review process, defendant must, at a
minimum, explain specifically why he thinks his sentences were improper. Com. v. Saranchak, 675 A.2d 268, 544 Pa.
158, Sup.1996, certiorari denied 117 S.Ct. 695, 519 U.S. 1061, 136 L.Ed.2d 617, denial of post-conviction relief
vacated 739 A.2d 162, 559 Pa. 111, dismissal of post-conviction relief affirmed 866 A.2d 292, 581 Pa. 490. Criminal
Law
1072
Commonwealth must raise a "substantial question" that sentence imposed upon rape defendant was not appropriate
under sentencing code as a whole to invoke Superior Court's jurisdiction over appeal of discretionary aspects of
sentence. Com. v. Widmer, 667 A.2d 215, 446 Pa.Super. 408, Super.1995, reargument denied, appeal granted 680
A.2d 1161, 545 Pa. 652, reversed 689 A.2d 211, 547 Pa. 137. Criminal Law
1147
Defendant's sentence of imprisonment for not less than 12 1/2 years nor more than 30 years and fine of $250,000, for
12 counts of possession with intent to deliver controlled substances, 15 counts of possession of controlled substances,
and four counts of possession of drug paraphernalia fell within statutory limits, and therefore, defendant's challenges to
sentence could not raise substantial question as to whether sentence was appropriate under sentencing code as a
whole, as was necessary to warrant appellate review. Com. v. Nelson, 666 A.2d 714, 446 Pa.Super. 240, Super.1995,
1072; Sentencing And Punishment
643
When review of sentence is not matter of right, it will only be entertained where Superior Court is convinced that
substantial question exists that sentence imposed is not appropriate under sentencing code. Com. v. Hoag, 665 A.2d
1072
Only where it has been determined that substantial question has been presented as to appropriateness of sentence
under sentencing code may appellate court review manner in which lower court exercised its discretion in imposing
sentence. Com. v. Minnich, 662 A.2d 21, 443 Pa.Super. 472, Super.1995. Criminal Law
1147
Defendant challenging discretionary aspect of sentence received must raise substantial question regarding
appropriateness of his sentence, which would permit superior court to accept appeal as to this issue. Com. v. Eck, 654
A.2d 1104, 439 Pa.Super. 530, Super.1995. Criminal Law
1130(5)
Defendant's claim that it was unreasonable for trial court to prohibit him from operating a motor vehicle during his 23-
month probationary period for offense of attempting to lure child into motor vehicle did not present substantial question
for appellate review, particularly in light of trial court's reference in imposing such condition that offense involved use of
automobile and that defendant was under psychiatric care and might not be taking his medication. Com. v. Figueroa,
1072
Defendant's statement of reasons for appeal from discretionary aspects of his sentence, i.e., length of sentence, did not
present substantial question such that trial court's decision was subject to review; defendant presented no arguments
that imposed sentence violated any specific provision of sentencing code and failed to specify any particular deviation
from fundamental norms underlying sentencing process. Com. v. Dalberto, 648 A.2d 16, 436 Pa.Super. 391,
Super.1994, appeal denied 655 A.2d 983, 540 Pa. 594, certiorari denied 116 S.Ct. 75, 516 U.S. 818, 133 L.Ed.2d 34,
rehearing denied 116 S.Ct. 550, 516 U.S. 1002, 133 L.Ed.2d 452. Criminal Law
1072
Reviewing court will find substantial question exists about discretionary aspect of sentence, supporting grant of appeal,
only if defendant can articulate clear reasons why sentence compromises sentencing scheme as whole. Com. v. Koren,
1072
Substantial question exists about discretionary sentence, supporting grant of appeal, if defendant advances colorable
argument that sentencing judge's actions were either inconsistent with specific provision of sentencing statutes, or
contrary to fundamental norms which underlie sentencing process. Com. v. Koren, 646 A.2d 1205, 435 Pa.Super. 499,
1072
Defendant's claim that condition of probation, prohibiting contact with her boyfriend, unduly restricted defendant's
liberty raised substantial question on appropriateness of condition, which thus justified grant of appeal from
discretionary aspect of sentence. Com. v. Koren, 646 A.2d 1205, 435 Pa.Super. 499, Super.1994. Criminal Law
1072
Determination of whether substantial question exists to justify appeal of discretionary sentence must be made on caseby-case basis. Com. v. Koren, 646 A.2d 1205, 435 Pa.Super. 499, Super.1994. Criminal Law
1147
Defendant would be denied permission to appeal from discretionary aspects of sentence where he failed to present
substantial question by merely alleging that trial court "failed to consider" or "did not adequately consider" facts of
record. Com. v. Montalvo, 641 A.2d 1176, 434 Pa.Super. 14, Super.1994. Criminal Law
1072
Defendant failed to present a substantial question regarding appropriateness of his sentence which would allow Superior
Court to review discretionary aspects of sentence, where defendant merely argued that lower court inappropriately
applied correct information when imposing sentence. Com. v. Rivera, 637 A.2d 1015, 432 Pa.Super. 125, Super.1994.
Criminal Law
1147
Defendant failed to raise substantial question that sentence imposed was not appropriate under sentencing code, as was
necessary for allowance of his appeal, where sentences were in compliance with specific provisions of sentencing code,
and he failed to raise colorable claim why particular sentencing scheme imposed was abuse of discretion. Com. v. Jones,
1072
Defendant demonstrated existence of "substantial question" that sentence imposed was inappropriate under Sentencing
Code so that defendant would be allowed to appeal discretionary aspect of sentence; defendant contended that trial
court failed to sufficiently state its reasons for sentence imposed and alleged that trial court relied upon impermissible
reasons in sentencing defendant in aggravated range on his convictions in prosecution for aggravated assault, reckless
endangering another person, and false reports to police. Com. v. Hlatky, 626 A.2d 575, 426 Pa.Super. 66, Super.1993,
1072
Whether "substantial question" exists that sentence imposed is not appropriate and, thus, whether defendant will be
allowed to appeal discretionary aspects of sentence, must be determined on case-by-case basis. Com. v. Hlatky, 626
A.2d 575, 426 Pa.Super. 66, Super.1993, appeal denied 644 A.2d 1200, 537 Pa. 663. Criminal Law
1072
Superior Court will be inclined to find that "substantial question" has been put forth so as to allow defendant to appeal
discretionary aspects of sentencing when defendant advances colorable argument that trial court's actions were
inconsistent with specific provision of Sentencing Code or contrary to fundamental norms which underlie sentencing
process. Com. v. Hlatky, 626 A.2d 575, 426 Pa.Super. 66, Super.1993, appeal denied 644 A.2d 1200, 537 Pa. 663.
Criminal Law
1072
Defendant had not raised substantial question as to whether his sentence for defiant trespass was appropriate under
Sentencing Code, and, therefore, Superior Court would not conduct further review of discretionary aspects of sentence,
where defendant failed to identify any specific provision of Code which was ignored by sentencing court and made no
showing that sentence which he received was contrary to fundamental norms of sentencing process, but rather asserted
that trial court abused its discretion by imposing excessive sentence, by ordering mental health evaluation as condition
of parole, and by requiring defendant to pay court costs and costs of supervision. Com. v. Groft, 623 A.2d 341, 424
1147
Although existence of substantial question as to whether sentence was appropriate must be determined on case-by-case
basis, Superior Court will generally review discretionary aspects of sentencing where colorable argument is made that
actions of sentencing court were either inconsistent with specific provision of Sentencing Code or contrary to
fundamental norms which underlie sentencing process. Com. v. Groft, 623 A.2d 341, 424 Pa.Super. 510, Super.1993.
Criminal Law
1147
Substantial question is raised that sentence imposed was inappropriate under Sentencing Code where there is allegation
that sentencing court did not adequately explain its reasons for sentence. Com. v. Johnson, 618 A.2d 415, 421
Pa.Super. 433, Super.1992, affirmed 646 A.2d 1170, 538 Pa. 148. Sentencing And Punishment
370
Superior court will be inclined to find that defendant has raised substantial question as to appropriateness of sentence
when defendant advances colorable argument that trial judge's actions were inconsistent with specific provision of
Sentencing Code, or contrary to fundamental norms which underlie sentencing process. Com. v. Cottam, 616 A.2d 988,
420 Pa.Super. 311, Super.1992, appeal denied 636 A.2d 632, 535 Pa. 673. Sentencing And Punishment
34; Criminal
Law
1134(3)
Defendant's allegations that his sentence for participating in corrupt organization exceeded extreme end of guidelines'
aggravated range by over 500% and failed to adequately consider defendant's expression of remorse and lack of
criminal history represented substantial challenge to appropriateness of sentence justifying Superior Court's review of
discretionary aspects of sentencing. Com. v. Munson, 615 A.2d 343, 419 Pa.Super. 238, Super.1992. Sentencing And
Punishment
114
Defendant set forth substantial question in stating that sentencing court focused solely on seriousness of offense, and,
thus, issue was reviewable. Com. v. Trimble, 615 A.2d 48, 419 Pa.Super. 108, Super.1992. Criminal Law
1134(3)
Objection that sentencing court did not have adequate reason for imposing sentence and did not state adequate reasons
for so doing raised "substantial question" concerning propriety of sentence, so as to permit appellate review. Com. v.
Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied 629 A.2d 1377, 535 Pa. 615. Criminal Law
1072
Determination as to whether defendant has raised "substantial question" as to appropriateness of sentence, so as to
permit appellate review of discretionary aspects thereof, must be decided on case-by-case basis. Com. v. Jones, 613
A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied 629 A.2d 1377, 535 Pa. 615. Criminal Law
1147
Determination of whether particular issue constitutes a substantial question must be evaluated on a case-by-case basis;
however, superior court will be inclined to allow appeal where defendant advances colorable argument that sentencing
judge's actions were inconsistent with specific sentencing provision or contrary to fundamental norms which underlie
sentencing process. Com. v. Eicher, 605 A.2d 337, 413 Pa.Super. 235, Super.1992, appeal denied 617 A.2d 1272, 533
1072
To obtain appellate review of discretionary aspects of sentence, defendant must present substantial question, which
requires defendant to advance colorable argument that sentence is inconsistent with sentencing code, or that sentence
violates fundamental norm underlying sentencing process. Com. v. Reading, 603 A.2d 197, 412 Pa.Super. 239,
1134(3)
On petition for permission to appeal, Commonwealth failed to present substantial question as to whether sentence
imposed for arson, risking catastrophe, and criminal mischief constituted abuse of discretion; Commonwealth did not
contend that, in determining sentence, sentencing court considered inappropriate factors, nor did Commonwealth
contend that court refused to consider appropriate factors, but rather, merely claimed that sentencing court's conclusion
based on factors considered was inappropriate. Com. v. John, 596 A.2d 834, 408 Pa.Super. 234, Super.1991. Criminal
Law
1071
Defendant's claim that sentencing court focused solely on crime, to exclusion of defendant's history, character, and
condition, advanced colorable claim that court acted in manner contrary to sentencing code and, thus, raised substantial
question that sentence imposed was inappropriate, supporting appeal from discretionary aspects of sentence. Com. v.
Lewis, 595 A.2d 593, 407 Pa.Super. 186, Super.1991, appeal granted 600 A.2d 534, 529 Pa. 618, reversed and vacated
636 A.2d 619, 535 Pa. 501. Sentencing And Punishment
65; Criminal Law
1147
Allowance of appeal of discretionary aspect of sentence may be granted by appellate court only if it appears that there is
substantial question that sentence imposed is inappropriate based on consideration of trial court's opinion and the
record. Com. v. Dotzman, 588 A.2d 1312, 403 Pa.Super. 325, Super.1991. Criminal Law
1072
Commonwealth Court's determination as to whether substantial question is presented is separate and distinct from any
review of merits of petition to appeal from discretionary aspect of sentence. Cullenen v. Com., 588 A.2d 988, 138
Pa.Cmwlth. 508, Cmwlth.1991. Criminal Law
1072
Determination of whether particular issue constitutes substantial question, so as to permit review of discretionary aspect
of sentence, must be evaluated on case-by-case basis. Cullenen v. Com., 588 A.2d 988, 138 Pa.Cmwlth. 508,
1072
Determination of whether particular issue constitutes substantial question regarding appropriateness of sentence must
be evaluated on case-by-case basis, although court will be inclined to allow appeal where appellant advances colorable
argument that trial judge's actions were inconsistent with specific provision of sentencing code or contrary to
fundamental norms which underlie sentencing process. Com. v. Catanch, 581 A.2d 226, 398 Pa.Super. 466,
1072
While determination of whether particular issue constitutes substantial question must be evaluated on case by case
basis, Superior Court will be inclined to allow appeal where appellant advances colorable argument that trial judge's
actions were inconsistent with specific provision of Sentencing Code or contrary to fundamental norms which underlie
sentencing process. Com. v. Minott, 577 A.2d 928, 395 Pa.Super. 552, Super.1990. Criminal Law
1072
Appeal from discretionary aspect of sentence in criminal matter would be allowed where substantial question existed
with respect to appropriateness of sentencing defendant to state facility rather than county facility. Com. v. Stalnaker,
1072
Defendant's claim that trial court failed to place sufficient reasons for new sentence on record presented substantial
question whether sentence was appropriate and permitted Superior Court to grant appeal from discretionary aspect of
sentence. Com. v. Thomas, 537 A.2d 9, 370 Pa.Super. 544, Super.1988. Criminal Law
1072
8. ---- Sentencing factors, substantial question of appropriateness
Trial court's reasons on record did not justify imposition of aggregate sentence of 15 to 30 years in prison for two
counts of possession with intent to deliver (PWID) controlled substance; trial court did not consider required factors of
protection of public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of
defendant, and trial court's description of defendant's conduct as "spreading his cancer" throughout many
neighborhoods and families lacked firm evidentiary support and thus appeared to be less about defendant as individual
and more of commentary on drug dealers in general. Com. v. Cortez, 860 A.2d 1045, Super.2004, appeal denied 885
A.2d 532. Sentencing And Punishment
643
Assertion that sentencing judge, in imposing sentence, relied on factors already included in defendant's prior record
score raises substantial question which falls within scope of appellate review. Com. v. Whitmore, 860 A.2d 1032,
Super.2004, reargument denied, appeal allowed in part 884 A.2d 247. Criminal Law
1023(11)
Defendant's sentence of 13 to 36 months for theft by receiving stolen property was not unduly harsh or excessive,
although defendant had never been treated for his mental health issues and expressed interest to undergo treatment;
trial court considered defendant's mental health and substance abuse issues, and sentence included a recommendation
that defendant undergo a psychological evaluation and receive drug and alcohol treatment. Com. v. Bishop, 831 A.2d
656, Super.2003. Receiving Stolen Goods
10
On appeal of sentence, it is possible for appellant to raise substantial question as to discretionary aspects of his
sentence, even when his sentence falls within statutory limits set for particular offense. Com. v. Anderson, 830 A.2d
1072
In order to establish a substantial question, and thus allow an appellate court to hear defendant's challenge to judgment
of sentence, defendant must show actions by the sentencing court inconsistent with the sentencing code or contrary to
the fundamental norms underlying the sentencing process. Com. v. Titus, 816 A.2d 251, Super.2003. Criminal Law
1072
When imposing sentence, a court is required to consider the particular circumstances of the offense and the character of
the defendant; in particular, the court should refer to defendant's prior criminal record, his age, his personal
characteristics, and his potential for rehabilitation. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d
1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
50; Sentencing
And Punishment
92
Superior Court would consider merits of defendant's appeal from sentence imposed following his open plea of guilty to
aggravated assault, where defendant's claims that sentencing court provided insufficient reasons for sentence imposed
and focused solely on seriousness of offense raised substantial questions. Com. v. Ritchey, 779 A.2d 1183, Super.2001.
Criminal Law
1026.10(4)
Defendant's waiver of preparation of presentence report in connection with his open plea of guilty to aggravated assault
did not relieve sentencing court of its responsibility to ensure that it possessed sufficient information concerning
particular circumstances of the offense and defendant's personal history and background to permit it to impose
appropriate sentence. Com. v. Ritchey, 779 A.2d 1183, Super.2001. Sentencing And Punishment
278
Where a defendant merely asserts that his sentence is inconsistent with the sentencing code or contrary to the
fundamental norms underlying the sentencing scheme without explaining how or why in his statement of the reasons
relied upon for allowance of appeal, the appellate court cannot determine whether he has raised a substantial question,
as to allow review of the discretionary aspects of his sentence. Com. v. Goggins, 748 A.2d 721, Super.2000, appeal
1072
If a defendant's statement of the reasons relied upon for allowance of appeal specifies where the sentence falls in
relation to the sentencing guidelines and what particular provision of the code the sentence violates, as well as what
fundamental norm the sentence violates and the manner in which it violates that norm, the appellate court can decide
whether a substantial question exists, as would allow review of the discretionary aspects of the sentence. Com. v.
Goggins, 748 A.2d 721, Super.2000, appeal denied 759 A.2d 920, 563 Pa. 672. Criminal Law
1072
The nature of the crime underlying the sentence and the specific sentence in months or years imposed for that crime
are not required in a defendant's statement of the reasons relied upon for allowance of appeal because they are
unnecessary to determining the existence of a substantial question, as is required for review of the discretionary aspects
of the sentence. Com. v. Goggins, 748 A.2d 721, Super.2000, appeal denied 759 A.2d 920, 563 Pa. 672. Criminal Law
1072
Allegation that the trial court erred as a matter of law and abused its discretion when it sentenced defendant to state
incarceration without considering the requisite statutory factors or stating adequate reasons for dispensing with a
presentence report raised a substantial question, so as to allow review of the discretionary aspects of sentence for
conviction of possession of cocaine with intent to deliver. Com. v. Goggins, 748 A.2d 721, Super.2000, appeal denied
759 A.2d 920, 563 Pa. 672. Criminal Law
1072
An allegation that a sentencing court failed to consider certain factors does not raise a substantial question as to the
appropriateness of sentence so as to warrant appeal from discretionary aspect of sentence. Com. v. Brown, 741 A.2d
726, Super.1999, revised, appeal denied 790 A.2d 1013, 567 Pa. 755. Criminal Law
1072
Although existence of substantial question as to whether sentence was appropriate must be determined on case-by-case
basis, Superior Court will generally review discretionary aspects of sentencing where colorable argument is made that
actions of sentencing court were either inconsistent with specific provision of Sentencing Code or contrary to
fundamental norms which underlie sentencing process. Com. v. Cappellini, 690 A.2d 1220, 456 Pa.Super. 498,
1072
Appellant raised "substantial question" as to discretionary aspects of sentencing in his statement of reasons for
allowance of appeal, thus warranting superior court's review on merits of his discretionary appeal, where he alleged that
his sentencing was inconsistent with specific provisions of sentencing code. Com. v. Hermanson, 674 A.2d 281, 449
1072
Although existence of substantial question as to whether sentence was appropriate must be determined on a case-bycase basis, Superior Court will generally review discretionary aspects of sentencing where a colorable argument is made
that actions of sentencing court were either inconsistent with a specific provision of the sentencing code or contrary to
fundamental norms which underlie sentencing process. Com. v. Widmer, 667 A.2d 215, 446 Pa.Super. 408, Super.1995,
reargument denied, appeal granted 680 A.2d 1161, 545 Pa. 652, reversed 689 A.2d 211, 547 Pa. 137. Criminal Law
1147
Although existence of substantial question as to whether sentence was appropriate under sentencing code as a whole
must be determined on case-by-case basis, Superior Court will generally review discretionary aspects of sentencing
where colorable argument is made that actions of sentencing court were either inconsistent with specific provision of
sentencing code or contrary to fundamental norms which underlie sentencing process. Com. v. Nelson, 666 A.2d 714,
446 Pa.Super. 240, Super.1995, appeal denied 674 A.2d 1069, 544 Pa. 605. Criminal Law
1072
Robbery defendant demonstrated in his statement of reasons for allowance of appeal challenging discretionary aspect of
sentence that there existed a substantial question as to whether the sentence imposed was appropriate under the
sentencing code, and thus defendant had right to appeal discretionary aspect of sentence, where defendant alleged that
the trial court relied on an impermissible factor as an aggravating factor, the fact that defendant had a low I.Q. Com. v.
Ennis, 574 A.2d 1116, 394 Pa.Super. 1, Super.1990. Criminal Law
1071
9. ---- Excessiveness or reasonableness, substantial question of appropriateness
A claim of excessiveness when the sentence is within the statutory limits is not a substantial question that justifies
review of discretionary aspect of sentence. Com. v. Burton, 770 A.2d 771, Super.2001, appeal denied 868 A.2d 1197,
582 Pa. 669; Com. v. Nixon, 718 A.2d 311, Super.1998, appeal granted 745 A.2d 1220, 560 Pa. 723, affirmed 761 A.2d
1151, 563 Pa. 425, certiorari denied 121 S.Ct. 1735, 532 U.S. 1008, 149 L.Ed.2d 659, rehearing denied 121 S.Ct. 2541,
533 U.S. 924, 150 L.Ed.2d 710; Com. v. Wagner, 702 A.2d 1084, Super.1997; Com. v. Cruz-Centeno, 668 A.2d 536,
447 Pa.Super. 98, Super.1995, appeal denied 676 A.2d 1195, 544 Pa. 653, habeas corpus denied 1997 WL 16626,
affirmed 142 F.3d 427; Com. v. Martin, 611 A.2d 731, 416 Pa.Super. 507, Super.1992; Com. v. Mobley, 581 A.2d 949,
399 Pa.Super. 108, Super.1990.
An excessiveness challenge does not fail to raise a substantial question as a matter of law because the sentence was
within the statutory limits. Com. v. Simpson, 829 A.2d 334, Super.2003. Criminal Law
1072
When an excessiveness claim is raised in cases where the sentence falls within the statutory limits, the Superior Court is
to review each claim on a case-by-case basis to determine whether a substantial question has been presented. Com. v.
Titus, 816 A.2d 251, Super.2003. Criminal Law
1072
Defendant failed to raise a substantial question that his sentence was manifestly excessive, and thus the appellate court
would not address the discretionary sentencing issue; defendant did not argue that his sentence violated a specific
provision of the sentencing scheme or demonstrate that his sentence violated a fundamental norm underlying the
sentencing process. Com. v. Bromley, 862 A.2d 598, Super.2004, reargument denied, appeal denied 881 A.2d 818,
certiorari denied 126 S.Ct. 1089. Criminal Law
1072
Defendant's claim of excessiveness respecting his aggregate sentence of 58 1/2 to 124 years for, primarily, property
crimes raised a substantial question whether, under the Sentencing Code, defendant's sentence was so manifestly
excessive as to constitute too severe a punishment, and thus, defendant demonstrated on appeal that a substantial
question existed as to whether his sentence was appropriate so as to obtain allowance of appeal. Com. v. Dodge, 859
A.2d 771, Super.2004, reargument denied, appeal denied 880 A.2d 1236. Criminal Law
1072
Appellate court's statutory obligation to ensure that a trial court does not violate the Sentencing Code by imposing a
clearly unreasonable standard range sentence embraces a duty to examine, in appropriate circumstances of a particular
case, whether the imposition of consecutive sentences in the standard range violates the requirements and goals of the
Code and of the application of the guidelines. Com. v. Dodge, 859 A.2d 771, Super.2004, reargument denied, appeal
denied 880 A.2d 1236. Criminal Law
1134(3)
It is the appellate court's duty to vacate and remand a sentence imposed above or below the sentencing guideline
ranges, where the sentence is deemed unreasonable. Com. v. Walls, 846 A.2d 152, Super.2004, appeal granted 875
1181.5(8)
Bald allegations of excessiveness of sentence are insufficient when defendant challenges the discretionary aspects of a
sentence, and instead, the defendant must demonstrate that a substantial question exists concerning the sentence, and
a substantial question exists where the brief sets forth a plausible argument that the sentence violates a particular
provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme. Com. v.
Reynolds, 835 A.2d 720, Super.2003. Criminal Law
1072
Claim of defendant sentenced to seven to fifteen years after being convicted of aggravated assault, recklessly
endangering another person, carrying a firearm without a license, possessing an instrument of crime, and public
drunkenness, that consecutive sentences were too harsh, was little more than a bald claim of excessiveness and did not
raise a substantial question, and so defendant was not entitled to allowance of appeal, where defendant did not argue
that the sentence was contrary to the Sentencing Code or the fundamental norms underlying the sentencing process.
Com. v. Wright, 832 A.2d 1104, Super.2003. Criminal Law
1072
Defendant filed adequate statement in support of his appeal of allegedly excessive sentence, by stating that sentence
was an abuse of discretion and that trial court's comments supported claim that defendant was subjected to cruel and
unusual punishment. Com. v. Burton, 770 A.2d 771, Super.2001, appeal denied 868 A.2d 1197, 582 Pa. 669.
Where the trial court sentences an appellant above the aggravated range, asubstantial question, warranting review of
discretionary sentence, is raised only when the sentence is unreasonable. Com. v. Burton, 770 A.2d 771, Super.2001,
1147
Appellate court will find a substantial question, thus justifying review of discretionary sentence, where the defendant
asserts that the trial court failed to state sufficiently its reasons for imposing sentence outside the Sentencing
Guidelines. Com. v. Burton, 770 A.2d 771, Super.2001, appeal denied 868 A.2d 1197, 582 Pa. 669. Criminal Law
1147
A claim that the sentencing court misapplied the Sentencing Guidelines presents a substantial question, for appeal
purposes. Com. v. Johnson, 758 A.2d 1214, Super.2000, appeal denied 775 A.2d 803, 565 Pa. 666. Criminal Law
1072
On appeal from conviction for robbery and theft, Superior Court would review defendant's claim that trial court's
improper application of deadly weapon enhancement resulted in an excessive sentence, which was a challenge to the
discretionary aspects of the sentence; defendant's brief included a statement of reasons relied upon for allowance of
appeal, and application of deadly weapon enhancement presented a substantial question that the sentence was not
appropriate. Com. v. Pennington, 751 A.2d 212, Super.2000, appeal denied 766 A.2d 1246, 564 Pa. 729. Criminal Law
1072
The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence,
for purposes of leave to appeal, must be evaluated on a case-by-case basis; it is only where an aggrieved party can
articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole
that the Superior Court will find a substantial question and review the decision of the trial court. Com. v. Brown, 741
A.2d 726, Super.1999, revised, appeal denied 790 A.2d 1013, 567 Pa. 755. Criminal Law
1072
Defendant's assertion that her sentence of 90 days' incarceration for driving while under suspension was excessive did
not raise a substantial question so as to permit appellate review of the discretionary aspects of the sentence, where
sentence was within statutory limits. Com. v. Kraft, 737 A.2d 755, Super.1999, appeal denied 747 A.2d 366, 560 Pa.
742. Criminal Law
1072
Claim of excessiveness of sentence did not raise substantial question, so as to permit appellate review, where
defendant's consecutive sentences for burglary and conspiracy were well within statutory limits. Com. v. Bowersox, 690
1072
To determine whether sentence imposed was unreasonable, Superior Court must consider nature and circumstance of
offense, history and characteristics of defendant, opportunity of sentencing court to observe defendant including any
presentence investigation, findings upon which sentence was based, and guidelines promulgated by sentencing
commission. Com. v. Childs, 664 A.2d 994, 445 Pa.Super. 32, Super.1995, reargument denied, appeal denied 674 A.2d
1134(3)
Claim that sentence of not less than five nor more than ten years imprisonment for conspiracy to commit involuntary
deviate sexual intercourse was manifestly excessive in that sentencing court failed to provide contemporaneous
statement setting forth reasons for departing upward from guidelines raised substantial question as required for
appellate review of sentence. Com. v. Canfield, 639 A.2d 46, 432 Pa.Super. 496, Super.1994. Criminal Law
1072
Claim that sentence of not less than five nor more than ten years imprisonment for criminal conspiracy to commit
involuntary deviate sexual intercourse was manifestly excessive in that it was greater than sentence imposed upon
codefendant, although presenting substantial question so as to warrant allowance of appeal, did not establish abuse of
discretion of sentencing judge. Com. v. Canfield, 639 A.2d 46, 432 Pa.Super. 496, Super.1994. Sentencing And
Punishment
56; Criminal Law
1072
Allowance of appeal claiming excessive sentence may be granted only when it appears there exists substantial question
that sentence imposed was not appropriate under sentencing code. Com. v. Jones, 629 A.2d 133, 427 Pa.Super. 345,
1072
Claim of excessiveness of sentence does not raise substantial question for review where sentence is within statutory
limits. Com. v. Breter, 624 A.2d 661, 425 Pa.Super. 248, Super.1993. Criminal Law
1134(3)
Allegation that sentence on its face was unreasonable and excessive under the circumstances did not raise substantial
question as to appropriateness of sentence, and, thus, trial court's exercise of discretion would not be reviewed. Com. v.
Trimble, 615 A.2d 48, 419 Pa.Super. 108, Super.1992. Criminal Law
1134(3)
Defendant's objection that sentence imposed was cruel and unusual raised "substantial question" as to propriety of
sentence, so as to permit appellate review. Com. v. Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied
1072
Claim of excessiveness of sentence does not raise "substantial question," such as will permit appellate review, where
sentence is within statutory limits. Com. v. Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied 629
1072
Superior Court review of discretionary aspects of defendant's sentence was not warranted where defendant claimed that
his sentence was excessive and without sufficient basis or foundation; defendant's claims did not constitute substantial
questions under sentencing code. Com. v. Martin, 611 A.2d 731, 416 Pa.Super. 507, Super.1992. Criminal Law
1134(3)
Defendant's claims that sentencing court erred because sentence was manifestly excessive and undue weight was
assigned to gravity of offense despite existence of certain mitigating factors and that sentence was unreasonably
disproportionate to other sentences imposed presented substantial questions for review; accordingly, Superior Court
would consider those claims on appeal. Com. v. Eicher, 605 A.2d 337, 413 Pa.Super. 235, Super.1992, appeal denied
1072
Defendant's allegations baldly asserting that sentence exceeded guidelines, without specifying what defendant deemed
to be applicable guideline range, and contending that sentence was manifestly excessive, citing certain purportedly
mitigating factors, did not raise substantial questions for review based on discretionary aspects of sentence. Com. v.
Hobson, 604 A.2d 717, 413 Pa.Super. 29, Super.1992. Criminal Law
1147
10. ---- Consecutive sentences, substantial question of appropriateness
Defendant, to the extent that he complained that his sentence on two of four robberies were imposed consecutively
rather than concurrently, failed to raise substantial question as to discretionary aspect of his sentence as to warrant
review on the merits; statute afforded sentencing court discretion to impose its sentence concurrently or consecutively
to other sentences being imposed at same time or to sentences already imposed. Com. v. Marts, 889 A.2d 608,
548
Whether sentences are properly run consecutively or concurrently is within the sound discretion of the trial court, and is
not ordinarily considered a substantial question for review on appeal. Com. v. Druce, 796 A.2d 321, Super.2002,
reargument denied, appeal granted in part 809 A.2d 243, 570 Pa. 241, affirmed 848 A.2d 104, 577 Pa. 581. Criminal
Law
548
Challenge to court's imposing consecutive rather than concurrent sentences does not present substantial question
regarding discretionary aspects of sentence warranting permission to appeal. Com. v. Hoag, 665 A.2d 1212, 445
1072
Defendant did not present substantial question for review with respect to aggregate length of his sentence of 235 to 470
years' imprisonment upon convictions of more than 150 counts arising from sexual, physical and emotional abuse and
neglect by defendant of his minor children, where sentence imposed neither exceeded statutory limits nor violated
Sentencing Guidelines, and essence of challenge was to imposition of consecutive rather than concurrent sentences.
Com. v. Gaddis, 639 A.2d 462, 432 Pa.Super. 523, Super.1994, appeal denied 649 A.2d 668, 538 Pa. 665. Criminal Law
1134(3)
Substantial question for review of discretionary aspects of consecutive sentences of four to ten years for kidnapping and
six to fifteen years for robbery was not raised by argument that crimes were relatively minor and that defendant was
"financially, intelligently and emotionally indigent." Com. v. Hall, 554 A.2d 919, 382 Pa.Super. 6, Super.1989, appeal
denied 575 A.2d 109, 525 Pa. 577, certiorari denied 111 S.Ct. 1012, 498 U.S. 1107, 112 L.Ed.2d 1095. Criminal Law
1072
11. ---- Enhancement, substantial question of appropriateness
Defendant preserved for appellate review his objection to trial court's application of school zone sentence enhancement
to his sentence for delivery of a controlled substance, even though defendant's counsel did not object at sentencing,
where defendant objected in person at sentencing and in pro se motions to reconsider sentencing. Com. v. Wilson, 829
A.2d 1194, Super.2003, appeal after new sentencing hearing 866 A.2d 1131, reargument denied, appeal granted in part
889 A.2d 38. Criminal Law
1042
Defendant's objection to trial court's application of school zone sentence enhancement to sentence imposed after
defendant pled guilty to delivery of a controlled substance raised a substantial question that the sentence imposed was
not appropriate, and thus appellate court could review defendant's challenge under statute allowing appeals from
discretionary aspects of sentence. Com. v. Wilson, 829 A.2d 1194, Super.2003, appeal after new sentencing hearing
866 A.2d 1131, reargument denied, appeal granted in part 889 A.2d 38. Criminal Law
1023(11)
Trial court was required to consider defendant's prior criminal history in order to ascertain defendant's amenability to
rehabilitation, as basis for determining appropriate sentence for possession of controlled substance and possession of
controlled substance with intent to deliver. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582
Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
112
Defendant's challenge to trial court's application of school enhancement provisions of sentencing guidelines to drug
conspiracy charge raised "substantial question" under sentencing code, as required to appeal discretionary aspects of
sentence. Com. v. Adams, 760 A.2d 33, Super.2000. Criminal Law
1072
Defendant's challenge to trial court's application of school enhancement provisions of sentencing guidelines with respect
to sentence for various drug-related offenses raised "substantial question" under sentencing code, as required to appeal
discretionary aspects of sentence. Com. v. Davis, 734 A.2d 879, Super.1999. Criminal Law
1072
Sentencing court's failure to consider mandatory deadly weapon sentencing enhancement was "substantial question,"
for purposes of determining appealability. Com. v. Magnum, 654 A.2d 1146, 439 Pa.Super. 616, Super.1995. Criminal
Law
1072
Defendant presented substantial question, warranting review on appeal, in challenging discretionary aspects of his
sentence; he alleged that sentencing court used incorrect calculation of suggested sentence ranges under Sentencing
Guidelines, and erroneously applied deadly weapons enhancement in Sentencing Guidelines along with mandatory
minimum sentence. Com. v. Morgan, 625 A.2d 80, 425 Pa.Super. 344, Super.1993, appeal denied 634 A.2d 1115, 535
1072
State raised substantial question as to whether sentence was inappropriate under guidelines as result of trial court's
holding deadly weapon enhancement inapplicable to defendant who committed first-degree robbery at knife point; thus,
appeal would be allowed. Com. v. Dotzman, 588 A.2d 1312, 403 Pa.Super. 325, Super.1991. Criminal Law
1072
12. ---- Mitigation, substantial question of appropriateness
Defendant's sentence would be vacated since sentencing court focused exclusively on defendant's failed attempt to
blame vehicular accident on another individual, seriousness of the offense, and defendant's need for rehabilitation and
court virtually ignored defendant's lack of any prior criminal record, his age, his personal characteristics, and his life
situation, and as such, case would be remanded for re-sentencing so that the court might consider the mitigating
circumstances of the case in balance with what it considered to be aggravating factors. Com. v. Hyland, 875 A.2d 1175,
Super.2005, appeal denied 2005 WL 3403649. Criminal Law
1177; Criminal Law
1181.5(8); Sentencing And
Punishment
373
By alleging that the sentencing court imposed a sentence at the top end of the aggravated range without considering
mitigating circumstances, defendant raised a substantial question as to the discretionary aspects of his sentence, and
thus, appellate court would review his claim. Com. v. Hyland, 875 A.2d 1175, Super.2005, appeal denied 2005 WL
3403649. Criminal Law
1072
Defendant's contention that sentencing court did not adequately consider various mitigating evidence when crafting
sentence did not raise substantial question so as to justify appellate court discussing merits of claim. Com. v. Bullock,
868 A.2d 516, Super.2005, reargument denied, appeal granted 885 A.2d 40. Criminal Law
1072
Defendant's contention that sentencing court failed to consider mitigating factors in favor of lesser sentence did not
present substantial question that sentence was not appropriate under Sentencing Code, and thus contention was not
subject for appellate review. Com. v. Hanson, 856 A.2d 1254, Super.2004. Criminal Law
1072
Allegation that sentencing court did not consider certain mitigating factors did not raise substantial question as to
discretionary aspects of sentence, and thus, defendant was not entitled to appellate review of this issue. Com. v.
McNabb, 819 A.2d 54, Super.2003. Criminal Law
1072
Defendant's claim that trial court did not properly consider mitigating factors of mental incapacity and good behavior
while incarcerated did not raise substantial question, suitable for appellate review, regarding alleged illegality of
aggregate sentence of between ten and twenty years for possession of controlled substance and possession of
controlled substance with intent to deliver. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582
Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Criminal Law
1072
Trial court did not ignore, and was not unaware of, mitigating factors of defendant's mental incapacity, his good
behavior, and scholastic accomplishments while incarcerated, when it imposed aggregate sentence of between ten and
twenty years for possession of controlled substance and possession of controlled substance with intent to deliver; before
imposing sentence, trial court heard testimony from expert witness concerning defendant's mental deficiency and
possible brain damage, and specifically stated that it considered presentence report, and that it found defendant's good
behavior and achievements while in prison commendable. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868
A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
860;
Sentencing And Punishment
862
Defendant's claim that the court did not consider his personal life situation of having a drug problem did not raise a
substantial question so as to permit appellate review of discretionary aspect of sentences following probation revocation.
Com. v. Coolbaugh, 770 A.2d 788, Super.2001. Criminal Law
1072
Defendant's allegations that his prison sentence of two to ten years for aggravated assault, simple assault, and resisting
arrest was manifestly excessive and that trial court failed to consider certain factors, including his background, age, and
history of substance abuse, did not raise a substantial question, so as to permit appellate review of his discretionary
sentence. Com. v. Petaccio, 764 A.2d 582, Super.2000. Criminal Law
1072
Defendant's argument that the sentencing court did not adequately consider her personal life situation as a
grandmother who had to provide care for a small child did not raise a substantial question so as to permit appellate
review of the discretionary aspects of her sentence of 90 days' incarceration for driving while under suspension. Com. v.
Kraft, 737 A.2d 755, Super.1999, appeal denied 747 A.2d 366, 560 Pa. 742. Criminal Law
1072
Claim that sentencing judge improperly weighed mitigating factors in imposing sentence did not raise substantial
sentencing question so as to permit appellate review of sentence. Com. v. Bowersox, 690 A.2d 279, 456 Pa.Super. 260,
1072
Claim that sentencing court failed to consider mitigating factors in rendering its sentence did not raise a substantial
question such that permission to appeal would be granted; court was furnished with presentence report that contained
mitigating factors and court weighed those factors on the record by setting defendant's length of incarceration three
months below maximum minimum standard range. Com. v. Yanoff, 690 A.2d 260, 456 Pa.Super. 222, Super.1997,
1072
Defendant's contention that sentencing court did not adequately consider various mitigating factors when crafting
sentence did not raise substantial question so as to justify appellate court addressing merits of claim. Com. v. Urrutia,
1134(3)
Defendant's assertion that sentencing court did not adequately consider her prior history and character in setting
conditions of probation did not raise substantial question about discretionary aspect of sentence and, thus, did not
justify grant of appeal from that part of sentence. Com. v. Koren, 646 A.2d 1205, 435 Pa.Super. 499, Super.1994.
Criminal Law
1072
Claim that sentence of not less than five nor more than ten years imprisonment for conspiracy to commit involuntary
deviate sexual intercourse was manifestly excessive in that it was imposed without adequate consideration of
defendant's rehabilitative needs did not raise substantial question as required for allowance of appeal. Com. v. Canfield,
1072
Claim that sentence of not less than five nor more than ten years imprisonment on plea of nolo contendere to criminal
conspiracy to commit involuntary deviate sexual intercourse was "manifestly excessive" and violated spirit of sentencing
guidelines in failing to take into account defendant's lack of prior record did not raise substantial question; thus, appeal
would not be allowed. Com. v. Canfield, 639 A.2d 46, 432 Pa.Super. 496, Super.1994. Criminal Law
1072
Appeal based on argument that sentencing court failed to give sufficient weight to certain mitigating factors does not
raise substantial question as to appropriateness of sentence, as required to allow appeal of discretionary aspects of
sentence. Com. v. Jones, 637 A.2d 1001, 432 Pa.Super. 97, Super.1994. Criminal Law
1072
Defendant's argument that sentencing court did not attach sufficient weight to mitigating factors and her disagreement
with conclusion reached by sentencing court asked reviewing court to substitute its judgment for that of sentencing
court and did not present substantial question that sentence imposed was inappropriate under sentencing code as a
whole. Com. v. Lopez, 627 A.2d 1229, 426 Pa.Super. 625, Super.1993. Criminal Law
1134(3)
By advancing colorable argument that trial court failed to consider several mitigating factors, including possibility of
rehabilitation, defendant presented a substantial question that sentence was inappropriate so that permission to appeal
discretionary aspects would be granted. Com. v. House, 537 A.2d 361, 371 Pa.Super. 23, Super.1988. Criminal Law
1072
13. ---- Weight or consideration of evidence, substantial question of appropriateness
Allegation that sentencing court failed to consider or did not adequately consider certain factors does not raise
substantial question that sentence was inappropriate. Com. v. Cruz-Centeno, 668 A.2d 536, 447 Pa.Super. 98,
Super.1995, appeal denied 676 A.2d 1195, 544 Pa. 653, habeas corpus denied 1997 WL 16626, affirmed 142 F.3d 427;
Com. v. Nelson, 666 A.2d 714, 446 Pa.Super. 240, Super.1995, appeal denied 674 A.2d 1069, 544 Pa. 605; Com. v.
Urrutia, 653 A.2d 706, 439 Pa.Super. 227, Super.1995, appeal denied 661 A.2d 873, 541 Pa. 625.
Defendant raised substantial question as to discretionary aspect of his sentence as to warrant review on the merits, by
alleging that sentencing court failed to explain why robberies he committed deserved more severe sentence than a
"typical" robbery; claim essentially challenged adequacy of reasons given by court for its sentencing choice. Com. v.
Marts, 889 A.2d 608, Super.2005. Criminal Law
372
Superior Court would not address on appeal defendant's claim that trial court incorrectly weighed various factors in
sentencing him as a sexually violent predator (SVP), as defendant failed to raise a substantial question for review. Com.
v. Moody, 843 A.2d 402, Super.2004, appeal denied 882 A.2d 477. Mental Health
469(6)
Imposition of 10 to 20-year sentence of incarceration upon defendant convicted on open plea of guilty of one count of
aggravated assault was abuse of sentencing court's discretion, where court's statement of reasons did not indicate that
court had given individualized consideration to defendant's personal history, rehabilitative needs or background and
indicated that court had focused exclusively on seriousness of defendant's crime, and where court did not have benefit
of presentence report. Com. v. Ritchey, 779 A.2d 1183, Super.2001. Sentencing And Punishment
996
Ordinarily, allegations that a sentencing court failed to consider or did not adequately consider various factors is really a
request for the appellate court to put its judgment in place of the trial court's, and thus do not raise a substantial
question warranting the appellate court's acceptance of the appeal. Com. v. Nixon, 718 A.2d 311, Super.1998, appeal
granted 745 A.2d 1220, 560 Pa. 723, affirmed 761 A.2d 1151, 563 Pa. 425, certiorari denied 121 S.Ct. 1735, 532 U.S.
1008, 149 L.Ed.2d 659, rehearing denied 121 S.Ct. 2541, 533 U.S. 924, 150 L.Ed.2d 710. Criminal Law
1072
substantial question that sentence imposed was inappropriate, so as to justify allowance of appellate review. Com. v.
Wagner, 702 A.2d 1084, Super.1997. Criminal Law
1072
Claim by defendant that sentencing judge did not give evidence the weight that defendant feels was proper does not
raise substantial question under sentencing code, as will warrant grant of discretionary appeal. Com. v. Barzyk, 692
1072
Contention by defendant who was convicted of harassment of his former wife that sentence of 30 days' imprisonment
and $300 fine was excessive because he and ex-wife had ongoing, mutually hostile relationship did not provide
substantial question regarding application of sentencing code, as would warrant grant of discretionary appeal; argument
was irrelevant, and essentially claimed that judge did not give evidence weight defendant felt was proper, which is
insufficient to raise substantial question. Com. v. Barzyk, 692 A.2d 211, Super.1997. Criminal Law
1072
substantial question that sentence was inappropriate, as required for permission to appeal; such a challenge goes to
weight accorded evidence and will not be considered absent extraordinary circumstances. Com. v. Hoag, 665 A.2d
1072
Allegation that sentencing court "failed to consider" or "did not adequately consider" various factors does not raise
substantial question that sentence was inappropriate, as required to obtain permission to appeal from discretionary
aspects of sentence; such challenge goes to weight accorded to sentencing factors and will not be considered absent
extraordinary circumstances. Com. v. McKiel, 629 A.2d 1012, 427 Pa.Super. 561, Super.1993. Criminal Law
1072
Challenge to weight accorded sentencing factors does not raise substantial question for review absent extraordinary
circumstances. Com. v. Breter, 624 A.2d 661, 425 Pa.Super. 248, Super.1993. Criminal Law
1134(3)
"Substantial question" as to suitability of sentence imposed was presented by Commonwealth so as to warrant
allowance of appeal of sentence by Commonwealth, where Commonwealth enumerated several aggravating factors
which indicated that defendant's lack of intent may have been given unduly substantial weight by court in fashioning
sentence while his pattern of overall irresponsibility and flagrant disregard for highway safety may not have been given
enough weight. Com. v. Moore, 617 A.2d 8, 420 Pa.Super. 484, Super.1992. Criminal Law
1072
Defendant's arguments concerning the weight trial court gave to legitimate sentencing factors did not raise "substantial
question" as to appropriateness of sentence, such as would permit appellate review of discretionary aspects thereof.
Com. v. Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied 629 A.2d 1377, 535 Pa. 615. Criminal Law
1072
Defendant's arguments concerning the weight trial court gave to legitimate sentencing factors did not raise "substantial
question" as to appropriateness of sentence, such as would permit appellate review of discretionary aspects thereof.
1072
Defendant's claim that sentencing court "failed to consider" or did not adequately consider his ability to pay fine did not
raise substantial sentencing question that warranted review of issue on appeal; defendant essentially claimed that
sentencing judge failed to give evidence proper weight. Cullenen v. Com., 588 A.2d 988, 138 Pa.Cmwlth. 508,
1134(3)
Issues challenging discretion of lower court in "overemphasizing" or "failing to adequately consider" certain factors
relevant to sentencing determination did not state substantial question subject to Superior Court review. Com. v.
Minott, 577 A.2d 928, 395 Pa.Super. 552, Super.1990. Criminal Law
1072
Defendant's arguments concerning weight trial court gave to legitimate sentencing factors did not raise a substantial
question entitling defendant to appellate review of discretionary aspects of sentence. Com. v. Smith, 575 A.2d 150, 394
1147
14. Guidelines--In general
Deviation from state sentencing guidelines is upheld if supported by reasons indicating that the deviation is not
unreasonable in light of the statutory factors a sentencing court considers, which include the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant. Com. v. Kleinicke, 895 A.2d 562, Super.2006. Sentencing And Punishment
800
Aggravated sentences imposed on defendant, convicted of rape, statutory sexual assault, indecent assault, corruption of
a minor, and endangering the welfare of a child, and determined to be sexually violent predator (SVP), were
reasonable; sentence was authorized by jury's verdict, and valid reasons were articulated of record by sentencing court
for its departure from guidelines, since society was placed at greater risk due to defendant's abuse of three children
rather than one child, and defendant's propensities and justification that he offered for his behavior made him a poor
candidate for rehabilitation. Com. v. P.L.S., 894 A.2d 120, Super.2006. Sentencing And Punishment
645; Sentencing
And Punishment
996
While defendant's individual sentences fell within the guideline range for each of his convictions of numerous property
crimes, his sentences were consecutive, and due to consecutive nature of his sentences, defendant's aggregate
sentence of thirty-nine to seventy-eight years imprisonment was manifestly excessive, and thus defendant's sentence
would be vacated and case would be remanded for resentencing; trial court failed to acknowledge that the crimes were
nonviolent, court did not address the rehabilitative needs of the defendant, and defendant displayed at sentencing both
remorse and a desire to make financial reparation to victim and asked the court to consider that he cooperated with
police and pled guilty to the offenses. Com. v. Whitman, 880 A.2d 1250, Super.2005. Criminal Law
1177; Sentencing
And Punishment
644
Trial court's error in applying earlier version of sentencing guidelines in sentencing for third-degree murder, rather than
version of guidelines in effect at time of offense, was harmless; sentence imposed by trial court of 240 months to 480
months was legal sentence within standard range of correct guidelines, given defendant's prior-record score of three.
Com. v. Kimbrough, 872 A.2d 1244, Super.2005, appeal denied 887 A.2d 1240. Criminal Law
1177
The sentencing guidelines are advisory only. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198,
582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
651
Before a challenge to judgment of sentence will be heard on the merits, an appellant must demonstrate that there is
substantial question that sentence imposed is inappropriate under sentencing guidelines. Com. v. Davis, 734 A.2d 879,
1072
Defendant's claim that trial court abused its discretion when it increased his sentence for aggravated assault upon
motion for reconsideration after defendant violated specific condition of his first sentence did not raise substantial
question as to appropriateness of defendant's sentence under sentencing code, and would not be considered on appeal;
sentence was well within standard range of Sentencing Guidelines. Com. v. Postell, 693 A.2d 612, Super.1997,
reargument denied, appeal denied 706 A.2d 1212, 550 Pa. 718. Criminal Law
1072
For purposes of appellate review of sentence, applicable sentencing guidelines are those in effect at time that offense
was committed. Com. v. Maneval, 688 A.2d 1198, 455 Pa.Super. 483, Super.1997. Sentencing And Punishment
664(1)
If sentence imposed falls within sentencing guidelines, no substantial question exists as to whether sentence is
appropriate under the Sentencing Code, precluding appellate review. Com. v. Maneval, 688 A.2d 1198, 455 Pa.Super.
1072
To demonstrate that substantial sentencing question exists on appeal, party must articulate reasons why particular
sentence raises doubts that trial court did not properly consider general guidelines provided by Legislature. Com. v.
Saranchak, 675 A.2d 268, 544 Pa. 158, Sup.1996, certiorari denied 117 S.Ct. 695, 519 U.S. 1061, 136 L.Ed.2d 617,
denial of post-conviction relief vacated 739 A.2d 162, 559 Pa. 111, dismissal of post-conviction relief affirmed 866 A.2d
1072
Commonwealth raised substantial question as to whether sentence imposed on rape defendant was appropriate under
sentencing code, and, therefore, Superior Court would conduct further review of discretionary aspects of sentence,
where state asserted that trial court erroneously applied Sentencing Guidelines, failed to state adequate reasons for
departing from guidelines, and relied upon improper mitigating factors in imposing sentence. Com. v. Widmer, 667 A.2d
215, 446 Pa.Super. 408, Super.1995, reargument denied, appeal granted 680 A.2d 1161, 545 Pa. 652, reversed 689
1147
Defendant's claim that trial court abused its discretion in imposing statutory maximum sentence for possession of illegal
firearm did not present substantial question as to appropriateness of sentence under guidelines and, thus, discretionary
aspects of sentence were not appealable. Com. v. Brown, 587 A.2d 4, 402 Pa.Super. 365, Super.1991. Criminal Law
1147
Defendant's claim that sentence imposed for narcotics offense failed to take into consideration his rehabilitative needs
and was manifestly excessive did not raise substantial question that sentence imposed was inappropriate, precluding
appellate review; cumulative sentence was within statutory limits and within sentencing guidelines established for
crimes to which defendant pled guilty. Com. v. Mobley, 581 A.2d 949, 399 Pa.Super. 108, Super.1990. Criminal Law
1134(3)
Defendant was not entitled to allowance of appeal from discretionary aspect of his sentence; defendant failed to present
substantial question that his sentence was not appropriate under sentencing code, as he was sentenced within
sentencing guidelines, and severity of his sentence reflected his substantial prior criminal record as demonstrated in his
prior record score. Com. v. Rumbaugh, 529 A.2d 1112, 365 Pa.Super. 388, Super.1987. Criminal Law
1072
15. ---- Sentencing outside guidelines
While sentence outside guidelines may be affirmed provided it is reasonable, it is imperative that sentencing court
determine correct starting point in guidelines before sentencing outside them. Com. v. Johnakin, 502 A.2d 620, 348
Pa.Super. 432, Super.1985; Com. v. Brown, 587 A.2d 6, 402 Pa.Super. 369, Super.1991.
Record contained adequate factual basis to justify deviation from sentencing guidelines in imposing aggravated
minimum sentence of 15 to 36 months imprisonment for conviction of terroristic threats; factors trial court considered
included violent nature of other offenses defendant committed at time of making threats, fact victim suffered significant
physical injury during incident, defendant's prior offenses and rehabilitative needs, interests of community in
prosecuting perpetrators of domestic violence, and that incident was more serious than "typical" terroristic threat
situation in which only words were involved. Com. v. Hanson, 856 A.2d 1254, Super.2004. Sentencing And Punishment
833
Claim that sentencing court sentenced outside sentencing guidelines presents substantial question that sentence is not
appropriate under Sentencing Code, as will warrant review of sentencing decision by appellate court. Com. v. Hanson,
1072
Sufficient evidence did not support upward departure sentence of seven to 14 years in prison, with a consecutive
probationary term of six years, imposed upon defendant who pled guilty to voluntary manslaughter; trial court did not
rely on defendant's character and prior history to support its upward deviation, and the single "fact" relied on by the
sentencing court that specifically supported an upward deviation from the guidelines was that defendant supplied the
gun used in the crime, but this "fact" was not entirely clear from the record. Com. v. Vega, 850 A.2d 1277, Super.2004.
980
A sentencing court has broad discretion in choosing range of permissible confinements which best suits a particular
defendant and circumstances surrounding his crime; however, the choices must be consistent with protection of the
public, gravity of offense, and rehabilitative needs of defendant. Com. v. Celestin, 825 A.2d 670, Super.2003,
reargument denied, appeal denied 844 A.2d 551, 577 Pa. 686. Sentencing And Punishment
Punishment
66
31; Sentencing And
When the sentencing court imposes a sentence outside the guidelines, it must provide a contemporaneous written
statement of the reason or reasons for the deviation from the guidelines. Com. v. Griffin, 804 A.2d 1, Super.2002,
appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And
Punishment
995
The Sentencing Code requires a trial judge who intends to sentence outside the guidelines to demonstrate, on the
record, his awareness of the guideline ranges. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198,
582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
995
The sentencing court may, in an appropriate case, deviate from the guidelines by fashioning a sentence which takes into
account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense
as it relates to the impact on the life of the victim and the community. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal
denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
804
Trial court's failure to recite sentencing ranges verbatim in open court was insufficient to rebut presumption that trial
court was aware of, understood, and considered guidelines before imposing aggregate sentence of between ten and
twenty years for possession of controlled substance and possession of controlled substance with intent to deliver; trial
judge stated that he had considered presentence report, and had discussed guidelines ranges applicable to charges with
defense counsel. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied
125 S.Ct. 2984, 162 L.Ed.2d 902. Sentencing And Punishment
996
When deviating from the sentencing guidelines, a trial judge must indicate that he understands the suggested ranges.
Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984,
162 L.Ed.2d 902. Sentencing And Punishment
995
There is no requirement that a sentencing court must evoke magic words in a verbatim recitation of the guidelines
ranges to satisfy the requirements for imposing a sentence that deviates from the guidelines. Com. v. Griffin, 804 A.2d
1, Super.2002, appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162 L.Ed.2d 902.
996
The trial court has rendered a proper contemporaneous statement indicating the reasons for deviating from the
guidelines under the sentencing code so long as the record demonstrates with clarity that the court considered the
sentencing guidelines in a rational and systematic way and made a dispassionate decision to depart from them. Com. v.
Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct. 2984, 162
L.Ed.2d 902. Sentencing And Punishment
996
Commonwealth's appeal challenging sentence imposed following guilty plea to aggravated assault of 11.5 to 23.5
months of imprisonment would be granted, where claim that sentence was too lenient presented substantial question
and Commonwealth's statement of reasons relied upon specifically stated why sentence violated sentencing norms.
Com. v. Kenner, 784 A.2d 808, Super.2001, appeal denied 796 A.2d 979, 568 Pa. 695. Criminal Law
1072
A claim that the sentencing court imposed an unreasonable sentence by sentencing outside the guideline ranges
presents a substantial question for Superior Court review. Com. v. Eby, 784 A.2d 204, Super.2001. Criminal Law
1072
Where a sentence deviates from the guidelines, the court is required to provide a contemporaneous written statement of
its reasons for doing so; this requirement is satisfied when the court states its reasons for the sentence on the record
and in the defendant's presence. Com. v. Ritchey, 779 A.2d 1183, Super.2001. Sentencing And Punishment
995;
996
Where the sentencing court deviates substantially from the sentencing guidelines, it is especially important that the
court consider all factors relevant to the determination of a proper sentence. Com. v. Ritchey, 779 A.2d 1183,
Super.2001. Sentencing And Punishment
995
Allegations that the trial court sentenced defendant without a presentence report, that the court failed to give sufficient
reasons for foregoing the report, and that the court imposed sentence outside the guidelines without stating legitimate
reasons, presented substantial question, so as to allow review of the discretionary aspects of sentence for conviction of
possession of cocaine with intent to deliver. Com. v. Goggins, 748 A.2d 721, Super.2000, appeal denied 759 A.2d 920,
1072
Trial court made a sufficient and adequately informed contemporaneous statement when court imposed sentence
outside the guideline ranges for stalking, in prosecution arising from defendant's stalking of his ex-wife and her new
husband; court was fully informed by pre-sentence report which court discussed on record, court heard testimony from
victims as well as guardian ad litem appointed for defendant's children in addition to testimony adduced at trial, and
court also provided defendant with opportunity to speak before sentence was imposed. Com. v. Davis, 737 A.2d 792,
996
Defendant's claim that sentence of four to 20 years' imprisonment for attempted burglary was outside guidelines and
unreasonable raised substantial question as to appropriateness of sentence, so as to allow appeal of discretionary aspect
of sentencing. Com. v. Guth, 735 A.2d 709, Super.1999, appeal denied 743 A.2d 915, 560 Pa. 699. Criminal Law
1072
Sentence of 10 to 20 years' imprisonment imposed for convictions of controlled substance possession with intent to
deliver and conspiracy, which was outside sentencing guidelines, was appropriate; defendant was extensively involved
in drugs at an early age, disregarded earlier opportunity to reform, failed to comply with court's previous sentencing
orders, lost his job due to use of drugs, and spent his money on drugs rather than support his children. Com. v. Gibson,
716 A.2d 1275, Super.1998. Sentencing And Punishment
835
Claim that sentencing court did not adequately explain its reasons for sentencing outside sentencing guidelines raises
substantial question which may be reviewed on appeal. Com. v. Wagner, 702 A.2d 1084, Super.1997. Criminal Law
1072
Supreme Court would not engage in further review of defendant's claim that trial court abused its discretion in
sentencing defendant outside the sentencing guidelines, where defendant failed to provide required prefatory statement
of reasons relied upon for appeal, and failed to articulate how his legal sentences presented Court with substantial
question regarding his sentences. Com. v. Saranchak, 675 A.2d 268, 544 Pa. 158, Sup.1996, certiorari denied 117 S.Ct.
695, 519 U.S. 1061, 136 L.Ed.2d 617, denial of post-conviction relief vacated 739 A.2d 162, 559 Pa. 111, dismissal of
post-conviction relief affirmed 866 A.2d 292, 581 Pa. 490. Criminal Law
1072
Defendant's boilerplate assertion on appeal that he should be resentenced simply because trial court sentenced him
outside the Sentencing Guidelines did not, without more, present substantial question necessary to invoke appellate
review. Com. v. Saranchak, 675 A.2d 268, 544 Pa. 158, Sup.1996, certiorari denied 117 S.Ct. 695, 519 U.S. 1061, 136
L.Ed.2d 617, denial of post-conviction relief vacated 739 A.2d 162, 559 Pa. 111, dismissal of post-conviction relief
affirmed 866 A.2d 292, 581 Pa. 490. Criminal Law
1072
When reviewing sentence for abuse of discretion, it is only when sentencing court goes outside guideline ranges of
sentencing code that reviewing court will presume sentence imposed is not minimum sentence recommended by
statute; recommended ranges within sentencing guidelines are minimum sentences consistent with requirements and
concerns of the state, victims, and defendant. Com. v. Hoag, 665 A.2d 1212, 445 Pa.Super. 455, Super.1995. Criminal
Law
1144.17; Sentencing And Punishment
654
Claim by defendant that sentencing court did not adequately explain reasons for sentencing outside of guidelines raises
substantial question that could be reviewed on appeal. Com. v. Impellizzeri, 661 A.2d 422, 443 Pa.Super. 296,
1072
Claim that trial court abused its discretion by imposing sentence outside aggravated range of guidelines without
expressing specific reasons to justify sentence presented substantial question for review on appeal. Com. v. Breter, 624
1134(3)
Upward departure from sentencing guidelines for defendant who pled guilty to seven charges of involuntary deviate
sexual intercourse, by imposition of sentence of 36 to 72 years imprisonment, was justified by grave consequences of
defendant's actions on victims, fact that defendant utilized position as religious instructor to gain access to victims, and
continuing nature of defendant's crimes. Com. v. Hallock, 603 A.2d 612, 412 Pa.Super. 340, Super.1992. Sentencing
And Punishment
844; Sodomy
820
Allegation that sentence imposed following guilty plea to seven charges of involuntary deviate sexual intercourse was
outside sentencing guidelines and unreasonable raised substantial question which warranted appellate review of merits
of claim. Com. v. Hallock, 603 A.2d 612, 412 Pa.Super. 340, Super.1992. Criminal Law
1072
Criminal defendant challenging sentence as unreasonable and outside sentencing guidelines must submit statement
demonstrating that substantial question exists concerning whether sentence imposed is appropriate. Com. v. Hallock,
1072
Determination of whether statement submitted by defendant challenging sentence as unreasonable and outside
guidelines demonstrates substantial question that sentence imposed was inappropriate must be made on case-by-case
basis. Com. v. Hallock, 603 A.2d 612, 412 Pa.Super. 340, Super.1992. Criminal Law
1072
Departure from sentencing guidelines was not improper, although defendant contended it was improper to cite his
criminal history as aggravating factor as it was already accounted for in his prior record score; none of defendant's prior
adult misdemeanors, juvenile felony adjudications, parole and probation violations, or unexpunged arrests were
incorporated in computation of prior record score. Com. v. Darden, 531 A.2d 1144, 366 Pa.Super. 597, Super.1987.
909
In determining whether sentence imposed by trial court that is outside sentencing guidelines is unreasonable, reviewing
court must look at nature and circumstances of offense, history and characteristics of defendant, opportunity of
sentencing court to observe defendant, presentence investigation report, findings on which sentence was based, and
sentencing guidelines. Com. v. Septak, 518 A.2d 1284, 359 Pa.Super. 375, Super.1986. Criminal Law
1134(2)
Superior court would permit Commonwealth to appeal from judgment by which defendant was sentenced to 22 months
to five years imprisonment followed by five years probation for aggravated assault and to consecutive term of five years
probation for possession of instrument of crime, even though lower court stated that the appeal was improper because
42 Pa.C.S.A. 9781 permits Commonwealth to appeal only by allowance from superior court, and such prior notice was
never received, since it appeared that there was substantial question that the sentence imposed was not appropriate.
Com. v. Mattis, 507 A.2d 423, 352 Pa.Super. 144, Super.1986, appeal denied. Criminal Law
1024(9)
As a general rule, when sentence is imposed outside sentencing guidelines, Superior Court will conclude there is a
substantial question that sentence imposed is not appropriate under the guidelines and will allow Commonwealth's
appeal. Com. v. Sheridan, 502 A.2d 694, 348 Pa.Super. 574, Super.1985. Criminal Law
1024(9)
Commonwealth was entitled to appeal from imposition of sentence for third-degree murder which was 54 months below
floor of guidelines' mitigated range, as enhanced as result of defendant's possession of deadly weapon, in light of failure
of evidence to support reasons given for departure. Com. v. Dixon, 496 A.2d 802, 344 Pa.Super. 293, Super.1985,
appeal granted 503 A.2d 929, 509 Pa. 490. Criminal Law
1024(9)
16. ---- Erroneous application of guidelines
Allegation of defendant who pled guilty to failing to register as a sex offender and failing to verify his address that trial
court erroneously computed his prior record score when calculating his sentence, presented a substantial question, and
thus Superior Court granted him permission to appeal the discretionary aspects of his sentence. Com. v. Johnson, 758
1072
Defendant's claim that trial court used incorrect gravity score was challenge to discretionary aspects of sentence, and in
addition to complying procedural requirements of rule, defendant, in seeking allowance of appeal, also had to present
for consideration a substantial question as to whether trial court's imposition of sentence compromised the sentencing
code as a whole. Com. v. Patton, 597 A.2d 1216, 409 Pa.Super. 304, Super.1991, appeal denied 604 A.2d 248, 529 Pa.
657. Criminal Law
1072
Defendant's claims that sentencing court purported to sentence within guidelines with respect to attempted aggravated
assault but applied guidelines erroneously and that court sentenced outside guidelines with respect to aggravated
assault and attempted aggravated assault and sentence was unreasonable, raised substantial question of sentence's
appropriateness; therefore, Superior Court would grant petition for permission to appeal. Com. v. Kopp, 591 A.2d 1122,
405 Pa.Super. 110, Super.1991. Criminal Law
1072
Trial court failed to first correctly determine appropriate sentence under guidelines, and, thus, sentence outside
guidelines could not be affirmed; trial court gave defendant's conviction for aggravated assault a gravity score of "8"
rather than the required "9." Com. v. Brown, 587 A.2d 6, 402 Pa.Super. 369, Super.1991. Sentencing And Punishment
814
In view of the fact that sentencing court erroneously concluded deadly weapon enhancement provision was not
applicable and sentenced defendant to term of imprisonment within minimum range of unenhanced guidelines, Superior
Court was not required to make determination of question of unreasonableness of sentence and would merely remand
for resentencing under correct legal standard. Com. v. Pokorny, 520 A.2d 511, 360 Pa.Super. 384, Super.1987. Criminal
Law
1181.5(8)
Court's erroneous conclusion that deadly weapon enhancement provision was not applicable, and its imposition of
sentence of imprisonment within minimum range of unenhanced guidelines required Superior Court to vacate and
remand under subsec. (c)(1) of this section, rather than under subsec. (c)(3) of this section. Com. v. Pokorny, 520 A.2d
1181.5(8)
17. Time for appeal
Commonwealth had right to appeal legality of sentence of intermediate punishment imposed upon defendant for offense
of driving while operating privilege is suspended or revoked, DUI-related, notwithstanding fact that defendant had
already served sentence. Com. v. Harrison, 661 A.2d 6, 443 Pa.Super. 162, Super.1995. Criminal Law
1024(9)
Existence of absolute right of appeal does not, in and of itself, render all limitations governing exercise of that right
unconstitutional. Com. v. McFarlin, 587 A.2d 732, 402 Pa.Super. 502, Super.1991, affirmed 607 A.2d 730, 530 Pa. 167.
Criminal Law
1004
When a defendant appeals from a judgment of sentence, the time for appeal runs from date that court imposed the
sentence, informs defendant of his or her right to appeal within 30 days, and enters judgment on the docket. Com. v.
Cavanaugh, 456 A.2d 145, 500 Pa. 313, Sup.1983. Criminal Law
1069(5)
Failure of lower court to act upon petition for reconsideration with 30-day appeal period did not toll 30-day period within
which appeal from judgment of sentence must be brought. Com. v. Villaloz, 450 A.2d 47, 303 Pa.Super. 518,
1069(1)
Defendant's decision to exercise his appellate rights late was not done in a knowing, intelligent, and voluntary manner
since he was led to believe by trial court's statements at sentencing hearing that a direct appeal could be taken to a
higher court within 30 days from disposition of his motion to challenge his sentence, and thus his appeal could not be
quashed when he was not aware that an appeal had to be taken within 30 days of the date on which court imposed his
sentence. Com. v. Thomas, 447 A.2d 994, 301 Pa.Super. 333, Super.1982. Criminal Law
1069(6)
Filing by defendant of appeal from his sentence more than 30 days after imposition of sentence was untimely even
though, subsequent to sentencing, defendant filed a petition for reconsideration of sentence, because filing that petition
did not extend the time for filing an appeal. Com. v. McCarthy, 442 A.2d 698, 296 Pa.Super. 142, Super.1981. Criminal
Law
1081(4.1)
Appeal, in which defendant sought review of merits of his conviction, would have properly been from judgment of
sentence for probation violation, rather than from denial of petition to vacate sentence; 30-day period for appeal from
judgment of sentence was not extended by denial of petition, and thus, the appeal, which was begun more than 30 days
after judgment of sentence was entered, would be quashed. Com. v. Barnett, 439 A.2d 182, 293 Pa.Super. 420,
1069(6)
Although appellate review of sentence is generally foreclosed if defendant fails to file a written motion for modification
within ten days of entry of sentence, where defendant had filed pro se brief pointing out procedural defect and alleging
that counsel was ineffective for failing to preserve sentencing issue, considerations of judicial economy compelled
Supreme Court to address defendant's contention that trial court abused its discretion in imposing ten to 20-year
sentence on defendant's guilty plea to murder of third degree. Com. v. Green, 431 A.2d 918, 494 Pa. 406, Sup.1981.
Criminal Law
1044.1(1)
18. Jurisdiction
Defendant's claims, that three sentencing enhancements were based on facts found by the judge, rather than a jury,
rendering his sentence constitutionally infirm under Supreme Court's decision in Blakely v. Washington, which prohibited
upward state guidelines adjustments based on judicial fact finding, were best determined by district court in the first
instance. U.S. v. Brewster, C.A.3 (Pa.)2005, 128 Fed.Appx. 271, 2005 WL 852687, Unreported. Criminal Law
1181.5(8)
19. Sua sponte review
Illegality of sentence is not waivable and can be raised by appellate court sua sponte. Com. v. Vazquez, 476 A.2d 466,
1042
Superior Court is required to correct illegal sentence sua sponte. Com. v. Ruffin, 463 A.2d 1117, 317 Pa.Super. 126,
1184(4.1)
Illegality of sentence is not waivable and may even be raised sua sponte by reviewing court. Com. v. Roach, 453 A.2d
1042
Superior court is permitted to examine an issue of an illegal sentence sua sponte. Com. v. Gilliam, 448 A.2d 89, 302
1042
Parole imposed upon defendant's acquittal by reason of insanity was a judgment of sentence entered against him,
legality of which was subject to superior court's sua sponte review. Com. v. Thomas, 435 A.2d 901, 291 Pa.Super. 263,
Super.1981. Mental Health
439.1; Mental Health
440
Superior Court may examine the issue of legality of an imposed sentence sua sponte. Com. v. Aeschbacher, 419 A.2d
1134(3)
20. Nunc pro tunc review
Defendant should have been granted right to file direct appeal nunc pro tunc, in that his failure to exercise his right to
appeal was due to incorrect information he received from public defender's office as to amount of his sentence that he
was required to serve before he was eligible for parole, though he was never represented by public defender's office.
Com. v. Mika, 419 A.2d 1172, 277 Pa.Super. 339, Super.1980. Criminal Law
1069(6)
State Supreme Court decision in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) governing sentencing
requirements which was announced nine years after defendant was sentenced would not be applied in defendant's nunc
pro tunc appeal of his sentence complaining that trial court did not state of record reasons for ordering that defendant's
state court sentences run consecutively to sentences imposed in federal court on charges arising out of same incident.
Com. v. Olsen, 410 A.2d 299, 487 Pa. 499, Sup.1980. Courts
100(1)
21. Final orders
Where final judgment of sentence was never imposed, order appealed from by defendant was not a final order, and
appeal would be quashed. Com. v. Oliver, 454 A.2d 1128, 309 Pa.Super. 152, Super.1983. Criminal Law
1023(9)
A judgment of sentence is a final decision and a reviewing court may order reconsideration only when the sentencing
judge failed in his duties either in a procedural sense as, for example, by not stating the reasons for the sentence or in a
substantive sense by imposing a manifestly excessive sentence. Com. v. Doyle, 418 A.2d 1336, 275 Pa.Super. 373,
1147
Defendant should not have been sentenced until after disposition of postverdict motions but sentence, while
procedurally incorrect, was final order reduced to judgment and was therefore appealable. Com. v. Tilman, 417 A.2d
717, 273 Pa.Super. 416, Super.1980. Sentencing And Punishment
377; Criminal Law
1023(2)
Severe reprimand which was administered to defendant's counsel in a criminal prosecution as a sanction for his
contemptuous remarks constituted a "determination of guilt without further penalty" and, hence, constituted a final,
appealable order. Com. v. Rubright, 414 A.2d 106, 489 Pa. 356, Sup.1980. Contempt
66(2)
22. Moot questions
Issue of whether trial court had authority to entertain and grant Commonwealth's petition to modify prisoner's sentence
was moot where modification of prisoner's sentence became effective after hearing on Commonwealth's petition so that
prisoner claimed no civil and/or criminal disability due to sentence modification despite her parole or release from
confinement. Com. ex rel. Van Fossen v. Paul, 486 A.2d 982, 337 Pa.Super. 212, Super.1984. Criminal Law
1134(3)
Where appellant was still suffering consequences of improper sentence, his appeal of sentence for theft and conspiracy
convictions was not moot, notwithstanding that he had been paroled prior to appellate decision. Com. v. Mathis, 463
1017
Action challenging computation of maximum expiration date on petitioner's prior sentences was rendered moot by fact
that maximum term on the prior convictions had expired while he began to serve a new sentence. Cunningham v. Com.,
Pennsylvania Bd. of Probation and Parole, 450 A.2d 270, 69 Pa.Cmwlth. 25, Cmwlth.1982. Pardon And Parole
62
Argument that defendant's private counsel at first sentencing proceeding was ineffective was rendered moot by vacation
of the first sentence. Com. v. Miller, 424 A.2d 531, 283 Pa.Super. 411, Super.1981. Criminal Law
1134(3)
When a defendant appeals his conviction after he has completed his sentence, appeal is not moot if there is possibility
of collateral civil or criminal consequences as a result of the conviction. Com. v. Kelly, 418 A.2d 387, 274 Pa.Super.
1131(4)
Where following appeal from denial of petition to adjust sentence, defendant was paroled for remainder of sentence and
parole subsequently expired, defendant's appeal, which challenged lower court's interpretation of his sentence and did
not challenge legality of the sentence or his conviction, would be dismissed as moot. Com. v. Kelly, 418 A.2d 387, 274
1131(4)
23. Waiver or preservation of error--In general
Defendant waived on appeal issue of whether trial court improperly calculated his prior record score under sentencing
guidelines when determining his sentence, in rape prosecution; defendant failed to timely move to modify his sentence
either in post-sentence motions or in his petition under Post Conviction Relief Act (PCRA), and he failed to include
statement of reasons for allowance of appeal in his appellate brief. Com. v. O'Bidos, 849 A.2d 243, Super.2004, appeal
1130(5)
Defendant waived on appeal his argument that he was not entitled to be sentenced as a three time offender when he
was only given one opportunity in which to rehabilitate himself, where he did not raise his recidivist philosophy-based
argument at the sentencing hearing, in post-sentencing motions, or in his statement of matters complained of on appeal
to the Superior Court. Com. v. Bradley, 834 A.2d 1127, 575 Pa. 141, Sup.2003. Criminal Law
1042.5
Issue of whether defendant's sentence was to be concurrent to or consecutive with sentence he was currently serving
went to legality of sentence, and thus was not subject to waiver of appeal on ground that it was not timely raised in trial
court. Com. v. Pfeiffer, 579 A.2d 897, 396 Pa.Super. 641, Super.1990. Criminal Law
1042
Postconviction relief petitioner did not waive constitutionality of sentence by failing to raise it in his motion to modify
sentence. Com. v. O'Neil, 573 A.2d 1112, 393 Pa.Super. 111, Super.1990. Criminal Law
1437
Defendant's claim that statute under which he was sentenced had been implicitly repealed by later legislation
constituted attack on legality of sentence which was appealable as of right and which could not be waived. Com. v.
Smith, 544 A.2d 991, 375 Pa.Super. 419, Super.1988. Criminal Law
1026.10(1)
Failure to preserve challenge to constitutionality of adoption procedures for sentencing guidelines would not preclude
affirmance on those grounds when appeal of discretionary aspect of sentence is predicated solely on refusal of trial court
to apply guidelines or provisions; appellate court may affirm lower court for any reason. Com. v. Felix, 539 A.2d 371,
372 Pa.Super. 145, Super.1988, appeal denied 581 A.2d 568, 525 Pa. 642. Criminal Law
1134(6)
Commonwealth, which based its argument in motion for modification of sentence on contention that sentencing court
had sentenced defendant outside sentencing guidelines and that sentence unreasonably deviated from guidelines,
waived claim that sentence was unreasonably lenient. Com. v. Tilghman, 531 A.2d 441, 366 Pa.Super. 328,
1044.2(1)
Failure of defendant to raise question of State's failure to show that substantial question was presented by its appeal
from sentence did not permit court to consider the issue in the absence of the presentation of a concise statement of
reasons for contesting the discretionary aspect of the sentence, as the matter was one involving the jurisdiction of the
Superior Court. Com. v. Hawthorne, 527 A.2d 559, 364 Pa.Super. 125, Super.1987, appeal denied 535 A.2d 81, 517 Pa.
592. Criminal Law
1134(3)
Alleged trial errors which were either resolved against appellant in his first appeal or were not presented in first appeal
could not be raised on second appeal after resentencing. Com. v. Mathis, 463 A.2d 1167, 317 Pa.Super. 226,
1180
Ordinarily, failure to assert at sentencing or in a reconsideration petition that sentencing court failed to state on record
its reasons for sentence would constitute waiver. Com. v. Richards, 463 A.2d 1161, 317 Pa.Super. 212, Super.1983.
Criminal Law
1042
Defendant who did not object to sentencing procedure and withheld from both his attorney and sentencing court his
unique knowledge of his earlier request to withdraw his guilty plea waived any claim relating to regularity of his
sentence. Com. v. Kissinger, 462 A.2d 768, 316 Pa.Super. 12, Super.1983. Criminal Law
1042
Defendant's failure to attack his convictions at posttrial level did not waive his right to question lawfulness of sentences
imposed upon such convictions. Com. v. Ford, 461 A.2d 1281, 315 Pa.Super. 281, Super.1983. Criminal Law
1044.1(1)
When an appellant desires to challenge sentence on grounds of harshness and fails to move to modify sentence, such
inaction constitutes waiver. Com. v. Boyce, 450 A.2d 83, 304 Pa.Super. 27, Super.1982. Criminal Law
1042
To preserve issue of excessive sentence the correct procedure is to file written motion to modify sentence and failure to
do so waives any complaint concerning sentence that does not involve lawfulness of the sentence itself. Com. v.
DeCaro, 444 A.2d 160, 298 Pa.Super. 32, Super.1982. Criminal Law
1044.1(1)
Where defendant failed to take direct appeal from judgment of sentence and issues raised in postconviction proceeding
were cognizable at that stage, his failure to appeal constituted a waiver. Com. v. Harper, 436 A.2d 1217, 292 Pa.Super.
1430
Though a person's right to appellate review of a sentence imposed on him may be waived, the waiver must be an
intentional and intelligent relinquishment or abandonment of a known right. Com. v. Stufflet, 436 A.2d 235, 291
1026.10(1)
Where legality of conviction is not challenged in trial court on ground that one crime merged into greater offense, and
issue is thus not preserved for review, Superior Court will not require resentencing, but will vacate only sentence on
merged offense. Com. v. Brazzle, 416 A.2d 536, 272 Pa.Super. 438, Super.1979. Criminal Law
1028
Defendant, who appealed his conviction on numerous criminal offenses, was entitled, under Commonwealth v. Walker,
468 Pa. 323, 362 A.2d 227, to challenge on appeal the lawfulness of the separate but concurrent sentences imposed,
notwithstanding his failure to challenge them in the lower court. Com. v. Turner, 402 A.2d 542, 265 Pa.Super. 486,
1042
Where probation was viable sentencing alternative at time it was imposed and only defect was that it was not imposed
at time of original suspension of sentences, probation order was not illegal and could not be raised beyond statutory
time for appeal. Com. v. White, 400 A.2d 194, 264 Pa.Super. 495, Super.1979. Sentencing And Punishment
1893
Appellant's speedy sentencing claim, involving an unexplained delay of over two years and seven months between the
denial of his posttrial motions and his sentencing, was waived by reason of the fact that appellant did not bring that
matter to the attention of the lower court at the time of sentencing; furthermore, even were that claim considered on
the merits and in light of Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958) and Commonwealth v.
Stewart, 221 Pa.Super. 1, 289 A.2d 126 (1972), the result would be the same. Com. v. Rutherford, 381 A.2d 952, 252
1035(1)
Some errors in sentencing may be waived. Com. v. Walls, 375 A.2d 125, 248 Pa.Super. 335, Super.1977, affirmed 391
A.2d 1064, 481 Pa. 1. Sentencing And Punishment
249
Defendant who did not raise issue at time she was sentenced to two years without a minimum sentence was prevented
from successfully asserting error in sentencing on appeal. Com. v. Strand, 347 A.2d 675, 464 Pa. 544, Sup.1975.
Criminal Law
1042
Where defense counsel was on notice that trial court in determining sentence had taken into account prosecutor's
statement that there were in accused's room "all kinds of paraphernalia involved in drugs," including "a scale and other
material," but counsel did not ask trial court for an opportunity to rebut the statement, did not claim on appeal that he
could show that such was not the case, and merely claimed that since statement about paraphernalia was not evidence
but only an offer of proof trial court could not properly take it into account in determining sentence, the sentence would
not be set aside. Com. v. Rollins, 307 A.2d 385, 224 Pa.Super. 467, Super.1973. Criminal Law
1556
24. ---- Illegal sentence, waiver or preservation of error
Claims of illegality of sentence cannot be waived. Com. v. Reardon, 443 A.2d 792, 297 Pa.Super. 193, 1981; Com. v.
Albertson, 410 A.2d 815, 269 Pa.Super. 505, 1979.
Where a defendant has agreed to an allegedly illegal sentence as part of a plea negotiation, he or she is not thereafter
precluded from raising the issue on appeal. Com. v. Langston, 904 A.2d 917, Super.2006. Criminal Law
1026.10(4)
Defendant did not waive her challenge to the legality of her restitution sentence, which challenge consisted of
defendant's claim that the sentence required her to pay restitution to a person who was not a "victim" of the crime
defendant was convicted of, despite her failure to raise the issue in her statement of matters complained of on appeal; a
challenge to the legality of the sentence could not be waived. Com. v. Langston, 904 A.2d 917, Super.2006. Criminal
Law
1129(1)
Because a claim that crimes should have merged for sentencing purposes challenges the legality of a sentence, such a
claim cannot be waived. Com. v. Wesley, 860 A.2d 585, Super.2004, appeal granted in part 871 A.2d 790, 582 Pa. 366.
Criminal Law
1042
Defendant's claim that he should have received credit for pretrial confinement in his sentence for tampering with public
records concerned the legality of the sentence, and therefore Superior Court would consider claim, even though
defendant's counsel did not request such credit at sentencing hearing. Com. v. Tout-Puissant, 823 A.2d 186,
1042
Inquiry into the legality of a sentence is non-waivable. Com. v. Tout-Puissant, 823 A.2d 186, Super.2003. Sentencing
And Punishment
385
Although issue that trial court committed error in imposing minimum sentence was not raised at sentencing or in
postverdict motions, legality of sentence can never be waived. Com. v. Ohlinger, 487 A.2d 25, 337 Pa.Super. 437,
1042
Because an illegal sentence cannot be waived, defendant's failure to raise that issue on direct appeal did not preclude
Superior Court's consideration of that issue on appeal from an order denying a petition to vacate alleged illegal
sentences. Com. v. Padden, 483 A.2d 950, 335 Pa.Super. 51, Super.1984. Criminal Law
1042
Defendant's failure to question legality of his sentence before trial court did not result in his waiving argument before
reviewing court that he could not be sentenced for both burglary and indecent assault. Com. v. Byron, 465 A.2d 1023,
1042
Illegality of sentence is not waivable issue, and may be considered on second appeal after resentencing, even though
not raised in first appeal. Com. v. Mathis, 463 A.2d 1167, 317 Pa.Super. 226, Super.1983. Criminal Law
1180
Legality of sentence can never be waived and issue may be entertained by Superior Court. Com. v. Fulton, 462 A.2d
1042
Imposition of duplicitous sentences is beyond power and jurisdiction of sentencing court and thus can be considered on
appeal despite normal rules concerning waiver and sua sponte review. Com. v. Ford, 461 A.2d 1281, 315 Pa.Super.
1042
Where two convictions are based on same act, and illegal sentence results therefrom, failure to raise issue does not
preclude appellate review. Com. v. Soltis, 457 A.2d 562, 311 Pa.Super. 195, Super.1983. Criminal Law
1042
Illegality of sentence is not waivable issue and may be raised for first time on appeal. Com. v. Yancey, 447 A.2d 1041,
1042
Where defendant challenged only the legality of sentences imposed on convictions, not the validity of the convictions
themselves, his claim as to the legality of the sentences was not waived by the fact that it was raised for the first time
on appeal. Com. v. Norris, 446 A.2d 246, 498 Pa. 308, Sup.1982. Criminal Law
1042
Because illegality of sentence is not waivable issue, defendant's failure to raise issue below did not preclude
consideration of it by appellate court. Com. v. Miranda, 442 A.2d 1133, 296 Pa.Super. 441, Super.1982. Criminal Law
1042
As to propriety of inquiring into validity of sentence, Superior Court could consider issue though not raised in court
below, question as to legality of sentence being one which is never waived. Com. v. Von Aczel, 441 A.2d 750, 295
1042
Issue of illegality of sentence was not raised on direct appeal from original sentence and, as such, could not be
considered on appeal from probation revocation because it was not a waivable issue. Com. v. Martinez, 438 A.2d 984,
1134(8)
Illegality of a sentence is not a waivable matter and may be considered by appellate courts of the Commonwealth sua
sponte. Com. v. Thomas, 435 A.2d 901, 291 Pa.Super. 263, Super.1981. Criminal Law
1042
Illegality of sentence is not a waivable issue, and defendant's failure to raise issue at trial does not preclude Superior
Court's consideration of it. Com. v. Welch, 435 A.2d 189, 291 Pa.Super. 1, Super.1981. Criminal Law
1042
Objections to an illegal sentence are not waived by failing to raise them in posttrial proceedings. Com. v. Paige, 429
1042
Question of legality of a sentence is never waived. Com. v. Lawton, 414 A.2d 658, 272 Pa.Super. 40, Super.1979.
1010
25. ---- Objections, waiver or preservation of error
In the usual case, failure of counsel to interpose a timely objection at sentencing proceeding results in a waiver of the
issue, as does the failure to file an appropriate motion to modify the sentence imposed. Com. v. Aldinger, 436 A.2d
1196, 292 Pa.Super. 149, 1981; Com. v. Stufflet, 436 A.2d 235, 219 Pa.Super. 516, 1981, appeal after remand 469
A.2d 240, 322 Pa.Super. 176.

