Commonwealth v. Bollinger

418 A.2d 320, 274 Pa. Super. 112, 1979 Pa. Super. LEXIS 3513

• Court: Superior Court of Pennsylvania
• Decided: December 21, 1979
• Docket: 363, 364, 374 and 375
• Status: Published

Opinions

SPAETH, Judge:

We are concerned with four separate appeals — one by one co-defendant, one by the other co-defendant, and two by the Commonwealth. Each of the co-defendants alleges that he should be discharged on the ground that the evidence was insufficient to sustain his convictions, and, in the alternative, that he is entitled to a new trial. The appeals filed by the Commonwealth challenge the refusal of the lower court to order the co-defendants to make restitution, or to tax the costs of prosecution to the co-defendants. The appeals were consolidated, and this opinion disposes of all four appeals.

The facts are set forth in Judge PRICE’S dissenting opinion. For the reasons stated in Judge PRICE’S opinion and footnote 1 of this opinion, a majority of the court believes that all of Donald Schlosser’s convictions must be vacated for want of sufficient evidence, and that for the same reasons all of Clair Bollinger’s convictions, except his conviction of forgery, must also be vacated.¹ In Part I of this opinion, the majority of this court sets forth its reasons for sustaining Bollinger’s conviction of forgery. Part II of this opinion addresses the issues raised in the Commonwealth’s appeals.

I.

The Commonwealth indicted Bollinger in a single bill for four separate forgeries. The jury found him guilty on all charges of forgery, and the lower court sentenced him to three years probation (to run consecutively to Bollinger’s sentence for misbehavior in office) and fined him $3000. While we have some doubts concerning the sufficiency of the evidence concerning one of the forgeries,² we are satisfied that the evidence was sufficient to prove that Bollinger committed the other three forgeries charged. Furthermore, we find no merit in any of Bollinger’s arguments for a new trial.

First Forgery

Reviewing the evidence at trial in the light most favorable to the Commonwealth, the following facts were established. In May or June 1972 Bollinger, who was the Superintendent of Memorial Stadium, handed a bill to Schlosser’s secretary that stated:

Sir: To install and complete fence around Memorial Two Diamond 1700' of 60" fence and 600' of 42" fence. $458.00. Thank you, Fred Fuller, 160 Hamilton Avenue, York, Pennsylvania.

Since the bill carried the written O.K. of Schlosser, the secretary prepared a purchase order for it and took the purchase order to the City Treasurer’s Office. The Treasurer’s Office then issued a check payable to Fred Fuller in the amount of $458. Instead of forwarding the check to Fuller, however, the secretary held it for Bollinger on Bollinger’s and Schlosser’s instructions. The check, which was introduced as an exhibit, indicated that it had been endorsed by Fuller and Bollinger, as Fuller’s agent. However, Fuller testified that he never submitted the above bill to anyone, never received the check or money for the check, never signed the check, and never gave Bollinger permission to sign checks for him. A stipulation was agreed to by counsel that Bollinger endorsed both his and Fuller’s names on the check and that it had been deposited in Bollinger’s personal checking account.

To convict Bollinger of forgery, the Commonwealth was required to prove 1) the false making of some instrument in writing that was apparently capable of affecting a fraud and working an injury to another; and 2) a fraudulent intent. Commonwealth v. DiPiero, 205 Pa.Super. 312, 208 A.2d 912, allocatur refused 205 Pa. Superior Ct. xxxvii (1965), cert. denied 382 U.S. 992, 86 S.Ct. 574, 15 L.Ed.2d 479 (1966) . No question exists that Bollinger processed a false bill, and that the bill was capable of effecting a fraud on the City. The only issue is whether Bollinger intended to defraud the City in preparing the bill and depositing the City’s check in his personal checking account. The dissent maintains that this intent was not proved because

the testimony of [the witnesses] supported Bollinger’s claim that they were paid for additional work for which Bollinger was not reimbursed by the city, and that he paid for part of the materials used in maintaining the stadium complex. Thus, while an immediate ‘profit’ appears to have been made ... we [do not] feel that prejudice on the part of the city could be established absent testimony regarding the bottom line of Bollinger’s activities. No evidence was presented to support a finding that he obtained an ultimate profit nor that the operation was conducted with an intent to defraud . the city

Dis. op. at 138.

We disagree both with the dissent’s factual statement that the testimony supports Bollinger’s claim that he did not profit by depositing Fuller’s check into his personal bank account and with the dissent’s legal conclusion that in order to establish Bollinger’s fraudulent intent the Commonwealth had to establish “the bottom line of Bollinger’s activities.”

