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COMMONWEALTH PENNSYLVANIA v. DANTE GILL (05/08/81)

filed: May 8, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DANTE GILL, DEBRA DREMSEK, FRANK KICIELINSKI, THOMAS CLIPP, APPELLANTS. COMMONWEALTH OF PENNSYLVANIA, V. DONNA M. POTTS, JOHN R. LEVEY, ALICIA CUTSINGER, SUSAN KIM CLARKE, APPELLANTS



No. 754 April Term, 1979, No. 821 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, Nos. 7801761, 7801762, 7801763, 7801764 [No. 754]; and Nos. 7802634, 7802849, 7802850, 7802851, 7802676, 7802677 [No. 821].

COUNSEL

Carl M. Janavitz and Rochelle S. Friedman, Pittsburgh, for appellants.

Charles W. Johns, Assistant District Attorney, Pittsburgh, did not file a brief on behalf of Commonwealth, appellee.

Robert L. McTiernam, Pittsburgh, for participating party.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.

Author: Lipez

[ 288 Pa. Super. Page 541]

The eight appellants in this matter pled guilty to various charges. They then took exception to the bill of court costs and other fees assessed against them. They now appeal the lower court's denial of their exceptions.

The appellants were before the court below in two groups of four, divided as indicated in the caption above. The prosecution of each group was, apparently, unrelated to that of the other; as far as can be determined, the two groups of cases have been consolidated for argument before us only because both groups of defendants pled guilty on the same day and were represented by the same attorney.*fn1

Appellants were charged, and pleaded guilty, as follows:

[ 288 Pa. Super. Page 542]

Name Originally charged with Pled guilty to

Gill promoting prostitution disorderly conduct

Dremsek prostitution disorderly conduct

Kicielinski promoting prostitution disorderly conduct

Clipp aggravated assault simple assault

Potts prostitution (2 counts) being an inmate of a

     promoting prostitution house of prostitution

(4 counts)

     criminal conspiracy

Levey promoting prostitution promoting prostitution

(4 counts)

     criminal conspiracy

(2 counts)

Cutsinger prostitution (2 counts) being an inmate of a

     criminal conspiracy house of prostitution

Clarke prostitution (2 counts) being an inmate of a

     criminal conspiracy house of prostitution

The court then ordered each defendant's sentence suspended upon payment of a fine and costs of prosecution. Since the court directed that the monies be paid "forthwith," the defendants proceeded immediately to the Office of the Clerk of Courts of Allegheny County, whose personnel determined the amounts. Appellants excepted below to the various assessments on a number of grounds, contending generally that the clerk had no authority to calculate the costs as he did. The court below, after an evidentiary hearing, denied appellants' exceptions. We agree with certain of appellants' arguments, and reverse as to them; the record being inadequate to allow us to determine some of the remainder, we vacate the order of the court below as to them and remand for an evidentiary hearing of such matters as we shall set forth.

The briefs and record leave much to be desired and we shall try now to organize the issues here in some coherent

[ 288 Pa. Super. Page 543]

    fashion. Since each of the eight appellants raised several objections to his or her own bill of costs, all presentations -- whether of law or of fact, whether in the court below or in this court -- should be divided into eight sections. Each appellant's section should then be subdivided into as many subsections as that appellant has legal challenges to the costs -- one challenge per subsection. If this case be appealed again, after remand, we expect that counsel and the court below will have followed this procedure.

Before we begin our analysis, we find it necessary to point out that most of the statutory provisions cited by both sides and the lower court have been repealed by the Judiciary Act Repealer Act (JARA).*fn9 This repeal has only limited effect on the law governing the case before us, however. Since a number of JARA's sections were special repeals which took effect June 27, 1979, the now repealed sections were still in effect in September of 1978, when these proceedings took place. Most of the other repealed laws have been replaced with Judicial Code*fn10 sections providing that the governing authority (i. e., the Supreme Court of Pennsylvania*fn11 ) shall prescribe, by general rule, the standards governing the activities formerly regulated by the repealed sections. Since the Supreme Court has yet to prescribe any such general rules, the so-called "fail-safe" provision of JARA*fn12 operates to receive the prior statutes into the common law of Pennsylvania. To avoid the boundless confusion inherent in frequent historical reference to the statutes whose repeal was effective nine months after the events they controlled

[ 288 Pa. Super. Page 544]

    and to the myriad statutes preserved in the limbo of the received common law until the Supreme Court promulgates appropriate general rules, we shall cite all such provisions as though they were in effect today.

The general propositions of law upon which we base our opinion in this matter are that costs must not be assessed except as authorized by law, Commonwealth v. Houck, 233 Pa. Super. 512, 335 A.2d 389 (1975); and that the burden of justifying, by a preponderance of the evidence, costs imposed upon a defendant rests upon ...


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