Defendant waived claim that sentencing judge was biased, and therefore that he was entitled to new sentencing hearing
before different judge, where judge's alleged bias was never raised at sentencing hearing or in motion for post-sentence
relief. Com. v. Griffin, 804 A.2d 1, Super.2002, appeal denied 868 A.2d 1198, 582 Pa. 671, certiorari denied 125 S.Ct.
2984, 162 L.Ed.2d 902. Criminal Law
1042; Criminal Law
1044.2(1)
Where trial counsel did not object to lower court's sentencing procedure by which court proceeded with sentencing
despite fact that defendant had presented to the court a request to withdraw his guilty plea and the court had
postponed ruling on the motion until a future date, defendant waived any claim that the procedure followed was
improper. Com. v. Karabin, 437 A.2d 431, 292 Pa.Super. 374, Super.1981. Criminal Law
1042
Defendant waived issue that trial court gave consideration to impermissible factor when it imposed sentence by
considering defendant's father's statement concerning defendant's involvement with drugs where neither defendant nor
his attorney objected at sentencing hearing to father's statement concerning drugs and in rather lengthy on-record
explanation of sentences, court made no reference to drug usage. Com. v. Garrison, 437 A.2d 407, 292 Pa.Super. 326,
1042
Unsubstantiated statement that defendant is major drug dealer is an inappropriate factor in a judge's imposition of
sentence, but a defendant waives issue if he fails to make timely objection in sentencing court. Com. v. Cruz, 402 A.2d
536, 265 Pa.Super. 474, Super.1979. Sentencing And Punishment
385
Fact that defendant argued in her first appeal to the Superior Court that she had been prejudiced by sentencing court's
failure to impose minimum sentence did not preclude defendant from asserting that resentencing which imposed
minimum sentence constituted double jeopardy violation where Superior Court failed to consider such issue and where
defendant at time of resentencing did not waive an objection to imposition of minimum sentence. (Per Nix, J., with one
Justice concurring and two Justices concurring in the result.) Com. v. Henderson, 393 A.2d 1146, 482 Pa. 359,
Sup.1978. Criminal Law
1137(2)
Notwithstanding that no established procedure exists for appellate review of unlawful sentence, absence of such
procedure does not excuse failure to object to sentence during sentencing proceeding. Com. v. Walls, 391 A.2d 1064,
1042
Assertion that lower court unfairly considered arrests that did not lead to convictions in sentencing defendant was not
preserved for appellate review where no timely objection was made in sentencing court. Com. v. Fields, 380 A.2d 491,
1042
Absent timely objection in sentencing court, issue whether such court could, in imposing sentence, consider accused's
arrest record, which did not indicate the disposition resulting from the arrests, was not preserved for appellate review.
Com. v. Shoemaker, 341 A.2d 111, 462 Pa. 342, Sup.1975. Criminal Law
1042
26. ---- Brief, waiver or preservation of error
Requirement that appellant separately set forth reasons relied upon for allowance of appeal furthers purpose evident in
Sentencing Code as whole of limiting any challenges to trial court's evaluation of multitude of factors impinging on
sentencing decision to exceptional cases. Com. v. McNear, 852 A.2d 401, Super.2004. Criminal Law
1072
Defendant waived objection that sentence amounted to "cruel and unusual punishment," by failing to cite any authority
in support of position in appellate brief. Com. v. Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied 629
1130(5)
27. ---- Ineffective assistance of counsel, waiver or preservation of error
Evidentiary hearing was necessary on federal prisoner's motion to vacate his sentence upon conviction of federal drug
and gun laws, for determination of whether trial counsel's decision to enter into stipulation which relieved government
of its burden to prove knowledge and intent elements of drug charges was "strategic," such that counsel's decision could
not amount to ineffective assistance. U.S. v. McCoy, C.A.3 (Pa.)2005, 410 F.3d 124. Criminal Law
1655(6)
Federal prisoner was entitled to an evidentiary hearing on his motion to vacate his sentence upon conviction of federal
drug and gun laws, for determination of whether he was prejudiced by his trial counsel's decision to enter into
stipulation which relieved government of its burden to prove knowledge and intent elements of drug charges. U.S. v.
McCoy, C.A.3 (Pa.)2005, 410 F.3d 124. Criminal Law
1655(6)
Absent indication that issue of failure to state reasons for sentence was raised either at time of sentencing or in petition
for reconsideration, the issue could be considered waived on appeal but, in view of allegation of ineffective counsel,
appellate court would reach the issue. Com. v. Desabetino, 464 A.2d 465, 317 Pa.Super. 561, Super.1983. Criminal Law
1042
28. ---- Petition for reconsideration, waiver or preservation of error
Alleged error in sentencing of defendant, based on claim that trial court looked solely to severity of crime and not
rehabilitative effect that had already been accomplished, was waived, since claim of error was not made in defendant's
motion for reconsideration of sentence or in his statement of questions involved. Com. v. Stufflet, 469 A.2d 240, 322
1178
Defendant preserved for review her objections to sentence by filing timely petition for reconsideration of sentence, as to
which the lower court took no action. Com. v. Russo, 444 A.2d 105, 297 Pa.Super. 424, Super.1982. Criminal Law
1044.2(1)
Defendant's failure to object to sentence at time it was imposed and failure to thereafter file motion to modify sentence,
or petition for reconsideration, did not waive defendant's right to challenge sentence where trial court failed to advise
defendant at time of sentencing of his right to file motions challenging propriety of sentence within ten days and that
only claims raised in lower court may be raised on appeal. Com. v. Aldinger, 436 A.2d 1196, 292 Pa.Super. 149,
1042; Criminal Law
1044.1(1)
Defendant, whose counsel failed to object to sentence at time it was imposed and failed to file motion to modify the
sentence or a petition for reconsideration, had not waived issue in regard to sentence, in light of fact that trial judge did
not advise defendant on the record that he had right to file motions challenging propriety of the sentence within ten
days and that only claims raised in the lower court could be raised on appeal. Com. v. Stufflet, 436 A.2d 235, 291
1042; Criminal Law
1044.1(1)
Defendant waived on appeal of probation revocation hearing any objection to failure of court below to state its reasons
for sentence at time of imposing sentence, as issue was not raised at sentencing or in defendant's petition for
reconsideration of sentence. Com. v. Turecki, 420 A.2d 658, 278 Pa.Super. 511, Super.1980. Criminal Law
1042
Though it appeared that trial court had considered an improper matter in sentencing, where defendant failed to first
petition the trial court to withdraw its sentence, superior court could not address the issue. Com. v. Graves, 419 A.2d
1042
Where defendant charged with voluntary manslaughter did not raise claims that sentence imposed was excessive and
that trial court did not place its reasons for sentence imposed on record at time of sentencing or in petition for
reconsideration of sentence, issues were not preserved for review. Com. v. Morris, 417 A.2d 748, 273 Pa.Super. 477,
Super.1979, reversed 424 A.2d 1336, 492 Pa. 565. Criminal Law
1042; Criminal Law
1044.1(1)
Defendant's claim that his sentence should be vacated was preserved for review where he first sought relief in trial court
and trial court modified sentence; trial court had indicated full extent of relief it was prepared to grant and defendant
had no obligation to file another petition for reconsideration. Com. v. Young, 414 A.2d 679, 272 Pa.Super. 82,
1044.1(1)
Defendant, who failed to file petition for reconsideration of his sentence in trial court, thereby waived the issue. Com. v.
Moore, 414 A.2d 362, 271 Pa.Super. 494, Super.1979. Criminal Law
1044.1(1)
Where order of restitution included in a judgment of sentence was not unlawful per se, any error underlying such order
was waived by failure to take a direct appeal, and could not be challenged by untimely petition in lower court to
reconsider. Com. v. Lauer, 402 A.2d 678, 265 Pa.Super. 542, Super.1979. Sentencing And Punishment
2280
A defendant who seeks to challenge propriety of his or her sentence should first present his or her claim to trial court in
order to afford that court an opportunity to reconsider its sentence and to give an appellate court the benefit of its
views. Com. v. Riggins, 377 A.2d 140, 474 Pa. 115, Sup.1977. Criminal Law
1042
29. Scope of review--In general
Supreme Court had jurisdiction over Commonwealth's appeal from Superior Court's appellate decision vacating trial
court's sentence in a violation of probation (VOP) proceeding, because the appellate issue did not involve discretionary
aspects of the sentence; probationer's appeal to Superior Court had alleged that trial court lacked authority or power to
revoke parole and probation and to impose new VOP sentence based on succeeding conviction for criminal conduct
where the underlying conduct, but not the conviction, existed at time of prior VOP hearing. Com. v. Infante, 888 A.2d
783, Sup.2005. Criminal Law
1023(16)
Although the Supreme Court is generally without jurisdiction to review the discretionary aspects of a sentence, it does
have jurisdiction to review an appeal claim involving the legality of a sentence. Com. v. Infante, 888 A.2d 783,
1023(11)
When reviewing sentencing matters, Superior Court must accord sentencing court great weight as sentencing court is in
best position to view defendant's character, displays of remorse, defiance or indifference, and overall effect and nature
of crime. Com. v. Hanson, 856 A.2d 1254, Super.2004. Criminal Law
1147
The Superior Court may only reach the merits of an appeal challenging the discretionary aspects of sentence where it
appears there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Com.
v. Eby, 784 A.2d 204, Super.2001. Criminal Law
1072
If an appellant seeking review of discretionary aspect of sentence fails to comply with requirement that his or her brief
contain a concise statement of reasons relied upon in support of petition for allowance of appeal, and the opposing party
fails to object, the Superior Court may review an appellant's discretionary sentencing claims. Com. v. Brown, 741 A.2d
726, Super.1999, revised, appeal denied 790 A.2d 1013, 567 Pa. 755. Criminal Law
1072
In context of sentencing, abuse of discretion is not shown merely by error in judgment; rather, appellant must
establish, by reference to record, that sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision. Com. v. Rodda, 723
1147
If appellant who challenges discretionary aspects of sentence fails to comply with rule requiring statement of reasons
relied on in brief, and appellee fails to object, Superior Court may review appellant's claims with regard to discretionary
aspects of sentence; however, where appellee objects, Court cannot overlook procedural error. Com. v. Archer, 722
1130(2)
When reviewing sentencing matters, Superior Court must accord sentencing court great weight as it is in best position
to view defendant's character, displays of remorse, defiance or indifference, and overall effect and nature of the crime.
Com. v. Cappellini, 690 A.2d 1220, 456 Pa.Super. 498, Super.1997. Criminal Law
1147
Sentence should not be disturbed where it is evident that sentencing court was aware of sentencing considerations and
weighed considerations in meaningful fashion. Com. v. Cappellini, 690 A.2d 1220, 456 Pa.Super. 498, Super.1997.
370
Appellate court must review sentencing decision of trial court under deferential standard of review and remand for new
sentence only where trial court's departure from sentencing guidelines was unreasonable. Com. v. Smith, 673 A.2d 893,
1181.5(8)
Although reviewing court may not have imposed same sentence as trial court, it is not for a reviewing court to
substitute its discretion for that of trial court, but merely to ascertain that proper consideration was given to relevant
sentencing factors. Com. v. Widmer, 667 A.2d 215, 446 Pa.Super. 408, Super.1995, reargument denied, appeal granted
680 A.2d 1161, 545 Pa. 652, reversed 689 A.2d 211, 547 Pa. 137. Criminal Law
1147
Sentencing court's discretion is broad, and reviewing court should not disturb exercise of that discretion except for
substantial reasons. Com. v. Widmer, 667 A.2d 215, 446 Pa.Super. 408, Super.1995, reargument denied, appeal
granted 680 A.2d 1161, 545 Pa. 652, reversed 689 A.2d 211, 547 Pa. 137. Criminal Law
1147; Sentencing And
Punishment
31
When reviewing sentencing matters, Superior Court must accord sentencing court great weight, as it is in best position
to view defendant's character, displays of remorse, defiance or indifference, and overall effect and nature of crime.
1147
When reviewing sentencing matters, Superior Court must accord sentencing court great weight as it is in best position
to view defendant's character, displays of remorse, defiance or indifference, and overall effect and nature of crime.
Com. v. Eicher, 605 A.2d 337, 413 Pa.Super. 235, Super.1992, appeal denied 617 A.2d 1272, 533 Pa. 598. Criminal
Law
1147
Sentencing is matter within sound discretion of trial court and will not be disturbed unless it is outside statutory limits or
manifestly excessive so as to inflict too severe a punishment. Com. v. Phillips, 601 A.2d 816, 411 Pa.Super. 329,
Super.1992, appeal granted 610 A.2d 45, 530 Pa. 665, affirmed 633 A.2d 604, 534 Pa. 423. Criminal Law
1147;
35
While sentencing court is required to "consider" applicable guidelines, and while reasons for any deviation from
applicable standard range of guidelines must be explained in writing, determination of whether sentence is not
appropriate, clearly unreasonable, or unreasonable must be made with reference to Sentencing Code as a whole, not
solely with reference to sentencing guidelines. Com. v. Darden, 531 A.2d 1144, 366 Pa.Super. 597, Super.1987.
Criminal Law
1134(2); Sentencing And Punishment
654
Where trial judge, due to retirement, did not sentence defendant, many of the factors justifying deference normally
accorded sentencing court were not present, and the Superior Court would view case as one in which sentence outside
guidelines required unusually strong support, since in it was not based on extensive trial exposure normally possessed
by sentencing judge. Com. v. Bullicki, 513 A.2d 990, 355 Pa.Super. 416, Super.1986. Criminal Law
1147
Appellate review of sentence is appropriate if brief review of record convinces court that there is a substantial question
as to whether sentence is inappropriate. Com. v. Easterling, 509 A.2d 345, 353 Pa.Super. 84, Super.1986, appeal
1134(3)
Although Commonwealth, in seeking to appeal from discretionary aspects of sentence, may initiate such appeal by
merely filing a notice as required by rule 902, Rules App.Proc., appellate court, before proceeding to merits of issue,
must determine whether or not there is substantial question that sentence imposed is not appropriate under the
sentencing guidelines. Com. v. Drumgoole, 491 A.2d 1352, 341 Pa.Super. 468, Super.1985. Criminal Law
1072
When the sentence is within statutory limits, and court has complied with several requirements of the Sentencing Code,
such as stating its reasons for sentence, the superior court will not reverse absent a manifest abuse of discretion. Com.
v. Brown, 460 A.2d 1155, 314 Pa.Super. 311, Super.1983. Criminal Law
1147
In reviewing the imposition of a certain sentence, the Superior Court should ordinarily defer to the trial court which was
better able to weigh the various considerations, and should not replace the trial court's judgment with its own unless the
sentence demonstrates that the sentencing court clearly abused its discretion. Com. v. Long, 456 A.2d 641, 310
1147
Claims pertaining to innocence or guilt are not appropriate for consideration on review of a sentence as guilt or
innocence has already been determined. Com. v. Reardon, 443 A.2d 792, 297 Pa.Super. 193, Super.1981. Sentencing
And Punishment
2221
It is not function of Superior Court to determine whether it agrees with statements of sentencing court in sense of
determining whether Superior Court would have said same thing and imposed same sentence; rather, Superior Court
must evaluate whether confinement imposed on defendant is consistent with protection of public, gravity of offenses
and rehabilitative needs of defendant. Com. v. Rooney, 442 A.2d 773, 296 Pa.Super. 288, Super.1982. Criminal Law
1147
Superior court could not review lower court's imposition of sentence, where such court did not have opportunity to
reconsider sentence, despite contention of defendant that it was unlikely that the lower court would desire to change the
sentence. Com. v. Hartman, 435 A.2d 232, 291 Pa.Super. 87, Super.1981. Criminal Law
1042
If there be any source of authority for sentence imposed, the Superior Court may affirm, even if such source was not
suggested to or known by lower court at time of sentencing. Com. v. Erb, 428 A.2d 574, 286 Pa.Super. 65, Super.1981.
Criminal Law
1182
In reviewing sentences imposed by lower court, Superior Court will not guess at lower court's reasons for sentence or
substitute its thought processes for what might have been thought processes of lower court. Com. v. Bryner, 427 A.2d
1134(1)
Generally, imposition of a sentence by the court is a matter within sound discretion of trial court and will not be
disturbed on appeal so long as it is within statutory limits. Com. v. Giffin, 420 A.2d 1134, 279 Pa.Super. 264,
35
Appellate court cannot determine whether particular sentence is excessive and whether it constitutes abuse of discretion
unless it knows why the sentencing court imposed that sentence and what information was considered. Com. v. Bolyard,
1147
Appellate court will look only to the written judgment of sentence signed by the trial judge in considering the illegality of
a sentence and not to oral statements made by him in the process of passing sentence. Com. v. Evans, 385 A.2d 540,
1134(2)
Supreme Court on direct appeal following imposition of sentence had before it issue of defendant's competence to stand
trial, where defendant at time when motion for competency hearing should have been made was acting as his own
attorney and where defendant at time of preliminary hearing while acting in his own defense requested that he be
examined by court-appointed physician. Com. v. Davis, 317 A.2d 211, 455 Pa. 596, Sup.1974. Criminal Law
1035(2)
30. ---- Record, scope of review
Record of criminal prosecution indicated that three issues presented by the Commonwealth, which issues majority of the
Superior Court failed to consider on grounds of waiver, were sufficiently presented to sentencing judge in a timely
manner. Com. v. Tomasso, 485 A.2d 395, 506 Pa. 344, Sup.1984. Criminal Law
1042
Where defendant takes an appeal as of right, without allegations of error, to a higher court for trial de novo the de novo
court does not need to state on the record facts occurring since the first sentence which justified a greater sentence.
Com. v. DeCaro, 444 A.2d 160, 298 Pa.Super. 32, Super.1982. Criminal Law
260.12
Record must be reviewed to ascertain judge's reasons for imposing a particular sentence. Com. v. Andrews, 422 A.2d
1134(3)
In deciding whether sentencing judge failed in his duties, reviewing court may consider only the record as it appeared to
the judge when he imposed the sentence, and, therefore, defendant's behavior after sentencing is not relevant. Com. v.
Doyle, 418 A.2d 1336, 275 Pa.Super. 373, Super.1979. Criminal Law
1134(2)
Where court sitting without jury hears prejudicial information, such as incriminating statements or evidence of prior
convictions, judgment of sentence will nonetheless be upheld if court states that its decision was independent of the
prejudicial information and if record supports court's declaration. Com. v. Oliver, 416 A.2d 1128, 273 Pa.Super. 140,
260.11(6)
Record stating that trial court had considered gravity of offenses, need to deter, punishment, rehabilitation, protection
of society and public and hopefully the future prevention of further crimes did not supply Superior Court with sufficient
information for meaningful review of sentence imposed, since the boilerplate reasons fell short of "reasoned basis" for
sentence imposed. Com. v. Mahan, 413 A.2d 725, 271 Pa.Super. 396, Super.1979. Sentencing And Punishment
373
On appeal from order of Superior Court affirming judgment of sentence and holding that defendant had waived his
contention of error with respect to sentencing court's alleged consideration of past arrests not resulting in conviction,
Supreme Court could not determine whether defendant's contention of error had been preserved and, if so, whether it
had merit, in view of fact that necessary portion of transcript was missing, and therefore, defendant's request for
allowance of appeal was granted, judgment of sentence was vacated, and cause was remanded for a new sentencing
hearing of record. Com. v. Fields, 387 A.2d 83, 478 Pa. 479, Sup.1978. Criminal Law
1126
31. ---- Weight or consideration of evidence, scope of review
Sentence imposed is normally left undisturbed on appeal because trial court is in far better position to weigh factors
involved in such determination; however, court's discretion must be exercised within certain procedural limits, including
consideration of sufficient and accurate information. Com. v. Franklin, 446 A.2d 1313, 301 Pa.Super. 17, 1982; Com. v.
Martin, 351 A.2d 650, 466 Pa. 118, 1976.
Trial court did not commit a manifest abuse of discretion in sentencing defendant to aggregate 10 to 20-year sentence
for five counts of robbery, four counts of criminal conspiracy, two counts of recklessly endangering another person, and
one count of theft from a motor vehicle; presumption arose that court weighed relevant information contained in
presentence report along with any mitigating sentencing factors, court placed great emphasis on fact that two months
after pleading guilty, defendant "jumped bail" and committed another violent crime out-of-state, and court considered
individual circumstances concerning defendant and many crimes he committed. Com. v. Marts, 889 A.2d 608,
Super.2005. Assault And Battery
100; Conspiracy
51; Larceny
88; Robbery
94
Aggregate sentence of 260 months to 528 months for third-degree murder, voluntary manslaughter, and two counts of
recklessly endangering another person was within trial court's discretion; trial court found defendant's assertions of
remorse unconvincing and incredible, determined that defendant was extremely poor candidate for rehabilitation,
considered all relevant factors and presentence report, set forth its reasons for imposing sentence beyond minimum
aggravated range of sentencing guidelines, and fashioned appropriate and reasonable sentence. Com. v. Kimbrough,
872 A.2d 1244, Super.2005, appeal denied 887 A.2d 1240. Sentencing And Punishment
645
In exercising its discretion, sentencing court may deviate from guidelines, if necessary, to fashion sentence that takes
into account protection of public, rehabilitative needs of defendant, and gravity of particular offense as it relates to
impact on life of victim and community, so long as court also states of record factual basis and specific reasons which
compelled deviation from guidelines. Com. v. Kenner, 784 A.2d 808, Super.2001, appeal denied 796 A.2d 979, 568 Pa.
695. Sentencing And Punishment
995
To demonstrate that substantial sentencing question exists on appeal, the party seeking to appeal from discretionary
aspect of sentence must include in his or her brief a concise statement of the reasons relied upon in support of the
petition for allowance of appeal. Com. v. Brown, 741 A.2d 726, Super.1999, revised, appeal denied 790 A.2d 1013, 567
1072
Appellant must separately set forth reasons relied upon for allowance of appeal of sentence in order to further the
purpose of sentencing code of limiting any challenges to trial court's evaluation of the multitude of factors impinging on
sentencing decision to exceptional cases. Com. v. Thomas, 563 A.2d 1249, 387 Pa.Super. 191, Super.1989. Criminal
Law
1072
In determining whether particular sentence is "clearly unreasonable" or "unreasonable," appellate court must consider
defendant's background and characteristics as well as particular circumstances of offense involved, trial court's
opportunity to observe defendant, presentence investigation report, sentencing guidelines, and findings upon which trial
court based its sentence. Com. v. Drumgoole, 491 A.2d 1352, 341 Pa.Super. 468, Super.1985. Criminal Law
1147
In view of wide latitude accorded to sentencing judges, appellate court's review of challenged sentence necessarily
begins with an evaluation of the degree to which sentencing judge followed the guidelines set forth in sentencing code.
Com. v. Stafford, 459 A.2d 824, 313 Pa.Super. 231, Super.1983. Criminal Law
1147
The sentencing court must consider the defendant's character and particular circumstances of the crime and, if the
sentence complies with the above requirements, is within the statutory limits, and the reasons for such are stated on
the record, the decision of the sentencing court will be upheld. Com. v. Long, 456 A.2d 641, 310 Pa.Super. 339,
92
Generally, sentence imposed by court of common pleas is left undisturbed on appeal for reason that trial court is in far
better position than appellate court to weigh factors involved in determining proper sentence. Com. v. Youngkin, 427
1147
In making decision as to whether a sentence is manifestly excessive, Superior Court must evaluate the factors of
whether the confinement imposed on defendant is consistent with protection of the public, gravity of defendant's
offenses, and defendant's rehabilitative needs. Com. v. Campolei, 425 A.2d 818, 284 Pa.Super. 291, Super.1981.
40
If sentence is imposed for minimum amount of time that is consistent with gravity of offense, rehabilitative needs of
defendant, and protection of the public and if trial judge considers character of defendant and particular circumstances
of the crime in imposing sentence, and if sentence is within statutory limits for the offense and reasons for sentence are
stated on the record, then judgment of sentencing court will be upheld. Com. v. O'Brien, 422 A.2d 894, 282 Pa.Super.
193, Super.1980. Sentencing And Punishment
90
Although sentence imposed by trial court normally is left undisturbed on appeal because that court is in far better
position to weigh factors involved in such determination, court's discretion in sentencing must be exercised within
certain procedural limits, including consideration of sufficient and accurate information and court must place on the
record its reasons for imposition of particular sentence chosen. Com. v. Mathis, 409 A.2d 63, 269 Pa.Super. 61,
372On appeal, great deference is given
to trial court's discretion in sentencing, based on view that trial court is in far better position to weigh factors involved in
sentencing determination; however, factors which court considered and reasons for sentencing alternative chosen must
be of record so that cogent determination can be made that there was in fact discretion exercised below. Com. v. Pauze,
1086.13; Criminal Law
1147
In deciding whether trial judge considered only permissible factors in sentencing a defendant, an appellate court must,
of necessity, review all of the judge's comments; in making this determination it is not necessary that an appellate court
be convinced that trial judge in fact relied upon an erroneous consideration, for it is sufficient to render sentence invalid
if it reasonably appears from the record that the trial court relied in whole or in part on such an impermissible factor.
Com. v. Bethea, 379 A.2d 102, 474 Pa. 571, Sup.1977. Sentencing And Punishment
59; Criminal Law
1134(2)
Correct inquiry in criminal case is not whether trial court considered legitimate factors in fixing sentence but whether
trial court considered only such factors; sentence based in part on an impermissible consideration is not made proper
simply because sentencing judge considers other permissible facts as well. Com. v. Bethea, 379 A.2d 102, 474 Pa. 571,
Sup.1977. Sentencing And Punishment
59
32. ---- Abuse of discretion, scope of review