First, Fuller’s testimony did not support Bollinger’s claim. that he paid for part of the materials used in improving the stadium complex. The only testimony given by Fuller on this score was that he did not supply the fence he installed at Memorial Two Stadium but that Bollinger did. N.T. at 244. The natural inference from this statement is not that Bollinger paid for the fence, a fact concerning which Fuller had no apparent knowledge, but that as Supervisor of Memorial Stadium, Bollinger had the fence delivered to the installation site for Fuller to install.³

Second, Fuller’s testimony does not establish that Bollinger paid $458 out of his own pocket for work done by Fuller for the City. The record shows that Fuller may have done work for the City at other times and other parts of the Memorial Stadium Complex for which Bollinger paid him from his personal funds. For example, in August and September of 1971, or approximately nine months before the date of Bollinger’s fictitious bill, Fuller installed fence around another ball diamond for which Bollinger paid him by personal checks. However, only two or three checks were involved, the largest one being in the amount of $28.05. N.T. at 249, 255. Furthermore, although Fuller also stated that he sometimes received cash payments from Bollinger, he did not say when these payments were received or what they were for. Since Fuller testified that he and his wife rendered Bollinger numerous personal services at Bollinger’s house and elsewhere, see, e. g., N.T. at 251, 257, the jury could have concluded that at least some of these payments were for services that did not benefit the City. Moreover, Fuller stated that he was paid by the City for installing the fence listed in Bollinger’s bill, N.T. at 256, and that all the fence he put up was on City time, except for 75 feet, N.T. at 257.⁴

Third, the law has never required proof that the accused has obtained “an ultimate profit” in order to establish the fraudulent intent necessary for a forgery conviction. Intent to injure or defraud may be inferred from the doing of wrongful, fraudulent, or illegal acts which in them necessary results naturally produce loss or injury. Commonwealth v. Wheeler, 200 Pa.Super. 284, 189 A.2d 291 (1963); Commonwealth v. Grant, 121 Pa.Super. 399, 183 A. 663 (1936); Commonwealth v. Huster, 118 Pa.Super. 24, 178 A. 535 (1935); Commonwealth v. Brown, 96 Pa.Super. 13 (1929). In cases analogous to the present one we have looked to the totality of the defendant’s conduct to infer fraudulent motive. See Commonwealth v. Bhojwani, 242 Pa.Super. 406, 364 A.2d 335 (1976); see also Commonwealth v. Francis, 201 Pa.Super. 313, 191 A.2d 884 (1963), cert. denied, 375 U.S. 985, 84 S.Ct 517, 11 L.Ed.2d 472 (1964). Here the Commonwealth proved that Bollinger prepared a fictitious bill for work that the City had already paid Fuller for doing. It further proved that Bollinger obtained the check issued by the City to Fuller on the basis of this bill, signed Fuller’s name on the check, and then had the check deposited in his personal checking account. Bollinger’s deception of the City underlies this entire episode, and this deception, establishes Bollinger’s fraudulent intent. Otherwise, if Bollinger sought only reimbursement for City expenses he personally incurred, why did he not simply submit a bill to the City in his own name for those expenses?

The dissent faults the Commonwealth for failing to prove that Bollinger did not return in some manner the $458 he obtained from the City through deceit. In other words, the dissent requires the Commonwealth to trace Bollinger’s entire income and expenditures during the years he was Supervisor of Memorial Stadium and prove that the expenses he incurred on the City’s behalf were less that the $458 he took from the City. In other situations, we have noted the difficulty in tracing specific monies through a commercial checking account. See Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976). Here, Bollinger supervised substantial improvements to the City’s Memorial Stadium Complex, involving a great many transactions with suppliers, contractors, and laborers. If the law demanded the proof that the dissent says it demands, in many cases a public or private employee would be immune from conviction for defrauding his employer, since it would be impossible to prove that at some point during his employment he never returned the value of the property he wrongfully obtained through extra services or by the voluntary payment of the employer’s miscellaneous expenses.

Furthermore, the proof the dissent requires of the Commonwealth would not establish that Bollinger’s intent was fraudulent. Supposing that the Commonwealth were able to trace all of Bollinger’s income and expenditures during the period he was Supervisor of Memorial Stadium and the net tally showed an unauthorized profit for Bollinger of $458, this proof still would not show that Bollinger’s retention of the funds resulted from fraud rather than mistake. What establishes Bollinger’s fraudulent intent is the deception he used to obtain City funds for personal use in the absence of any apparent legitimate explanation for his actions.⁵

Second and Third Forgeries

The Commonwealth’s evidence established that in August or September of 1971 Bollinger handed two bills to Schlosser’s secretary, both purportedly from William Mitchell. The first bill stated that it was for repairing the backstop on Memorial Two Diamond, for raising the infield with topsoil and sand, and for taking down old snow fence and replacing it with new. The bill was in the amount of $745. The second bill stated that it was for:

Work done on Memorial One Softball Field: Spread topsoil and mix with existing infield to raise infield 5 inches by hand rake, $795.00. Tear down old backstop and erect new chain link backstop, total being $1,125.00. Thank you, William Mitchell.

Both bills carried the written O.K. of Schlosser, and the secretary prepared purchase orders for the bills, and forwarded them to the Treasurer’s Office. The Treasurer then issued checks to William Mitchell in the amounts of $745 and $1,125. The checks, which were introduced into evidence, carried the endorsements of William Mitchell and Clair Bollinger. However, Mitchell testified that he did not submit the bills, did not do the work indicated on the bills, did not receive the checks, and did not give Bollinger permission to sign checks for him. A stipulation was agreed to by counsel that Bollinger endorsed both his and Mitchell’s names on the checks, and then had them deposited in his personal checking account.