Imposition of proper sentence is matter vested in sound discretion of trial court, determination will not be disturbed on
appeal but for manifest abuse of discretion. Com. v. Mead, 446 A.2d 971, 300 Pa.Super. 510, 1982; Com. v. Plank, 445
A.2d 491, 498 Pa. 144, 1982; Com. v. Landi, 421 A.2d 442, 280 Pa.Super. 134, 1980; Com. v. Lee, 420 A.2d 708, 278
Pa.Super. 609, 1980; Com. v. Kostka, 419 A.2d 566, 276 Pa.Super. 494, 1980; Com. v. Williams, 418 A.2d 499, 274
Pa.Super. 464, 1980.
Absent an abuse of discretion, a sentence imposed by trial court will not be disturbed on appeal. Com. v. Rooney, 442
A.2d 773, 296 Pa.Super. 288, 1982; Com. v. Gillespie, 434 A.2d 781, 290 Pa.Super. 336, 1981.
Where no statutory mandated sentence exists, Pennsylvania trial judges are vested with broad discretion in sentencing,
and Superior Court will not reverse a judgment of sentence unless an abuse of discretion is shown; thus, in order to
constitute an abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. Com. v.
Campolei, 425 A.2d 818, 284 Pa.Super. 291, 1981; Com. v. Michenfelder, 408 A.2d 860, 268 Pa.Super. 424, 1979.
Sentencing is a matter vested in the sound discretion of a sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. Com. v. Celestin, 825 A.2d 670, Super.2003, reargument denied, appeal
31
Superior Court may vacate an appellant's sentence if the trial court abused its discretion by imposing a sentence that is
manifestly unreasonable. Com. v. Parlante, 823 A.2d 927, Super.2003. Sentencing And Punishment
31
Superior Court finds an abuse of discretion when the sentencing court fails to give careful consideration to all relevant
factors in sentencing appellant. Com. v. Parlante, 823 A.2d 927, Super.2003. Criminal Law
1147
Superior Court will grant appeal challenging discretionary aspect of sentence only when appellant advances colorable
argument that sentencing judge's actions were either: (1) inconsistent with specific provision of sentencing code, or (2)
contrary to fundamental norms which underlie sentencing process; in fulfilling this requirement, appellant must include
in brief concise statement of reasons relied upon in support of petition for allowance of appeal. Com. v. Kenner, 784
1072
When a defendant raises an issue that implicates the discretionary aspects of his sentence, the defendant must petition
the Superior Court for permission to appeal and demonstrate that there is a substantial question that the sentence
imposed was not appropriate under the Sentencing Code. Com. v. Johnson, 758 A.2d 1214, Super.2000, appeal denied
1072
In order to constitute an "abuse of discretion," such as will permit disturbing lower court's judgment of sentence,
sentence must either exceed statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Com.
v. Cappellini, 690 A.2d 1220, 456 Pa.Super. 498, Super.1997. Criminal Law
1147
Imposition of sentence is vested in discretion of sentencing court and will not be disturbed absent manifest abuse of
discretion. Com. v. Smith, 673 A.2d 893, 543 Pa. 566, Sup.1996. Criminal Law
31
"Abuse of discretion" which would justify vacation of sentence is more than just an error in judgment; record must
disclose that judgment exercised was manifestly unreasonable or result of partiality, prejudice, bias, or ill-will. Com. v.
Smith, 673 A.2d 893, 543 Pa. 566, Sup.1996. Criminal Law
1147
Sentencing is a matter vested in sound discretion of trial court and lower court's judgment of sentence will not be
disturbed by appellate court absent abuse of that discretion. Com. v. Eicher, 605 A.2d 337, 413 Pa.Super. 235,
31
To constitute abuse of discretion, sentence must either exceed statutory limits or be patently excessive. Com. v. Eicher,
605 A.2d 337, 413 Pa.Super. 235, Super.1992, appeal denied 617 A.2d 1272, 533 Pa. 598. Sentencing And Punishment
35
Since the Commonwealth had conceded it did not, and could not, raise issue of whether particular sentence, outside
sentencing guidelines, was unreasonably lenient, decision of Superior Court had to be affirmed. Com. v. Tomasso, 485
A.2d 395, 506 Pa. 344, Sup.1984. Criminal Law
1024(9)
Absent a gross abuse of discretion, a sentencing court will not be reversed on appeal; imposition of sentence is a matter
more suitable for trial judges in light of their extensive exposure to the nature of the crime, the defendant's character,
whether he displays remorse, defiance or indifference, and both the prosecution and defense witnesses. Com. v. McCall,
1147
If sentencing judge followed obligatory procedures enacted to assure careful, intelligent and informed sentencing, then
appellate court may review sentence only to ensure that there has not been an abuse of wide discretion accorded
sentencing court. Com. v. Stafford, 459 A.2d 824, 313 Pa.Super. 231, Super.1983. Criminal Law
1147
Sentencing is initially vested in sound discretion of trial judge, subject to modification by Superior Court, only if there is
a manifest abuse of discretion. Com. v. Reardon, 443 A.2d 792, 297 Pa.Super. 193, Super.1981. Criminal Law
1147;
31
If sentencing judge followed obligatory procedures enacted to assure careful, intelligent and informed sentencing,
Superior Court may review sentence only to ensure that there has not been an abuse of wide discretion accorded
sentencing court. Com. v. Kraft, 440 A.2d 627, 294 Pa.Super. 599, Super.1982. Criminal Law
1147
When exercised in accordance with statutory guidelines, discretion of court with regard to sentencing will not be
disturbed absent a showing of manifest abuse. Com. v. Artis, 439 A.2d 1199, 294 Pa.Super. 276, Super.1982. Criminal
Law
1147
If statutory mandates enacted to assure considered and informed sentencing have been followed, Superior Court may
review sentence only to ensure that there has not been abuse of wide discretion accorded to sentencing court. Com. v.
Cruz, 436 A.2d 220, 291 Pa.Super. 486, Super.1981. Criminal Law
1147
Trial judge is best able to weigh varying factors of each individual case and determine fair and just sentence, and he
must have broad discretion to do so, and, as such, his decision will be overturned only if that discretion is clearly
abused. Com. v. O'Brien, 422 A.2d 894, 282 Pa.Super. 193, Super.1980. Criminal Law
1147
Procedure of indeterminate sentencing necessitates broad discretion in the sentencing court, and that court's
determination will not be disturbed absent a manifest abuse. Com. v. Jezorwski, 421 A.2d 464, 280 Pa.Super. 178,
31
Determination of sentencing court in imposing proper sentence will not be upset unless there is a manifest abuse of
discretion. Com. v. Turecki, 420 A.2d 658, 278 Pa.Super. 511, Super.1980. Criminal Law
1147
In sentencing defendant, court must have before it sufficient and accurate information; and it must consider individual
characteristics of defendant and offense; and court must state reasons for its decision and advise defendant of his right
to appeal; where these procedures are followed, Superior Court will not vacate judgment of sentence unless lower court
abused its discretion by imposing sentence which exceeds statutory limits or is manifestly erroneous. Com. v. Brazzle,
416 A.2d 536, 272 Pa.Super. 438, Super.1979. Sentencing And Punishment
372;
308; Criminal Law
90
33. ---- Excessiveness, scope of review
In considering whether sentence was manifestly excessive, Superior Court must give weight to sentencing judge's
discretion as he is in best position to measure various factors such as nature of crime, defendant's character, and his
displays of remorse, defiance or indifference. Com. v. Phillips, 601 A.2d 816, 411 Pa.Super. 329, Super.1992, appeal
granted 610 A.2d 45, 530 Pa. 665, affirmed 633 A.2d 604, 534 Pa. 423. Criminal Law
1147
Defendant's failure to identify crime for which he was convicted in his petition for allowance of appeal precluded
appellate review of issue of whether defendant's sentence was excessive. Com. v. Ziegler, 550 A.2d 567, 379 Pa.Super.
1071
Sentence of 11 1/2 to 23 months imprisonment for burglary and criminal conspiracy charges, the minimum sentence of
which was less than one half the minimum permitted under the mitigated range, was improper when sentencing court,
in effect, exercised no discretion by imposing sentence solely out of courtesy to fellow judge who wished to retain
jurisdiction over defendant in order to place him in drug and alcohol abuse program. Com. v. Easterling, 509 A.2d 345,
353 Pa.Super. 84, Super.1986, appeal denied 536 A.2d 1328, 517 Pa. 603. Burglary
49; Conspiracy
51
In reviewing a sentence challenged as excessive, reviewing court must review both sentence itself and process by which
sentencing judge reached it. Com. v. Palmer, 462 A.2d 755, 315 Pa.Super. 601, Super.1983. Criminal Law
1147
Sentencing is a matter within sound discretion of sentencing judge, to be exercised within statutory guidelines and
considerations; when so exercised, sentence will not be disturbed by appellate court unless it is so clearly excessive as
to constitute an abuse of discretion. Com. v. Stafford, 459 A.2d 824, 313 Pa.Super. 231, Super.1983. Criminal Law
35
Sentence would not be found excessive or be disturbed on appeal where it did not exceed statutory limits and where
sentencing colloquy clearly demonstrated that court carefully considered all evidence relevant to determination of a
proper sentence. Com. v. Burtner, 453 A.2d 10, 307 Pa.Super. 230, Super.1982. Criminal Law
1177
In reviewing a sentence challenged as manifestly excessive, court is required to review the sentence itself and the
process by which sentencing judge reached it. Com. v. Smith, 447 A.2d 314, 301 Pa.Super. 204, Super.1982. Criminal
Law
1147
Sentencing is a matter within sound discretion of sentencing judge, to be exercised within statutory guidelines and
considerations; when so exercised, sentence will not be disturbed by appellate court unless it is so clearly excessive as
to constitute an abuse of discretion. Com. v. Hollerbush, 444 A.2d 1235, 298 Pa.Super. 397, Super.1982. Criminal Law
35
Appellate scope of review of sentencing decision should be limited to sentences that exceeded statutorily prescribed
limits or sentences which were so manifestly excessive as to constitute a constitutionally impermissible sentence. Com.
v. Cottle, 426 A.2d 598, 493 Pa. 377, Sup.1981. Criminal Law
1147
Issue whether sentence was properly imposed is usually problem presenting mixed question of law and fact that is left
within broad discretion of sentencing jduge and not reviewed on appeal unless sentence exceeds statutorily prescribed
limits or is so manifestly excessive that it constitutes too severe punishment. Com. v. Vernille, 418 A.2d 713, 275
35
Superior Court and Supreme Court have power and responsibility to vacate sentence determined to be so manifestly
excessive as to constitute too severe punishment but it is insufficient to simply assert unduly harsh sentence, and
record must show it in order for relief to be warranted. Com. v. DeLuca, 418 A.2d 669, 275 Pa.Super. 176, Super.1980.
Criminal Law
1556
Trial judge has broad discretion in imposing sentence and as long as the sentence imposed is within statutory limits, an
appellate court will not hold that the sentencing court committed an abuse of discretion unless the sentence is
manifestly excessive. Com. v. Rhodes, 416 A.2d 1031, 272 Pa.Super. 546, Super.1979. Criminal Law
1147;
35
An appellate court should not disturb a sentence unless it is either manifestly excessive or it exceeds statutory limits.
(Per Curiam opinion of three Judges with one Judge concurring in result.) Com. v. Lee, 385 A.2d 1025, 254 Pa.Super.
1147
In reviewing a claim of excessive sentence, Superior Court should decide whether lower court exercised its discretion
within certain procedural limits including the consideration of sufficient and accurate information. (Per Spaeth, J., with
one Judge concurring and five Judges concurring in result). Com. v. Smith, 378 A.2d 1278, 250 Pa.Super. 537,
1147
Sentencing lies within sole discretion of sentencing judge and the exercise of such broad discretion will not be disturbed
on appeal unless the sentence exceeds statutorily prescribed limits or sentence is manifestly excessive or unless the
court's discretion was not exercised in accordance with applicable statutory requirements. Com. v. Smith, 371 A.2d
35
Superior Court should not find abuse of discretion in sentencing, provided that sentence imposed is within statutory
limits, unless sentence imposed is so manifestly excessive as to inflict too severe punishment. Com. v. Kaminski, 368
1147
If sentence imposed is within statutory limits, reviewing court should not find an abuse of discretion unless sentence
imposed is so manifestly excessive as to inflict too severe a punishment. Com. v. Fisher, 368 A.2d 736, 244 Pa.Super.
309, Super.1976, reversed 400 A.2d 1284, 485 Pa. 8. Sentencing And Punishment
35
34. Burden of proof
To demonstrate that trial court has abused its discretion, as will warrant reversal of sentence on review, appellant must
establish, by reference to record, that sentencing court ignored or misapplied law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at manifestly unreasonable decision. Com. v. Hanson, 856 A.2d 1254,
31
Before a challenge to the judgment of sentence will be heard on the merits, an appellant must demonstrate there is a
substantial question that the sentence imposed is inappropriate under the sentencing guidelines. Com. v. Adams, 760
1072
35. Remedy, generally
Where a case requires a correction of sentence, the Court of Appeals has the option of either remanding for
resentencing or amending the sentence directly. Com. v. Klein, 795 A.2d 424, Super.2002. Criminal Law
1181.5(8);
Criminal Law
1184(4.1)
Remedy for error in sentencing defendant for multiple inchoate crimes is either amending sentence, vacating sentence
for lesser offenses, or remanding for resentencing. Com. v. Ford, 461 A.2d 1281, 315 Pa.Super. 281, Super.1983.
Criminal Law
1184(4.1)
36. Amendment of sentence on appeal
The Superior Court will grant an appeal from discretionary aspect of sentence only when the appellant advances a
colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Com. v. Brown, 741
A.2d 726, Super.1999, revised, appeal denied 790 A.2d 1013, 567 Pa. 755. Criminal Law
1072
Where correction of sentence is needed, the Superior Court has option of amending sentence directly or remanding to
lower court for resentencing. Com. v. Vazquez, 476 A.2d 466, 328 Pa.Super. 86, Super.1984. Criminal Law
1184(4.1)
Where a case requires a correction of a sentence, Superior Court has option of either remanding for resentencing or
amending sentence directly. Com. v. Walls, 449 A.2d 690, 303 Pa.Super. 284, Super.1982. Criminal Law
1181.5(8);
Criminal Law
1184(4.1)
Superior Court has power to amend sentence provided sentence is not increased. Com. v. Walker, 428 A.2d 661, 286
Pa.Super. 239, Super.1981. Sentencing And Punishment
2331
Where a case requires a correction of sentence, reviewing court has the option of either remanding for resentencing, or
amending the sentence directly. Com. v. Eberts, 422 A.2d 1154, 282 Pa.Super. 354, Super.1980. Criminal Law
1184(4.1); Criminal Law
1181.5(8)
Superior Court has power to modify a sentence which is manifestly excessive and inflicts a punishment which is too
severe. Com. v. Zelnick, 195 A.2d 171, 202 Pa.Super. 129, Super.1963, certiorari denied 84 S.Ct. 1943, 377 U.S. 1006,
12 L.Ed.2d 1054. Criminal Law
1183
The discretion of trial court in the imposition of a sentence within the statutory limits is not to be interfered with but the
appellate courts are not without authority to modify a sentence which is manifestly excessive and inflicts too severe a
punishment. Com. v. Pouls, 182 A.2d 261, 198 Pa.Super. 595, Super.1962. Criminal Law
1147; Criminal Law
1183
37. Remand--In general
While defendant's individual sentences were in standard ranges for each of his convictions of numerous property crimes,
his sentences were consecutive, and due to consecutive nature of his sentences, defendant's aggregate sentence of 58
1/2 to 124 years was clearly unreasonable, and thus, defendant's sentence would be vacated and case would be
remanded for re-sentencing; trial court imposed a minimum sentence of 52 years for 37 counts of receiving personal
property, many of which involved property of little monetary value, court did not address rehabilitive needs of
defendant, and minimum of total sentence meant that defendant would be in prison until age 100 1/2 . Com. v. Dodge,
859 A.2d 771, Super.2004, reargument denied, appeal denied 880 A.2d 1236. Criminal Law
1181.5(8)
When a disposition by an appellate court alters the sentencing scheme, the entire sentence should be vacated and the
matter remanded for resentencing. Com. v. Deshong, 850 A.2d 712, Super.2004. Criminal Law
1181.5(8)
Superior Court must remand for resentencing with instructions if Superior Court finds that sentencing court sentenced
outside guidelines and sentence was unreasonable. Com. v. Kenner, 784 A.2d 808, Super.2001, appeal denied 796 A.2d
1181.5(8)
Order remanding case to sentencing court for reconsideration in light of certain mitigating factors was not irrefutable
direction to reduce original sentence, and Court of Common Pleas was free to reimpose original sentence after
considering enumerated factors. Com. v. Jones, 613 A.2d 587, 418 Pa.Super. 93, Super.1992, appeal denied 629 A.2d
1192
In reviewing judgment of sentence, Superior Court may remand where trial court erroneously failed to consider deadly
weapon enhancement provision of sentencing guideline. Com. v. Reading, 603 A.2d 197, 412 Pa.Super. 239,
1181.5(8)
Trial court's anticipatory statement, that it would have imposed same probationary sentence even if it erred in refusing
to apply deadly weapon enhancement in calculating sentencing guideline range, did not preclude remand to trial court
after it was determined that deadly weapon enhancement should have been applied to involuntary manslaughter
conviction. Com. v. Reading, 603 A.2d 197, 412 Pa.Super. 239, Super.1992. Criminal Law
1181.5(8)
Where trial court determined minimum sentence range under guidelines based on incorrect conclusion that it was not
required to consider weapon enhancement provision, vacation was required of sentence imposed with remand for
resentencing after consideration of appropriate guidelines, including weapon enhancement. Com. v. Reading, 603 A.2d
1181.5(8)
Defendant was not entitled to a remand for resentencing, despite his claim that judge did not consider factors individual
to him, where judge did give conscientious consideration to circumstances of the offense and the background and
character of defendant. Com. v. Santarelli, 483 A.2d 895, 334 Pa.Super. 589, Super.1984, certiorari denied 106 S.Ct.
1973, 476 U.S. 1116, 90 L.Ed.2d 656. Criminal Law
1181.5(8)
Where Commonwealth court cannot determine whether declared invalidity of a conviction on one count may have
affected lower court's sentencing on remaining counts, Commonwealth court must remand to give lower court an
opportunity to reconsider sentencing. Com. v. Radogna, 464 A.2d 478, 317 Pa.Super. 586, Super.1983. Criminal Law
1181.5(8)
Where concurrent sentences imposed on merged offenses did not influence sentences imposed on the principal crimes,
no remand for resentencing was required after court vacated certain sentences because of the merger of the offenses
for sentencing purposes. Com. v. Flynn, 460 A.2d 816, 314 Pa.Super. 162, Super.1983. Criminal Law
1181.5(1)
Remand for resentencing of defendant for his convictions of receiving stolen property was required where sentencing
judge's statements evidenced consideration of the nature of the defendant's offense, but did not indicate that the judge
also considered factors individual to the offender, since judge's statements on the record did not demonstrate that the
court evaluated defendant's request for probation in light of the sentencing code's criteria. Com. v. Coleman, 456 A.2d
1181.5(8)
Defendant whose conviction was reversed with directions to sentence defendant on lesser included offense was not
necessarily entitled to lesser sentence on remand so long as sentence was within statutory limit. Com. v. Ostolaza, 422
1192
Due to paucity of record regarding reasons for defendant's sentence to pay costs of prosecution, fine of $2,500, and to
undergo imprisonment for a term of not less than two years nor more than five years upon conviction of charge of
corrupting morals of a minor, and due to confusion surrounding exact terms of plea bargain, case would be remanded
for resentencing. Com. v. Giffin, 420 A.2d 1134, 279 Pa.Super. 264, Super.1980. Criminal Law
1181.5(8)
A remand for resentencing is not necessary whenever it is apparent from record that such would be a mere procedural
exercise. Com. v. Thomas, 419 A.2d 1344, 278 Pa.Super. 39, Super.1980. Criminal Law
1181.5(8)
A finding that verdict lacked a rational basis, for purpose of determination, whether trial court could consider
defendant's false testimony in sentencing defendant, would result only in a remand for resentencing, and not in a
discharge of defendant who did not challenge sufficiency of evidence to support conviction. Com. v. Thurmond, 407 A.2d
1181.5(8)
A defendant's sentence may not be augmented on remand. Com. v. Betoni, 385 A.2d 506, 254 Pa.Super. 26,
1192
Where record indicated that trial judge might have been influenced in sentencing by fact that defendant chose to stand
trial rather than plead guilty, with possible resultant augmentation of sentences imposed, defendant's sentences were
vacated and cause was remanded for resentencing. Com. v. Bethea, 379 A.2d 102, 474 Pa. 571, Sup.1977. Criminal
Law
1181.5(8)
Where defendant at time for sentencing was unable to appear because he had been transferred to state hospital where
he was detained for seven and one-half years prior to sentencing, and in interim he was declared incompetent in what
sentencing judge described as "some collateral proceedings," serious question was presented as to whether he had been
competent to stand trial, and remand for evidentiary hearing was required. Com. v. Davis, 317 A.2d 211, 455 Pa. 596,
1181.5(4)
38. ---- Reversal of conviction, remand
Remand for resentencing was not required upon Superior Court's reversal of aggravated assault conviction, where
assault sentence was less than and to run concurrent to sentence imposed on a robbery conviction. Com. v. Robinson,
1181.5(8)
Defendant's sentence for crimes of robbery, theft by unlawful taking, recklessly endangering another person, terroristic
threats, possession of firearms, committing crimes with firearms, and criminal conspiracy was remanded, where it
appeared that defendant's invalid conspiracy conviction may have influenced the sentence on one or more of the other
convictions. Com. v. McIntosh, 476 A.2d 1316, 328 Pa.Super. 255, Super.1984. Criminal Law
1181.5(8)
Where sentences were concurrent, it was apparent that remand would only result in reimposition of same sentence, and
thus appellate court on setting aside one sentence saw no need to remand for resentencing on sentence which was
upheld. Com. v. Cannon, 443 A.2d 322, 297 Pa.Super. 106, Super.1982. Criminal Law
1181.5(8)
Where it is clear that illegal conviction had no effect on actual sentence, Superior Court need not remand for
resentencing. Com. v. Gonzales, 443 A.2d 301, 297 Pa.Super. 66, Super.1982. Criminal Law
1181.5(8)
Where Superior Court cannot determine whether declared invalidity of conviction on one count may have affected lower
court's sentencing on remaining counts, Superior Court must remand to give lower court opportunity to reconsider
sentencing on all counts. Com. v. Miranda, 442 A.2d 1133, 296 Pa.Super. 441, Super.1982. Criminal Law
1181.5(8)
Remand for resentencing due to fact that defendant was to be discharged on one of five counts for which he was
convicted was not necessary where a concurrent sentence had been given for the discharged count and where
defendant's past record, coupled with his present convictions, compelled conclusion that a term of incarceration was
warranted. Com. v. Thomas, 419 A.2d 1344, 278 Pa.Super. 39, Super.1980. Criminal Law
1181.5(8)
When the invalidity of the conviction on one count, which may have influenced the sentence on another count, becomes
apparent on appeal, the proper course is to vacate the sentences and remand for resentencing on the valid counts
without consideration of the invalid one. Com. v. Deeters, 386 A.2d 1034, 255 Pa.Super. 343, Super.1978. Criminal Law
1186.1
Although one of multiple convictions for making inconsistent statements under oath was reversed on appeal, where trial
judge, although insisting that there was a difference between two counts in the indictment, said that "[b]ecause of the
fact that the two counts were closely related, we imposed sentence on the first count and suspended sentence on the
second count.", it was evident that same sentence would be imposed again so remand was not necessary. Com. v.
Davenport, 386 A.2d 543, 255 Pa.Super. 131, Super.1978. Criminal Law
1181.5(8)
Where trial court at sentencing hearing entered sentences on each particular conviction which took effect upon
completion of sentence of different crime so that sentence on one charge was linked to and probably influenced
sentence on another charge, appellate court's reversal of one conviction required a remand for resentencing on other
valid convictions. Com. v. Holguin, 385 A.2d 1346, 254 Pa.Super. 295, Super.1978. Criminal Law
1186.1
When invalidity of conviction on one count which may have influenced sentence becomes apparent on appeal, proper
course is to vacate sentences and remand for resentencing on valid counts without consideration of invalid one. Com. v.
Leonhard, 369 A.2d 320, 245 Pa.Super. 116, Super.1976. Criminal Law
1181.5(8)
39. ---- Procedural error generally, remand
Evidence was insufficient to support defendant's contention that sentencing court improperly delegated its sentencing
power to newspaper by relying upon a newspaper article which reported the amount of time defendant had served; after
newspaper reported amount of time defendant had served, sentencing judge contacted prison officials to confirm the
information, and only after prison officials confirmed that defendant had only served one day did judge resentence
defendant. Com. v. Klein, 795 A.2d 424, Super.2002. Sentencing And Punishment
2270
Remand was required for reconsideration of sentence to determine whether defendant's codefendants were sentenced
by same judge and, if they were, whether sentences were disparate. Com. v. Velez, 477 A.2d 879, 329 Pa.Super. 15,
1181.5(8)
Defendant's sentence would be vacated where sentencing judge failed to consider sentencing alternatives other than
total confinement, failed to consider factors individual to defendant and failed to disclose reasons demonstrating that
the standards of Sentencing Code were followed. Com. v. Smith, 447 A.2d 314, 301 Pa.Super. 204, Super.1982.
Criminal Law
1181.5(1)
Where it did not appear from the record that judge sentencing defendant for theft considered the factors set forth in the
sentencing code in imposing period of imprisonment of three to 23 months, judgment of sentence would be vacated and
remanded for resentencing. Com. v. Russo, 444 A.2d 105, 297 Pa.Super. 424, Super.1982. Criminal Law
1181.5(8)
If sentencing judge did not follow obligatory procedures, Superior Court must remand for resentencing in accordance
with applicable statutes and rules. Com. v. Kraft, 440 A.2d 627, 294 Pa.Super. 599, Super.1982. Criminal Law
1181.5(8)
Sentencing judge demonstrated a total failure to comply with mandated procedures necessitating vacation of judgment
of sentence and remand for resentencing inasmuch as sentencing judge failed to consider alternatives in sentencing,
failed to consider factors individual to offender and failed to disclose reasons for sentence imposed. Com. v. Kraft, 440
1181.5(8)
If sentencing judge did not follow sentencing code, the Superior Court may not guess the result if the obligatory
procedures had been followed, and must remand for sentencing. Com. v. Cruz, 436 A.2d 220, 291 Pa.Super. 486,
1181.5(8)
Judgment of sentence had to be vacated and case remanded, where it did not appear on the record that court, in
sentencing defendant, considered minimum sentence necessary for protection of the public and the needs of defendant.
Com. v. Weakland, 417 A.2d 690, 273 Pa.Super. 361, Super.1979. Sentencing And Punishment
42
40. ---- Statement of reasons for sentence, remand
If sentencing judge fails to state reasons for sentences on record, sentences will be vacated and cases remanded for
resentencing. Com. v. Bryner, 427 A.2d 236, 285 Pa.Super. 305, 1981; Com. v. Maxwell, 421 A.2d 699, 280 Pa.Super.
235, 1980; Com. v. Fuqua, 407 A.2d 24, 267 Pa.Super. 504, 1979.
Defendant's actions in raising, in his motion to modify sentence but not during sentencing proceedings, claim that
sentencing judge failed to articulate on the record reasons for the sentence imposed was sufficient to preserve the issue
for appellate review. Com. v. Warden, 484 A.2d 151, 335 Pa.Super. 315, Super.1984. Criminal Law
1042; Criminal
Law
1044.1(1)
Where court of common pleas failed during parole revocation proceedings to state on the record its reasons for
recommitting parolee for the balance of his sentence, Superior Court was precluded from determining if the court of
common pleas abused its discretion and imposed a sentence that was excessive. Com. v. Dorsey, 476 A.2d 1308, 328
Pa.Super. 241, Super.1984. Pardon And Parole
92
Prosecution for homicide was to be remanded for resentencing in order for lower court to place its reasons for sentence
upon record. Com. v. Frederick, 475 A.2d 754, 327 Pa.Super. 199, Super.1984. Criminal Law
1188
Trial judge's statements that he had considered defendant's past arrest history and his good behavior at prison, that he
had not considered polygraph tests, and that he had found defendant's criminal record to be basically favorable, that he
had considered defendant's rehabilitative needs and the need of protection of the public, were insufficient statements of
reasons concerning character of accused and circumstances of offense, and thus case had to be remanded for
resentencing. Com. v. McDonald, 469 A.2d 206, 322 Pa.Super. 110, Super.1983. Sentencing And Punishment
373
Where trial court failed to state reasons for imposition of sentence on the record, and defendant filed a timely petition to
vacate or modify sentence, raising the issue, but court failed to correct the error, Superior Court would vacate judgment
of sentence and remand case for resentencing. Com. v. Bastone, 467 A.2d 1339, 321 Pa.Super. 232, Super.1983.
Criminal Law
1181.5(8)
While sentencing judge must do more than merely echo requirements of applicable sentencing statute to justify a
sentence, where it is clear from record that judge was justified in reaching his conclusions, Superior Court need not
remand for resentencing. Com. v. Bedleyoung, 466 A.2d 180, 319 Pa.Super. 323, Super.1983. Criminal Law
1181.5(8)
Remand for resentencing and statement on record of the reasons for the disparity, if any, between defendant's sentence
and those imposed on codefendants was required where defendant received sentence of imprisonment, with availability
for immediate work release, though he had only two minor prior convictions and was employed full time, while
codefendant received probation, despite three prior convictions, including one for robbery, and fact that he was
unemployed and was on probation at the time the present offense was committed. Com. v. Sinwell, 457 A.2d 957, 311
1181.5(8)
Judgment of sentence would be vacated and case remanded for resentencing where trial court not only failed to
consider sentencing alternatives other than total confinement, factors individual to defendant, or guidelines set forth in
Sentencing Code, and where court never filed an opinion; merely discussing contents of psychiatric evaluations of
defendant did not constitute a statement of reasons. Com. v. High, 450 A.2d 158, 304 Pa.Super. 174, Super.1982.
373; Criminal Law
1181.5(8)
Lower court's failure to explain sentence at time of sentencing required remand for resentencing though sentencing
judge later provided reasons for sentence in opinion filed pursuant to rule. Com. v. Giles, 449 A.2d 641, 303 Pa.Super.
1181.5(8)
Where record contained no statement of reasons for sentence imposed, judgment of sentence would be vacated and
cause remanded to afford trial court opportunity to resentence defendant in accordance with sentencing code and
guidelines and to include statement of reasons for sentence. Com. v. Martin, 446 A.2d 965, 300 Pa.Super. 497,
1181.5(8)
Sentence imposed upon defendant would be vacated, and cause remanded for resentencing, since reviewing court had
no information regarding the circumstances of the offense, except what could be surmised from allegations in complaint,
and no information regarding character of defendant, except his prior record, the report of presentence investigation
was not included in record, and sentencing judge's statement of reasons for sentence did not make even tangential
reference to legislative guidelines specified in Sentencing Code. Com. v. Young, 445 A.2d 1235, 299 Pa.Super. 488,
1181.5(8)
In absence of statement of reasons for sentence imposed, Superior Court is unable to review sentence and must
remand. Com. v. Rooney, 442 A.2d 773, 296 Pa.Super. 288, Super.1982. Criminal Law
1181.5(8)
Request that criminal case be remanded for statement of reasons for sentence did not violate defendant's right not to
be placed in jeopardy twice. Com. v. Love, 441 A.2d 1230, 295 Pa.Super. 276, Super.1982. Double Jeopardy
115
Although sentencing court stated its reasons for sentencing at some length, although record indicated that sentencing
court was presented evidence as to what sentences codefendants received and as to their cooperation with
Commonwealth, and although sentencing court was cognizant of fact that codefendants had entered negotiated guilty
pleas, where at no point in its statement was there any discussion regarding disparity in sentences between defendant
and his two codefendants, sentence would be vacated and cause remanded for resentencing. Com. v. Barrett, 437 A.2d
1181.5(8)
Where sentencing court's enunciated rationale for sentence consisted solely of the following sentences: "Your crime was
a professional type crime as far as I'm concerned" and "whether its drug related, alcohol-related, or just pure nonrelated, it's the type of thing we cannot tolerate," and where sentencing court made no reference to the many factors
which he was required to take into consideration pursuant to Sentencing Code and statement did not reflect thoughtful
consideration of any mitigating circumstances surrounding defendant's actions, remand for resentencing was warranted.
Com. v. O'Brien, 422 A.2d 894, 282 Pa.Super. 193, Super.1980. Sentencing And Punishment
373
Record established that trial judge sufficiently explained reasons for defendant's sentence, and thus remand for
resentencing was not required. Com. v. Erby, 416 A.2d 552, 272 Pa.Super. 469, Super.1979. Sentencing And
Punishment
373
Absent a statement of reasons of record for particular sentence imposed judgment of sentence will be vacated and
remanded to afford trial court opportunity to resentence defendant and to include statement of reasons for sentence
imposed. Com. v. Pauze, 401 A.2d 848, 265 Pa.Super. 155, Super.1979. Criminal Law
1181.5(8)
It is better practice for trial court to include in its statement of reasons for sentence some reference to guidelines
specified in Sentencing Code, with some explanation of how consideration of those guidelines affected the determination
of sentence; nevertheless, reviewing court should not hold a statement of reasons insufficient, and therefore require
vacation and remand, when it is apparent that even though trial court made no reference to guidelines, it did consider
and apply them. (Per Spaeth, J., with one Judge concurring and three Judges concurring in result.) Com. v. Wareham,
393 A.2d 951, 259 Pa.Super. 527, Super.1978. Sentencing And Punishment
996;
Criminal Law
1181.5(1)
Where record on appeal from criminal conviction was devoid of statement of reasons for the imposition of the particular
sentence chosen, Superior Court could not undertake meaningful appellate review of the sentencing process and,
therefore, it was necessary to vacate the judgment of sentence and to remand so that the trial court could resentence
defendant and include a statement of reasons. Com. v. Fornataro, 390 A.2d 1297, 257 Pa.Super. 399, Super.1978.
Criminal Law
1181.5(8)
Where trial court did not state reasons supporting sentences imposed and record did not contain transcript of sentencing
proceedings, copy of presentence report or copy of psychiatric evaluation, deficient state of record precluded meaningful
appellate review of sentencing process, thus requiring vacation of sentence and remand for resentencing. Com. v.
Bolyard, 389 A.2d 598, 256 Pa.Super. 57, Super.1978. Criminal Law
1126
Where record contained neither opinion by sentencing judge nor articulation of reasons for sentencing decision,
sentence had to be vacated and case remanded for resentencing. Com. v. Wertz, 384 A.2d 933, 252 Pa.Super. 584,
1086.13
Where maximum sentence was imposed upon defendant on conviction of possession of marijuana with intent to deliver,
but no reasons appeared on record supporting imposition of sentence, judgment of sentence was vacated and case was
remanded to afford trial court an opportunity to resentence trial court and to include a statement of reasons for
sentence imposed. (Per Roberts, J., with two Justices concurring and two Justices concurring in result.) Com. v. Riggins,
377 A.2d 140, 474 Pa. 115, Sup.1977. Criminal Law
1186.1
41. ---- Illegal sentence, remand
Defendant's resentence for criminal conspiracy to deliver controlled substance and delivery of controlled substance was
not illegal or contrary to general scheme of sentencing guidelines, even though it was nearly identical in severity to
original sentence imposed, which Supreme Court vacated after concluding defendant was wrongly convicted of counts of
corrupt organizations (RICO); issue on appeal was whether new sentence was legally sound on its own, not how it
appeared in comparison to extinguished sentence. Com. v. Bailey, 818 A.2d 543, Super.2003, appeal denied 836 A.2d
121, 575 Pa. 695. Controlled Substances
100(2); Sentencing And Punishment
115(4)
Where it is determined that sentence is illegal, Superior Court may remand for resentencing or vacate and amend
invalid sentence directly. Com. v. Huckleberry, 631 A.2d 1329, 429 Pa.Super. 146, Super.1993. Criminal Law
1184(4.1)
Consideration of improper factor during sentencing does not make sentence illegal and give defendant right to appeal
but, rather, it renders sentence invalid and requires that sentence be vacated and case remanded for resentencing.
Com. v. Chase, 530 A.2d 458, 365 Pa.Super. 572, Super.1987, appeal granted, cause remanded 548 A.2d 1224, 519
1026; Criminal Law
1181.5(8)
Defendant was entitled to vacation of sentence where sentencing judge, immediately before sentencing defendant on
three counts of terroristic threats, discussed telephone threats similar to those for which defendant was convicted, but
with which defendant was not charged. Com. v. Chase, 530 A.2d 458, 365 Pa.Super. 572, Super.1987, appeal granted,
cause remanded 548 A.2d 1224, 519 Pa. 440. Criminal Law
1181.5(8)
Once it is determined on appeal that a sentence is illegal, sentence may either be remanded for resentencing or vacated
and amended directly. Com. v. Hernandez, 488 A.2d 293, 339 Pa.Super. 32, Super.1985, appeal denied. Criminal Law
1184(4.1)
Ordinarily, remedy for imposition of an illegal or erroneous sentence is not discharge but, rather, remand to lower court
for resentencing. Com. v. Thomas, 435 A.2d 901, 291 Pa.Super. 263, Super.1981. Criminal Law
1181.5(8)
Assuming sentence for second-degree murder to be illegal, proper remedy would be to remand for resentencing, not
discharge. Com. v. Ulbrick, 341 A.2d 68, 462 Pa. 257, Sup.1975. Criminal Law
1181.5(8)
42. ---- Plea agreements, remand
Bargained-for 7 1/2 year minimum sentence could not be used, on resentencing, as a lever to compel a structured
maximum sentence not to exceed 20 years when a maximum term of less than life in prison never was contemplated in
plea bargain, defendant indicated at plea hearing that he understood plea agreement called for a sentence of not less
than seven and a half years nor more than life, at the time of original sentencing, since defendant had agreed to
sentencing as a sexual predator, the mandatory maximum sentence as to the predicate rape convictions was life in
prison, only bargaining power defendant had was to minimize the minimum sentence which could have been aggregated
to 41 years if done consecutively, and, although Megan's Law, upon which defendant's original sentence was based, had
been declared unconstitutional, it was inconceivable, with the array of offenses and possible minimum and maximum
aggregates available to the court, that a 7 1/2 year minimum term of imprisonment would have been ordered as a
concurrent aggregate if the life maximum was not implicated. Com. v. Harclerode, 768 A.2d 1132, Super.2001, appeal
denied 786 A.2d 985, 567 Pa. 721. Sentencing And Punishment
2262
42 Pa.C.S.A. 9781, PA ST 42 Pa.C.S.A. 9781
Current through Reg. Sess. Act 2006-178 and 2005-2006 1st Sp. Sess. Act 1
END OF DOCUMENT
SUPREME COURT CITATIONS

Pa.R.A.P., Rule 121
Chapter 1. General Provisions (Refs & Annos)
Documents Generally
Rule 121. Filing and Service
(a) Filing. Papers required or permitted to be filed in an appellate court shall be filed with the prothonotary. Filing may
be accomplished by mail addressed to the prothonotary, but except as otherwise provided by these rules filing shall not
be timely unless the papers are received by the prothonotary within the time fixed for filing. Paperbooks shall be
deemed filed on the day of mailing if first class mail is utilized. If an application under these rules requests relief which
may be granted by a single judge, a judge in extraordinary circumstances may permit the application and any related
papers to be filed with that judge, in which event that judge shall note thereon the date of filing and shall thereafter
transmit such papers to the clerk.
(b) Service of all papers required. Copies of all papers filed by any party and not required by these rules to be
served by the prothonotary shall, concurrently with their filing, be served by a party or person acting on behalf of that
party or person on all other parties to the matter. Service on a party represented by counsel shall be made on counsel.
(c) Manner of service. Service may be personal or by first class mail. Personal service under these rules includes
delivery of the copy to a clerk or other responsible person at the office of the person served. Service by mail is complete
on mailing.
(d) Proof of service. Papers presented for filing shall contain an acknowledgement of service by the person served, or
proof of service certified by the person who made service. Acknowledgement or proof of service may appear on or be
affixed to the papers filed. The clerk may permit papers to be filed without acknowledgement or proof of service but
shall require such to be filed promptly thereafter.
(e) Additional time after service by mail. Whenever a party is required or permitted to do an act within a prescribed
period after service of a paper upon that party (other than an order of a court or other government unit), and the paper
is served by mail, three days shall be added to the prescribed period.
Note: The term "related papers" in Subdivision (a) of this rule includes any appeal papers required under Rule 1702
(stay ancillary to appeal) as a prerequisite to an application for a stay or similar relief. An acknowledgement of service
may be executed by an individual other than the person served, e.g., by a clerk or other responsible person as
contemplated by Subdivision (c) of the rule. Subdivision (e) of the rule does not apply to the filing of a notice of appeal,
a petition for allowance of appeal, a petition for permission to appeal, or a petition for reconsideration or reargument,
since under these rules the time for filing such papers runs from the entry and service of the related order, nor to the
filing of a petition for review, which is governed by similar considerations. However, these rules permit the filing of such
notice and petitions (except a petition for reconsideration or reargument) in the local county (generally in the county
court house; otherwise in a post office), thus eliminating a major problem under the prior practice.
With respect to appearances by new counsel following the initial docketing of appearances pursuant to Subdivision (d) of
this rule, please note the requirements of Rule 120.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended June 23, 1976, effective July 1, 1976; July 7, 1997, effective in
60 days; March 15, 2004, effective May 14, 2004.
HISTORICAL NOTES
2005 Main Volume

The Order of July 7, 1997, in subd. (a), in the fourth sentence, substituted "a judge" for "the judge", and "that judge"
for "him" and for "he"; in subd. (b), in the first sentence, substituted "on behalf of that party or person" for "for him";
and in subd. (e), substituted ''that party" for "him".
The Order of March 15, 2004, in the Note, added the second paragraph.
CROSS REFERENCES
Petition for review, filing and service, see Pa.R.A.P., Rule 1514.
Release in criminal matters, see Pa.R.A.P., Rule 1762.
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
423 to 428(1), 765.
Criminal Law
1081, 1130(4).
C.J.S. Criminal Law 1685 to 1686, 1688.
RESEARCH REFERENCES
Forms
3 West's Pennsylvania Forms 63.6, Proof of Service.
3 West's Pennsylvania Forms 63.141, Application for Reargument-In General.
Standard Pennsylvania Practice 89:9, Time for Service and Filing.
Standard Pennsylvania Practice 32:74, Generally; Support of Motion for Summary Judgment--Opposition to Motion for
Summary Judgment.
Standard Pennsylvania Practice 4:179, Review by Disciplinary Board.
Standard Pennsylvania Practice 4:180, Review by Supreme Court.
Standard Pennsylvania Practice 85:18, Filing of Papers.
Standard Pennsylvania Practice 85:23, Service of Papers Filed.
Standard Pennsylvania Practice 85:25, Form.
Standard Pennsylvania Practice 85:52, When Time Starts to Run for Filing of Cross-Appeals.
Standard Pennsylvania Practice 85:170, Procedure for Application.
Standard Pennsylvania Practice 114:123, Effect of Erroneous Filing of Petition for Review Instead of Original Action.
Standard Pennsylvania Practice 114:129, Manner of Filing Petition for Review; Filing Fee.
Standard Pennsylvania Practice 132:481, Release Pending Appeal.
Standard Pennsylvania Practice 85:80.5, Entry of Appearance.

2 West's Pennsylvania Practice 16.0, Introductory Comment.
2 West's Pennsylvania Practice 16.1, Notice of Appeal and Request for Transcripts.
2 West's Pennsylvania Practice 16.31, Petition for Extension of Time to File Brief.
9 West's Pennsylvania Practice App. D, Critical Provisions of the Rules of Appellate Procedure and Commonwealth Court
Internal Operating Procedures.
10 West's Pennsylvania Practice App. Form B-15, Proof of Service-Extension Request.
12 West's Pennsylvania Practice App. Form A-13, Application for Leave to Withdraw Appearance in Appeal.
16B West's Pennsylvania Practice 33:7, Procedure and Time for Appeals.
16B West's Pennsylvania Practice 33:21, Allowance of Appeals from Superior and Commonwealth Courts to Supreme
Court.
16B West's Pennsylvania Practice Form 32:11, Form of Petition for Review of Parole Revocation.
16B West's Pennsylvania Practice Form 33:13, Contents and Form of Proof of Service.
16C West's Pennsylvania Practice Form 34:4, Form of Petition, Affidavit, and Proof of Service for Writ of Mandamus
from Supreme Court.
10 West's Pennsylvania Practice App. Form B-10, Notice of Appeal-Commonwealth Court.
10 West's Pennsylvania Practice App. Form B-12, Statement of Matters Complained of on Appeal.
NOTES OF DECISIONS
Rule of Appellate Procedure giving a party in an appellate proceeding three additional days to respond when appellate
papers are served by first-class mail does not give a non-movant three additional days to respond to a summary
judgment motion in a matter brought before the Commonwealth Court in its original jurisdiction; matters brought in an
appellate court in its original jurisdiction proceed in accordance with the practice and procedure in the courts of common
pleas, and because the Rules of Civil Procedure provide adequate guidance on the filing of responses to motions for
summary judgment, it is unnecessary to resort to the Rules of Appellate Procedure. Com. ex rel. Fisher v. Jash Intern.,
Inc., 847 A.2d 125, Cmwlth.2004. Courts
209(1)
Attachment of evidentiary documentation to petition for review is procedurally improper. Kaminski v. W.C.A.B. (Dobbs
House, Inc.), 539 A.2d 34, 114 Pa.Cmwlth. 484, Cmwlth.1988, appeal denied 553 A.2d 970, 520 Pa. 609.
Administrative Law And Procedure
725
Fact that plaintiff in class action suit against city challenging constitutionality of towing ordinance never provided city
with certificate of service of his brief did not amount to prejudice. Fitzgerald v. City of Philadelphia, 487 A.2d 485, 87
Pa.Cmwlth. 482, Cmwlth.1985. Appeal And Error
1074(3)
Where a party litigant files posttrial motions but fails to either submit timely briefs or appear and argue motions before
court en banc, any issues sought to be raised in such motion are waived and will not form basis for an appeal to a
reviewing court. Equipment Finance, Inc. v. Toth, 476 A.2d 1366, 328 Pa.Super. 351, Super.1984. Appeal And Error
302(2)

Chapter 11. Appeals from Commonwealth Court and Superior Court
Petition for Allowance of Appeal
Rule 1116. Brief in Opposition to Petition
Within 14 days after service of a petition for allowance of appeal an adverse party may file a brief in opposition. The
brief in opposition need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any
procedural, substantive or other argument or ground why the order involved should not be reviewed by the Supreme
Court and shall comply with Rule 1115(a)(7) (content of petition for allowance of appeal). No separate motion to
dismiss a petition for allowance of appeal will be received. A party entitled to file a brief in opposition under this rule
who does not intend to do so shall, within the time fixed by these rules for filing a brief in opposition, file a letter stating
that a brief in opposition to the petition for allowance of appeal will not be filed. The failure to file a brief in opposition
will not be construed as concurrence in the request for allowance of appeal.
Note: Based on former Supreme Court Rule 62 and makes no change in substance except as follows: The time for
opposition is increased from ten to 17 days (where service in by mail). This rule and Rule 1115 contemplate that the
petition and brief will address themselves to the heart of the issue, i.e., whether the Supreme Court ought to exercise
its discretion to allow an appeal, without the need to comply with the formalistic pattern of numbered averments in the
petition and correspondingly numbered admissions and denials in the response. While such a formalistic format is
appropriate when factual issues are being framed in a trial court (as in the petition for review under Chapter 15) such a
format interferes with the clear narrative exposition necessary to outline succinctly the case for the Supreme Court in
the allocatur context.
CREDIT(S)
Adopted Nov. 5, 1975, effective July 1, 1976. Amended June 23, 1976, effective July 1, 1976.
2005 Main Volume
The title of the response to a petition for allowance of appeal or petition for permission to appeal is changed from
"answer" to "brief in opposition" in the interest of accuracy and to conform to U.S. Supreme Court practice.
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
762, 765, 770(1).
Criminal Law
1130.
RESEARCH REFERENCES
Standard Pennsylvania Practice 93:19, Generally; Consideration by Court.
2 West's Pennsylvania Practice 16.10, Brief in Opposition to Petition for Allowance of Appeal.
16B West's Pennsylvania Practice 33:21, Allowance of Appeals from Superior and Commonwealth Courts to Supreme
Court.

Chapter 11. Appeals from Commonwealth Court and Superior Court
Petition for Allowance of Appeal
Rule 1121. Transmission of Papers to and Action by the Court
Upon receipt of the brief in opposition to the petition for allowance of appeal, or a letter stating that no brief in
opposition will be filed, from each party entitled to file such, the petition and the brief in opposition, if any, shall be
distributed by the Prothonotary to the Supreme Court for its consideration. An appeal may be allowed limited to one or
more of the questions presented in the petition, in which case the order allowing the appeal shall specify the question or
questions which will be considered by the Court.
CREDIT(S)
Dec. 30, 1978; amended and effective April 30, 1984.
2005 Main Volume
LIBRARY REFERENCES
2005 Main Volume
Appeal and Error
361(5).
Criminal Law
1072.
C.J.S. Appeal and Error 300 to 302, 318.
RESEARCH REFERENCES
Standard Pennsylvania Practice 93:19, Generally; Consideration by Court.
Standard Pennsylvania Practice 93:20, Where Appeal Allowed.
FLEEING CASE LAW FOR LONGER MOTION TO DISMISS

75 Pa.C.S.A. 3733
Title 75 Pa.C.S.A. Vehicles (Refs & Annos)
Part III. Operation of Vehicles
Chapter 37. Miscellaneous Provisions
Subchapter B. Serious Traffic Offenses (Refs & Annos)
3733. Fleeing or attempting to elude police officer
(a) Offense defined.--Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer, when given visual or audible signal to bring the vehicle to
a stop, commits an offense as graded in subsection (a.2).
(a.1) Disposition of fines, etc.--The fines imposed and collected under subsection (a) shall not be subject to 42
Pa.C.S. 3733 (relating to deposits into account). The fines imposed and collected under subsection (a) shall be
distributed in the manner provided in 42 Pa.C.S. 3571(b)(2) and (3) (relating to Commonwealth portion of fines,
etc.).
(a.2) Grading.-(1) Except as provided in paragraph (2), an offense under subsection (a) constitutes a misdemeanor of the second
degree. Any driver upon conviction shall pay an additional fine of $500. This fine shall be in addition to and not in lieu of
all other fines, court expenses, jail sentences or penalties.
(2) An offense under subsection (a) constitutes a felony of the third degree if the driver while fleeing or attempting to
elude a police officer does any of the following:
(i) commits a violation of section 3802 (relating to driving under influence of alcohol or controlled substance);
(ii) crosses a State line; or
(iii) endangers a law enforcement officer or member of the general public due to the driver engaging in a high-speed
chase.
(b) Signal by police officer.--The signal given by the police officer may be by hand, voice, emergency lights or siren.
(c) Defenses.-(1) It is a defense to a prosecution under this section that the pursuing police officer's vehicle was not clearly
identifiable by its markings or, if unmarked, was not occupied by a police officer who was in uniform and displaying a
badge or other sign of authority.
(2) It is a defense to prosecution under this section if the defendant can show by a preponderance of the evidence that
the failure to stop immediately for a police officer's vehicle was based upon a good faith concern for personal safety. In
determining whether the defendant has met this burden, the court may consider the following factors:
(i) The time and location of the event.
(ii) The type of police vehicle used by the police officer.
(iii) The defendant's conduct while being followed by the police officer.
(iv) Whether the defendant stopped at the first available reasonably lighted or populated area.
(v) Any other factor considered relevant by the court.
CREDIT(S)
1976, June 17, P.L. 162, No. 81, 1, effective July 1, 1977. Amended 1994, Dec. 27, P.L. 1337, No. 154, 3, effective
in 180 days; 2001, June 26, P.L. 734, No. 75, 6, effective in 60 days; 2006, July 10, P.L. 1086, No. 113, 4, effective
in 60 days [Sept. 8, 2006].
HISTORICAL AND STATUTORY NOTES

Act 2006-113, 4, in subsec. (a), substituted "commits an offense as graded in subsection (a.2)" for "commits a
misdemeanor of the second degree. Any driver upon conviction shall pay an additional fine of $500. This fine shall be in
addition to and not in lieu of all other fines, court expenses, jail sentences or penalties"; and added subsec. (a.2).
2006 Main Volume
The 1994 amendment rewrote subsec. (a) and added subsec. (a.1). Prior to revision, subsec. (a) read:
"Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or
attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, is guilty of
a summary offense and shall, upon conviction, be sentenced to pay a fine of $200."
Section 5 of Act 1994, Dec. 27 P.L. 1337, No. 154, effective in 180 days, provides that "the first $200,000 of the fines
collected under 75 Pa.C.S. 3733 which are not the subject of distribution to municipalities under 42 Pa.C.S. 3571(b)
(2) or (3) are hereby appropriated from the Motor License Fund to the Pennsylvania State Police for the implementation
of 75 Pa.C.S. 6343."
Act 2001-75, 6, in subsec. (a), in the first sentence, substituted "a visual and" for "visual or"; and in subsec. (c),
designated the existing text as par. (1) and therein inserted "officer's", and added par. (2).
CROSS REFERENCES
Occupational limited license not issued to any person who has been convicted of an offense under this section, see 75
Pa.C.S.A. 1553.
Second or subsequent violations, see 75 Pa.C.S.A. 6503.
Summary offense, defined, see 18 Pa.C.S.A. 106.
Suspension of operating privilege, see 75 Pa.C.S.A. 1532.
Warrantless arrest by police officers in Pennsylvania. Francis Barry McCarthy, 92 Dick.L.Rev. 105 (1987).
LIBRARY REFERENCES
2006 Main Volume
Obstructing Justice
7.
Westlaw Topic No. 282.
C.J.S. Obstructing Justice or Governmental Administration 4, 10, 12 to 29, 31 to 32, 38.
RESEARCH REFERENCES
2006 Main Volume
Encyclopedias
Summary Pa. Jur. 2d Criminal Law 28:209, Fleeing or Attempting to Elude.
13 West's Pennsylvania Practice 6:34, Serious Traffic Offenses-Fleeing from Police Officer.
14 West's Pennsylvania Practice V4, Vehicle Offenses (Title 75).

16C West's Pennsylvania Practice 36:15, Suspension of Operating Privilege: 75 Pa.C.S.A. 1532.
NOTES OF DECISIONS
In general 1
Agreements 8
Double jeopardy 4
Elements of offense 2
Juveniles 5
Lack of probable cause 3
Pursuit of vehicle 7
Single continuous episode 6
Sufficiency of evidence 9
Waiver 10
1. In general
It is generally not crime (malum in se) to operate vehicle and refuse to stop when directed to do so; however, act of
avoiding police direction to stop has been criminalized by legislature. Com. v. Scattone, 672 A.2d 345, 448 Pa.Super.
533, Super.1996. Automobiles
324
Fact that jury had acquitted defendant of violating 3742 of this title governing accidents involving death or personal
injury, by apparently believing that defendant left the scene of an accident to telephone proper authorities, was not
dispositive of trial court's subsequent finding that defendant was guilty of fleeing or attempting to elude a police officer
under 3733 of this title, since the acquittal was no more than jury's assumption of a power which it had a right to
exercise, and could not be interpreted as specific finding in relation to some of the evidence. Com. v. Bellini, 482 A.2d
893
Defendant may not be found guilty of the offense of fleeing or attempting to elude police officer as defined in 75
Pa.C.S.A. 3733, for an incident that occurred on a roadway servicing a trailer park since such a roadway is neither a
highway nor a trafficway under section 75 Pa.C.S.A. 102. Com. v. Oczkowski, 10 Pa. D. & C.4th 27 (1991).
Automobiles
234
2. Elements of offense
Neither lawful stop of vehicle nor arrest of operator is element of offense of fleeing or attempting to elude police officer;
all that is required is operator's willful failure to bring vehicle to stop in face of audibly or visually identifiable police
officer's signal to stop. Com. v. Scattone, 672 A.2d 345, 448 Pa.Super. 533, Super.1996. Automobiles
324
3. Lack of probable cause
Citizen may not avoid conviction for fleeing or attempting to elude police officer, by asserting that police lacked probable
cause or articulable suspicion to believe criminal activity is afoot, just as citizen is not permitted to assert unlawfulness
of arrest as defense to resisting arrest charge. Com. v. Scattone, 672 A.2d 345, 448 Pa.Super. 533, Super.1996.
Automobiles
324
Defendant was properly convicted for fleeing or attempting to elude police officer, where uniformed police officer in
marked vehicle with flashing lights and sirens pursued defendant after a female adjacent to parked vehicle signaled for
assistance, but defendant failed to bring vehicle to stop; statute did not require officer to have probable cause or
articulable suspicion of criminal activity prior to seeking stop of vehicle. Com. v. Scattone, 672 A.2d 345, 448 Pa.Super.
533, Super.1996. Automobiles
324
4. Double jeopardy
Prosecution of defendant for driving under the influence of alcohol and summary offenses of driving on the left side of
the road and fleeing or attempting to elude police officer was not barred by rule barring prosecution when formerly
prosecuted for different offense arising from same criminal episode, notwithstanding that defendant had formerly been
prosecuted for other summary traffic offenses arising out of same uninterrupted criminal episode. Com. v. Hoburn, 485
A.2d 24, 335 Pa.Super. 536, Super.1984. Double Jeopardy
142
Although, at the behest of defense counsel, arresting officer agreed to withdraw the summary charge of fleeing or
attempting to elude a police officer, the dismissal of that charge was not the equivalent of an "acquittal" and thus did
not preclude defendant's prosecution for driving while under the influence of alcohol. Com. v. Hollis, 450 A.2d 70, 304
Pa.Super. 1, Super.1982. Double Jeopardy
104
5. Juveniles
It was improper to find that juvenile was a delinquent child upon his being found guilty of driving vehicle while
unlicensed, driving unregistered motor vehicle and fleeing or attempting to elude police officer. Com. v. Kirk J., 439
A.2d 680, 293 Pa.Super. 487, Super.1981. Infants
153
Juvenile court, following hearing, was empowered to find juvenile guilty of summary offenses of driving vehicle while
unlicensed, driving unregistered motor vehicle and fleeing or attempting to elude police officer and was empowered to
impose a fine of $100 and costs upon the juvenile. Com. v. Kirk J., 439 A.2d 680, 293 Pa.Super. 487, Super.1981.
Infants
153
6. Single continuous episode
Separate and distinct traffic offenses were not merged into a single act merely because defendant's conduct occurred
during one continuous episode of speeding and driving without lights to elude police and even though two of the
offenses concerned the same conduct occurring in different jurisdictions; therefore, the convictions were sufficient to
sustain defendant's habitual offender status. Reese v. Com., Dept. of Transp., 455 A.2d 232, 71 Pa.Cmwlth. 244,
29(7); Automobiles
144.1(3)
This section allows only one charge of fleeing or attempting to elude a police officer for a single continuous episode;
there is no language in the section which would indicate otherwise. Com. v. Swope, 22 Pa. D. & C.3d 345 (1982).
Criminal Law
29(5.5)
A continuous 16-minute chase of defendant by three troopers constituted a single violation of this section. Com. v.
Swope, 22 Pa. D. & C.3d 345 (1982). Criminal Law
29(5.5)
7. Pursuit of vehicle
A municipal policeman can make a lawful arrest outside his municipality when he becomes a pursuing officer's agent
upon the officer's radioed request for assistance; therefore, a driver's failure to stop as directed by such policeman is a
violation of this section. Com. v. Welsh, 15 Pa. D. & C.3d 471 (1980). Automobiles
349(12)
While a violation of this section requires that a driver be pursued by police and fail to stop when requested, the direction
to stop need not come from the pursuing officer but may come from a stationary officer whose assistance was enlisted.
Com. v. Welsh, 15 Pa. D. & C.3d 471 (1980). Obstructing Justice
7
8. Agreements
Where there was neither written agreement between counsel not any written record of proceedings before lower court,
oral settlement agreement pursuant to which license suspension would not be pursued if operator agreed not to seek
refund of fines and costs imposed for his conviction was not binding on Department of Transportation; furthermore,
there was no valid contract since Department, through assistant attorney general, did not gain any benefit from
operator's promise. Com., Dept. of Transp., Bureau of Traffic Safety v. Krupp, 444 A.2d 841, 66 Pa.Cmwlth. 397,
Cmwlth.1982. Automobiles
144.2(5.1)
Department of Transportation was not precluded from challenging validity of oral agreement pursuant to which license
suspension would not be pursued if operator agreed not to seek refund of fines and costs imposed with his conviction on
ground that it failed to repudiate agreement, where Department was unaware of agreement until files were taken over
by the assistant attorney general's successor and matter was still open on trial court's docket. Com., Dept. of Transp.,
Bureau of Traffic Safety v. Krupp, 444 A.2d 841, 66 Pa.Cmwlth. 397, Cmwlth.1982. Automobiles
144.2(5.1)
Operator was not entitled to remand of case to the common pleas court to determine whether the license suspension
was proper after determination that oral settlement agreement pursuant to which license suspension would not be
pursued if operator agreed not to seek a refund of fines and costs imposed for his conviction was not binding on the
Department of Transportation. Com., Dept. of Transp., Bureau of Traffic Safety v. Krupp, 444 A.2d 841, 66 Pa.Cmwlth.
397, Cmwlth.1982. Automobiles
144.2(4)
9. Sufficiency of evidence
Trial court's finding that defendant was guilty of fleeing or attempting to elude a police officer following an automobile
accident was shocking to the judicial conscience and constituted an abuse of discretion, where defendant testified that
he left the scene of the accident in order to telephone proper authorities, police officer testified that he signaled, both
audibly and visually, for defendant to stop but that defendant did not immediately stop, defendant and two passengers
in his vehicle testified that defendant was not aware of any signal to stop, and record did not indicate whether court
considered evidence from Commonwealth witness that defendant had reached a certain point before officer engaged his
lights and siren or considered time interval when defendant's car was not in view of the officer. Com. v. Bellini, 482 A.2d
997, 333 Pa.Super. 526, Super.1984. Automobiles
355(8)
10. Waiver
Issue of whether trial court erred in denying demurrer of defendant to charge of fleeing or attempting to elude a police
officer was waived, where defendant proceeded to put on a defense. Com. v. Bellini, 482 A.2d 997, 333 Pa.Super. 526,
897(1)
Issue of whether a defendant can be guilty of eluding police when the officer in pursuit was in an unmarked vehicle in a
jurisdiction other than his own was waived, on appeal, where defendant did not raise the issue in his postverdict
motions. Com. v. Bellini, 482 A.2d 997, 333 Pa.Super. 526, Super.1984. Criminal Law
1044.1(1)
Issue of whether trial court erred in not submitting to jury summary offense of fleeing or attempting to elude a police
officer was waived, on appeal, where defendant raised no objection to the procedure at time of trial. Com. v. Bellini, 482
1035(3)
75 Pa.C.S.A. 3733, PA ST 75 Pa.C.S.A. 3733
Current through Reg. Sess. Act 2006-151 and 2005-2006 1st Sp. Sess. Act 1
859 F.Supp. 909

United States District Court,
W.D. Pennsylvania.
UNITED STATES of America,
v.
John F. Duffy CONLEY, William C. Curtin, Sheila F. Smith, John Francis Jack Conley, Thomas Bud McGrath, Mark A.
Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T.
Smith, Kenneth Ron Goodwin, Lawrence N. Neudy Demino, Sr., Christopher Chris Kail, Joseph A. Devita, Frank
Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. Mike Ferrell, Anestos Naz Rodites, and William E. Rusin,
Defendants.
Crim. No. 91-178.
July 22, 1994.
Defendants were charged with running illegal gambling business and filed pretrial motions for dismissal and to assert
affirmative defenses. The District Court, Lee, J., held that: (1) any corruption or lax enforcement on part of local officials
with regard to operation of video poker machines did not create viable due process reliance on misleading government
conduct defense; (2) evidence showed that defendants were not misled by government officials into believing that their
illegal gambling activities were in fact legal under federal or Pennsylvania law; and (3) failure to prosecute all operators
of video poker machines did not show intentional and purposeful discrimination.
Ordered accordingly.
West Headnotes
[1] KeyCite Notes

110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k632 Dockets and Pretrial Procedure
110k632(3) Motions
110k632(3.1) k. In General. Most Cited Cases
Due process reliance on misleading government conduct defense, which is known as entrapment by estoppel defense,
should be raised by pretrial motion so that trial court can conclusively determine defense, resolving factual disputes as
necessary. U.S.C.A. Const.Amends. 5, 14.
[2] KeyCite Notes

110 Criminal Law
110XX Trial
110k632(3) Motions
110k632(3.1) k. In General. Most Cited Cases
Defense is capable of determination without the trial of the general issue if trial of facts surrounding commission of
alleged offense would be of no assistance in determining validity of defense. Fed.Rules Cr.Proc.Rule 12(b), 18 U.S.C.A.
[3] KeyCite Notes

110 Criminal Law
110II Defenses in General
110k36.5 Official Action, Inaction, Representation, Misconduct, or Bad Faith
110k37 Entrapment
110k37(2) What Constitutes Entrapment
110k37(3) k. Originating Intent; Furnishing Opportunity or Facilities. Most Cited Cases
Issue of fundamental unfairness due to defendant's reliance on misleading government conduct, for purposes of
establishing entrapment by estoppel, is independent of element of intent.
[4] KeyCite Notes

110 Criminal Law
110k37.20 k. Good Faith; Advice of Counsel. Most Cited Cases
With respect to crimes requiring proof of specific intent in the sense of intentional violation of known legal duty,
subjective good faith is a complete defense; defendant is not guilty of crime if he believes erroneous advice regarding
legality of offense conduct, whether advice comes from government, from lawyer, or in dream.
[5] KeyCite Notes

92 Constitutional Law
92XII Due Process of Law
92k256 Criminal Prosecutions
92k257.5 k. Prosecutorial Discrimination or Misconduct in General; Entrapment. Most Cited Cases
Due process reliance on misleading government conduct does not apply in context of crimes requiring proof of
intentional violation of known legal duty. U.S.C.A. Const.Amends. 5, 14.
[6] KeyCite Notes

188 Gaming
188III Criminal Responsibility
188III(A) Offenses
188k62 k. Nature of Offense of Gaming. Most Cited Cases
Specific intent in sense of intentional violation of known legal duty is not element of illegal gambling business offense,
as, to be convicted of participating in a legal gambling business, defendant need not be shown to have acted willfully in
sense of intentionally violating known federal legal duty; statute requires only general criminal intent. 18 U.S.C.A.
1955.
[7] KeyCite Notes

188 Gaming
188III(A) Offenses
188k62 k. Nature of Offense of Gaming. Most Cited Cases
Statute prohibiting illegal gambling business requires only that gambling business be violation of law of state or political
subdivision in which it is conducted and does not require showing of willfulness or intent. 18 U.S.C.A. 1955.
[8] KeyCite Notes

110 Criminal Law
110k37 Entrapment
110k37(1) k. In General. Most Cited Cases
Because specific intent in sense of intention to violate known legal duty under state law is not element of illegal
gambling business defense, due process reliance on misleading government conduct defense is available on appropriate
proof. 18 U.S.C.A. 1955.
[9] KeyCite Notes

110 Criminal Law
110XX Trial
110k632(5) k. Pretrial Conference or Hearing; Order. Most Cited Cases
Because specific intent in sense of intention to violate known legal duty under state law is not element of illegal
gambling business offense, court can determine applicability of due process reliance on misleading government conduct
defense without trial of general issues and may find facts as necessary. 18 U.S.C.A. 1955; Fed.Rules Cr.Proc.Rule
12(b), 18 U.S.C.A.
[10] KeyCite Notes

110 Criminal Law
110XX Trial
110XX(F) Province of Court and Jury in General
110k733 Questions of Law or of Fact
110k739 Defenses in General
Defense of due process reliance on misleading government conduct, for purposes of illegal gambling business offense,
should be determined by court and not jury; asking jury to determine fundamental fairness of convicting defendant,
even if guilt is otherwise established beyond reasonable doubt, unnecessarily invites illegal verdict. U.S.C.A.
Const.Amends. 5, 14.
[11] KeyCite Notes

110 Criminal Law
110XX Trial
If issue of due process reliance on misleading government conduct defense is submitted to jury, with proper instructions
as to burden of proof and elements of fundamental fairness, jury remains likely to confuse government's burden on
required intent for conviction with defendant's burden on reasonable reliance, and, thus, due process reliance on
misleading government conduct is inappropriate issue for jury determination.
[12] KeyCite Notes

210 Indictment and Information
210IX Motion to Dismiss
210k144.2 k. Hearing and Determination. Most Cited Cases
Court assumes all pertinent allegations of indictment are true when addressing pretrial motion to dismiss. Fed.Rules
Cr.Proc.Rule 12(b), 18 U.S.C.A.
[13] KeyCite Notes

156 Estoppel
156III Equitable Estoppel
156III(A) Nature and Essentials in General
156k62 Estoppel Against Public, Government, or Public Officers

156k62.2 States and United States
156k62.2(4) k. Particular United States Officers, Agencies, or Proceedings. Most Cited Cases
There is no per se rule that federal government cannot be estopped from enforcing its criminal laws by conduct of state
or local officials.
[14] KeyCite Notes

110 Criminal Law
110k37 Entrapment
Focus of inquiry into fundamental fairness and substantial justice in connection with due process reliance on misleading
government conduct defense is not arbitrarily constrained by concepts taken from other contexts such as estoppel,
actual authority, or deterrence in order to leave fundamental fairness of flexibility intact.
[15] KeyCite Notes

Due process clause may invalidate some prosecutions for illegal gambling business solely on basis of reliance on advice
from state or local officials. 18 U.S.C.A. 1955; U.S.C.A. Const.Amends. 5, 14.
[16] KeyCite Notes

110 Criminal Law KeyCite Notes

110k37 Entrapment
110k37(6) Particular Cases and Offenses
110k37(7) k. Liquor, Gaming, and Sex Offenses. Most Cited Cases
If defendant who intended to maintain gambling devices relied on advice from appropriate state or local official that
conduct was legal, without complicity or corruption on part of that government official, due process clause would render
state prosecution nullity, and, thus, prosecution founded on same conduct and same state law would not be rendered
fundamentally fair simply because it was instituted by federal authorities. 18 U.S.C.A. 1955; U.S.C.A. Const.Amends.
5, 14.
[17] KeyCite Notes

110 Criminal Law
110k37 Entrapment

Pennsylvania statute in effect at time defendants were indicted for running illegal gambling business criminalized
maintenance or use of per se illegal poker machines and use of any video poker machine for gambling purposes and no
evidence would show that conduct of Pennsylvania state officials raised any ambiguity as to legality of gambling
conducted through use of poker machines so that defendants prosecuted under federal law for running illegal gambling
business could not show due process reliance on misleading government conduct defense. U.S.C.A. Const.Amends. 5,
14.
[18] KeyCite Notes

131 District and Prosecuting Attorneys
131k8 k. Powers and Proceedings in General. Most Cited Cases
Court must defer to decision to prosecute defendant, absent limited classes of abuses of prosecutorial discretion.
[19] KeyCite Notes

110 Criminal Law
110k37 Entrapment
Even if Pennsylvania law enforcement authorities tolerated use of video poker machines for gambling purposes, that
toleration did not in fact legalize conduct made illegal by Pennsylvania statute and would not state valid ground on
which to base claim of having been misled by government as defense for prosecution under federal law prohibiting
running of illegal gambling business. 18 U.S.C.A. 1955.
[20] KeyCite Notes

110 Criminal Law
110k37 Entrapment
Failure of state authorities to seize all video poker machines did not support defendant's due process reliance on
misleading government conduct defense where not all video poker machines were illegal per se under Pennsylvania law;
evidence showed that some citations were issued and seizure of machines did in fact occur if state authorities had
evidence of gambling activity. U.S.C.A. Const.Amends. 5, 14.
[21] KeyCite Notes


110k37 Entrapment
Despite defendants' contention that they relied on local government's failure to seize video poker machines and failure
to prosecute defendants under state law, fact that defendants were raided by state police put them on notice that
Pennsylvania authorities considered their activities unlawful so that evidence did not support contention that federal
prosecution violated due process as result of defendant's reliance on misleading government conduct. U.S.C.A.
Const.Amends. 5. 14.
[22] KeyCite Notes


110k37 Entrapment
Fact that local governments issued video poker permits for machines on which payoffs were being made did not support
finding that prosecution for running illegal gambling business was fundamentally unfair within meaning of due process
clause or that local government conduct would be considered corrupt. 18 U.S.C.A. 1955, 1956; U.S.C.A.
Const.Amends. 5, 14.
[23] KeyCite Notes

110 Criminal Law
110k37 Entrapment
Conduct of local government officials in regard to enforcement of any prohibitions against illegal video poker machine,
while creating some ambiguity, did not allow reasonable reliance in light of otherwise clear statute of statewide
application prohibiting illegal machines.
[24] KeyCite Notes

110 Criminal Law
110XVII Evidence
110XVII(V) Weight and Sufficiency
110k569 k. Defenses in General. Most Cited Cases
Evidence showed that defendants charged with running illegal gambling business were not misled by government
officials into believing that their illegal gambling activities were in fact legal under either federal or Pennsylvania law,
and, thus, federal prosecution was not fundamentally unfair. 18 U.S.C.A. 1955.
[25] KeyCite Notes
110 Criminal Law

110XX Trial
Issue of alleged selective prosecution is determinable without trial of general issue and court may decide issue finding
facts as necessary. Fed.Rules Cr.Proc.Rule 12(b), 18 U.S.C.A.
[26] KeyCite Notes

110 Criminal Law
110XX Trial
Where court determines defendants' entitlement to full hearing on selective prosecution issue, which issue is
determinable without trial of general issue, court assumes that allegations of indictment are true and gives defendants
benefits of reasonable inferences from their proffered evidence.
[27] KeyCite Notes

110 Criminal Law
110k37.10 Discriminatory or Selective Prosecution
110k37.10(1) k. In General. Most Cited Cases
To show intentional and purposeful discrimination by federal prosecutor as necessary to raise defense in federal
prosecution, defendant must show that he has been singled out for prosecution while other similarly situated have not
generally been proceeded against and that discriminatory selection of defendant for prosecution was invidious or in bad
faith.
[28] KeyCite Notes

110 Criminal Law
110k37.10(2) k. Particular Cases. Most Cited Cases
Indictment charging defendants with operating large scale illegal gambling business in violation of federal law was not
shown to be intentionally and purposefully discriminatory as result of failure to prosecute others, absent evidence that
other large scale illegal gambling businesses were operating in jurisdiction in violation of federal law; merely citing
number of video poker machines licensed to others within district was insufficient.
[29] KeyCite Notes

110 Criminal Law
Fact that others holding licenses for video poker machines were not prosecuted for running illegal gambling business in
violation of federal law did not show intentional and purposeful discriminatory prosecution absent proof that license
holders not prosecuted operated illegal gambling business as defined in federal statute or had size and sophistication of
illegal business at issue. 18 U.S.C.A. 1955.
[30] KeyCite Notes

92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90.1 Particular Expressions and Limitations
92k90.1(1) k. In General. Most Cited Cases

110k31 k. Defenses in General. Most Cited Cases
Lobbying activities of defendant to legalize video poker machines did not create First Amendment defense to prosecution
for violation of federal law; defendant could not absolve himself from prosecution by expressing his view that his
conduct should be legal. U.S.C.A. Const.Amend. 1.
[31] KeyCite Notes

110 Criminal Law
Local government officials who continued allegedly to abet activities of illegal gambling business, but were not subject to
prosecution under federal law prohibiting running of illegal gambling businesses, were not similarly situated to
defendants who ran large scale video poker machine gambling operation, for purposes of showing intentional and
purposeful discrimination in prosecution; while local government official's conduct may violate federal law, official's
conduct was removed from defendant's activities. 18 U.S.C.A. 1955, 1956.
[32] KeyCite Notes

188 Gaming
188III(B) Prosecution and Punishment
188k99 Trial
188k102 k. Instructions. Most Cited Cases
Court was neither empowered nor inclined to deny defendants constitutional right to contest truth of allegations before
jury and would thus instruct jury on intent element, so that government had to prove beyond reasonable doubt
connection with illegal gambling business, and would entertain request from defendants on appropriate jury instructions,
for purposes of determining that defendants would be allowed to contest government's presentation before jury on
element of intent to violate prohibition against operation of illegal video poker machines.
*913
(Cite as: 859 F.Supp. 909, *913)
Frederick W. Thieman, U.S. Atty., James R. Wilson, Asst. U.S. Atty., W.D. Pa., William D. Braun, Criminal Div., U.S.
Dept. of Justice, Washington, DC, for plaintiff.
James Wymard, William Difenderfer, Anthony Mariani, Ellen Viakley, Gary Gerson, Caroline M. Roberto, Joel Johnston,
Stanley Greenfield, Martha Bailor, Ray Radokovich, Carmen Martucci, Lee Markovitz, Edward J. Osterman, William
Acker, Foster Stewart, Joseph Kanfoush, Carl Max Janavitz, Raymond M. Maloney, John Goodrich, Gary B. Zimmerman,
Vincent Baginski, John Zagari, James Andring, Pittsburgh, PA, for defendants.
MEMORANDUM OPINION
LEE, District Judge.
Before the Court are Defendant Phillip M. Mike Ferrell's motions to dismiss: (1) Pretrial Motions Filed on Behalf of
Defendant Phillip M. Mike Ferrell: Motion To Dismiss on the Basis of Selective Prosecution (Document No. 379, in
part); (2) Pretrial Motions Filed on Behalf of Defendant Phillip M. Mike Ferrell: Motion to Dismiss on the Grounds That
Video Poker Machines Are De Facto Legal in Pennsylvania (Document No. 379, in part); (3) Pretrial Motions Filed on
Behalf of Defendant Phillip M. Mike Ferrell: Motion to Dismiss on the Ground That the Alleged Gambling Activities are
De Minimis (Document No. 379, in part); (4) Pretrial Motions Filed on Behalf of Defendant Phillip M. Mike Ferrell:
Motion to Dismiss on the Ground that the Alleged Illegal Gambling Activity Was an Exercise of Public Authority
(Document No. 379, in part).
Also before the Court are the related motions seeking to assert affirmative defenses: (5) John Francis Jack Conley's
Omnibus Pretrial Motion: Motion to Assert Good Faith Defense (Document No. 374, in part); (6) Pretrial Motions Filed on
Behalf of Defendant Phillip M. Mike Ferrell: Motion for Leave to Assert Affirmative Defense (Document No. 379, in
part).
PROCEDURAL BACKGROUND
Defendant Ferrell filed an omnibus pretrial motion, (Document No. 379), which included his four motions to dismiss and
his motion to assert an affirmative defense. On March 2, 1993, the Court held a hearing. At the hearing, Counsel for
Defendant Ferrell introduced the testimony of Defendant Curtin. Counsel for Defendant Ferrell attempted to introduce
further evidence in support of his motions. The Court sustained the Government's objection to the further evidence,
holding that Defendant Ferrell's proffer did not constitute a preliminary showing adequate to warrant further evidentiary
proceedings on his motions. The Court, however, indicated that Defendant Ferrell could brief the adequacy of his
proffer.
Pursuant to General Order of Court No. 15, these motions were to have been briefed on or before May 14, 1993. No
briefs were filed in the appropriate time frame. After the Government indicated that it would address the merits of the
motions when Defendant Ferrell filed briefs, rather than rely on procedural default, (Document No. 688), the Court
ordered Defendant Ferrell to state his intentions regarding his motions. (Document No. 689). No response was received
by the Court. In a subsequent Order of Court, the Court indicated that Defendant Ferrell's motions have apparently
been abandoned. (Document No. 700). Again, Defendant Ferrell did not respond. Subsequent events revealed an
irreconcilable dispute between Defendant Ferrell and his counsel, who was later granted leave to withdraw.
Due to the importance that the Defendants place on the issues raised in Defendant Ferrell's motions, Defendants John F.
Duffy Conley and William C. Curtin moved to adopt Defendant Ferrell's motions to dismiss, in which they had
previously moved to join. (Document No. 709). Over the Government's objections, (Document No. 725), the Court
granted in part and deferred in part the motion to adopt. (Document No. 730). The Court limited Defendants Duffy
Conley and Curtin to the record made by Defendant Ferrell, but allowed them to proffer evidence of their connection to
the pre-existing record. The Court deferred ruling on the request to file additional materials, pending its ruling *914
(Cite as: 859 F.Supp. 909, *914)
upon the proffered evidence. (Document No. 730).
Defendant Duffy Conley filed two briefs, including proffers of evidence, and Defendant Curtin moved to join in those
briefs. (Document Nos. 348-50). The Government filed a response brief. (Document No. 760).
The subject of these motions arose again at a status conference held by the Court on January 27, 1994. As a result of
the status conference the Court issued its Summary Order of Court dated February 3, 1994, (Document No. 821), which
reiterated and modified the Court's rulings from the bench at the status conference. Paragraph (4) of the Court's
Summary Order of Court granted leave to any Defendant who had originally joined Defendant Ferrell's motions to
dismiss to file a brief and a proffer of evidence in support of reopening the record on these motions.
Defendant Duffy Conley supplemented his previous filings, (Document No. 834), and Defendant Goodwin filed his Motion
to Reopen the Record. (Document No. 835). The Government responded to these supplemental filings. (Document No.
843).
The record before the Court consists of a Stipulation of Facts with respect to Pretrial Motions of Defendant Phillip M.
Mike Ferrell, (Document No. 509), Defendant Curtin's testimony and Defendant Ferrell's proffer at the March 2, 1993
hearing, the additional proffer made in the submissions of Defendants Duffy Conley, Curtin, and Goodwin, and the
Indictment. Although the stipulated facts are undisputed and the equivalent of found facts, the motions are being
adjudicated without a hearing. The relevance of this procedural fact to the light in which the Court must view the facts
in deciding the different motions will be discussed with respect to each motion.
Defendants Duffy Conley and Curtin have indicated that three of the motions to dismiss should be treated as one
motion: Pretrial Motions Filed on Behalf of Defendant Phillip M. Mike Ferrell: Motion to Dismiss on the Grounds That
Video Poker Machines Are De Facto Legal in Pennsylvania (Document No. 379, in part); Pretrial Motions Filed on Behalf
of Defendant Phillip M. Mike Ferrell: Motion to Dismiss on the Ground That the Alleged Gambling Activities are De
Minimis (Document No. 379, in part); Pretrial Motions Filed on Behalf of Defendant Phillip M. Mike Ferrell: Motion to
Dismiss on the Ground that the Alleged Illegal Gambling Activity Was an Exercise of Public Authority (Document No.
379, in part). The issues raised by these motions are therefore reduced to three issues: (1) Whether gambling with
video poker machines is de facto legal in Pennsylvania; and the related issue of (2) Whether the Defendants are entitled
to assert a good faith defense; and (3) Whether the Government exercised impermissible selectivity in prosecuting the
Defendants.
THE RECORD
Stipulated Facts
The stipulated facts, which cover the period from January 1, 1984 through September 30, 1991, are set forth as
follows:
3. During the aforesaid time frame, video poker machines were present in the United States Judicial District known as
the Western District of Pennsylvania, including, but not limited to the following counties: Allegheny, Beaver, Washington
and Westmoreland.
4. During the aforesaid time span, these video poker machines were found most frequently, but not exclusively, in bars,
lounges, taverns, restaurants, coffee shops, social halls or fraternal and veterans' organizations, laundromats and other
places visited by members of the public or members of fraternal and veterans' organizations (hereinafter, collectively
referred to as the locations).
5. During the aforesaid time span, the vast majority of cities, boroughs, townships and other municipalities (hereinafter
collectively, the local governments), imposed an annual fee or charge on all amusement devices, including video poker
machines, that were placed in any location within the local government's borders.
6. The annual charge for each video poker machine for which a fee or charge *915
(Cite as: 859 F.Supp. 909, *915)
was required ranged from approximately $100 to $500 in most instances.
7. The authority under which the local governments imposed the fees or charges arose from an ordinance or ordinances
enacted by the governing body of each local government.
8. For the purpose of imposing such fees or charges, most of the local governments classify video poker machines as
mechanical or video devices, although some local governments impose the fee or charge on the video poker machine as
such.
9. To comply with an ordinance imposing such a fee or charge, the person in control of a video poker machine, or of the
location in which a video poker machine is placed, normally completes an application for a video or mechanical device
license or permit. The local government then collects the requisite fee or charge for each license or permit that is
issued.
10. Often, the local government issues a permit or license to evidence that the annual fee or charge has been paid,
which permit or license is affixed to the video poker machine itself or is posted in the location where the video poker
machine has been placed.
11. During the time frame covered by this Stipulation, some of the defendants, including, but not limited to, Ferrell have
paid the aforesaid fees and charges to local governments and have received licenses and permits to be affixed to video
poker machines or posted in the locations in which the same has been placed.
12. To the best of the recollection of any agent of the government, no local government situate within the Western
District of Pennsylvania has ever been prosecuted as a result of the governmental activities described herein.
Stipulation of Facts with respect to Pretrial Motions of Defendant Phillip M. Mike Ferrell, at 2-3 (Document No. 509).
Proceedings on March 2, 1993
(a) Testimony of Defendant William C. Curtin
The relevant portion of Defendant Curtin's testimony at the March 2, 1993 hearing relates to the Pennsylvania
Association of Video Operators (PAVO). PAVO is a now defunct organization that was formed no earlier than the
summer of 1989. Defendant Curtin was president of PAVO. Defendant Curtin was active in PAVO's affairs, participating
in decisions, scheduling meetings and working with others on their agendas, and conferring with PAVO's attorneys.
Through his work with PAVO, he communicated with persons involved in the video poker machine industry throughout
Pennsylvania and was familiar with the activities of almost all of the video poker machine owners and locations in the
City of Pittsburgh.
On August 16, 1989, at the Sheraton Hotel in Pittsburgh, there was a PAVO meeting. At the meeting, Defendant Curtin
gave the welcome and introduction. There were also remarks by PAVO's general counsel, William Difenderfer, and Mr.
Phillip Benson from Montana.
Among the purposes to which PAVO adhered were to settle confusion arising from licenses being issued by
municipalities, to advocate legalizing video poker machine gambling in Pennsylvania, to hire lobbyists to that end and to
garner support for legalizing video poker machine gambling from representatives of other interested constituencies,
such as the Pennsylvania Association of Tavern Owners. Further, PAVO encouraged an appeal by the property owner in
a case that was adverse to the interests of video poker machine vendors.
PAVO instituted a fund-raising drive to raise money to advocate legalizing video poker machine gambling in
Pennsylvania. At the August 16, 1989 meeting, there was discussion of the amounts of revenues that could be
generated by video poker machines in Pennsylvania.
(b) Testimony of Frank Amity
Frank Amity, a private investigator retained by Defendant Ferrell, testified and attempted to testify regarding the
procedures utilized by municipalities in issuing licenses for video poker machines and/or *916
(Cite as: 859 F.Supp. 909, *916)
vending machines in general.FN1 When the Government objected to the relevance of the testimony, which related to
procedures existing in 1993, Defendant Ferrell proffered that the then existing procedures would be related back to the
time covered by the Indictment. On that basis, the Court overruled the Government's relevance objection.
FN1. The municipalities concerned were the western Pennsylvania municipalities of Aspinwall, Avalon, Baldwin Borough,
Bellevue Borough, Bethel Park, Braddock Hills, Brentwood, Bridgeville, Cecil, Collier, Dormont, Elizabeth, Etna, Findlay
Glassport, Jefferson, Kilbuck, Leetsdale, McCandless, McKees Rocks, McKeesport, Millvale, Monroeville, Moon,
Monongahela, Mount Lebanon, Munhall, North Huntington, O'Hare, Penn Hills, Peters, Pitcairn, Pleasant Hills, Reserve,
Robinson, Ross, Scott, Shaler, South Park, Swissvale, Upper Burrel, West Deer, West Mifflin and West View.
Shortly thereafter, however, the Government again objected to the relevance of the testimony, and the Court sustained
the Government's objection. The thrust of the Government's objection was that Mr. Amity had not communicated to
municipal officials an intention to engage in illegal gambling activity and, therefore, the municipalities' proceeding with
the license applications was irrelevant to the de facto legality and entrapment by estoppel contentions being advanced
by Defendant Ferrell. The Court agreed with the Government. Because not all video poker machines are per se illegal in
Pennsylvania, the Court indicated that the mere issuance of a license for a video poker machine, without a showing that
the issuing authority had actual knowledge of the machines' intended illegal use, was insufficient support for a defense
of de facto legality.
The Court cut short Mr. Amity's testimony on that basis. The Court allowed counsel for Defendant Ferrell to place a
proffer of evidence on the record and subsequently to brief the adequacy of his proffer.
(c) Defendant Ferrell's Proffer
In the course of the proceedings held on March 2, 1993, Defendant Ferrell can be fairly said to have proffered evidence
of the following: Most of the licensing and permitting ordinances for the municipalities in question state something to
the effect that no license or permit will be issued for illegal gambling devices or any device declared illegal by a court of
competent jurisdiction; City of Pittsburgh Detective John Bosetti previously testified that pay-offs are made on all video
poker machines; it is common knowledge that all video poker machines are used for illegal gambling; in many of the
municipalities in question, the municipal police department or code enforcement officers enforce the licensing and
permitting ordinances; in 1989, United States District Judge Gerald Weber had declared all video poker machines illegal
per se under federal law in United States v. 294 Various Gambling Devices, 718 F.Supp. 1236 (W.D.Pa.1989); the
Supreme Court of Pennsylvania had declared all video poker machines equipped with knock-off and metering devices
illegal; Mr. Amity and his partner communicated with 47 municipalities seeking information regarding the licensing and
permitting of vending machines, including video poker machines; some municipalities licensed video devices generally
and some licensed video poker machines specifically; certain municipalities had public meetings where the issue of the
legality of video poker machines was discussed, and those municipalities continued to license and permit video poker
machines and to collect licensing and permitting fees; Defendant Ferrell had compiled documents showing, for the years
in question, the number of permits issued, in some instances to video devices generally, and in other instances for video
poker machines specifically. Defendant Ferrell stated that it would be impossible for him to show that police or code
officers had actual knowledge that the licensed or permitted devices were intended to be used or were used in illegal
gambling activity.
Brief of Defendant John F. Duffy Conley
in Support of Motion to Dismiss
on the Ground of Selective Prosecution
(Document No. 750)
Defendant Duffy Conley, in the first of his briefs, which was filed pursuant to the Court's Order granting in part and
deferring in part the motion to adopt Ferrell's motions to dismiss filed by Defendants Duffy Conley *917
(Cite as: 859 F.Supp. 909, *917)
and Curtin, made a proffer of evidence relative to the Defendants' selective prosecution argument. His proffer is
summarized below.
The Federal Government, Pennsylvania State Police and the City of Pittsburgh Police Bureau have investigated activities
involving video poker machines as early as 1986. During the entire period of these investigations, Duffy Conley and his
associates transacted business involving video poker machines in an open, rather than a secret and clandestine,
manner. They advertised their video poker machines; they engaged in promotions to attract players; they consented to
be interviewed by the news media; and they paid local governments tens, if not hundreds, of thousands of dollars each
year for licenses and permits.
Initially, the Federal Government investigated activities involving video poker machines for possible tax violations. In
1988 and 1989, the Federal Government's focus shifted to possible violations of racketeering statutes, such as operating
an illegal gambling business, 18 U.S.C. 1955, and money laundering, 18 U.S.C. 1956. The federal government's
power to investigate and prosecute persons for violations of these statutes depends on them being engaged in a
gambling business which is illegal under Pennsylvania law.
Although it is illegal to use video poker machines as gambling devices in gambling activities, Pennsylvania law
enforcement officials tolerate these machines.
Duffy Conley and others formed the Pennsylvania Association of Video Operators. Although Duffy Conley and
organizations he controlled provided most of PAVO's financial support, others, such as Defendant Ferrell and one John
Varney, a defendant in the only other video poker machine case in the Western District of Pennsylvania, also
contributed to PAVO. As an organization, PAVO engaged in lobbying activities designed to introduce the merits of video
poker machine gambling to members of the legislature. PAVO attempted to generate a groundswell of public support for
its goals. PAVO circulated cards for members of the public to sign evidencing support for legalized video poker machine
gambling. It obtained the support of members of the general assembly who became sponsors of the sought-after
legislation.
PAVO's activities attracted the attention of law enforcement officials. State Police officers attended PAVO meetings and
filed reports stating their observations. The State Police officers shared their knowledge with federal agents and
Pittsburgh Police officers.
In the fall of 1989, shortly after the surveillance of PAVO, F.B.I. Special Agent John Donnelly (S.A. Donnelly), who was
then investigating video poker machine activities unrelated to defendants in the instant case, had a chance meeting with
Duffy Conley at the Main Hotel in Carnegie, Pennsylvania. Duffy Conley told S.A. Donnelly that the F.B.I. was wasting its
time because video poker machine gambling was on the verge of becoming legal, rather than merely tolerated, in
Pennsylvania.
A little over one month later, federal agents, along with state and local police officers, met with an Assistant United
States Attorney to draft a one-hundred page affidavit in support of search warrants for business properties used by
Duffy Conley and his organizations. Searches of 930 Saw Mill Run and 1300 Windgap Avenue were executed in
December 1989. During the search of 1300 Windgap Avenue, Federal agents seized numerous records concerning
PAVO, its contributors and supporters, and its activities.
PAVO's activities continued into the fall of 1990, when the Pennsylvania General Assembly enacted legislation legalizing
video poker machines as gambling devices. Governor Casey, however, vetoed the legislation, which never became law.
Within a year, a federal grand jury handed down the Indictment in this case.
Defendant Ferrell subpoenaed voluminous documents from local governments throughout Allegheny County. The
documents reveal the names and addresses of persons who obtained licenses and permits to use video poker machines,
beginning with the year 1984. The documents reveal that hundreds, if not thousands, of persons obtained such licenses
and permits. Only the Defendants in this case and the defendants in the John *918
(Cite as: 859 F.Supp. 909, *918)
Varney case have been prosecuted by the Federal Government.
Testimony of federal, state, and local law enforcement officers reveals that video poker machines are used only for
illegal gambling.
Brief of Defendant John F. Duffy Conley in Support of Motion to Dismiss on Grounds that his Conduct was De Facto
Legal, a De Minimus Infraction and a Lawful Exercise of Public Authority (Document No. 749)
Duffy Conley, in the second of his briefs, which was filed contemporaneously with the first of his briefs and also filed
pursuant to the Court's Order granting in part and deferring in part the motion to adopt Ferrell's motions to dismiss filed
by Defendants Duffy Conley and Curtin, incorporates the facts proffered in the first of his briefs. His second brief alleges
more facts and contains an Exhibit A, proffering further evidence.
Exhibit A to Defendant John F. Duffy Conley's Brief in Support of Phillip Mike Ferrell's Motions to Dismiss states:
Defendant John F. Duffy Conley is prepared to present the testimony of several witnesses, who, during the indictable
period (1985-1991) served in an elected and/or supervisory position within various Allegheny County political
subdivisions, those governing political bodies including, but not limited to, McKees Rocks Borough, Robinson Township,
Kennedy Township and Brentwood Borough.
If presented an opportunity, each witness will testify that their respective municipal government bodies licensed and
collected fees for video poker machines. The witnesses will also testify that they themselves and other government
officials were aware that video poker machines license [sic] were being issued for video poker machines on which payoffs were made.
These witnesses will testify that despite the fact that pay-offs were being made on these video poker machines, the
respective governing bodies continued to issue permits. Additionally, these same witnesses will testify that the cost of
the aforementioned permits increased annually, due to the fact that the governing bodies knew the amount of revenue
generated by video poker machines, in contrast to the cost for non-poker video machines which remains the same
during the indictable period.
Defendant is also prepared to present a document, dated April 30, 1992 from Thomas Corbett, U.S. Attorney for the
Western District by Mary McKeen Houghton, Assistant U.S. Attorney to the Honorable Gustave Diamond. Said letter was
sent to Judge Diamond, ex parte, in regards to a Civil Forfeiture action involving video poker machines found on
Defendant Conley's premises, however, not owned by the Defendant.
Said correspondence specifically addresses a report prepared by Agent Holmes with respect to the illegality of a specific
type of video poker machine. The letter details the government's attempt to withhold Agent Holmes' report from
defense counsel on the basis that it may encourage allegation of selective prosecution with respect to current
indictments regarding gambling devices.
Legal, a De Minimus Infraction and a Lawful Exercise of Public Authority, Exhibit A at 1-2 (Document No. 749, Exhibit
A).
In the second of his briefs, Defendant Duffy Conley reiterates that law enforcement personnel from the federal, state
and local level have testified that, to the knowledge of each, video poker machines are used solely for gambling
purposes.
Duffy Conley also states the following:
Duffy Conley's view that video poker machines have attained the status of de facto legality is shared by Attorney
General Ernie Preate. He testified before a legislative committee on May 24, 1990 that, when he assumed office (which
was in January, 1989): In most areas of Pennsylvania, video poker machines were so widespread, enforcement efforts
were so intermittent and the resulting sanctions so minor that the situation was tantamount to the de facto legislation of
video poker gambling. Machines, numbering in the tens of thousands, were found through out Pennsylvania.*919
(Cite as: 859 F.Supp. 909, *919)
(Ex. 21-Y) Duffy Conley contends that this is, and throughout the period covered by the Indictment has been, the
case.
Legal, a De Minimus Infraction and a Lawful Exercise of Public Authority at 2-3 (Document No. 749).FN2 Duffy Conley's
second brief also alludes to the aforementioned stipulation between Defendant Ferrell and the Government (Document
No. 509) and the procedural history of these motions outlined above.
FN2. Exhibit 21-Y is a document entitled Prepared Statement of Attorney General Ernest D. Preate, Jr. before the House
of Representatives Finance Committee, May 24, 1990. The language quoted by Defendant Duffy Conley was extracted
from the following context:
Because of the difficulty in proving machines are per se illegal under state law, and because police undercover resources
are-properly-allocated far more heavily to combatting violent crime and the drug fight than to combatting video poker,
video poker gambling was out of control when I took office as Attorney General.
In most areas of Pennsylvania, video poker machines were so wide spread, enforcement efforts were so intermittent
and the resulting sanctions so minor that the situation was tantamount to the de facto legalization of video poker
gambling. Machines, numbering in the tens of thousands were found throughout Pennsylvania.
I was determined that I would not allow that to happen on my watch. As long as video poker is illegal, we in the law
enforcement have a duty to prosecute violators. If the Legislature wishes to legalize video poker, that is your decision to
make. But we cannot legalize video poker by having the police look the other way. When the police ignore blatantly
illegal activity it breeds contempt for the law, economically coerces honest tavern owners and vending machine
distributors into joining the illegal activity and, as we have seen in at least one case, can attract the mob.
So I set out to develop a comprehensive plan to crack down on this blatantly illegal activity, and to do so without having
to commit new law enforcement resources to the fight.
Id. at 3-4 (emphasis in original). The Attorney General discussed the enforcement efforts of federal, state, and local
authorities, including enforcement efforts by the U.S. Attorney for the Western District of Pennsylvania in 1989. The
Attorney General concluded his discussion of enforcement efforts, But in summary, after a period in which video poker
almost became legal by default, we now have in place a program which has resulted in a high degree of compliance with
the law. Id. at 7.
The Attorney General did not take a position on the bill before the committee, HB 2300, which would have legalized and
regulated video poker activity. After discussing the funding of law enforcement efforts to regulate video poker machines
where they are legal and illegal, the Attorney General concluded his remarks as follows:
Mr. Chairman, I urge this committee and the Legislature to make a clear choice and give law enforcement clear
direction. Either tell us that you want legalized video poker, and provide tough regulations and a comprehensive, selffinancing enforcement program. Or tell us that you want to keep video poker illegal-that you want us to arrest and
prosecute violators-and give us the resources to do the job right. But please don't leave all of us in the unsatisfactory
position we are in now.
We must not allow the Commonwealth to backslide into the position we were in before February, when video poker had
almost achieved de facto legalization in Pennsylvania. Give us your direction. Thank you.
Id. at 10.
Defendant John F. Duffy Conley's Omnibus Brief in Response to the Court's February 3, 1994 Summary Order of Court
(Document No. 834)
In response to issues raised at the January 27, 1994 status conference, and pursuant to the Court's Summary Order of
Court (Document No. 821), Defendant Duffy Conley filed the third, and final, of his briefs. (Document No. 834). After
reviewing the procedural history of the case, he reiterates certain of the facts previously proffered and includes Exhibit
A to the second of his briefs as an exhibit to his third brief. The only new fact arguably proffered is that no
municipality or municipal official is being prosecuted under 18 U.S.C. 1955 or 18 U.S.C. 1956.
Defendant Kenneth W. Ron Goodwin's Motion to Reopen the Record (Document No. 835)
In response to issues raised at the January 27, 1994 status conference, and pursuant to the Court's Summary Order of
Court (Document No. 821), Defendant Goodwin filed his Motion to Reopen Record, (Document No. *920
(Cite as: 859 F.Supp. 909, *920)
835), which contains his proffer of evidence. Defendant Goodwin's proffer states:
The Pennsylvania Liquor Code is administered and enforced by the following agencies:
a) The Licensing Bureau of the PLCB is charged with the responsibility of administering the Liquor Code and, more
specifically, investigating applications for transfer of various types of liquor licenses.
b) The State Police Bureau of Liquor Control Enforcement (hereinafter referred to as LCE) is charged with
responsibility of enforcing the laws set forth in the Pennsylvania Liquor Code and other laws of the Commonwealth
which may be violated by liquor licensees.
c) The Pennsylvania State Police at times investigate and enforce the same areas as the LCE.
A supervisor of the Pittsburgh office of the Licensing Bureau of the PLCB will present testimony containing the following:
1. During any investigation for licensing purposes, if a video poker machine is observed, the investigating officer does
nothing; no report is made of the observation.
2. The supervisor has never been questioned by any of the investigating officers whom he directs as to what action, if
any, should be taken in regard to video poker machines seen during a licensing investigation.
3. There is no policy of the PLCB issued to the Licensing Bureau in regard to video poker machines.
A supervisor in the Pittsburgh office of the LCE will present testimony containing the following:
1. The LCE has never pursued a program against video poker machines solely as gambling devices per se.
2. If officers are conducting an investigation, they merely observe in their reports that video poker machines were seen
on licensed premises; no enforcement action is taken.
3. Video poker machines are seized and/or citation proceedings issued only if officers observe a payoff or if there have
been other complaints and evidence which can substantiate a payoff.
4. From the time of its inception in 1987, the LCE has not changed the aforesaid policies. Following Judge Weber's
Decision in 1989, the LCE was anticipating a change, but no change was ever made.
A supervisor of the Vice and Intelligence Squad of the Pennsylvania State Police will present testimony containing the
following:
1. In regard to video poker machines, this agency arrests and confiscates machines resulting from payoffs only [sic].
2. The State Police normally do not prosecute for possession of video poker machines per se.
3. Some video poker machines are confiscated as a result of a complaint.
4. Some of their confiscations are conducted as a result of observations made during investigations for other purposes.
5. There has been no change in State Police policy as a result of Judge Weber's Decision.
6. When the State Police confiscate machines and file gambling charges under Section 5513 of the Pennsylvania
Criminal Code, the criminal charges brought against the bartender or other person making a payoff on the machine are
frequently dismissed by he [sic] magistrate, with the bartender being permitted to plead guilty to the summary offense
of disorderly conduct.
Id. at 2-4. Defendant Goodwin also asks that he and other defendants be given an opportunity to research and
subsequently proffer items from the news media in support of Defendant Ferrell's motions to dismiss.FN3
FN3. In ruling, the Court will not speculate as to what may be found in the news media. Given that Defendant Goodwin
filed his proffer approximately two years and five months after the Indictment, one year and eight months after
Defendant Ferrell filed his motions to dismiss and eleven months after the hearing on the motions was held, the Court
will deny Defendant Goodwin's motion to supplement his proffer with the contents of materials that have been available
to him throughout.
*921
(Cite as: 859 F.Supp. 909, *921)
DISCUSSION
De Facto Legality of Video Poker Machine Gambling
The Contentions
Defendants frame this issue as follows:
When it is common knowledge among law enforcement officials that video poker machines are used for gambling
purposes alone and when local governments issue licenses and permits authorizing such devices to be placed within
their borders, have such machines achieved the status of de facto legality notwithstanding a state statute prohibiting
gambling.
Legal, a De Minimus Infraction and a Lawful Exercise of Public Authority, at 1-2 (Document No. 749). The essence of the
argument is that video poker machines are used for gambling, and nothing else, and local, municipal authorities, by
issuing licenses and permits for video poker machines, created an atmosphere of de facto legality with respect to the
use of these devices. Id. at 2. Further, the Defendants' failure to show that the municipal authorities issued licenses
and permits having specific knowledge that the video poker machines were to be used for gambling purposes is
contended to be irrelevant because municipalities, like every one else, cannot close their eyes to what occurs over a
long period of time on an everyday basis. Id. at 3. Relying on 42 U.S.C. 1983, Defendants contend that the common
knowledge of municipal employees and the permissive atmosphere surrounding video poker machines combined into a
practice so permanent and well settled as to have the force of law to bind municipal decision-makers.FN4
FN4. On the one hand, Defendants contend that they are relying upon the Due Process impediment to prosecution that
arises in certain circumstances. See, e.g., United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 93
S.Ct. 1804, 36 L.Ed.2d 567 (1973). On the other hand, Defendants contend that the permissive atmosphere
surrounding video poker machines supports a finding of a lack of the requisite intent to commit a crime. As will be
discussed, these are distinct contentions that must be separately treated by the Court.
The Government challenges the adequacy of the record upon which Defendants rely, contending that the proffers are
untimely.FN5 Further, the Government challenges the legal sufficiency of the Defendants proffers under the applicable
law. Specifically, the Government contends that where a Due Process challenge based upon misleading government
conduct is raised as a defense to a federal crime, assurances of legality must come from a federal official. Moreover, the
Government contends that the municipalities' issuing of permits and licenses in the alleged permissive atmosphere in
Pennsylvania is not the type of government conduct sufficient to make out the defense. Finally, the Government points
to uncontested-and uncontestable-evidence in the record, but outside of the Defendants' proffers, demonstrating that
the Defendants activities had long been subject to raids and enforcement activities by local, state and federal
authorities.
FN5. The Court rejects this challenge because, while its initial Order permitting Defendants to proffer evidence was
limited to each Defendant's connection to the record created by former counsel for Defendant Ferrell, its latest Order
permitting further proffers was not limited in such a manner.
Procedure and Standard of Review
The font of the reliance on misleading government conduct defense that Defendants assert is three cases decided by the
Supreme Court of the United States: United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93 S.Ct. 1804,
36 L.Ed.2d 567 (1973); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); and Raley v. Ohio, 360
U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). The procedure and standard of review to be employed by the court is
inextricably bound with the nature of the Due Process concerns expressed in the aforementioned Supreme Court
decisions.
The Supreme Court Cases
Raley v. Ohio
In Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), the Supreme Court reversed the convictions of
three out of four individuals, who had been convicted of *922
(Cite as: 859 F.Supp. 909, *922)
not answering, on the basis of the Ohio privilege against self-incrimination, questions put to them by the legislative UnAmerican Activities Commission of the State of Ohio. The conviction to the fourth individual was affirmed by an equally
divided court.FN6
FN6. The Opinion of the Court with respect to the three individuals whose convictions were overturned did not reverse
and remand for proceedings not inconsistent with the Opinion. The Opinion simply reversed. There was a suggestion
that one of the individuals whose convictions were reversed refused to answer a question on grounds other than the
privilege against self incrimination. Of this, the Opinion of the Court stated, It is suggested that Brown declined to
answer one question other than on grounds of self-incrimination. No such finding was made by the Ohio Supreme Court,
which treated the entire case as involving pleas of self-incrimination; accordingly, so do we. Raley, 360 U.S. at 440 n.
15, 79 S.Ct. at 1268 n. 15. The Opinion of the four concurring Justices contemplated further proceedings in the Ohio
courts. It stated, On the record here, we find no specific direction to Brown to answer, and thus we must concur in the
reversal of Brown's conviction. The question of the sufficiency of the plea will, of course, be open on remand. Id. at 443
n. 1, 79 S.Ct. at 1269 n. 1 (Opinion of Clark, J.). Given that the Court was unanimous in simply reversing Brown's
conviction, it is not clear what the purpose of the further proceeding was to be.
Three defendants, including the defendant whose conviction was affirmed, were convicted under an Ohio statute
providing that a failure * * * to answer as a witness, when lawfully required may be punished as for a contempt.
Id. at 424 n. 1, 79 S.Ct. at 1259 n. 1 (quoting Ohio Gen.Code 12137). The fourth defendant was convicted under an
Ohio statute punishing those, summoned before a Committee of the State Legislature, who refuse to answer a
question pertinent to the matter under inquiry. Id. (quoting Ohio General Code 12845). The Ohio statutes did not
require that the refusal to answer be willful or deliberate. See id. at 444 n. 3, 79 S.Ct. at 1257 n. 3 (Opinion of Clark,
J.). All of the defendants waived their right to a jury trial and were convicted in two bench trials. Id. at 432, 433, 79
S.Ct. at 1263, 1263.
Several members of the Ohio Un-American Activities Commission had expressly or impliedly informed the defendants
that the Ohio privilege against self-incrimination was available to them in the proceedings before the Commission. The
members of the Committee were wrong. As a matter of Ohio law, a transactional immunity statute, which applied by
operation of law, divested persons appearing before the Ohio legislature of the Ohio privilege. The Supreme Court of the
United States explained how the problem before it arose:
The Ohio immunity statute extends, so far as is here relevant, to any person appearing before a legislative committee
and grants immunity from state prosecutions or penalties on account of a transaction, matter, or thing, concerning
which he testifies'; the statute declares that the testimony given on such an appearance shall not be used as evidence
in a criminal proceeding against the person testifying. Ohio Rev.Code, s 101.44. For reasons unexplained, the existence
of this immunity was never suggested by the Commission to any of the appellants, and in fact, as the above statement
makes evident, the Commission's actions were totally inconsistent with a view on its part that the privilege against selfincrimination was not available. The Commission thought the privilege available, and it gave positive advice that it could
be used.
Id. at 431-32, 79 S.Ct. at 1263. The Ohio Supreme Court, relying on the maxim that all are presumed to know the
contents of the law, held that the offenses were established by the defendants' failure to answer the questions,
notwithstanding the Commission's erroneous assurances to the contrary. Id. at 425, 79 S.Ct. at 1259.
Avoiding numerous other questions,FN7 the Supreme Court of the United States held *923
(Cite as: 859 F.Supp. 909, *923)
that as to three of the four defendants the judgments of conviction rendered below violate the Due Process Clause of
the Fourteenth Amendment. Id. at 437, 79 S.Ct. at 1266. The Court stated:
FN7. Issues that were avoided included the power of state legislatures to investigate activities deemed subversive to the
Nation, the power of a state to compel testimony related to First Amendment activity, the existence of expressed
legislative interest for such an inquiry and its articulation to witnesses, and the validity of state immunity statutes not
affording immunity from federal prosecution. Id. at 425, 79 S.Ct. at 1259. Other avoided issues were whether a state
must expressly reject a claimed privilege against self-incrimination before the failure to testify may be punished and
whether notice to witnesses of the immunity law that acted as the basis on which answers were required must be given.
Id. at 437, 79 S.Ct. at 1265.
This case is more than ... [one involving failure to give notice]; here the Chairman of the Commission, who clearly
appeared to be the agent of the State in a position to give such assurances, apprised three of the appellants that the
privilege in fact existed, and by his behavior toward the fourth obviously gave the same impression. Other members of
the Commission and its counsel made statements which were totally inconsistent with any belief in the applicability of
the immunity statute, and it is fair to characterize the whole conduct of the inquiry as to the four as identical with what
it would have been if Ohio had had no immunity statute at all. Yet here the crime said to have been committed by the
appellants, as defined by the State Supreme Court, was simply that of declining to answer any relevant question on the
ground of possible self-incrimination. This was because the Court held that the Ohio immunity statute automatically
removed any basis for a valid claim of the privilege, which generally exists under Ohio law. Ohio Const., art. I, s 10.
Accordingly, any refusal to answer, based on a claim of the privilege, was said to constitute the offense. While there is
no suggestion that the Commission had any intent to deceive the appellants, we repeat that to sustain the judgment of
the Ohio Supreme Court on such a basis after the Commission had acted as it did would be to sanction the most
indefensible sort of entrapment by the State-convicting a citizen for exercising a privilege which the State clearly had
told him was available to him.... A State may not issue commands to its citizens, under criminal sanctions, in language
so vague and undefined as to afford no fair warning of what conduct might transgress them.... Inexplicably
contradictory commands in statutes ordaining criminal penalties have, in the same fashion, judicially been denied the
force of criminal sanctions.... Here there were more than commands simply vague or even contradictory. There was
active misleading .... The State Supreme Court dismissed the statements of the Commission as legally erroneous, but
the fact remains that at the inquiry they were the voice of the State most presently speaking to the appellants. We
cannot hold that the Due Process clause permits convictions to be obtained under such circumstances.
Id. at 437-39, 79 S.Ct. at 1266-67 (emphasis added; footnotes and citations omitted).
Both of the Opinions in Raley quote the dissenting opinion of Judge Stewart of the Ohio Supreme Court, which stated,
since the defendants were apprised by the commission at the time they were testifying that they had a right to refuse
to answer questions which might incriminate them, they could not possibly in following the admonition of the
commission be in contempt of it * * *. The Supreme Court nonetheless accepted Ohio law as declared by the majority
of the Ohio Supreme Court, to wit, the offense did not require willful or deliberate refusal to answer, but only a failure to
answer based on the unavailable privilege. While the Court's concern with vagueness, fair warning and the consistency
of directives from apparently authoritative State sources is evident, the Court's Due Process defense did not find lacking
evidence of an implied specific intent requirement. Rather, the Court found that the Commission had actively misled the
defendants into committing the offense defined by the statute and the Ohio courts.
The Opinion of Justice Clark prevailed on the issue upon which the Court was equally divided. One defendant's
conviction was based upon a question that the defendant was in fact directed to answer. Because the Defendant had
been directed, rightly or wrongly, to answer the question, there could be no entrapment and hence no lack of due
process. Id. at 445, 79 S.Ct. at 1270.
Cox v. Louisiana
The Supreme Court returned to the Due Process reliance on misleading government *924
(Cite as: 859 F.Supp. 909, *924)
conduct defense in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965). In that case, Cox had led a
demonstration within sight and hearing of a courthouse-approximately 101 feet from the courthouse steps-to protest
the arrest of numerous civil rights demonstrators. He appealed from his conviction in a bench trial FN8 under a
Louisiana statute that prohibited picketing and parading in or near a state courthouse, with the intent to obstruct
justice or influence any judicial officer. Id. at 560, 85 S.Ct. at 478.
FN8. That he was convicted in a bench trial appears in the companion case, which has the same caption but a different
citation. Cox v. Louisiana, 379 U.S. 536, 538, 85 S.Ct. 453, 455, 13 L.Ed.2d 471 (1965).
Cox first raised a facial challenge to the statute on First Amendment grounds. The Court rejected the facial challenge. It
found the statute was a reasonable, narrowly drawn statute regulating specific conduct, which the state had a legitimate
interest in regulating, in specific places-in or near a courthouse. Id. at 562-64, 85 S.Ct. at 479-81. Cox then raised a
challenge to the statute as applied, which the Court also rejected. Id. at 564-66, 85 S.Ct. at 480-82.
Significantly, Cox also sought reversal of his conviction on the Due Process ground, Thompson v. Louisville, 362 U.S.
199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), that there was no evidence of intent to obstruct justice or influence any
judicial officer. Finding evidence of the requisite criminal intent in the record, the Court rejected this challenge. Id. 379
U.S. at 566-67, 85 S.Ct. at 481-82.
The Court nonetheless reversed Cox's conviction. It stated that there is some lack of specificity in a word such as
near. Id. at 568, 85 S.Ct. at 483. The Court continued:
While this lack of specificity may not render the statute unconstitutionally vague, at least as applied to a demonstration
within the sight and hearing of those in the courthouse, it is clear that the statute, with respect to the determination of
how near the courthouse a particular demonstration can be, foresees a degree of on-the-spot administrative
interpretation by officials charged with administering and enforcing it. It is apparent that demonstrators, such as those
involved here, would justifiably tend to rely on this administrative interpretation of how near the courthouse a
particular demonstration might take place. ... This administrative discretion to construe the term near concerns a
limited control of the streets and other areas in the immediate vicinity of the courthouse and is the type of narrow
discretion which this Court has recognized as the proper role of the responsible official in making determinations
concerning the time, place, duration, and manner of demonstrations. ... Nor does this limited administrative regulation
of traffic which the Court has consistently recognized as necessary and permissible, constitute a waiver of law which is
beyond the power of the police. Obviously telling demonstrators how far from the courthouse steps is near the
courthouse for purposes of a permissible demonstration is a far cry from allowing one to commit, for example, murder,
or robbery.
Id. at 568-69, 85 S.Ct. at 483 (citations and footnotes omitted). After reviewing the evidence of record, the Court
determined that it was uncontradicted that:
... the highest police officials of the city, in the presence of the Sheriff and Mayor, in effect told the demonstrators that
they could meet where they did, 101 feet from the courthouse steps, but could not meet closer to the courthouse. In
effect, appellant was advised that a demonstration at the place it was held would not be one near the courthouse
within the terms of the statute.
Id. at 571, 85 S.Ct. at 484. Under all the circumstances of the case, the Court held that Due Process and Raley did not
permit the conviction to stand. Id. The Court made clear, however, that it was not redefining the meaning of near
under the state statute. Id. at 571-72, 85 S.Ct. at 484-85.
United States v. Pennsylvania Industrial Chemical Corp.
The Supreme Court's last pronouncement on the Due Process reliance on misleading *925
(Cite as: 859 F.Supp. 909, *925)
government conduct defense was contained in United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 93
S.Ct. 1804, 36 L.Ed.2d 567 (1973). After a jury trial,FN9 Pennsylvania Industrial Chemical Corporation (PICCO) had
been convicted under Section 16 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. 411, of discharging
refuse matter in August 1970 without a permit from the Secretary of the Army, in violation of 33 U.S.C. 407.FN10 Id.
at 658-60, 93 S.Ct. at 1808-10. The Court of Appeals for the Third Circuit reversed on two grounds. First, it held that
Section 13 was not operative in the absence of formalized permit procedures. Id. at 660, 93 S.Ct. at 1809. Second, it
held that the district court erred in disallowing PICCO's offer of proof that it had been affirmatively misled by the
[Army] Corps of Engineers into believing that it was not necessary to obtain a 13 permit for the discharge of industrial
effluents such as those involved in [the] case, because such facts, if true, would render the conviction fundamentally
unfair. Id. at 661, 93 S.Ct. at 1810.
FN9. 411 U.S. at 660, 93 S.Ct. at 1809.
FN10. Section 16 provided, in part, that Every person and corporation that shall violate ... sections 407, 408, and 409
of this title shall be guilty of a misdemeanor.... Pennsylvania Indus. Chem. Corp., 411 U.S. at 656-57 n. 1, 93 S.Ct. at
1807-08 n. 1 (quoting 33 U.S.C. 411).
The Supreme Court rejected the Court of Appeals' first ground. It accepted the Court of Appeals' second ground and
remanded the case to the district court for further proceedings.
The Supreme Court first noted that the issue was not whether Section 13 applied to effluent discharges having no
tendency to impede navigation. The Court indicated that several years earlier, in United States v. Standard Oil Co., 384
U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966), it had held the term refuse in Section 13 included all foreign
substances and pollutants, and indicated that all lower courts but one FN11 had subsequently read Section 13 as
imposing a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on
navigation. Pennsylvania Indus. Chem. Corp., 411 U.S. at 671, 93 S.Ct. at 1815 (citations omitted).
FN11. Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir.1972), cert.
denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d 613 (1973).
The Court found it undisputed, however, that the Army Corps of Engineers continued to construe Section 13 as limited
to water deposits that affected navigation from 1966 through the time of the offense conduct. The Corps of Engineers
had issued in the mean time a new regulation so indicating in a complete revision of its regulations. Id. at 672-73, 93
S.Ct. at 1815-16.
After distinguishing PICCO's contentions from assertions of ignorance of the law and an unconstitutionally vague statute,
the Court explained the relevance of the regulation, stating:
Of course, there can be no question that PICCO had a right to look to the Corps of Engineers' regulations for guidance.
The Corps is the responsible administrative agency under the 1899 Act, and the rulings, interpretations and opinions of
the (responsible agency) ..., while not controlling upon the courts by reason of their authority, do constitute a body of
experience and informed judgment to which ... litigants may properly resort for guidance. ... Moreover, although the
regulations did not of themselves purport to create or define the statutory offense in question, ... it is certainly true that
their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent
that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we
think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the
Government from proceeding with the prosecution.
Id. at 674, 93 S.Ct. at 1816 (emphasis added). In response to the Government's urging, the Court declined to hold that
under all the *926
(Cite as: 859 F.Supp. 909, *926)
circumstances the regulation was not misleading. The Court stated:
[W]e need not respond to the Government's arguments here, for the substance of those arguments pertains, not to the
issue of the availability of reliance as a defense, but rather to the issues whether there was in fact reliance and, if so,
whether that reliance was reasonable under the circumstancesissues that must be decided in the first instance by the
trial court. At this stage, it is sufficient that we hold that it was error for the District Court to refuse to permit PICCO to
present evidence in support of its claim that it had been affirmatively misled into believing that the discharges in
question were not a violation of the statute.
Id. at 675, 93 S.Ct. at 1817 (emphasis added).
Procedure
Before proceeding to address the merits of Defendants' Due Process reliance on misleading government conduct
defense, the Court must first turn to the related issues of the procedures and standard of review to employ. The first
issue is whether the Court is to adjudicate the motions or whether the Court is to merely determine if Defendant's have
proffered evidence sufficient to create an issue for the jury.
[1]
In the lower courts, the Due Process reliance on misleading government conduct defense has come to be known
as the entrapment by estoppel defense. See, e.g., United States v. Nichols, 21 F.3d 1016, 1017 (10th Cir.1994);
United States v. Weitzenhoff, 1 F.3d 1523, 1534 (9th Cir.1993); United States v. Billue, 994 F.2d 1562, 1568 (11th
Cir.1993), cert. denied, 510 U.S. 1099, 114 S.Ct. 939, 127 L.Ed.2d 230 (1994); United States v. Bazargan, 992 F.2d
844, 849 (8th Cir.1993); United States v. Clark, 986 F.2d 65, 69 (4th Cir.1993); United States v. Levin, 973 F.2d 463,
468 (6th Cir.1992); United States v. LaChapelle, 969 F.2d 632, 637 (8th Cir.1992); United States v. Smith, 940 F.2d
710, 714 (1st Cir.1991); United States v. Austin, 915 F.2d 363, 365-66 (8th Cir.1990), cert. denied, 499 U.S. 977, 111
S.Ct. 1626, 113 L.Ed.2d 722 (1991); United States v. Hedges, 912 F.2d 1397, 1404 (11th Cir.1990); United States v.
Tallmadge, 829 F.2d 767, 773 (9th Cir.1987); see also United States v. Bruscantini, 761 F.2d 640, 641 (11th Cir.), cert.
denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985) (estoppel argument). The interpretations given the
defense have been less than uniform. For instance, some courts have emphasized the defense requires distinct
elements of a defense be proved or have focused on the failure of the evidence to establish a particular element as
formulated by the court. See, e.g., Billue, 994 F.2d at 1568-69; United States v. Etheridge, 932 F.2d 318, 321 (4th
Cir.), cert. denied, 502 U.S. 917, 112 S.Ct. 323, 116 L.Ed.2d 264 (1991); Tallmadge, 829 F.2d at 776-77 & nn. 1-2
(Kozinski, J., dissenting); Bruscantini, 761 F.2d at 641-42. Other courts, emphasizing the fundamental fairness Due
Process roots of the defense, have given the defense a more fluid definition. See, e.g., United States v. Nichols, 21 F.3d
at 1017; Weitzenhoff, 1 F.3d at 1534; Levin, 973 F.2d at 468; Smith, 940 F.2d at 714; Hedges, 912 F.2d at 1405;
United States v. Brady, 710 F.Supp. 290, 295 (D.Colo.1989) (... Cox and Raley make clear that the purpose of the rule
is to prevent fundamental unfairness and injustice. Though the defense recognized by Raley and Cox has been called
entrapment by estoppel it is not an estoppel at all in any meaningful sense. Neither Cox nor Raley use the word
estoppel even once. The doctrine stems from the due process clause, not from the common law of contract, equity or
agency).
At first blush, it appears that the proposition upon which the courts can agree is that the defense presents a jury
question when it is based upon disputed facts. Nevertheless, a close examination of the cases reveals that few courts
have declined, in favor of a jury determination, to rule for or against the defense.
In a variety of procedural contexts, the vast majority of cases have held, as a matter of law, that the defense was
unavailable on the facts of the case. Nichols, 21 F.3d at 1017-1019 (affirming denial of motion to appoint psychological
expert to testify in support of the defense); Weitzenhoff, 1 F.3d at 1534-35 (refusal to instruct jury upheld); Billue, 994
F.2d at 1569 (refusal to instruct *927
(Cite as: 859 F.Supp. 909, *927)

jury upheld); LaChapelle, 969 F.2d at 637-38 (refusal to instruct jury upheld); United States v. Hurst, 951 F.2d 1490,
1499 (6th Cir.1991) (refusal to instruct jury upheld), cert. denied, 504 U.S. 915, 112 S.Ct. 1952, 118 L.Ed.2d 556
(1992); United States v. Brebner, 951 F.2d 1017, 1024-27 (9th Cir.1991) (affirming exclusion of evidence purporting to
raise the defense as immaterial as a matter of law); Smith, 940 F.2d at 711-12, 715 (affirming exclusion of evidence
purporting to raise the defense as immaterial as a matter of law); United States v. Etheridge, 932 F.2d 318, 320-21
(4th Cir.1991) (order granting motion in limine precluding evidence upheld); Austin, 915 F.2d at 367 (refusal to instruct
jury upheld); Ostrosky v. Alaska, 913 F.2d 590, 596 n. 15, 599 (9th Cir.1990) (in habeas corpus proceeding, district
court erred as a matter of law in granting relief on the basis of the defense); Bruscantini, 761 F.2d at 641-42 (appellate
ruling as a matter of law on the record); United States v. Lansing, 424 F.2d 225, 225-26 (9th Cir.1970) (appellate
refusal of defense after bench trial where no findings of fact were made).
Most of the few courts that have held defendants were entitled on the facts to assert the defense have upheld the
defense as a matter of law. Levin, 973 F.2d at 465-66, 468, 470 (after Federal Rule of Civil Procedure 12(b) hearing on
the basis of undisputed extrinsic evidence, the district court held that the prosecution could not prove intent [pp.
465-66]; court of appeals affirmed, holding that prosecuting the defendants violated Due Process [p. 468] and the
district court properly found facts on intent [p. 470]; Tallmadge, 829 F.2d at 768-69, 775 (after bench trial on
stipulated facts and limited undisputed testimony, court of appeals held prosecuting defendant violated Due Process);
Brady, 710 F.Supp. at 294-96 (bench trial).
The Court's research has revealed only a single appellate case directly holding that a new trial must be held to allow the
jury to determine the entrapment by estoppel defense. Hedges, 912 F.2d at 1404-06; see also United States v. Evans,
928 F.2d 858 (9th Cir.1991), aff'g, 712 F.Supp. 1435, 1442-43 (D.Mont.1989). The Court's research also revealed a
district court case from this district that denied a motion to dismiss the indictment because the Due Process defense was
held to raise factual issues for the jury. United States v. Gulf Oil Corp., 408 F.Supp. 450, 460-62 (W.D.Pa.1975)
(Snyder, J.).
Notwithstanding the procedural postures in which the Due Process defense is now customarily raised and the few
precedents squarely holding that the defense presents a jury issue on disputed facts, the Court holds that the defense
should be raised by pretrial motion and the Court may conclusively determine the defense, resolving factual disputes as
necessary.
Rule 12 of the Federal Rules of Criminal Procedure provides in pertinent part:
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general
issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following
must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution....
******
(e) Ruling on Motion. A motion made before trial shall be determined before trial unless the court, for good cause,
orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such
determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in
determining a motion, the court shall state its essential findings on the record.
Because the Defendants have timely moved to dismiss the indictment prior to trial, the Court has no need to determine
whether the Due Process reliance on misleading Government conduct defense is based upon a defect in the institution
of the prosecution. Cf. United States v. Gonzales, 927 F.2d 139, 143-44 (3d Cir.1991); see also Fed.R.Crim.P. 12(h)
(suggesting that all such defects may be remedied by re-institution of the prosecution). The procedural question
presented is whether the Due Process defense is capable *928
(Cite as: 859 F.Supp. 909, *928)
of determination without the trial of the general issue.... Fed.R.Crim.P. 12(b). The Court concludes that it is.
[2]
A defense is thus capable of determination if trial of the facts surrounding the commission of the alleged
offense would be of no assistance in determining the validity of the defense. [Former] Rule 12(b)(4) allows the District
Court in its discretion to postpone determination of the motion to trial, and permits factual hearings prior to trial if
necessary to resolve issues of fact peculiar to the motion. United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559,
1561, 23 L.Ed.2d 94 (1969). As the Court will show, under the Due Process reliance on misleading government conduct
defense, the facts alleged to constitute the crime and the evidentiary support therefore, whether before the grand jury
or the petit jury, are irrelevant, and the allegations of the indictment may be assumed to be true. Because the theory
advanced by the Defendants, if accepted on the facts and law, require [s] the Court to direct acquittal and ... [does]
not attempt to contradict the material allegations of the indictment, Gulf Oil Corp., 408 F.Supp. at 459, the theory is
properly determined by the Court before trial.FN12
FN12. A judgment of acquittal in such circumstances would not bar further prosecution under the Double Jeopardy
Clause, and hence would not bar an appeal of the judgment by the Government under 18 U.S.C. 3731. The judgment
would have been entered without the trier of fact beginning to determine the truth of the allegations of the indictment.
Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (Although an accused
may raise defenses or objections before trial which are capable of determination without the trial of the general
issue, ... and although he must raise certain other defenses or objections before trial, ... in neither case is he subjected
to the hazards of trial and possible conviction. ... Moreover, in neither case would an appeal by the United States allow
the prosecutor to seek to persuade a second trier of fact of the defendant's guilt after having failed with the first. ...
Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a
proceeding begins before a trier having jurisdiction to try the question of the guilt or innocence of the accused. ...
Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution
constitutes double jeopardy) (citations omitted); United States v. Gallagher, 602 F.2d 1139, 1141 n. 1 (3d Cir.1979),
cert. dismissed, 444 U.S. 1040, 100 S.Ct. 713, 62 L.Ed.2d 675 (1980). Of course, if it is held on appeal from such a
judgment of acquittal that Due Process bars prosecution, Due Process would bar further prosecution as well.
It is true that some courts and judges have held that the Due Process reliance on government misconduct defense
implicates the element of intent to commit the crime. Etheridge, 932 F.2d at 321; Tallmadge, 829 F.2d at 781-82
(Kozinski, J., dissenting); Bruscantini, 761 F.2d at 641-42; Gulf Oil Corp., 408 F.Supp. at 463; see also, Levin, 973 F.2d
at 466, 468-70 (alternative holding). The Court believes that the Supreme Court precedents, as well as the better
reasoned lower court cases, are to the contrary.
[3]
None of the Supreme Court cases involved crimes requiring proof of specific intent in the sense of an intent to
violate a known legal duty. Pennsylvania Indus. Chem. Corp., 411 U.S. at 656-57 n. 1, 93 S.Ct. at 1807-08 n. 1; Cox,
379 U.S. at 566-67, 85 S.Ct. at 481-82; Raley, 360 U.S. at 424 n. 1, 79 S.Ct. at 1259 n. 1; id. at 444 n. 3, 79 S.Ct. at
1269 n. 3 (Opinion of Clark, J.). Moreover, in Cox, the Court specifically addressed the defendant's Thompson FN13
challenge to the evidence of required intent under the Louisiana statute, finding that there was evidence to support the
finding that the defendant had the requisite intent. Cox, 379 U.S. at 566-67, 85 S.Ct. at 481-82. None of the Court's
rulings were made in terms of the evidence's failing to meet an element of intent, and the Court did not claim the power
to alter the offenses as defined by the respective legislatures. Thus, the issue of fundamental unfairness due to the
defendant's reliance on misleading government conduct is independent of the element of intent. Brebner, 951 F.2d at
1025; Smith, 940 F.2d at 714; Hedges, 912 F.2d at 1405; Tallmadge, 829 F.2d at 772, 774-75; Brady, 710 F.Supp. at
296 (This defense does not merely negate intent, *929
(Cite as: 859 F.Supp. 909, *929)
it negates the criminality of the act).FN14
FN13. Pursuant to Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, Cox argued that his conviction violated due
process as there was no evidence of intent to obstruct justice or influence any judicial official as required by statute.
FN14. Although in Levin the district court framed its conclusion in terms of precluding the government, as a matter of
law, from establishing intent, the court of appeals expressly held as follows:
It is true that, generally, the ... standards [of entrapment by estoppel] involve factual determinations. However, the
instant case fails to present that obstacle. From the undisputed operative facts it is apparent that (1) HCFA and its duly
designated representatives declared the sales promotion program, which was the predicate for the indictment, to be
legal; (2) the appellees relied upon HCFA's announcement; (3) the defendants' reliance was reasonable; and (4)
prosecution for violation of the controversial counts of the indictment would be unfair.
Levin, 973 F.2d at 468. Notwithstanding the majority's response to the dissent regarding the grounds of the district
court order, Levin may be construed as case a holding that entrapment by estoppel is independent of the intent to
commit the crime. See id.
It may appear that the Due Process reliance on misleading government conduct defense is not determinable without
invading the jury's province with respect to crimes requiring proof of specific intent in the sense of intentional violation
of a known legal duty. For two reasons, this need not detain the inquiry for long.
[4]
[5]
First, as to such crimes, subjective good faith is a complete defense. If a defendant believes erroneous
advice regarding the legality of the offense conduct, whether the advice comes from the government, from a lawyer, or
in a dream, the defendant is not guilty of the crime. There is no need for protection from the most indefensible sort of
entrapment by the State-convicting a citizen for exercising a privilege which the State clearly had told him was available
to him, Raley, 360 U.S. at 438, 79 S.Ct. at 1266, and there is nothing fundamentally unfair in our system of
jurisprudence in letting the jury determine whether the government has proved all the statutory elements of the crime,
including an intentional violation of a known legal duty. Simply, the Due Process reliance on misleading government
conduct does not apply in the context of crimes requiring proof of an intentional violation of a known legal duty.
[6]
Second, and more to the point, specific intent in the sense of an intentional violation of a known legal duty is
not in any way an element of the illegal gambling business offense at issue. To be convicted of participating in an illegal
gambling business, a defendant need not be shown to have acted willfully in the sense of intentionally violating a known
federal legal duty. United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976); United States v. Iannelli, 477 F.2d 999,
1002 (3d Cir.1973), aff'd on other grounds, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United States v.
Thaggard, 477 F.2d 626, 632 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973) (erroneous
advice of counsel is no defense to Illegal Gambling Business charge); United States v. Kohne, 358 F.Supp. 1053, 106061 (W.D.Pa.) (Marsh, J.), aff'd mem., 485 F.2d 679 (3d Cir.1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2624, 41
L.Ed.2d 224 (1974). The Prohibition of Illegal Gambling Businesses is the type of statute only requiring a general
criminal intent,-a voluntary and intentional doing of an act which the statute makes unlawful-and knowledge that such
act is unlawful under federal law is not necessary. Kohne, 358 F.Supp. at 1061; see also Devitt, Blackmar, & Wolff, 2
Federal Jury Prac. & Instructions, 47.03 (1990); United States v. Rieger, 942 F.2d 230, 233-34 (3d Cir.1991).
[7]
Although the Kohne court had instructed its jury that the defendants had to know that their conduct was in
violation of state laws prohibiting gambling, Kohne, 358 F.Supp. at 1061 & n. 13, the propriety of such an instruction
was not challenged or decided in the court's decision. This Court finds no such willfulness requirement in Section 1955
as applied to the Indictment in this case. The federal statute only requires that the gambling business is a violation of
the law of a State or political subdivision in which it is conducted. 18 U.S.C. 1955. While the Pennsylvania law alleged
to be violated in this case requires actual intent to use, or actual use of, the video poker machine as a means of
gambling, United States v. Conley, 833 F.Supp. 1121, 1160 (W.D.Pa.1993) (citing *930
(Cite as: 859 F.Supp. 909, *930)
Commonwealth v. Dumont, 370 Pa.Super. 155, 169-70, 536 A.2d 342, 349 (1987), alloc. denied, 519 Pa. 659, 546
A.2d 620 (1988)), appeal filed on other grounds, (September 29, 1993), there is no requirement that a defendant have
the intent to violate a known legal duty. Thus, under Section 1955, a defendant need not be shown to have acted
willfully in the sense of intentionally violating a known state legal duty. Accord Hawes, 529 F.2d at 481.
[8]
[9]
That specific intent in the sense of an intention to violate a known legal duty is not in any way an
element of the illegal gambling business offense at issue has two related consequences. First, the Due Process reliance
on misleading government conduct defense is available to the Defendants upon appropriate proofs. Second, the Court
can determine the defense under Federal Rule of Criminal Procedure 12(b) without trial of the general issue, finding
facts as necessary.FN15
FN15. That specific intent in the sense of an intention to violate a known legal duty is not an element of the illegal
gambling business offense has another consequence: Such specific intent is not required to convict under the conspiracy
statute, 18 U.S.C. 371. The Supreme Court has stated:
The general conspiracy statute, 18 U.S.C. 371, offers no textual support for the proposition that to be guilty of
conspiracy a defendant in effect must have known that his conduct violated federal law. The statute makes it unlawful
simply to conspire ... to commit any offense against the United States. A natural reading of these words would be that
since one can violate a criminal statute simply by engaging in the forbidden conduct, a conspiracy to commit that
offense is nothing more than an agreement to engage in the prohibited conduct. Then where, as here [under 18 U.S.C.
111], the substantive statute does not require that an assailant know the official status of his victim, there is nothing
on the face of the conspiracy statute that would seem to require that those agreeing to the assault have a greater
degree of knowledge.
United States v. Feola, 420 U.S. 671, 687, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975). The Supreme Court therefore
held, [W]here a substantive offense embodies only a requirement of mens rea as to each of its elements, the general
federal conspiracy statute requires no more. Id. at 692, 95 S.Ct. at 1267. See also United States v. Muncy, 526 F.2d
1261, 1264 (5th Cir.1976); cf. United States v. Gross, 961 F.2d 1097, 1102-03 (3d Cir.), cert. denied, 506 U.S. 965,
113 S.Ct. 439, 121 L.Ed.2d 358 (1992).
Before leaving this procedural issue, the Court notes that its resolution of the issue is supported by Supreme Court and
Third Circuit precedent-though not sufficiently to omit the instant analysis in view of the multitude of apparently
contrary cases from other circuits. In Pennsylvania Indus. Chem. Corp., the Supreme Court remanded for determination
about whether there was in fact reliance and, if so, whether that reliance was reasonable under the circumstancesissues that must be decided in the first instance by the trial court. Pennsylvania Indus. Chem. Corp., 411 U.S. at 675,
93 S.Ct. at 1817 (emphasis added). Unfortunately, it is not clear whether the decision in the second instance was
meant to be by a jury or an appellate court. Cf. Raley, 360 U.S. at 440 n. 15, 79 S.Ct. at 1267 n. 15; id. at 443 n. 1, 79
S.Ct. at 1269 n. 1 (Opinion of Clark, J.); and supra note 7. The Third Circuit, in United States v. Gonzales, 927 F.2d
139, 143-44 (3d Cir.1991), indicated that the closely analogous Due Process defense of outrageous government
conduct is possibly a defense based on a defect in the institution of the prosecution that must be raised before trial
and decided by the court. Because of late disclosure of the underlying facts, however, the Third Circuit did not base its
opinion on such grounds.
Finally, the nature of the defense itself supports the Court's reserving the determination for itself. The defense is
founded upon Due Process fundamental fairness. Brady, 710 F.Supp. at 295. It is in derogation of the maxim ignorance
of the law is no excuse, Bruscantini, 761 F.2d at 642, and should be appropriately limited.
[10]
[11]
While a jury has a technical right, if it can be called so, to decide against the law and the facts ...,
United States v. Desmond, 670 F.2d 414, 416 (3d Cir.1982) (quoting Horning v. District of Columbia, 254 U.S. 135, 41
S.Ct. 53, 65 L.Ed. 185 (1920)), such a verdict, unreviewable as it is, remains illegal. United States v. Powell, 469 U.S.
57, 60, 105 S.Ct. 471, 474, 83 L.Ed.2d 461 (1984). Asking a jury to determine the fundamental fairness of convicting a
*931
(Cite as: 859 F.Supp. 909, *931)
defendant even if guilt under the law is otherwise established beyond a reasonable doubt unnecessarily invites such an
illegal verdict. Moreover, where the issue is submitted to the jury, with proper instructions as to the burden of proof
and elements of fundamental fairness, the jury is still likely to confuse the government's burden on required intent for
conviction with the defendant's burden on reasonable reliance. Cf. Tallmadge, 829 F.2d at 781 (Kozinski, J., dissenting)
(I fear the majority's analysis reads scienter into statutes we have consistently held require none). In short, the Due
Process reliance on misleading government conduct, being founded upon the Constitutional notion of fundamental
fairness, is an inappropriate issue for a jury to determine and is an appropriate issue for the Court to determine.
Standard of Review
[12]
The Government contends that because the Court is reviewing a motion to dismiss the Indictment, it is entitled
to have all the record evidence viewed in the light most favorable to it. The Defendants are requesting that the record
be reopened so that their proffered evidence may be introduced in a hearing.
Because the Court is addressing a 12(b) motion to dismiss an indictment, the Court must assume that the pertinent
allegations of the Indictment are true. See Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 1064-65, 43
L.Ed.2d 265 (1975); Gulf Oil Corp., 408 F.Supp. at 459. For present purposes, therefore, the Court assumes that, in
violation of 18 U.S.C. 371, 1955 and 2, the Defendants conspired to participate and in fact participated in the alleged
illegal gambling business, using video poker machines for gambling purposes in violation of 18 Pa.Cons.Stat.Ann.
5513.
At this stage, the Court is addressing the motions to dismiss primarily on the basis of the Defendants' proffered
evidence. Not having admitted all Defendants' evidence in a full hearing on the motions, the Court is not in a position to
make findings of fact or credibility determinations to resolve factual disputes. Cf. Fed.R.Crim.P. 12(e). The Court cut
short Defendants' presentation of their evidence on the basis that it was insufficient as a matter of law and hence
irrelevant. Defendants' proffer of evidence, which does not contradict the allegations of the Indictment, is therefore
entitled to be viewed in the light most favorable to the Defendants. Brebner, 951 F.2d at 1024 (A district court's
determination [based on proffered evidence] that there exists no evidence sufficient to raise a valid defense is
analogous to a determination that a jury instruction relating to a defendant's theory of the case is not warranted by the
evidence); cf. Billue, 994 F.2d at 1568 (The trial court has authority to refuse to instruct the jury on a defense where
the evidence used to support it, if believed, fails to establish a legally cognizable defense); Smith, 940 F.2d at 715 n. 4
(defendant's evidence, excluded in jury trial, to be viewed in light most favorable to defendant); Hedges, 912 F.2d at
1406 (evidence purporting to justify defendant's jury instruction to be viewed in favor of defendant).
Because the Due Process reliance on misleading government conduct defense is to be determined under the totality of
the circumstances, Pennsylvania Indus. Chem. Corp., 411 U.S. at 674-75, 93 S.Ct. at 1816-17; Smith, 940 F.2d at 714;
the Court will also rely on the record as a whole, to the extent that it reflects undisputed facts, in addition to
Defendants' proffer.
The Merits
[13]
It is undisputed that the Defendants have pointed to no federal government conduct in support of their Due
Process defense. The Government asks that the Court apply a per se rule to deny the defense and hold that the federal
government cannot be estopped from enforcing its criminal laws by the conduct of state or local officials. The Court
declines to adopt such a per se rule.
[14]
The Government can point to numerous authorities holding or urging that the Due Process defense can be
invoked only in reliance upon federal government conduct. See Clark, 986 F.2d at 69; Hurst, 951 F.2d at 1499-1500;
Brebner, 951 F.2d at 1026-27; Etheridge, 932 F.2d at 320-21; Austin, 915 F.2d at 366; Tallmadge, 829 F.2d at 776-78
(Kozinski, J., dissenting); *932
(Cite as: 859 F.Supp. 909, *932)
Bruscantini, 761 F.2d at 641-42. The focus of the Due Process inquiry into fundamental fairness and substantial justice,
however, should not be arbitrarily constrained by concepts taken from other contexts such as estoppel, actual authority
or deterrence.FN16 Brady, 710 F.Supp. at 296 (The better view is that the defense is not based on the government
being bound by the conduct of its agents, but rather, the fundamental unfairness of punishing a defendant for
conforming his conduct to an erroneous interpretation of the law [rendered by an apparently authoritative government
official] ...); see also Hedges, 912 F.2d at 1405 (There has never been a suggestion that Lehman could waive or
authorize a violation of the statute. On the contrary, the only issue before us, clearly, is whether Hedges acted on
advice that he was not violating the statute). A per se rule in a federal criminal prosecution predicating the availability
of the Due Process defense on federal action saps the notion of fundamental fairness of its flexibility and leaves the door
open for fundamentally unfair prosecutions to be upheld.
FN16. Bruscantini relies in part on a deterrence rationale to limit the availability of the Due Process defense. 761 F.2d at
641-42. This Court finds the rationale inapposite. The Supreme Court, in the Due Process cases, has evinced no desire
to control the out-of-court rendering of legal advice by government officials. Rather, addressing each prosecution before
it, the Supreme Court held that once erroneous advice has been given, the imposition of criminal sanctions for following
the advice violates Due Process and the prosecution is a nullity.
An illegal gambling business prosecution illustrates the potential fundamental unfairness inherent in such a per se rule.
The case of United States v. Hurst, 951 F.2d 1490 (6th Cir.1991) is instructive. In Hurst, the defendants sought a jury
instruction on entrapment by estoppel in an illegal gambling business prosecution on the basis of statements made by
state officials regarding state gambling laws. On two grounds, the court affirmed the failure to instruct in the
circumstances presented.
First, the court found no evidence to support the instruction. One state official was part of the illegal gambling business
and instructed its members on how to flout the law, not comply with it. Another official stated that documentationapparently valid on its face, but containing misrepresentations of facts-was acceptable. Finally, there was lax
enforcement of certain regulations, but no assurances that the illegal gambling business was in compliance with the
regulations. Id. at 1499.
[15]
Second, the court relied on the fact that the alleged advice had been rendered by state officials regarding state
law. The court stated as follows:
Moreover, the statements allegedly relied upon were made by state officials relating to state law, while the defendants
were charged with violations of federal law. One of the purposes of section 1955 was to aid in the enforcement of state
gambling laws where state enforcement was disabled by corruption of state officials.... Allowing a state official's alleged
complicity in illegal activities to void the convictions here would violate the intent of Congress in enacting section 1955
and distort the clear due process doctrine set forth in Cox and Raley.
Id. at 1499-1500 (citation omitted). Notwithstanding Congressional intent in passing Section 1955, this Court holds that
the Due Process clause may still invalidate certain prosecutions under Section 1955 solely on the basis of reliance upon
advice from state or local officials.
[16]
One element of a Section 1955 violation is that the business operate in violation of state or local law. In the
circumstances of the present Indictment, the business must violate the Pennsylvania prohibition against knowingly
maintaining devices intended for gambling. As explained above, the intent required under Pennsylvania law leaves open
the possibility of application of the Due Process defense. If a defendant who intended to maintain gambling devices
relied on advice from an appropriate state or local official that the conduct was legal, without complicity or corruption on
the part of the government official, the Due Process clause would render a state prosecution a nullity. The Court fails to
see how a prosecution founded on the same conduct and the same state law would *933
(Cite as: 859 F.Supp. 909, *933)
be rendered fundamentally fair because it was instituted by federal authorities. The Court therefore rejects the
Government's proposed per se rule.
[17]
Nonetheless, turning to the totality of the circumstances reflected in the Defendants' proffer and undisputed
record facts and granting the defendants all reasonable inferences from their proffered evidence, the court concludes
that the prosecution of these defendants does not run afoul of traditional notions of fundamental fairness. The Court
now turns to the substance of this inquiry, examining in turn the evidence proffered relative to the conduct of
Pennsylvania officials and local government officials.
Defendants' proffer must be viewed in the light of Pennsylvania law during the time covered by the Indictment, which is
1984 through September 1991. The Pennsylvania gambling and gambling devices statute, 18 Pa.Cons.Stat.Ann. 5513,
was in effect throughout the period.FN17 The statute criminalized, among other things, maintenance or use of per se
illegal poker machines, as defined in case-law, Commonwealth v. Two Elec. Poker Game Mach., 502 Pa. 186, 465 A.2d
973, 975-79 (1983) (Electo-Sport), and use of any video poker machine for gambling purposes. Id. 465 A.2d at 979-80
(Two Poker Games); Commonwealth v. Forry, 201 Pa.Super. 431, 193 A.2d 761 (1963); see also Commonwealth v.
Twelve Dodge City Video Poker Mach., 517 Pa. 363, 365-67, 537 A.2d 812, 813-14 (1988); Commonwealth v. Dumont,
370 Pa.Super. 155, 169-70, 536 A.2d 342, 349 (1987), alloc. denied, 519 Pa. 659, 546 A.2d 620 (1988).
FN17. The statute states in relevant part:
5513. Gambling devices, gambling, etc.
(a) Offense defined.-A person is guilty of a misdemeanor of the first degree if he:
(1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale,
loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except
playing cards;
(2) allows persons to collect and assemble for the purpose of unlawful gambling at any place under his control;
(3) solicits or invites any person to visit any unlawful gambling place for the purpose of gambling; or
(4) being the owner, tenant, lessee or occupant of any premises, knowingly permits or suffers the same, or any part
thereof, to be used for the purpose of unlawful gambling.
Defendants have proffered evidence of the enforcement policies regarding video poker machines of Pennsylvania law
enforcement authorities generally, the specific policies of the Pennsylvania Liquor Control Board, the State Police Bureau
of Liquor Control Enforcement, and the Vice and Intelligence Squad of the Pennsylvania State Police. In addition, the
Defendants proffer the prior testimony of Pennsylvania Attorney General Ernest D. Preate, Jr. at a May 24, 1990 hearing
before the Pennsylvania House of Representatives Finance Committee. None of this evidence suffices to demonstrate
that the conduct FN18 of Pennsylvania officials raised any ambiguity as to the legality of gambling conducted through
the use of illegal poker machines.
FN18. The Court takes a broader view of conduct than the Government does in this case. As Pennsylvania Indus.
Chem. Corp. demonstrates, written administrative interpretations of a law that are published, but not specifically
directed to the defendant, may still support a Due Process misleading government conduct defense. 411 U.S. at 672-74,
93 S.Ct. at 1815-16.
[18]
A court must defer to a decision to prosecute a defendant, absent certain limited classes of abuses of
prosecutorial discretion. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604
(1978).FN19 The exercise of prosecutorial discretion in a world of limited resources may entail choosing upon which
crimes to focus. A choice at a point in time or by a particular administration to focus on certain crimes is also a choice to
make the enforcement of the crimes not chosen a lesser priority.
FN19. The Bordenkircher Court stated:
In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined
by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally
rests entirely in his discretion.
Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668; see also United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct.
2485, 2492 n. 11, 73 L.Ed.2d 74 (1982).
*934
(Cite as: 859 F.Supp. 909, *934)
[19]
Assuming that Pennsylvania law enforcement authorities tolerate the use of video poker machines for gambling
purposes, the Court holds that such toleration does not in fact legalize otherwise illegal conduct. Such toleration is not a
valid ground upon which to base a claim of having been misled by the government and reliance on lax enforcement is
not reasonable in view of the clear state of Pennsylvania law throughout the relevant period prohibiting gambling with
video poker machines. If this court were to accept ... [the Defendants'] contention that mere nonfeasance in law
enforcement was tantamount to official approval of illegal acts and entrapment, there would be scarcely a speeding
ticket not subject to due process challenge. Hurst, 951 F.2d at 1499.
[20]
The proffer of Defendant Goodwin relative to the enforcement policies of various Pennsylvania state authorities
is therefore irrelevant. First, the proffer indicates that citations were issued and seizures of the machines did in fact
occur, when the state authorities had evidence of gambling activity. Second, Defendant Goodwin cannot rely upon the
authorities' failure to seize all poker machines merely upon sight because, under Pennsylvania law, not all video poker
machines are illegal per se, the characteristics making a machine illegal per se are not apparent upon visual inspection
of the outside of the machine, and seizures and searches of video poker machines are constrained by the constitutions
of Pennsylvania and the United States. United States v. Conley, 856 F.Supp. 1010, 1014-1022 (W.D.Pa.1994)
(Document No. 801).
The transcript of the testimony of Pennsylvania Attorney General Preate is no more availing. To be clear, Defendants
have not proffered that the Attorney General would testify in the present proceedings. They merely proffer that he
previously testified (late in the indictable period) that upon assuming office, poker machine gambling was so
widespread, and enforcement efforts were so intermittent and the resulting sanctions so minor that the situation was
tantamount to the de facto legalization of video poker gambling. Exhibit 21-Y at 3 (emphasis added). It appears in the
Defendants' own proffer that the conduct was illegal, the law was enforced and sanctions were imposed. Moreover,
Exhibit 21-Y in its entirety undercuts the reasonableness of relying on these statements. Exhibit 21-Y details the
enforcement efforts undertaken after the Attorney General took office. More damning still is the fact that nowhere in
Exhibit 21-Y is it stated that video poker machine gambling is legal in Pennsylvania, and the statement was submitted in
hearings, prompted by the efforts of PAVO, called to discuss the subject of legalizing video poker gambling! Defendants'
proffer relative to the prior testimony of Attorney General Preate is irrelevant.
[21]
Moreover, it is undisputed that Defendants were raided by the State Police on September 23, 1988, November
9, 1988 and January 27, 1989. Clearly, after that Defendants were on notice that the Pennsylvania authorities
considered their activities unlawful.
Defendants have proffered no evidence supporting their Due Process reliance defense with respect to the conduct of
Pennsylvania state authorities.
The Court now turns to the conduct of local authorities. The Defendants have proffered evidence regarding the issuance
of permits and licenses to video poker machine operators, the fees charged therefore and the knowledge of those
issuing the licenses. Viewing the proffered evidence and the inferences therefrom in the light most favorable to the
Defendants, the proffered evidence establishes the following scenario.
Both video poker machines and video poker gambling are widespread in the Western District of Pennsylvania. Most local
governments have ordinances requiring either a license or a permit to operate a video poker machine. While some local
governments license video poker machines under the general rubric of video amusement devices, others license video
poker machines as such. Most of the ordinances pursuant to which the licenses were issued state that no licenses will be
issued for illegal gambling devices or devices declared illegal by a court of competent jurisdiction. Hundreds, if not
thousands, of persons have received the applicable permits *935
(Cite as: 859 F.Supp. 909, *935)
from local governments to operate video poker machines. The local governments charge fees for the issuance of
permits. The fees charged for video poker machine licenses rose each year because the local government officials knew
the amount of money being generated by video poker machine gambling. Some of the Defendants paid the fees and
received video poker machine license in return.
There is testimony in this record by police officials, including City of Pittsburgh Detective John Bosetti that pay-offs are
made on all video poker machines. Defendant Ferrell proffered testimony that certain local governments had public
meetings during which the legal status of video poker machines was discussed, and the local governments continued to
license video poker machines. Defendant Ferrell has also proffered that in 1993 his investigator had sought licenses for
video poker machines from various local governments and had been furnished information on how to obtain such
licenses. Defendant Ferrell, however, conceded that the investigator had not indicated either that the machines in
question were per se illegal machines or that the machines would be used for gambling purposes. Nevertheless,
Defendant Duffy Conley has proffered the testimony of unnamed local government officials from, without limitation,
McKees Rocks Borough, Robinson Township, Kennedy Township and Brentwood Borough. Their testimony would be that
they and other governmental officials were aware of their municipalities' issuing video poker permits for machines on
which pay-offs were being made. Moreover, due to the amounts of money being generated by illegal poker gambling,
the local governments raised the licensing fees in order to capture a larger portion of the money. No local government
official is now being or has been prosecuted under 18 U.S.C. 1955 or 18 U.S.C. 1956.
[22]
Defendants cannot rely upon the municipal ordinances pursuant to which the licenses were issued. In contrast
with the regulations in Pennsylvania Indus. Chem. Corp., it appears in Defendants' proffers that the ordinances were
written so as to not authorize licenses for the conduct criminalized by the governing statute.
While Defendants' proffers allege a disconcerting state of affairs regarding local governments' relationships with illegal
video poker gambling in the Western District of Pennsylvania, the Court is not persuaded that the Defendants' being
prosecuted is fundamentally unfair within the meaning of the Due Process clause. The local government conduct alleged
can be interpreted two ways, and neither interpretation is beneficial to the Defendants.
First, the local government conduct can be given a sinister interpretation. Under this interpretation, local government
officials condoned, allowed, and literally placed their stamps of approval on conduct they knew to be illegal in exchange
for licensing fees. But as the Hurst court said, Allowing a state official's alleged complicity in illegal activities to void the
convictions here would violate the intent of Congress in enacting section 1955 and distort the clear due process doctrine
set forth in Cox and Raley. Hurst, 951 at 1499-1500. Moreover, corruption of government officials-federal, state or
local-certainly does not raise Due Process concerns about prosecuting any of the parties involved.
Second, the local government officials, notwithstanding their alleged knowledge of the intended use of the machines,
may have issued licenses relying upon the clear Pennsylvania law indicating that not all machines are per se illegal and
relying on other agencies to ensure compliance with the Pennsylvania gaming statute. This scenario reflects a mere
laxity in enforcement, which, in view of prosecutorial discretion, cannot invalidate an otherwise valid prohibition. Id. at
1499.
The Court has assumed that video poker machines are used only for illegal gambling in part on the basis of the
testimony in this record by law enforcement personnel such as Detective Bosetti. Such testimony, in context, is not an
endorsement of illegal poker machine gambling. For instance, the record reflects that Detective Bosetti was instrumental
in securing a conviction against Defendant Duffy Conley in March of 1988 for previously occurring conduct. Moreover,
while there is no evidence of the enforcement *936
(Cite as: 859 F.Supp. 909, *936)
efforts undertaken in each locality, the record clearly reflects that the City of Pittsburgh Police raided the Defendants on
September 23, 1988, and December 16, 1988. However much reliance Defendants placed upon the City of Pittsburgh
licenses as authorizing their gambling activities to that point, such reliance would clearly be unreasonable thereafter.
[23]
The conduct of local government officials may have created a certain ambiguity in the form of mixed signals to
the Defendants. Defendants, however, are charged with conducting an illegal gambling business in violation of state
law, not in violation of the local ordinances. Reliance upon the ambiguous conduct of local officials in enforcing an
otherwise clear statute of state-wide application is not reasonable. The ordinances adopted by the local governments did
not purport to alter state law, and the Defendants have proffered no evidence indicating that the local governments
ever claimed the authority to interpret the state statute.
No government official at any level ever expressly reassured the Defendants that their conduct in the ambiguous local
milieu was in fact legal. The Defendants' proffer may support an inference that, in the years before 1988, they believed
they would not be prosecuted for their gambling activities. Nonetheless, the proffer and record is devoid of evidence of
that the Defendants actually believed their gambling activities were in fact legal activities under Pennsylvania law, and
their lobbying activities point strongly to the opposite conclusion.
[24]
Under the totality of the circumstances, the Defendants have not been misled by government officials into
believing that their illegal gambling activities were in fact legal under Federal law or Pennsylvania law, and Defendants
have failed to persuade the Court that the federal prosecution of them under Section 1955 is fundamentally unfair.
The Court will deny with prejudice Defendants' Motion to Dismiss on the Grounds That Video Poker Machines Are De
Facto Legal in Pennsylvania. Further, upon timely objection, the Court will exclude evidence relevant solely to such a
theory of defense.
SELECTIVE PROSECUTION
Defendants frame this issue as follows:
Does an unconstitutional selective prosecution occur when there are hundreds of persons using video poker machines as
illegal gambling devices in Pennsylvania and the federal government prosecutes only those who spoke in favor of, and
petitioned the general assembly for, legislation establishing the legality of such devices.
Brief of Defendant John F. Duffy Conley in support of Motion to Dismiss on Ground of Selective Prosecution, at 1-2
(Document No. 750). Defendants' primary contention is that they are being prosecuted because of their exercise of First
Amendment rights. Defendants have also indicated that local government officials who allegedly opened their borders to
the Defendants' activities in exchange for high and increasing licensing fees have not been targeted for prosecution as
they have. The Government argues that the Defendants have not made a substantial showing of selective prosecution
on any grounds.
PROCEDURE AND STANDARD OF REVIEW
[25]
The first issue is again whether the issue of selective prosecution is determinable without the trial of the
general issue, Fed.R.Crim.P. 12(b), and the Court is to decide the issue, finding facts as necessary. The cases clearly
indicate that the issue is to be so determined. Compare Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84
L.Ed.2d 547 (1985) (Supreme Court affirms Ninth Circuit's reversal of District Court's acquittal based upon finding of
selective prosecution); with Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 1064-65, 43 L.Ed.2d 265
(1975) (orders granting acquittal are appealable notwithstanding the Double Jeopardy clause, if the issue was
determinable without trial of the general issue); see also United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.) (In
both vindictive and selective prosecution claims, we review the district court's determinations of fact under a clearly
erroneous standard.... The district court's application of legal precepts *937
(Cite as: 859 F.Supp. 909, *937)
in these claims are given plenary review) (emphasis added; citations omitted), cert. denied, 493 U.S. 995, 110 S.Ct.
546, 107 L.Ed.2d 543 (1989).
The second issue relates to the standard of review to be employed by this Court, where the Court is determining
whether the Defendants are entitled to a hearing on selective prosecution. Although the Court reaches the same
conclusion in this instance as it reached with respect to Defendants' Due Process challenge to their prosecution, the law
regarding district court procedures is better developed in the context of selective prosecutions.
[26]
Although Defendants' Due Process claim implicated the issue of prosecutorial discretion, it did not directly
challenge the Government's exercise of its prosecutorial discretion like the present claim does. Courts have developed
certain procedural rules to protect such discretion from routine challenge in every prosecution, while preserving a
defendant's right not to be subjected to discriminatory prosecutions. United States v. Torquato, 602 F.2d 564, 569 (3d
Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979). Within the Third Circuit, the procedure is as
follows:
In order to minimize the intrusion on the prosecutorial function and still enable a defendant effectively to raise a claim
of selective prosecution, the defendant is obligated to make a threshold showing of discriminatory prosecution before an
evidentiary hearing will be accorded on this issue.... The defendant bears the burden of proving a colorable
entitlement, ... to the claim of selective prosecution. Some credible evidence must be adduced indicating that the
government intentionally and purposefully discriminated against the defendant by failing to prosecute other similarly
situated persons.
Id. at 569-70 (citations omitted). Nonetheless, because the Court is proceeding to determine the Defendants'
entitlement to a full hearing on the selective prosecution issue-an issue determinable without the trial of the general
issue-the court will employ the same standard of review with respect to this claim as it did with respect to the Due
Process claim. The Court assumes that the allegations of the Indictment are true and gives the Defendants the benefit
of the reasonable inferences from their proffered evidence.
THE MERITS
[27]
The question before the Court is whether the Defendants have proffered some credible evidence indicating
that the government intentionally and purposefully discriminated against the defendant[s] by failing to prosecute other
similarly situated persons. Torquato, 602 F.2d at 570 (emphasis added). The Court of Appeals for the Third Circuit has
adopted the following formulation of intentional and purposeful discrimination:
To support a defense of selective or disciminatory (sic) prosecution, a defendant bears the heavy burden of
establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against
because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution,
and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e.,
based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional
rights. These two essential elements are sometimes referred to as intentional and purposeful discrimination.
Id. at 569 n. 8 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). In a federal prosecution, the
Defendants must show that the federal prosecutor has purposefully and intentionally discriminated. Schoolcraft, 879
F.2d at 68. The Court concludes that Defendants have not made a sufficient showing of selective prosecution so as to
warrant a hearing on the matter.
[28]
The Defendants have not shown that they have been prosecuted where others similarly situated have not
been. The Indictment charges the Defendants with operating a large scale illegal gambling business involving in excess
of twenty-three persons in violation of federal law. While they have cited *938
(Cite as: 859 F.Supp. 909, *938)
the number of video poker machines licensed to others within the Western District, the have not proffered any evidence
indicating that other large scale illegal gambling businesses are operating in the jurisdiction in violation of federal law.
While the Defendants point to the Indictment in United States v. Varney, Crim. No. 92-145 (W.D.Pa.) to support their
claim that the exercise of First Amendment rights through PAVO is the Government's criteria for prosecution, that
indictment undercuts their attempt to show others similarly situated are not being prosecuted. The only similarly
situated persons the Defendants have pointed to are in fact being prosecuted.
[29]
As to all the other license holders, who the Court will assume are using the video poker machines in violation
of Pennsylvania law, the Defendants have offered no proof that they operate illegal gambling businesses as defined in
the federal statute, or that they have reached the size and sophistication of the Duffy Conley organization described in
the Indictment. The focus of the selective prosecution inquiry is on the federal prosecutor. Defendants have not
proffered evidence of any organization that falls within the federal prosecutor's jurisdiction as delimited in Section 1955
and is not being prosecuted.
Assuming arguendo that the relevant similarity between the Duffy Conley organization and the Varney organization is
their lobbying activity, rather than their size and sophistication, the Defendants charged in the present Indictment-the
Duffy Conley organization-have failed to show that the government's discriminatory selection of them for prosecution
was invidious or done in bad faith-i.e., that the government selected its course of prosecution because of, rather than
in spite of, its adverse effect upon an identifiable group. United States v. Sparks, 2 F.3d 574, 580 (5th Cir.1993)
(quoting Wayte, 470 U.S. at 610, 105 S.Ct. at 1532), cert. denied, --- U.S. ----, 114 S.Ct. 720, 126 L.Ed.2d 684
(1994). For present purposes, it is established by the Indictment that the Duffy Conley organization conducted a large
scale illegal gambling business from 1984 through most of 1991. The Defendants' proffered evidence indicates that the
Government investigated the Defendants' activities from 1986 through the date of the Indictment. For about two years
the Government investigated possible tax violations. In 1988 and 1989, the Government's focus shifted to violations of
Sections 1955 and 1956. Only in the summer of 1989 did the Defendants enter into political activities.
[30]
At some point, presumably shortly before the formation of PAVO, Duffy Conley and his associates became
concerned about the illegality of their business. Duffy Conley phrases it as follows:
When the federal government, with its infinite manpower and resources, entered the scene, Duffy Conley was
confronted with three choices: (1) fold up his tent and proceed to a state, such as Nevada, where gambling activities
are legal; (2) continue to operate in Pennsylvania in a secretive manner so as to avoid the attention of federal agents;
or (3) muster funds and resources and embark on a campaign to secure legislation legalizing video poker machines as
gambling devices. Duffy Conley opted for the latter, since this course had proven fruitful in the case of bingo and small
games of chance.
Brief of Defendant John F. Duffy Conley in Support of Motion to Dismiss on Ground of Selective Prosecution, at 3.
Perhaps disastrously, Duffy Conley failed to recognize that the lobbying course he in fact pursued could be undertaken
in two ways. First, he could refrain from engaging in the illegal conduct that motivated the federal investigation in the
first instance, or second, he could continue his illegal course of conduct while trying to change its status under the law.
According to the Indictment, Duffy Conley chose the latter means of lobbying.
First Amendment rights are not a means of immunizing one-self from prosecution. Convictions would be few indeed if
during or after a course of crime a defendant could absolve himself by expressing his view that his conduct should be
legal.
Before the Defendants first engaged in protected lobbying activity, the Government had invested around three years in
investigating*939
(Cite as: 859 F.Supp. 909, *939)
their illegal gambling business. The Government's failure to cease in its efforts to bring the continuing illegal gambling
business to justice in the face of an ultimately failed attempt by the members of the business to conform law to their
ongoing activities is no evidence that the Defendants were prosecuted because of their lobbying efforts rather than in
spite of them.FN20
FN20. Defendant Duffy Conley relies on his statement at the Main Hotel on October 30, 1989 in support of his selective
prosecution motion. Whether viewed as protected speech or as evidence of invidious intent, that statement can be of no
avail to Duffy Conley. After ruling that Duffy Conley's statements should be suppressed as involuntary, Duffy Conley was
afforded a hearing during which he was allowed to explore the statement's effect on the decision to prosecute. In a
previous opinion, the Court found that Duffy Conley's suppressed statement had no influence on the decision to target
him for prosecution. United States v. Conley, Crim. No. 91-178, slip op. at 11-12, --- F.Supp. ----, ---- - ---- (W.D.Pa.
June 30, 1994) (Document No. 921).
[31]
The Defendants have not pressed the argument with respect to the local government officials who allegedly
abetted the activities of the illegal gambling business but have not been subject to prosecution under Section 1955 and
1956. The Court does not view them as similarly situated. While the local government officials' conduct may violate 18
U.S.C. 2, 1955 and/or 1956, the officials are dissimilarly situated from an evidentiary standpoint. The Government
would have to connect the officials' conduct with their subjective intent. Their conduct is once removed from the
Defendants' activities, and it would be more difficult to infer a bad intent from the nature of the officials' acts than it is
from the alleged activities of the Defendants. Moreover, other than the alleged motivation of suppressing the
Defendants' First Amendment rights, the Defendants have proffered no evidence of invidious or bad faith prosecution.
The Court will deny with prejudice the motion to dismiss on the ground of selective prosecution.
MOTIONS TO ASSERT AFFIRMATIVE DEFENSES
Defendant Ferrell and Defendant Jack Conley have filed motions seeking leave to assert affirmative defenses. Jack
Conley's motion is twofold, seeking to contest at trial the Government's case with respect to the requisite elements of
intent in the crimes for which he is charged and seeking to introduce evidence before the jury regarding the Due Process
reliance on misleading government conduct defense. Defendant Ferrell's motion seeks leave to present evidence to the
jury in the event that the Court denies his four motions to dismiss the indictment. As noted above, Defendant Ferrell's
motions to dismiss have been pursued as raising only two issues: the Due Process reliance on misleading government
conduct defense and the selective prosecution defense. Defendant Duffy Conley's briefs in support of Defendant Ferrell's
Due Process motion to dismiss also raise the issue of his ability to prove that he lacked the intent required under the
criminal statutes. For instance, the Brief of Defendant John F. Duffy Conley in Support of Motion to Dismiss on
Grounds that his Conduct Was De Facto Legal, a De Minimus Infraction and a Lawful Exercise of Public Authority states,
Pennsylvania's general climate with respect to video poker machines ... supports a finding that Duffy Conley lacked
criminal intent. Id. at 5.
Under Federal Rule of Criminal Procedure 12(b) an issue is determinable without trial on the merits or it is not; there is
no middle ground. The Court has determined that both the Due Process and the selective prosecution defenses are
appropriate for pretrial disposition by the Court. With respect to those issues, the Court will deny with prejudice the
Defendants' motions to present such defenses to the jury.
The only remaining question is whether the Defendants will be allowed to contest the Government's presentation before
the jury on the element of intent. This is not a hard question.
[32]
The Court is neither empowered nor inclined to deny Defendants their constitutional right to contest the truth
of the Government's allegations before a jury. In its *940
(Cite as: 859 F.Supp. 909, *940)
discretion, the Court will instruct the jury on the intent elements that the Government must prove beyond a reasonable
doubt, and will entertain requests from the Defendants on appropriate jury instructions. See United States v. Gross, 961
F.2d 1097, 1101-03 (3d Cir.), cert. denied, 506 U.S. 965, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992). This aspect of the
Defendants' motions will be denied without prejudice to the Defendants' right to adduce evidence at trial and seek
appropriate jury instructions.
An appropriate order will be entered.
Copr. (C) West 2007 No Claim to Orig. U.S. Govt. Works 859 F.Supp. 909
END OF DOCUMENT
564 Pa. 36, 764 A.2d 20

Briefs and Other Related Documents
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant,
v.
John KRATSAS, Appellee.
Commonwealth of Pennsylvania, Appellant,
v.
George M. Kratsas, Appellee.
Commonwealth of Pennsylvania, Appellant,
v.
Amusement Supply Company, Appellee.
Argued March 6, 2000.
Decided Jan. 8, 2001.
Commonwealth charged lessors with distribution of video poker and slot machines modified to work as gambling
devices. The Court of Common Pleas, Allegheny County, Nos. CC 9412380, 9412384, 9412389, McGregor, J., dismissed
the case based on the due process clause and lax enforcement of gambling laws. Commonwealth appealed. The
Superior Court, Nos. 470, 471, 472, PGH 1997, affirmed. Appeal was allowed. The Supreme Court, Nos. 70, 71 and 72
W.D. Appeal Dkt. 1999, Saylor, J., held as a matter of first impression that the lessors failed to establish that the due
process reliance doctrine barred their prosecution.
Reversed and remanded.
Zappala, J., concurred in the result.
West Headnotes
[1] KeyCite Notes

188 Gaming
188III(A) Offenses
188k73.5 k. Making Gaming Device for Sale or Offering Device for Sale. Most Cited Cases
Video poker and video slot machines containing clearing and recording features to allow payment for the player's credits
are per se gambling devices subject to the statutory prohibition against the distribution of any punch board, drawing
card, slot machine, or any device to be used for gambling. 18 Pa.C.S.A. 5513.
[2] KeyCite Notes

188 Gaming
188III(A) Offenses
188k63 Constitutional and Statutory Provisions
188k63(3) k. Repeal. Most Cited Cases
Gambling has not become legal on an actual or de facto basis as a result of lax enforcement.
[3] KeyCite Notes

188 Gaming
188III(A) Offenses
188k63 Constitutional and Statutory Provisions
188k63(3) k. Repeal. Most Cited Cases
Statutory laws underlying the indictments that charged dealing in gambling devices could not be deemed by the
judiciary to have been effectively extinguished by lax enforcement. 18 Pa.C.S.A. 5513.
[4] KeyCite Notes

92k252.5 k. Rights, Interests, Benefits, or Privileges Involved, in General. Most Cited Cases
The due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or
conduct offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental and that defines the community's sense of fair play and decency. U.S.C.A. Const.Amend. 14; Const. Art. 1,
9.
[5] KeyCite Notes

92k257 k. In General. Most Cited Cases
The state and federal due process clauses, at least in a narrow set of unique and compelling circumstances, can serve
as an exception to the maxim that mistake of law is no defense and can ultimately foreclose a criminal prosecution at
the pre-trial stage. U.S.C.A. Const.Amend. 14; Const. Art. 1, 9; 18 Pa.C.S.A. 304.
[6] KeyCite Notes

110 Criminal Law
110k32 k. Ignorance or Mistake of Law. Most Cited Cases

110XX Trial
Where an adequate claim is made in a pre-trial motion to dismiss that due process bars the prosecution by creating an
exception to the maxim that mistake of law is no defense, it is incumbent upon the trial court to determine the
applicability and effect of the reliance doctrine, and it is authorized to take evidence to the extent necessary and to
make dispositive findings and conclusions concerning whether trial should proceed. U.S.C.A. Const.Amend. 14; Const.
Art. 1, 9; 18 Pa.C.S.A. 304.
[7] KeyCite Notes

Relevant considerations to a claim that the due process reliance doctrine prevents a prosecution include the following:
an official or a body charged by law with responsibility for defining permissible conduct respecting the offense at issue
makes an affirmative representation that certain conduct is legal, the defendant actually relies on the official's
statements, and the reliance is in good faith and reasonable given the identity of the government official, the point of
law represented, and the substance of the statement. U.S.C.A. Const.Amend. 14; Const. Art. 1, 9.
[8] KeyCite Notes

The relevant considerations to a claim that the due process reliance doctrine prevents a prosecution should not be
applied rigidly as against a defendant whose claims clearly implicate fundamental fairness. U.S.C.A. Const.Amend. 14;
Const. Art. 1, 9.
[9] KeyCite Notes

In the pre-trial setting on a claim under the due process reliance doctrine, the defendant's ultimate burden is to
establish the rare circumstance in which a prosecution may be deemed fundamentally unfair pursuant to exacting due
process standards. U.S.C.A. Const.Amend. 14; Const. Art. 1, 9.
[10] KeyCite Notes


110k32 k. Ignorance or Mistake of Law. Most Cited Cases
The lessors of video poker and slot machines modified to work as gambling devices did not reasonably rely in good faith
on an interpretation of the law and failed to establish that the due process reliance doctrine barred their prosecution for
distribution of gambling devices; the lessors were the third-generation owners of an amusement supply company, would
have good reason to inquire about the gambling laws, and could not succeed on a claim of reliance on lax enforcement.
U.S.C.A. Const.Amend. 14; Const. Art. 1, 9; 18 Pa.C.S.A. 5513.
[11] KeyCite Notes

A defendant's expectation that the criminal law will not be enforced, at least in the absence of extraordinary
circumstances, will not support application of the due process reliance doctrine that can bar a prosecution based on an
affirmative misrepresentation by a government official. U.S.C.A. Const.Amend. 14; Const. Art. 1, 9.
[12] KeyCite Notes


The due process reliance doctrine that can bar a prosecution based on an affirmative misrepresentation by a
government official should not be available based upon local officials' advice or conduct concerning enforcement efforts,
particularly where the primary enforcement occurs at the state level. U.S.C.A. Const.Amend. 14; Const. Art. 1, 9.
[13] KeyCite Notes

Official conduct, not the defendant's mental state, is the primary focus of the inquiry under the due process reliance
doctrine that can bar a prosecution based on an affirmative misrepresentation by a government official; however, the
defendant's state of mind remains relevant as a measure of actual reliance. U.S.C.A. Const.Amend. 14; Const. Art. 1,
9.
[14] KeyCite Notes

The reasonableness of a defendant's reliance on a statement by a government official that certain conduct is legal
remains an essential consideration under the due process reliance doctrine. U.S.C.A. Const.Amend. 14; Const. Art. 1,
9.
**22
(Cite as: 564 Pa. 36, 764 A.2d 20, **22)
*40
(Cite as: 564 Pa. 36, *40, 764 A.2d 20, **22)
Stephen A. Zappala, Jr., Pittsburgh, Jennifer Digiovanni, Philadelphia, for Com.
James A. Wymard, Pittsburgh, for John Kratsas.
Anthony Mark Mariani, Pittsburgh, for George M. Kratsas.
David B. Wasson, Lower Burrell, for Amusement Supply Co.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
SAYLOR, Justice.
The trial court barred the Commonwealth from prosecuting Appellees for dealing in gambling devices and related
offenses, although they are alleged to have distributed video poker machines and other devices modified to permit
gambling in violation of an express statutory prohibition. Finding, inter alia, that local governmental officials in Western
Pennsylvania tolerated gambling activities, the court concluded that the prosecution would be fundamentally unfair and
would violate principles of due process under the United States and Pennsylvania constitutions, and the Superior Court
affirmed this holding. We reverse.
Appellees, John and George Kratsas, are proprietors of Amusement Supply Company, a third-generation, family-owned
*41
(Cite as: 564 Pa. 36, *41, 764 A.2d 20, **22)
business that leases game and vending machines to establishments throughout Allegheny County. Among the devices
supplied are video poker and video slot machines, which are commonly placed in taverns, private clubs, service stations,
and grocery and convenience stores. In January of 1991, the Pennsylvania State Police, Bureau of Liquor Control
Enforcement (BLCE), began investigating allegations of illegal gambling activities in Allegheny County. During the
investigation, Appellees were identified as suppliers of particular electronic game machines that had been used for
gambling. Specifically, it was alleged that video poker and slot machines were equipped by either Appellees or the
machine's distributors with a knock-off feature, permitting the removal of credits or games accumulated by a player
and thereby allowing the owner of the establishment to pay a dollar value per **23
(Cite as: 564 Pa. 36, *41, 764 A.2d 20, **23)
credit, typically 25 cents.FN1 In addition, the machines purportedly contained accounting devices (meters) that
recorded the credits, enabling Appellees and the establishment owners to divide the profits. Such devices are significant
in determining whether a particular machine is a gambling device. See generally Commonwealth v. Twelve Dodge City
Poker Machines, 517 Pa. 363, 367, 537 A.2d 812, 814 (1988) (addressing the effect of clearing and recording features
upon the determination of whether a machine is a gambling device per se ).
FN1. A knock-off or clearing device may involve a remote control, a coded series of playing buttons, inputting the
player's initials next to the high score, tilting the machine forward, or merely unplugging it.
On December 14, 1993, BLCE officers executed a search warrant at the office of Appellee, Amusement Supply
Company, seizing records and video devices equipped with knock-off mechanisms and internal meters. Search warrants
were subsequently executed at eleven establishments in which Appellees had placed video poker and slot machines, and
during these searches, machines were seized, inspected, and found to contain knock-off devices and meters. Based
upon the information gathered from the investigation and the searches, Appellees were charged with three counts of
corrupt organizations, eight counts of gambling devices, criminal conspiracy *42
(Cite as: 564 Pa. 36, *42, 764 A.2d 20, **23)
and dealing in the proceeds of unlawful activities. Charges were not lodged against the manufacturers or distributors of
the gaming machines, nor were any charges filed against the proprietors of the establishments from which the machines
had been seized.
Prior to trial, Appellees filed an omnibus pre-trial motion, seeking, inter alia, dismissal of the prosecution as violative of
fundamental fairness and, correspondingly, the due process clauses of the United States and Pennsylvania constitutions.
Although Appellees' motion did not further refine the underlying legal theory supporting the requested relief, they
emphasized allegations that gambling is pervasive in Pennsylvania; local officials and law enforcement officers issued
amusement device licenses or permits to Appellees and others authorizing the use of video poker and slot machines
with knowledge that such devices were used for gambling; and the fees to license video poker and slot machines were
higher than those required for other game machines, because the devices were used for gambling. Predicated upon
these factual averments, throughout their motion Appellees put forward the assertion that it is the public policy of
Pennsylvania that gambling is legal and/or de facto legal as a basis for dismissal.
The trial court conducted a lengthy series of pre-trial hearings on the motion from July of 1995 through September of
1996, during which both Appellees and the Commonwealth presented extensive testimony and other evidence
concerning the practice, procedure, and knowledge of local officials relating to the licensing of video poker and slot
machines. In particular, Appellees presented evidence that 10,000 video poker and slot machines existed within various
establishments throughout Allegheny County, including ninety-nine percent of all private clubs, and that such machines
were delivered openly, visibly displayed and played, and, more important, openly used for gambling. FN2 Municipal
officials license these machines, and, in some instances, police departments affix permits or licenses on the machines
themselves. Moreover, *43
(Cite as: 564 Pa. 36, *43, 764 A.2d 20, **23)
Appellees offered testimony that local officials are aware that gambling occurs on the machines; higher licensing or
permit fees are charged for the video poker and slot machines; these devices generate significant revenue for the
municipalities; and local officials turn a blind eye toward gambling. In addition, Appellee, George Kratsas, testified
**24
(Cite as: 564 Pa. 36, *43, 764 A.2d 20, **24)
that officials within the communities indicated that there was nothing wrong with using such machines for gambling, and
that based upon these conversations and the practice of licensing video poker and slot machines, he believed that
gambling on the machines was legal.
FN2. In this regard, the testimony indicated that virtually every video poker and slot machine was used for gambling.
In response, the Commonwealth challenged the propriety of the pre-trial motion to dismiss, arguing that the due
process issue required factual findings that would be more appropriately rendered by a jury. On the substantive points,
the Commonwealth offered evidence that: most gambling prosecutions are initiated at the state level; it is difficult to
enforce the gambling laws because some of the machines are legal, at least as manufactured; the machines seized in
this case contained knock-off devices and meters, which rendered such devices illegal per se; and while local officials
issued licenses, they did not authorize gambling. The Commonwealth also presented testimony that many of the video
poker and slot machines contained warnings that the devices were for amusement only, and, similarly, the local
ordinances and the amusement device permits did not authorize gambling. Furthermore, the Commonwealth offered the
text of local ordinances indicating the official policy to follow state law, as well as testimony from local officials stating
that they refused to license devices that contained clearing and recording features and that they were unaware that
video poker and slot machines were used for gambling. Finally, the Commonwealth elicited from George Kratsas that no
state official had ever advised him that gambling was legal. Following the hearings, Appellees submitted proposed
findings of fact and conclusions of law, and the Commonwealth filed a brief in opposition.
In ruling on Appellees' motion, initially the trial court determined that challenges to a prosecution on due process *44
(Cite as: 564 Pa. 36, *44, 764 A.2d 20, **24)
grounds are properly made to a court as opposed to a jury, since the United States Supreme Court has explained that
such claims may prevent the government from proceeding with a prosecution. See generally United States v.
Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 1817, 36 L.Ed.2d 567 (1973) [hereinafter PICCO
]. In relation to the merits of the motion, the trial court adopted, in full, Appellees' proposed findings of fact and
conclusions of law, including but not limited to the findings that the deployment of illegally modified video poker and slot
machines was prevalent, open and notorious throughout Allegheny County; local officials issued licenses or permits for
such machines with knowledge that these devices were used for gambling; the fees for the licenses were higher when
the device was a video poker or slot machine precisely because of the gambling function; the municipalities gained
substantial revenue through such licensure; and, because of the licensing practices of the municipalities, the lack of
enforcement of the gambling statute, and conversations with public officials, Appellees believed that their conduct was
legal. In the application of due process principles to these findings, the trial court invoked a doctrine predicated upon
reliance on misrepresentations of law by government officials, sometimes referred to in the decisional law and
commentary as the official statement mistake of law doctrine, and entrapment by estoppel. FN3 In this regard, the
trial court analogized the case to a trilogy of United States Supreme Court cases, Raley v. Ohio, 360 U.S. 423, 79 S.Ct.
1257, 3 L.Ed.2d 1344 (1959), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and **25
(Cite as: 564 Pa. 36, *44, 764 A.2d 20, **25)
PICCO, 411 U.S. at 655, 93 S.Ct. at 1804, which, universally, are recognized as laying the groundwork for the doctrine.
The trial court stated:
FN3. Some courts have disavowed the use of the phrase entrapment by estoppel to describe the doctrine, explaining
that it stems from the Fourteenth Amendment's Due Process Clause, not from common law principles of contract, equity
or agency, and that it is not an entrapment. See United States v. Brady, 710 F.Supp. 290, 295 (D.Colo.1989); Miller v.
Commonwealth, 25 Va.App. 727, 492 S.E.2d 482, 487 n. 4 (1997). For the sake of clarity and ease of reference, the
doctrine is hereinafter referred to as the reliance doctrine.
*45
(Cite as: 564 Pa. 36, *45, 764 A.2d 20, **25)
Just like the defendants in Raley, Cox [and] PICCO ..., the defendants in this case were affirmatively led to believe that
they were acting within the prescriptions of the law in engaging in the conduct at issue in this case. Because the
licensing process was mandatory and the licensing of gambling devices was accepted and promoted, the defendants
were obviously within reason to rely upon the conduct of the highest ranking officials of the municipalities in licensing
the use of the video gambling devices for the commonly known purpose of gambling.
It is patently unreasonable to hold [Appellees] criminally culpable for the conduct described in the Information filed in
this case. Government officials not only permitted, they encouraged and benefited from video gambling. They allowed
the defendants in this case to believe that they were engaging in conduct that would not result in criminal prosecution.
The clear, overriding evil sought to be remedied by the Raley, Cox and PICCO cases and their progeny is fundamental
unfairness in the initiation of criminal prosecutions. Allowing prosecution of the defendants, under the facts of this case
would be to sanction an indefensible sort of entrapment by the State. The prosecutions of [Appellees] fall squarely
within the purview of these cases and this Court should prevent the Government from proceeding with the
prosecution.
(citations omitted). Thus, the trial court accepted Appellees' position that the prosecution violated the Due Process
Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania
Constitution. The Commonwealth lodged an appeal, and a divided panel of the Superior Court affirmed in a one-page,
memorandum decision, relying upon the findings of fact and conclusions of law that were adopted by the trial court,
with Judge Ford Elliott concurring in the result. Because this case presents issues of first impression in this
Commonwealth, we allowed appeal.
Presently, the Commonwealth maintains its position that Appellees' reliance claim should have been submitted to a jury
*46
(Cite as: 564 Pa. 36, *46, 764 A.2d 20, **25)
at trial. Further, the Commonwealth contends that uncontroverted evidence demonstrates that Appellees fully
apprehended that gambling (and distribution of gambling devices) was proscribed by law. In this regard, the
Commonwealth emphasizes Appellees' multi-generational experience in the game business, from which it argues that
familiarity with applicable laws can be inferred. Even if in their general experience Appellees did not gain such
awareness, the Commonwealth asserts, they would have necessarily obtained inquiry notice by virtue of the
manufacture of the machines without clearing/recording devices necessary to permit gambling, and by encountering the
label and manual warnings, as well as other admonitions in written ordinances and other documents pertinent to the
licensing and permitting process. According to the Commonwealth, the ad hoc method by which machines are modified
to permit gambling further evidences Appellees' intent to evade enforcement. Additionally, the Commonwealth notes
that the primary enforcement of the gambling laws is accomplished by state, rather than local, officials, and directs our
attention to Appellees' admitted awareness of particular law enforcement efforts. Centrally, the Commonwealth asks the
Court to distinguish between reasonable reliance based upon a bona fide belief that one's conduct truly complies with
the written law, and mere reliance upon lax enforcement and nonfeasance by certain local officials, with a corresponding
expectation of freedom from prosecution. Citation is made to the decision of the United States District Court for the
Western District of Pennsylvania in United States v. Conley, 859 F.Supp. 909 (W.D.Pa.1994)(Lee, J.), in which
arguments very similar to those presented**26
(Cite as: 564 Pa. 36, *46, 764 A.2d 20, **26)
by Appellees were considered and rejected.
Appellees, on the other hand, maintain that the trial court properly heard and decided the due process issue as a
question of law. Further, they provide many citations to the portions of the record upon which the trial court based its
conclusions that municipal authorities acceded to, and indeed, benefited from, the gambling activities in their
communities. Appellees contend that this evidence amply supports the trial *47
(Cite as: 564 Pa. 36, *47, 764 A.2d 20, **26)
court's conclusion that government and law enforcement officials affirmatively misled them into believing that they
would not be subject to criminal prosecution for distributing gaming devices. Although Appellees indicate that they
received express assurances that their conduct was in fact legal, they also take the position that affirmative
misrepresentations by a government official are not an essential prerequisite to the reliance doctrine. Rather, Appellees
assert that a citizen may be misled by governmental conduct, and, in the present case, they view the conduct of local
officials in licensing devices with the knowledge that they would be used for gambling as sufficient to render their
prosecution fundamentally unfair. Defending against the Commonwealth's evidence concerning Appellees' awareness of
illegality (or at least potential illegality), Appellees argue that their belief that they would not be prosecuted, in the
context of this case, is no different than a belief that their conduct was legal, especially in light of the identities of the
persons creating that belief.
[1]
Section 5513 of the Crimes Code, captioned Gambling devices, gambling, etc., provides that a person is guilty
of a misdemeanor of the first degree if he
intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale,
loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except
playing cards[.]
18 Pa.C.S. 5513. As noted, it is well established that machines containing clearing and recording features of the type
Appellees are alleged to have distributed are per se gambling devices subject to the statutory prohibition. See
Commonwealth v. Irwin, 535 Pa. 524, 528, 636 A.2d 1106, 1107-08 (1993).
[2]
In view of this enactment by the Pennsylvania General Assembly, we summarily reject Appellees' assertion,
repeated throughout their motion to dismiss, that it is the law of Pennsylvania that gambling is legal on an actual or de
facto basis. The law is plainly otherwise, as the General Assembly *48
(Cite as: 564 Pa. 36, *48, 764 A.2d 20, **26)
has spoken explicitly, and there is no present challenge to the constitutional validity of its dictate. Appellees cite no
authority for the proposition that this or any other court can or should nullify a legislative enactment on the basis that
its objectives have been frustrated, or even thwarted pervasively, even by those who are charged with enforcement
responsibility. See generally Conley, 859 F.Supp. at 934 (stating that, [a]ssuming that Pennsylvania law enforcement
authorities tolerate the use of video poker machines for gambling purposes, the Court holds that such toleration does
not in fact legalize otherwise illegal conduct); State v. Guzman, 89 Hawaii 27, 968 P.2d 194, 210 n. 20 (1998) (stating
that [t]he interests embodied in the criminal law are public interests of the greatest weight[;] [n]o official or agency of
government has the authority to waive the public interest, and none-save the legislature-can define the limits of the
criminal law) (quoting Note, Applying Estoppel Principles in Criminal Cases, 78 yale L.J. 1046, 1051-52 (1969)).FN4
FN4. Appellees' use of the phrase de facto legal parallels comments made by former Attorney General Ernest Preate
to a legislative committee in 1990, to the effect that, In most areas of Pennsylvania, video poker machines were so
widespread, enforcement efforts were so intermittent and the resulting sanctions so minor that the situation was
tantamount to the de facto legalization of video poker gambling. Conley, 859 F.Supp. at 919 n. 2 (quoting Prepared
Statement of Attorney General Ernest D. Preate, Jr., before the House of Representatives Finance Committee, May 24,
1990). These comments must be read in the context of the former Attorney General's advocacy to the Legislature for
his position that his office lacked the resources to properly serve its enforcement function, not as a reflection of the
substantive law of Pennsylvania.
**27
(Cite as: 564 Pa. 36, *48, 764 A.2d 20, **27)
[3]
Given the centrality of Appellees' position concerning the general state of Pennsylvania law to their written
motion to dismiss, arguably, the trial court could have denied the requested relief based on the failure of such position
alone. As the motion contains serious factual averments concerning the conduct of local officials relative to Appellees'
own conduct, however, the trial court was justified in making additional inquiry. Thus, while we proceed to evaluate
Appellees' legal contentions that prevailed in the trial court and in the Superior Court, we emphasize that these
arguments are materially *49
(Cite as: 564 Pa. 36, *49, 764 A.2d 20, **27)
distinguishable from the erroneous conclusion that the statutory laws underlying the indictments should be deemed by
the judiciary to have been effectively extinguished.
[4]
As noted, the trial court's disposition rests upon the due process clauses of the United States and Pennsylvania
constitutions, which, generally, embody the principle of fundamental fairness, entitling every individual to be free from
arbitrary or oppressive government conduct. See generally Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976,
41 L.Ed.2d 935 (1974). FN5 The due process inquiry, in its most general form, entails an assessment as to whether the
challenged proceeding or conduct offends some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental, Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d
281 (1977) (citation omitted), and that define [s] the community's sense of fair play and decency. Dowling v. United
States, 493 U.S. 342, 353, 110 S.Ct. 668, 676, 107 L.Ed.2d 708 (1990)(quoting Rochin v. California, 342 U.S. 165,
170, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952)). Although due process is viewed as a fluid concept, see generally County
of Sacramento v. Lewis, 523 U.S. 833, 851, 118 S.Ct. 1708, 1719, 140 L.Ed.2d 1043 (1998) (citation omitted), several
categories of claims implicating its protections have emerged in the decisional law. For example, one line of cases
pertains to due process claims involving outrageous government misconduct. See, e.g., Commonwealth v. Benchino,
399 Pa.Super. 521, 526, 582 A.2d 1067, 1069 (1990)(discussing due process implications of government involvement
in a crime), cited with approval in Commonwealth v. Mance, 539 Pa. 282, 290, 652 A.2d 299, 303 (1995).
FN5. Article I, Section 9 of the Pennsylvania Constitution provides, inter alia, that a person cannot be deprived of
liberty, unless by the judgment of his peers or the law of the land. This provision has been construed as the functional
equivalent of the due process provision in the United States Constitution. See Commonwealth v. Snyder, 552 Pa. 44,
52, 713 A.2d 596, 600 (1998). While Appellees have suggested that this Court has the ability to construe Article I,
Section 9 more broadly than federal due process, they have offered no particular reasons to support such a departure;
therefore, we continue to treat the pertinent constitutional guarantees as coterminous for purposes of this opinion.
*50
(Cite as: 564 Pa. 36, *50, 764 A.2d 20, **27)
Similarly, the reliance doctrine emerged from the trilogy of United States Supreme Court decisions cited by the trial
court: Raley, 360 U.S. at 423, 79 S.Ct. at 1257, Cox, 379 U.S. at 559, 85 S.Ct. at 476, and PICCO, 411 U.S. at 655, 93
S.Ct. at 1804. In Raley, four individuals were convicted of criminal contempt for refusing to answer questions from
Ohio's Un-American Activities Commission after the committee chairman erroneously informed them that they were
protected under the state constitution's privilege against self-incrimination (the chairman failed to mention that an Ohio
immunity statute applied to their testimony and deprived them of the privilege). The Supreme Court set aside three of
the convictions as fundamentally unfair **28
(Cite as: 564 Pa. 36, *50, 764 A.2d 20, **28)
and violative of the Due Process Clause of the Fourteenth Amendment. In reaching this conclusion, the Court
emphasized both the source and the content of the advice that the defendants had received. See id. at 437, 79 S.Ct. at
1266 (stating that [t]he Chairman of the Commission, who clearly appeared to be the agent of the State in a position
to give such assurances, apprised [the defendants] that the privilege in fact existed); id. at 438, 79 S.Ct. at 1266
(describing the chairman's comments as active misleading).FN6 The Supreme Court also appeared to take into
consideration the element of immediacy connected with the testimonial setting. See id. at 438-39, 79 S.Ct. at 1267
(characterizing the chairman as the voice of the State most presently speaking to the [defendants]). The Court
explained that sustaining a conviction under the circumstances would be to sanction the most indefensible sort of
entrapment by the State-convicting a citizen for exercising a privilege which the State clearly had told him was available
to him. Id. at 426, 79 S.Ct. at 1260.FN7
FN6. The fourth conviction was affirmed by an equally divided Court.
FN7. This passage from Raley appears to be the basis for the source of the entrapment by estoppel denomination for
the reliance doctrine. In this context, however, the Court's allusion to the doctrine of entrapment has been aptly
characterized as a metaphor, intended to sharpen the focus upon fundamental fairness. See generally Parry, Culpability,
Mistake and Official Interpretations of Law, 25 a.J.Crim. L. 1, 37 (Fall 1997) [hereinafter Parry, Culpability, Mistake ].
In Cox, the Supreme Court applied Raley to reverse a conviction for violating a statute prohibiting demonstrations *51
(Cite as: 564 Pa. 36, *51, 764 A.2d 20, **28)
near a courthouse, because the picketers had been advised by the local police chief that they could lawfully protest
across the street. See Cox, 379 U.S. at 571, 85 S.Ct. at 484 (stating that the highest police officials of the city, in the
presence of the Sheriff and Mayor, in effect told the demonstrators that they could meet where they did). The Court
noted the lack of specificity in the use of the word near in the statute, which the Court found foresees a degree of
on the spot administrative interpretation by officials charged with responsibility for administering and enforcing it and
renders it apparent that demonstrators ... would justifiably tend to rely on this administrative interpretation of how
near the courthouse a particular demonstration might take place. Id. at 568-69, 85 S.Ct. at 483.
Finally, in PICCO, the Court addressed a conviction for violating a statute that prohibited the discharging of refuse into
navigable waters. At the time of the offense, the responsible administrative agency, the Army Corps of Engineers, had
interpreted the statute as applying solely to water deposits that affected navigation, and such interpretation was
reflected in the agency's regulations. See PICCO, 411 U.S. at 658 59, 93 S.Ct. at 1808-09. At trial, the court refused to
allow PICCO to present evidence and obtain a jury instruction that it had acted upon a good faith belief that the
administrative construction given the statute rendered its conduct of discharging industrial refuse permissible. The
Supreme Court reasoned, however, that PICCO had a right to consult the Corps of Engineers' regulations for guidance
respecting the requirements of the statute, and that to the extent that the regulations deprived PICCO of fair
warning ..., traditional notions of fairness prevent the Government from proceeding with the prosecution. Id. at 674,
93 S.Ct. at 1816-17. Thus, the Court remanded the case, holding that PICCO was entitled to present evidence to
support its claim that it was affirmatively misled. See id. at 675, 93 S.Ct. at 1817.
Developments in due process jurisprudence, perhaps by necessity, have frequently occurred incrementally in the
context of specific cases, with the Supreme Court reserving *52
(Cite as: 564 Pa. 36, *52, 764 A.2d 20, **28)
broader analysis for future cases. Raley, Cox and PICCO are no exceptions, and have raised many questions,**29
(Cite as: 564 Pa. 36, *52, 764 A.2d 20, **29)
as reflected in the following critical commentary:
Although defendants increasingly invoke entrapment by estoppel, courts have not adequately considered basic
questions such as: From whence does entrapment by estoppel derive? What are the prerequisites to entrapment by
estoppel? Does it apply equally to crimes requiring specific intent, general intent, and no intent at all? Does entrapment
by estoppel raise a question for a judge or a jury?
Sean Connelly, Bad Advice: The Entrapment by Estoppel Doctrine in Criminal Law, 48 u. Miami L.Rev. 627 (Jan.1994)
[hereinafter Connelly, Bad Advice ]. FN8 Such questions are implicated by the Commonwealth's arguments as framed,
the first of which suggests that the jury should have a role in determining the reliance doctrine's applicability. Subsumed
within this issue are additional questions concerning the doctrine's relevance in relationship to the determination of the
substantive elements of criminal offenses, whether its invocation should be permitted as a common law affirmative
defense, and, if not, whether there is a due process justification for its consideration by a jury where the factual basis is
not sufficient to warrant preclusion of the prosecution on a pre-trial basis.
FN8. See generally Conley, 859 F.Supp. at 926 (noting that [t]he interpretations given the [reliance] doctrine have
been less than uniform); Parry, Culpability, Mistake, 25 a.J.Crim. L. at 3 (observing that [n]o court or commentator
has provided a convincing and coherent account of the basis for the doctrine or made a sustained effort to define its
limits beyond stating that it is required by due process).
The reliance doctrine has been described as a narrow exception to the maxim that ignorance of law is no excuse. See,
e.g., United States v. Spires, 79 F.3d 464, 466 (5th Cir.1996); United States v. Bruscantini, 761 F.2d 640, 642 (11th
Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985). Some state legislatures, following the example
in Section 2.04(3)(b) of the Model Penal Code, have enacted statutes providing for a limited defense based upon a
mistake of law in a manner that parallels the reliance doctrine, *53
(Cite as: 564 Pa. 36, *53, 764 A.2d 20, **29)
affording an elemental structure and the status of an affirmative defense. FN9 In such jurisdictions, it is clear that, even
if the circumstances involving an official misrepresentation are not sufficient to require dismissal of the prosecution on
due process grounds, the defendant would generally be permitted to present them to the jury in the context of the
affirmative defense. However, the availability of a reliance defense on such terms (independent of constitutional due
process principles and constraints) is not so clear in Pennsylvania-although the General Assembly adopted many
provisions of the Model Penal Code in enacting the comprehensive Crimes **30
(Cite as: 564 Pa. 36, *53, 764 A.2d 20, **30)
Code, FN10 it declined to adopt Section 2.04(3) (b) or to effectuate any substantial*54
(Cite as: 564 Pa. 36, *54, 764 A.2d 20, **30)
equivalent. Indeed, official commentary reflects the legislative intent that [g]enerally speaking, ignorance or mistake of
law is no defense. 18 Pa.C.S. 304 (official comment). Although this Court would appear to have substantially
endorsed a reliance defense in overturning a contempt conviction in Commonwealth v. Fisher, 398 Pa. 237, 248, 157
A.2d 207, 213 (1960), criminal contempt is a unique area of the law, and it is thus questionable how broadly the Court's
analysis in Fisher should be read. Moreover, Fisher preceded the comprehensive enactment of the Crimes Code, and
thus, even to the extent that the holding was intended to be read broadly, the continued viability of such construction
must be determined in light of the subsequent legislative prescriptions.
FN9. Section 2.04 of the Model Penal Code provides, in relevant part:
(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon
such conduct when:
(a) the statute or other enactment defining the offense is not known to the actor and has not been published or
otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous,
contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order
or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for
interpretation, administration or enforcement of the law defining the offense.
(4) The defendant must prove a doctrine arising under Subdivision (3) of this Section by a preponderance of evidence.
model Penal Code 2.04(3)(a-b), (4) (rev. ed.1985). See, e.g., Ark.Code Ann. 5-2-206(c) (1999); Haw.Rev.Stat.
702-220 (1999); Ill.Rev.Stat. ch. 720, para. 5/4-8(b) (2000); Kansas Stat. Ann. 21-3203(2) (1999); Mo.Rev.Stat.
562.031(2) (2000); Mont.Code Ann. 45-2-103(6) (1999); Utah Code Ann. 76-2-304(2) (1999). See generally
Guzman, 968 P.2d at 207 n. 17.
FN10. For example, Section 304 of the Crimes Code, 18 Pa.C.S. 304 (Ignorance or mistake), pertaining to mistakes of
fact, is derived from Section 2.04 of the Model Penal Code. Section 304 provides that:
Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required [to] establish
a material element of the offense; or
(2) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
18 Pa.C.S. 304.
Likewise, it is questionable whether, and to what extent, the reliance doctrine is relevant to substantive elements of
criminal offenses, in particular, the element of intent. Several commentators advocate the substantial dilution of the
maxim that ignorance of law is no excuse, and there would appear to be some movement in this direction in the federal
courts. FN11 Certainly, there are policy arguments to be made toward this end. FN12 To the extent that such a course
is not mandated by *55
(Cite as: 564 Pa. 36, *55, 764 A.2d 20, **30)
constitutional principles, however, in Pennsylvania, the enactments and intentions of the General Assembly must play a
central role in evaluating its wisdom. See Davies, The Jurisprudence of Willfulness, 48 duke L.J. at 412-13 (arguing that
a construction of specific intent requirements that requires proof of an accused's knowledge of the law is inimical to
congressional judgments and, therefore, violates the rule of law and principles of separation of powers). In this regard,
the legislative admonition that, [g]enerally speaking, ignorance or mistake of law is no defense, 18 Pa.C.S. 304
(official comment), is, again, highly **31
(Cite as: 564 Pa. 36, *55, 764 A.2d 20, **31)
relevant.FN13 See generally Conley, 859 F.Supp. at 930 (finding that specific intent in the sense of an intention to
violate a known legal duty is not in any way an element of the illegal gambling business offense at issue).FN14
FN11. See generally Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Neglect, 48
duke L.J. 341, 367-87 (Dec.1998)(citing the United States Supreme Court decisions in Cheek v. United States, 498 U.S.
192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615
(1994), and Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), as reflecting an evolving
jurisprudence of willfulness, fostering the construction of specific intent provisions in federal statutes as requiring
proof of an accused's knowledge of the law) [hereinafter Davies, The Jurisprudence of Willfulness ]; Connelly, Bad
Advice, 48 u. Miami L.Rev. at 648 (arguing that [w]here a criminal statute already requires specific proof of culpable
intent, the constitutional doctrine is superfluous because a defendant who acted in good faith reliance on government
advice that his conduct was legal cannot have intended to commit the offense); Richard G. Singer, The Proposed Duty
to Inquire as Affected by Recent Criminal Law Decisions in the United States Supreme Court, 3 buff.Crim. L.Rev. 701,
754 (2000)(predicting, in light of United States Supreme Court decisions, that [t]he prospect of a requirement of a full
mens rea applied to mistakes of both fact and law is on the horizon).
FN12. See, e.g., Parry, Culpability, Mistake, 25 am. J.Crim. L. at 49 (arguing that a moral system of criminal
responsibility can no longer allow the punishment of individuals whose assessments and choices were not blameworthy,
and who lacked a fair opportunity or capacity to adjust their behavior to the law due to an official misinterpretation of
the law). Such commentators frequently argue that, since the maxim arose in context of malum in se offenses, its
application should be reevaluated in the current environment in which the citizenry must conform their conduct to a
plethora of statutes and regulations that are malum prohibitum in nature. See id. at 7-17.
FN13. Similar commentary has been made concerning the doctrine of entrapment, with questions arising concerning its
common-law basis, constitutional implications, status as an affirmative defense, and relevance in relation to substantive
elements of a crime. See, e.g., Note, Reconfiguring the Entrapment and Outrageous Government Conduct Doctrines, 84
geo. L.J. 1945, 1952-62 (May 1996). In comparison to a reliance defense, however, the doctrine of entrapment, while
also focusing upon the conduct of law enforcement officials, see Commonwealth v. Weiskerger, 520 Pa. 305, 312, 554
A.2d 10, 14 (1989), is a legislatively recognized affirmative doctrine under the Pennsylvania Crimes Code. See 18
Pa.C.S. 313.
FN14. In contrast to Conley's holding essentially foreclosing presentation of a reliance defense at trial, a number of
courts have analyzed the doctrine as in the nature of an affirmative defense, thus permitting it to be presented to the
factfinder even in instances in which the trial court has made a pre-trial determination that the prosecution is not barred
on due process grounds. See, e.g., United States v. West Indies Transport, Inc., 127 F.3d 299, 311-12 (3rd Cir.1997),
cert. denied, 522 U.S. 1052, 118 S.Ct. 700, 139 L.Ed.2d 644 (1998); United States v. Smith, 940 F.2d 710, 714 (1st
Cir.1991); Guzman, 968 P.2d at 210; Miller, 492 S.E.2d at 488. Accord Spires, 79 F.3d at 466; United States v. Howell,
37 F.3d 1197, 1204 (7th Cir.1994); United States v. Abcasis, 45 F.3d 39, 42-43 (2nd Cir.1995); United States v. Hurst,
951 F.2d 1490, 1499 (6th Cir.1991), cert. denied, 504 U.S. 915, 112 S.Ct. 1952, 118 L.Ed.2d 556 (1992); United
States v. Hedges, 912 F.2d 1397, 1405-06 (11th Cir.1990). Indeed, in light of the Third Circuit Court of Appeals'
treatment in West Indies Transport, it is arguable that this portion of the Conley court's analysis has been implicitly
overruled for purposes of Third Circuit jurisprudence.
*56
(Cite as: 564 Pa. 36, *56, 764 A.2d 20, **31)
[5]
[6]
Although the invocation of a reliance defense in the trial setting thus raises substantial and complex
questions, our present review concerns a pre-trial motion to dismiss and thus implicates a narrower range of issues. In
this respect, we have no doubt that the due process provisions of the United States and Pennsylvania constitutions, at
least in a narrow set of unique and compelling circumstances, would serve both as an exception to the maxim that
mistake of law is no defense, see generally Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228
(1957); Rankin v. Mortimere, 7 Watts 372, 374 (1838), and ultimately to foreclose a criminal prosecution. See PICCO,
411 U.S. at 674, 93 S.Ct. at 1817(stating that the absence of fair warning prevent[s] the government from proceeding
with the prosecution). Therefore, where an adequate claim of such circumstances is presented in the form of a pre-trial
motion to dismiss, it is incumbent upon the trial courts to determine the doctrine's applicability and effect. They are fully
authorized to take evidence, to the extent necessary, and to make dispositive findings and conclusions concerning
whether trial should proceed. See generally Conley, 859 F.Supp. at 931 (concluding that the Due Process reliance on
misleading government conduct [doctrine], being founded upon the Constitutional notion of fundamental fairness ... is
an appropriate issue for the Court to determine); cf. United States v. Gonzales, 927 F.2d 139, 143-44 (3d Cir.1991)
(describing the procedure for claims made under the due process doctrine of outrageous government conduct, and
characterizing the reliance doctrine as closely analogous). Thus, our disposition of this case need not rest, as the
Commonwealth's arguments intend, upon the relevance (or irrelevance) of a reliance defense before a jury. Further,
additional consideration of the availability of reliance as an affirmative defense, and its relationship to *57
(Cite as: 564 Pa. 36, *57, 764 A.2d 20, **31)
substantive elements of gambling crimes, is unnecessary at this juncture. See generally Conley, 859 F.Supp. at 928
(noting that the issue of fundamental unfairness due to the defendant's reliance on misleading government conduct is
independent of the element of intent). Accordingly, we confine our remaining inquiry to the matter at **32
(Cite as: 564 Pa. 36, *57, 764 A.2d 20, **32)
hand, namely, whether the trial court erred in its determination that principles of fundamental fairness proscribed
Appellees' prosecution.FN15
FN15. Significantly, although our research has disclosed substantial questions as to the availability of a reliance defense
outside the context of a pretrial motion to dismiss, see generally Conley, 859 F.Supp. at 936 (indicating that the
evidence underlying the failed claim under the reliance doctrine would be excluded from trial), the Commonwealth in
this case fully endorses its availability at trial. See Brief for Appellant at 18 (stating that [i]f proven at trial and credited
by the jury, the [reliance defense] prevents a conviction). Thus, there is presently no advocate for the contrary
position. Further, the parties have not developed specific positions concerning the defense as it relates to the
substantive elements of gambling offenses or, more generally, the intent of the General Assembly, or its derivation as
an affirmative defense. Rather, their arguments focus upon their respective interpretations of the facts, and the overall
assessment of fairness. Matters of substantial significance and complexity are best decided in cases where the parties in
the first instance have sharpened the focus, and where such matters are essential to the disposition at hand. Since
neither of these conditions is present, sound jurisprudential principles weigh in favor of our decision to limit our
remaining analysis and holding here to the pre-trial context.
With our present inquiry thus limited, we return to the source of the due process reliance doctrine, Raley, Cox and
PICCO, to examine the doctrine's contours. Raley represented a very narrow context for its application: the testimonial
setting, in which there was a high degree of immediacy, and an imposing authority delivering the advice while already
asserting some degree of control over the defendants. Cox, however, made it clear that the doctrine could be applied
more broadly, although the element of immediacy was still evident. PICCO confirms that the doctrine applies in a
broader range of circumstances, where the erroneous advice from a governmental official is neither immediate nor
direct. See also United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526 (1967). See generally
Parry, Mistake, Culpability,*58
(Cite as: 564 Pa. 36, *58, 764 A.2d 20, **32)
25 am. J.Crim. L. at 41 (characterizing the decisions of the United States Supreme Court as setting the stage for the
emergence of entrapment by estoppel as a general equitable and constitutional constraint upon government
action).FN16
FN16. For commentary arguing that Cox, Laub and PICCO properly should have been decided on different grounds, see
Parry, Culpability, Mistake, 25 am. J.Crim. L. at 41-46.
[7]
These decisions, nevertheless, must be read in light of the Court's admonition that the doctrine is inherently a
narrow one and, as other courts have indicated, rarely available. United States v. Howell, 37 F.3d 1197, 1204 (7th
Cir.1994), cert. denied, 514 U.S. 1090, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995).FN17 Thus, courts, in attempting to
apply the doctrine within appropriate constraints, have framed a series of relevant considerations, which vary to some
degree among jurisdictions. See generally West Indies Transport, 127 F.3d at 312 (collecting cases).
FN17. See also Guzman, 968 P.2d at 209-10 (cautioning that a due process reliance doctrine is only applicable in a
narrow range of circumstances and where essential elements are clearly established); United States v. GutierrezGonzalez, 184 F.3d 1160, 1166 (10th Cir.) ( [t]he courts invoke the doctrine of estoppel against the government with
great reluctance (citation omitted)), cert. denied, 528 U.S. 1011, 120 S.Ct. 513, 145 L.Ed.2d 397 (1999). See
generally United States v. Tallmadge, 829 F.2d 767, 776 (9th Cir.1987) (Kozinski, J., dissenting)(stating that the
doctrine must be construed very narrowly because it permits the individual official to suspend or alter statutory penal
law simply by misinterpreting it (citation omitted)).
First, in order to support invocation of the doctrine, most jurisdictions require that there be an affirmative
representation that certain conduct is legal. See Cox, 379 U.S. at 571, 85 S.Ct. at 484; West Indies Transport, 127 F.3d
at 312; United States v. Aquino-Chacon, 109 F.3d 936, 938 (4th Cir.), cert. denied, 522 U.S. 931, 118 S.Ct. 335, 139
L.Ed.2d 260 (1997); **33
(Cite as: 564 Pa. 36, *58, 764 A.2d 20, **33)
Guzman, 968 P.2d at 207; Miller, 492 S.E.2d at 488. FN18 It is *59
(Cite as: 564 Pa. 36, *59, 764 A.2d 20, **33)
frequently observed that mere laxity in law enforcement will not satisfy this condition, see, e.g., Hurst, 951 F.2d at
1499, nor will vague or contradictory messages. See Ramirez-Valencia, 202 F.3d at 1109; Smith, 940 F.2d at 715.
Second, the representation should be made by an official or a body charged by law with responsibility for defining
permissible conduct respecting the offense at issue. See generally Spires, 79 F.3d at 466 (stating that the official must
be empowered to render the claimed erroneous advice or must be an agent who has been authorized to render such
advice); United States v. Austin, 915 F.2d 363, 366 (8th Cir.1990) (explaining that it is the authority, whether
apparent or actual, of the government official that is crucial to the entrapment by estoppel doctrine), cert. denied, 499
U.S. 977, 111 S.Ct. 1626 (1991). Third, actual reliance upon the official's statements should be present, see West
Indies Transport, 127 F.3d at 313, which condition has also been stated as a requirement that the defendant believe the
official. See Corso, 20 F.3d at 528; Hedges, 912 F.2d at 1405. Finally, the view is commonly held that reliance must be
in good faith and reasonable given the identity of the government official, the point of law represented, and the
substance of the statement. See West Indies Transport, 127 F.3d at 313. Reliance is reasonable and in good faith only
where a person truly desirous of obeying the law would have accepted the information as true, and would not have been
put on notice to make further inquiries. Id. at 313 n. 13. Courts generally impose the burden upon the defendant to
satisfy all elements. See, e.g., id. at 313.
FN18. While this condition is often framed in terms of active misleading or affirmative misrepresentation, because
some official statements may not be truly mistaken, as with an administrative interpretation, the phrase affirmative
representation allows for those circumstances. See Guzman, 968 P.2d at 207 n. 18. In many cases, courts have found
the reliance doctrine unavailable based upon a failure to allege a sufficient affirmative misrepresentation or active
misleading. See, e.g., United States v. Ramirez-Valencia, 202 F.3d 1106, 1108 (9th Cir.), cert. denied, 531 U.S. 892,
121 S.Ct. 218, 148 L.Ed.2d 154 (2000); West Indies Transport, 127 F.3d at 313; United States v. Aquino-Chacon, 109
F.3d 936, 939 (4th Cir.), cert. denied, 522 U.S. 931, 118 S.Ct. 335, 139 L.Ed.2d 260 (1997); United States v. Nichols,
21 F.3d 1016, 1018 (10th Cir.)(doctrine rejected because government agent had spoken ambiguously, rather than
inaccurately), cert. denied, 513 U.S. 1005, 115 S.Ct. 523, 130 L.Ed.2d 428 (1994); United States v. Corso, 20 F.3d
521, 528 (2nd Cir.1994); Hurst, 951 F.2d at 1499; United States v. Brebner, 951 F.2d 1017, 1025-26 (9th Cir.1991).
[8]
[9]
Upon consideration of these factors, particularly as elaborated in West Indies Transport, we endorse
them as a *60
(Cite as: 564 Pa. 36, *60, 764 A.2d 20, **33)
useful guide on consideration of a colorable claim based upon the due process reliance doctrine. In harmony with the
United States Supreme Court's approach to due process challenges, and considering the impossibility of identifying all
forms of conduct and practices that may implicate protection, we recognize that such requirements should not be
applied rigidly as against a defendant whose claims clearly implicate fundamental fairness. See generally Parry, Mistake,
Culpability, 25 am. J.Crim. L. at 44 (suggesting that the Supreme Court did not view entrapment by estoppel as a
separate doctrine of due process, but just as one way of describing basic due process principles). These considerations
do, nevertheless, properly channel the fairness inquiry in the totality of the circumstances and appropriately reflect the
substantial constraints upon the reliance doctrine. See generally Smith, 940 F.2d at 714. We also note that the relevant
considerations have been developed in cases considering the applicability of the doctrine both in the pre-trial and in the
trial context where permitted as a defense. In the pre-trial setting, however, the defendant's ultimate burden is to
establish the rare circumstance in which a prosecution may be deemed fundamentally unfair pursuant to exacting due
process standards. See Dowling, 493 U.S. at 353, 110 S.Ct. at 674.
**34
(Cite as: 564 Pa. 36, *60, 764 A.2d 20, **34)
More specific to the circumstances presently before us, we also have the benefit of the detailed decision by the United
States District Court for the Western District of Pennsylvania in Conley, 859 F.Supp. at 909, addressing a substantially
identical due process claim lodged in federal court. The Conley defendants were the owner and operator of Duffy's
Vending and his associates and employees; Duffy's Vending facilitated gambling activities employing video poker
machines, and the defendants were charged with federal crimes predicated upon such activities. See generally United
States v. Conley, 833 F.Supp. 1121, 1124 (W.D.Pa.1993). Several of the defendants pursued a motion to dismiss
based, inter alia, upon the reliance doctrine. The parties stipulated that video poker machines were present throughout
Western Pennsylvania, found most frequently in bars, lounges, taverns, restaurants, coffee shops, social halls or
fraternal and veterans' *61
(Cite as: 564 Pa. 36, *61, 764 A.2d 20, **34)
organizations, and laundromats; municipalities imposed annual fees or charges on amusement devices; and some of the
defendants had paid such fees and charges and received licenses. At hearings, the defendants attempted to introduce
testimony concerning the licensing of gambling devices; however, the district court sustained the government's
objection, indicating that
[b]ecause not all video poker machines are per se illegal in Pennsylvania, ... the mere issuance of a license for a video
poker machine, without a showing that the issuing authority had actual knowledge of the machines' intended illegal use,
was insufficient support for a doctrine of de facto legality.
Conley, 859 F.Supp. at 916; see also id. at 931 (noting that the Court cut short Defendants' presentation of their
evidence on the basis that it was insufficient as a matter of law and hence irrelevant). The district court nevertheless
permitted the defendants to make various proffers, in which they indicated that they would have presented, inter alia,
facts very similar to those found by the trial court in this case, including, that: it was common knowledge that video
poker machines were used for illegal gambling; municipalities and Pennsylvania law enforcement officials tolerated the
use of video poker machines for gambling purposes; municipalities adjusted permitting fees annually, due to the fact
that the governing bodies knew the amount of revenue generated by video poker machines; and enforcement efforts at
both the local and state levels were extremely lax or nonexistent. See Conley, 859 F.Supp. at 918-20. In response, the
government challenged the adequacy of the record upon which the defendants relied, contending that, under the
reliance doctrine, any assurances of legality must originate from a federal official, and maintaining that the issuance of
permits and licenses in a permissive atmosphere is not the type of government conduct sufficient to support invocation
of the doctrine. See Conley, 859 F.Supp. at 921.
In assessing the defendants' due process claim, the district court indicated that it would review the factual allegations in
the light most favorable to them, since it had cut short their factual presentation. See Conley, 859 F.Supp. at 931. After
*62
(Cite as: 564 Pa. 36, *62, 764 A.2d 20, **34)
detailing the background and holdings of Raley, Cox and PICCO, and rejecting the government's argument that the
federal government could not be prevented from enforcing its criminal laws by the conduct of state or local
officials,FN19 the district court indicated that the material allegations of the motion nevertheless did not satisfy the
reliance doctrine for several reasons. With regard to the presence or absence of a misrepresentation, the court indicated
that none of the defendants' proffered evidence sufficed to demonstrate that the **35
(Cite as: 564 Pa. 36, *62, 764 A.2d 20, **35)
conduct of Pennsylvania officials raised any ambiguity as to the legality of gambling conducted through the use of illegal
poker machines. The court explained that, in such circumstances, it was bound to defer to the government's decision to
prosecute a defendant, absent certain limited classes of abuse of prosecutorial discretion. See Conley, 859 F.Supp. at
933.FN20 Further, the court stated:
FN19. See Conley, 859 F.Supp. at 932 (stating that [a] per se rule in a federal criminal prosecution predicating the
availability of the Due Process doctrine on federal action saps the notion of fundamental fairness of its flexibility and
leaves the door open for fundamentally unfair prosecutions to be upheld).
FN20. The district court further explained:
The exercise of prosecutorial discretion in a world of limited resources may entail choosing upon which crimes to focus.
A choice at a point in time or by a particular administration to focus on certain crimes is also a choice to make the
enforcement of the crimes not chosen a lesser priority.
Conley, 859 F.Supp. at 933.
Assuming that Pennsylvania law enforcement authorities tolerate the use of video poker machines for gambling
purposes, the Court holds that such toleration does not in fact legalize otherwise illegal conduct. Such toleration is not a
valid ground upon which to base a claim of having been misled by the government and reliance on lax enforcement is
not reasonable in view of the clear state of Pennsylvania law throughout the relevant period prohibiting gambling with
video poker machines.
Conley, 859 F.Supp. at 934.
The district court then discounted various specific proffers made by the defendants in terms of their effect in
establishing *63
(Cite as: 564 Pa. 36, *63, 764 A.2d 20, **35)
an affirmative misrepresentation on the part of the Commonwealth. See Conley, 859 F.Supp. at 934-35. Indeed, the
court found that various of the defendants' proffers affirmatively established that the defendants were in fact on notice
that Pennsylvania authorities considered their activities unlawful. Conley, 859 F.Supp. at 934. With regard to the
conduct of local authorities, the court determined that the defendants could not rely upon the municipal ordinances
pursuant to which licenses were issued, since the ordinances generally were written to prohibit licensure for gambling
purposes. See Conley, 859 F.Supp. at 935. While acknowledging that the [d]efendants' proffer alleges a disconcerting
state of affairs regarding local governments' relationships with illegal video poker gambling in the Western District of
Pennsylvania, the court indicated that it was not persuaded that the [d]efendants' being prosecuted is fundamentally
unfair within the meaning of the Due Process clause. Id. Describing two ways in which the local government conduct
alleged could be interpreted, the court stated:
First, the local government conduct can be given a sinister interpretation. Under this interpretation, local government
officials condoned, allowed, and literally placed their stamps of approval on conduct they knew to be illegal in exchange
for licensing fees. But ... [a]llowing a state official's alleged complicity in illegal activities to void the convictions here
would violate the intent of Congress in enacting section 1955 and distort the clear due process doctrine set forth in Cox
and Raley. Moreover, corruption of government officials-federal, state or local-certainly does not raise Due Process
concerns about prosecuting any of the parties involved.
Second, the local government officials, notwithstanding their alleged knowledge of the intended use of the machines,
may have issued licenses relying upon the clear Pennsylvania law indicating that not all machines are per se illegal and
relying on other agencies to ensure compliance with the Pennsylvania gaming statute. This scenario reflects a mere
laxity in *64
(Cite as: 564 Pa. 36, *64, 764 A.2d 20, **35)
enforcement, which, in view of prosecutorial discretion, cannot invalidate an otherwise valid prohibition.
***
The conduct of local government officials may have created a certain ambiguity in the form of mixed signals to the
[d]efendants. [The] [d]efendants, however, are charged with conducting an illegal gambling**36
(Cite as: 564 Pa. 36, *64, 764 A.2d 20, **36)
business in violation of state law, not in violation of the local ordinances. Reliance upon the ambiguous conduct of local
officials in enforcing an otherwise clear statute of state-wide application is not reasonable. The ordinances adopted by
the local governments did not purport to alter state law, and the [d]efendants have proffered no evidence indicating
that the local governments ever claimed the authority to interpret the state statute.
No government official at any level ever expressly reassured the [d]efendants that their conduct in the ambiguous local
milieu was in fact legal. The [d]efendants' proffer may support an inference that, in the years before 1988, they
believed they would not be prosecuted for their gambling activities. Nonetheless, the proffer and record is devoid of
evidence ... that the [d]efendants actually believed their gambling activities were in fact legal activities under
Pennsylvania law, and their lobbying activities strongly suggest to the contrary.
Conley, 859 F.Supp. at 935-36. Thus, the district court held that, under the totality of the circumstances, the
defendants had not been misled by government officials into believing that their illegal gambling activities were, in fact,
legal, id. at 936, and, accordingly, the defendants had failed to persuade the court that their prosecution was
fundamentally unfair. See id.
The Conley decision is noteworthy for the procedure employed by the trial court, the comprehensiveness of its analysis,
and its sound merits disposition. Faced with a pre-trial motion raising at least an arguable claim that the defendants'
prosecution should be barred on grounds of fundamental fairness, the Conley court proceeded to conduct a hearing to
*65
(Cite as: 564 Pa. 36, *65, 764 A.2d 20, **36)
allow the defendants to establish a factual basis for this claim. The court, however, asserted a substantial degree of
control over the presentation of the evidence. When it became apparent that the defendants were proceeding on a
theory that was not sufficient to warrant dismissal, the court truncated the hearing, but nevertheless permitted the
defendants to make their proffers, which could be (and were) taken into account in the court's ruling on the merits of
the defense. The court's handling was clearly appropriate to the circumstances and judicious in administration. On the
merits, the court recognized and gave full effect to the patent distinction between the defendants' claim of de facto
legalization and good faith, reasonable reliance upon an official representation that conduct is in fact legal. Thus, it
properly denied the claim, concluding the pre-trial proceedings and permitting the prosecution to move forward.
[10]
[11]
[12]
In the present case, in their written motion, Appellees employed an approach very similar to
that of the defendants in Conley. They described the state of affairs in Western Pennsylvania, characterized by the
Conley court as disconcerting, alleging conduct on the part of local officials that certainly presented a colorable basis
to support a conclusion that Appellees might have been unfairly misled. Their motion, however, was patently ambiguous
as to whether the claim they were asserting was that they were truly ignorant of state law and acted in the good faith,
reasonable belief that the laws of Pennsylvania did not criminalize the conduct. The motion left open the substantial
possibility that Appellees were aware or had reason to believe that their conduct was in technical violation of the law,
but chose to proceed based upon lax or collusive conduct of local officials and a corresponding expectation that they
would not be prosecuted.FN21 In the face *66
(Cite as: 564 Pa. 36, *66, 764 A.2d 20, **36)
of such an **37
(Cite as: 564 Pa. 36, *66, 764 A.2d 20, **37)
ambiguity, a degree of judicial skepticism was warranted from the outset, particularly in view of Appellees' longstanding
connection to the game/vending industry. Although Appellees proceeded to develop an extensive record, most of their
evidence remains susceptible to multiple interpretations such as those described in Conley, 859 F.Supp. at 935-36, and
therefore does not satisfy Appellees' burden in relation to the critical distinction that must be made in the application of
the reliance doctrine as it relates to a pre-trial motion to dismiss. Indeed, Appellees' own expert witness effectively
made this point in the following cross-examination by the district attorney concerning the effect of a local ordinance:
FN21. As noted, we reject the argument that an expectation of non-enforcement, at least in the absence of
extraordinary circumstances, will support application of the reliance doctrine to bar a prosecution. Although the United
States Supreme Court has employed rhetoric that might support such application, see Laub, 385 U.S. at 487, 87 S.Ct.
at 581 (suggesting that the reliance doctrine may apply to assurance[s] that punishment will not attach), we read this
in the context of the other seminal reliance cases, and the Court's other decisional law. See, e.g., United States v.
Socony-Vacuum, 310 U.S. 150, 226, 60 S.Ct. 811, 846, 84 L.Ed. 1129 (1940)(indicating that tacit approval by, or the
implicit assurance of immunity from, government officials for actions known to be illegal is no defense). See generally
Parry, Culpability, Mistake, 25 am. J.Crim. L. at 42-43 (noting that [t]he Socony-Vacuum principle prevents the
reliance doctrine from undermining the evenhanded enforcement of the criminal law and decreases the incentives for
corruption that could arise if assurance[s] that punishment will not attach created a valid due process doctrine).
Moreover, to the extent that the focus of the inquiry could be shifted to enforcement rather than illegality, local officials
clearly lack the authority to bind state officials in this regard. Therefore, the reliance defense should not be made
available based upon their advice or conduct concerning enforcement efforts, particularly where the primary
enforcement occurs at the state level.
Q: [W]ould you agree with me that any of these ordinances do not legalize gambling?
A: They don't legalize it. But what they do is, I believe they place it in a position of video poker machine gambling or
video gambling on a de facto basis. They are saying we are turning a blind eye to this type of activity and we are not
enforcing the laws generally speaking in regard thereto.
Since the trial court adopted Appellees' factual findings and legal conclusions, its disposition similarly mixes their
conception of de facto legalization into the due process inquiry. This distortion of focus is evident not only in the fact
that the trial *67
(Cite as: 564 Pa. 36, *67, 764 A.2d 20, **37)
court hinged its ultimate conclusion upon its finding that Appellees believe[d] that they were engaging in conduct that
would not result in criminal prosecution, but also from the fact that the trial court's analysis accords no significance to
the Commonwealth's evidence that Appellees were at least on notice sufficient to require additional inquiry concerning
whether their conduct was proscribed-such evidence included, for example, Appellees' experience in the game business;
the character and necessity for modifications to machines; the labels and warnings provided by manufacturers; FN22
the terms of written ordinances; FN23 the testimony of some local officials concerning their refusal to license devices
that contained clearing and recording devices; and Appellees' knowledge of **38
(Cite as: 564 Pa. 36, *67, 764 A.2d 20, **38)
at least some enforcement efforts, albeit sporadic, originating from the state level.FN24
FN22. For example, the following warning from a manual was read into the record:
For Amusement Only. The operation of these games and the features therein may be subject to various state and local
laws and regulations. It is not intended therein to solicit the sale of such games in any jurisdiction wherein the same
may not be lawfully sold or operated.
FN23. For example, the Oakmont ordinance provided that:
[n]othing in this ordinance shall be in any way construed to authorize, license or permit any gambling devices
whatsoever for any machine or mechanism. Nothing in this ordinance shall in any way be construed to authorize, license
or permit any gambling device whatsoever or any machine mechanism that has been judicially determined to be a
gambling device or in any way contrary to law or that may be contrary to any future law of the Commonwealth of
Pennsylvania.
FN24. We acknowledge the need for deference from an appellate court to the trial court's factual findings and credibility
determinations. The absence of consideration for the Commonwealth's evidence and proposed inferences, however,
appears to have resulted from the trial court's wholesale adoption of Appellees' proposed findings and conclusions,
rather than from any assessment of credibility.
[13]
[14]
Focusing our inquiry upon whether Appellees established good faith, reasonable reliance upon an
interpretation of the law (as opposed to acting upon an expectation of non-enforcement), we find that Appellees failed
to establish that the due process reliance doctrine should operate to bar *68
(Cite as: 564 Pa. 36, *68, 764 A.2d 20, **38)
their prosecution. Simply put, the indicators are strong and prevalent that one substantially involved in the gaming
business would have good reason to inquire as to the state of the gambling laws, and that Appellees' circumstances
were not unique. Thus, the claimed reliance upon the circumstances found to be present cannot be said to be
objectively reasonable. FN25 MOREOVER, EACH OF The decisions in raley, cox and PICCO involved either some element
of immediacy or of ambiguity in the written law, and thus, susceptibility to administrative interpretation. Here, there is
no similar immediacy, as the record reflects a long-term practice of dealing in gambling implements, and no room for
administrative interpretation of the gambling laws concerning the distribution of per se gambling devices.FN26
FN25. We note that official conduct and not the defendant's mental state is the primary focus of the inquiry, see Smith,
940 F.2d at 714; however, the defendant's state of mind remains relevant as a measure of actual reliance. See id.
Moreover, the reasonableness of that reliance in the totality of the circumstances remains an essential consideration.
See generally id.; Nichols, 21 F.3d at 1018 (stating that the defendant's reliance must be reasonable in light of the
identity of the agent, the point of law misrepresented, and the substance of the misrepresentation (citations omitted));
People v. Woods, 241 Mich.App. 545, 560, 616 N.W.2d 211, 218 (2000) (when the citizen knows or should know
better, but attempts to seek immunity by claiming reliance on misinformation obtained from a government employee,
prosecution is not unfair and estoppel by entrapment should have no application).
FN26. See generally United States v. Weitzenhoff, 35 F.3d 1275, 1290 (9th Cir.1993)(emphasizing the focus of the
reliance doctrine upon a person sincerely desirous of obeying the law and the presence or absence of notice to make
further inquiries), cert. denied sub nom. Mariani v. United States, 513 U.S. 1128, 115 S.Ct. 939, 130 L.Ed.2d 884
(1995); United States v. Barker, 546 F.2d 940, 956 (D.C.Cir.1976) (Merhige, J., concurring)([t]he reasonableness of
reliance may dissipate if one depends on nonenforceable advisory opinions of minor officials); Conley, 859 F.Supp. at
936 ([r]eliance upon the ambiguous conduct of local officials in enforcing an otherwise clear statute of state-wide
application is not reasonable); id. at 935 (corruption of government officials-federal, state or local-certainly does not
raise Due Process concerns about prosecuting any of the parties involved); Parry, Culpability, Mistake, 25 am. J.Crim.
L. at 41 ([a]lthough these requirements [for the reliance doctrine] properly should be relaxed in situations in which
individuals are more likely to rely upon the statements of a government official, the same conditions suggest that such
representations should not bind the state beyond the immediate context in which they were provided).
*69
(Cite as: 564 Pa. 36, *69, 764 A.2d 20, **38)
The court in Conley perhaps employed a degree of understatement in describing the state of affairs described by the
defendants in that case, and Appellees here, as disconcerting. Certainly there is unequal treatment where Appellees are
subject to criminal prosecution while many others escape it, and the lodging of criminal charges against Appellees in
these circumstances touches upon community mores. The trial court's decision is understandable from this broader
frame. But the exercise of prosecutorial discretion by necessity is substantially insulated from judicial review, and
therefore, in the limited context of assessing a due process claim seeking to bar a criminal prosecution, the assessment
proceeds from a narrower perspective. As noted by the United States Supreme Court,
**39
(Cite as: 564 Pa. 36, *69, 764 A.2d 20, **39)
Judges are not free, in defining due process, to impose on law enforcement officials [their] personal and private
notions' of fairness and to disregard the limits that bind judges in their judicial function. [They] are to determine only
whether the action complained of ... violates those fundamental conceptions of justice which lie at the base of our civil
and political institutions, and which define the community's sense of fair play and decency[.]'
Dowling, 493 U.S. at 353, 110 S.Ct. at 674 (citations omitted).
In summary, we hold that Appellees failed to establish a claim pursuant to the due process reliance doctrine that would
bar their prosecution for gambling and related offenses. Accordingly, the order of the Superior Court is reversed, and
the case is remanded for further proceedings consistent with this opinion.
Justice ZAPPALA concurs in the result.
Copr. (C) West 2007 No Claim to Orig. U.S. Govt. Works Pa.,2001.
Com. v. Kratsas
564 Pa. 36, 764 A.2d 20

Briefs and Other Related Documents (Back to top)
1999 WL 33650577 (Appellate Brief) Combined Brief for Appellees (Oct. 27, 1999)
1999 WL 33650576 (Appellate Brief) Brief for Appellant (Jan. 01, 1999)
END OF DOCUMENT
50 P.S. 4405
Title 50 P.S. Mental Health
Chapter 12. Mental Health and Mental Retardation Act of 1966
Article IV. General Provisions Relating to Facilities; Admissions and Commitments (Refs & Annos)
4405. Commitment for emergency detention
(a) Whenever a person appears, by reason of his acts or threatened acts, to be so mentally disabled as to be dangerous
to himself or others and in need of immediate care, he may be taken into custody for the purpose of examination,
provided that:
(1) Only a relative, guardian, friend, individual standing in loco parentis to the person believed to be mentally disabled,
executive officer or authorized agent of a governmental or recognized nonprofit agency providing health or welfare
services, or a police officer may take such person into custody and then only upon written application approved by the
administrator or his delegate, and
(2) The acts or threats which give cause to believe the person to be mentally disabled and in need of immediate care
are overt, demonstrate a clear and present danger to self or others and are set forth in the application.
(b) Immediately upon being taken into custody, such person shall be taken with the approved application for
examination to a physician or designated facility for examination on an emergency basis: (i) When examination is made
by a physician who determines that such person is in need of immediate emergency care in a facility, he shall so certify
on the aforementioned application and upon request, local police or State police shall forthwith transport such person to
such designated facility where application shall be presented, the certificate filed with the facility, and the person
thereby committed for emergency care. (ii) When the examination is made at a designated facility and it is determined
by an examining physician that the person is in need of immediate emergency care, the examining physician shall file
the require certificate and the commitment of such person for emergency care thereby shall be effected.
(c) When the application is not made by a relative or the guardian, the director, upon reception of the person named in
the application, shall notify the appropriate relative or the guardian of the commitment of such person.
(d) If the examining physician shall determine that any person taken into custody by a police officer is not in need of
immediate emergency care in a facility, and the person in custody has committed a criminal act, the police officer shall
take such person to the proper issuing authority to be dealt with according to law. In all other cases such person shall
be returned to the place where he was taken into custody and released.
(e) No person who proceeds under the provisions of this section shall be held civilly or criminally liable therefor, unless
he acted maliciously and did not have probable cause to believe that the person taken into custody was suffering from
mental disability.
(f) Any person committed under this section may be detained for a period of not more than ten days. If during this
period the director finds that such person requires further care, he may admit the person on a voluntary commitment or
notify the applicant (other than a police officer), or the administrator of the county of the person's residence, to make
further application for such person's commitment under other provisions of this act.
CREDIT(S)
1966, Special Sess. No. 3, Oct. 20, P.L. 96, art. IV, 405, effective Jan. 1, 1967.
REPEALED IN PART
<Section 502 of the Mental Health Procedures Act, 1976, July 9, P.L. 817, No. 143 (50 P.S. 7502), repealed this
section except insofar as it relates to mental retardation or to persons who are mentally retarded.>

Involuntary commitment of the mentally ill. (1967) 5 Duq.L.Rev. 487.
Right of people to refuse treatment in medical facilities. Gabe Kaimowitz (1975) 13 Duq.L.Rev. 863.
Standards for involuntary civil commitment in Pennsylvania. (1977) 38 U.Pitt.L.Rev. 535.
LIBRARY REFERENCES
2001 Main Volume
Mental Health
37.1 to 40, 51.20.
Westlaw Topic No. 257A.
C.J.S. Insane Persons 48, 53, 56, 58, 93 to 99.
NOTES OF DECISIONS
In general 1
False imprisonment 2
1. In general
This section continues to be available where applicable, and is not limited to unincarcerated persons, and in the event
that a person charged with a crime is committed on an emergency basis under this section and a petition for
commitment is brought under 4408 of this title, the prisoner should remain in the mental institution while his
emergency mental disability persists until the court acts upon the commitment under 4408, or he is otherwise ordered
from the mental institution by a court of competent jurisdiction. 1976 Op.Atty.Gen. No. 23.
2. False imprisonment
County officials and examining psychiatrist were not liable in connection with temporary emergency commitment
procedures invoked against plaintiff, where plaintiff had mailed threatening letters and defendant officials had reason to
believe that he was serious about his threats and did not act out of vindictiveness or intent or injure plaintiff, while
psychiatrist did not participate in decision to institute commitment proceedings and had no responsibility for any alleged
procedural deficiency, and where this section under which proceeding took place was not clearly perceived to be
deficient liability for restraint commitment or as of 1973 when the events took place. Reese v. Nelson, C.A.3 (Pa.)1979,
598 F.2d 822, certiorari denied 100 S.Ct. 463, 444 U.S. 970, 62 L.Ed.2d 384. Counties
146; Health
709(1)
Pennsylvania two-year statutory limitations period for suits for false imprisonment, not its one-year limitation period for
suits for false arrest, applied to the unlawful confinement claims in patient's civil rights action against hospital staff.
Smith v. Wendell, E.D.Pa.1975, 390 F.Supp. 260. False Imprisonment
18
50 P.S. 4405, PA ST 50 P.S. 4405

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2005 Main Volume

Pa.R.A.P., Rule 2111

2 West's Pennsylvania Forms 56.0, Introductory Comment.

Pa.R.A.P., Rule 2185

2007 Electronic Update

Pa.R.A.P., Rule 2136

2005 Main Volume

Construction and application 1

Pa.R.A.P., Rule 3517

Purdon's Pennsylvania Statutes and Consolidated Statutes Annotated Currentness

(2) is expressly defined as a final order by statute; or

(2) an order dismissing a complaint but leaving pending a counterclaim;

Pa.R.A.P., Rule 301

Pa.R.A.P., Rule 1311

Westlaw Topic Nos. 110, 15A, 30.

Construction and application 1

Pa.R.A.P., Rule 1501

Order of July 8, 2004

Standard Pennsylvania Practice 166:249, Applicability of Pennsylvania Rules of Appellate Procedure.

Standard Pennsylvania Practice 132:490, Appeals by Commonwealth.

Reversal of conviction, remand 38

629 A.2d 1377, 535 Pa. 615. Criminal Law

31; Sentencing And

A.2d 240, 322 Pa.Super. 176.

32. ---- Abuse of discretion, scope of review

1147; Sentencing And Punishment

Super.1992. Criminal Law

SUPREME COURT CITATIONS

Order of July 7, 1997

Standard Pennsylvania Practice 85:80.5, Entry of Appearance.

Pa.R.A.P., Rule 1116

Pa.R.A.P., Rule 1121

FLEEING CASE LAW FOR LONGER MOTION TO DISMISS

HISTORICAL AND STATUTORY NOTES

14 West's Pennsylvania Practice V4, Vehicle Offenses (Title 75).

A.2d 24, 335 Pa.Super. 536, Super.1984. Double Jeopardy

859 F.Supp. 909

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156k62 Estoppel Against Public, Government, or Public Officers

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110 Criminal Law KeyCite Notes

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110k37(6) Particular Cases and Offenses

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