The dissent maintains that this evidence was insufficient to convict Bollinger of forgery because Mitchell stated that he was sometimes paid for work he did at the Memorial Stadium Complex by Bollinger out of Bollinger’s personal checking account. More specifically, Mitchell stated that he would receive $200 or better from Bollinger in small checks “over a period of time,” N.T. at 286, and Bollinger’s attorney introduced two checks dated in August 1971 that were payable to Mitchell on Bollinger’s personal checking account.⁶ However, the total of these checks was only $110, or $1,760 less than the amount Bollinger received from the City in Mitchell’s name. Furthermore, it was not entirely clear that these small amounts Bollinger paid Mitchell were for services rendered to the City rather than to Bollinger personally.⁷

Again, this evidence was sufficient to convict Bollinger of forgery.

New Trial

Bollinger’s arguments for a new trial may be disposed of summarily. Three of his four arguments allege that Bollinger’s co-defendant, Donald Schlosser, was prejudiced by rulings of the lower court. He does not allege, however, that he was prejudiced by the rulings, and thus the arguments must be rejected.⁸ The remaining argument attacks the lower court’s jury charge. Bollinger alleges that the charge unduly emphasized the Commonwealth’s theory of prosecution, but nowhere does he cite specific instances where this occurred. Nevertheless, we have read the court’s entire charge, and conclude that this claim is frivolous.

Even though we find the evidence sufficient to sustain Bollinger’s conviction for forgery, and grounds for a new trial do not exist, we nevertheless must vacate the sentence imposed upon this conviction and remand for resentencing. Bollinger’s convictions of larceny by employee, theft by failure to make required disposition of funds, and misbehavior in office may have influenced the sentence imposed by the court on the forgery conviction. “[W]here one of two or more convictions has been held invalid . [and the invalid conviction] ‘may have influenced the sentence becomes apparent on an appeal, . . . the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid one.’ ” Commonwealth v. Grant, 235 Pa.Super. 357, 365-66, 341 A.2d 511, 515 (1975), quoting Commonwealth v. Lockhart, 223 Pa.Super. 60, 65, 296 A.2d 883, 886 (1972).

II.

The Commonwealth appeal⁹ alleges that the lower court erred by 1) not ordering Bollinger to make restitution, and 2) not taxing the costs of prosecution to Bollinger.

Because the Commonwealth, in most instances, cannot appeal from the judgment of sentence imposed on a defendant, Commonwealth v. Marks, 442 Pa. 208, 275 A.2d 81 (1971); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971), we have grave doubts concerning the Commonwealth’s right to question the propriety of the lower court’s refusal to order restitution.¹⁰ In any case, in arguing that the lower court erred by not ordering restitution, the Commonwealth relies on a statutory provision that was repealed forty years ago. See 19 P.S. § 981 (1964), repealed in part by the Penal Code, Act of June 24,1939, P.L. 872, § 1201,18 P.S. § 5201 (1963); see also Commonwealth v. Flashburg, 237 Pa.Super. 424, 352 A.2d 185 (1975); Commonwealth v. Gross, 161 Pa.Super. 613, 56 A.2d 303 (1948). At the time Bollinger committed the forgeries,¹¹ the Penal Code gave sentencing courts discretion in deciding whether or not to order restitution. See 18 P.S. § 5109 (1973-74 Supp.), repealed by the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 5, 18 Pa.C.S.A. (1973).¹² The Commonwealth has not demonstrated that the lower court committed any sentencing abuse.

The above problems do not surround the Commonwealth’s appeal from the lower court’s order refusing to tax the costs of prosecution to Bollinger. The taxation of costs in a criminal prosecution does not form a part of the penalty imposed by the statute providing for the punishment of the criminal offense. Commonwealth v. Soudani, 193 Pa.Super. 353, 165 A.2d 709 (1960); Commonwealth v. Dunleavy, 16 Pa.Super. 380 (1901). Rather, taxation of costs is an incident of the judgment, Commonwealth v. Denson, 157 Pa.Super. 257, 40 A.2d 895 (1945), and a person upon whom costs are taxed has the right to appeal from the taxation order. Commonwealth v. Charters, 20 Pa.Super. 599 (1902). In the present case, the lower court has imposed the costs of prosecution upon the county, and thus the county has the right to appeal.¹³

It is established that a person convicted of a crime is liable for the costs necessarily incurred in the prosecution. See Commonwealth v. Davy, 456 Pa. 88, 317 A.2d 48 (1974); Commonwealth v. Smith, 239 Pa.Super. 440, 361 A.2d 881 (1976); Upsey v. Secretary of Revenue, 193 Pa.Super. 466, 165 A.2d 267 (1960); Commonwealth v. Garramone, 115 Pa.Super. 588, 176 A. 263 (1935); Commonwealth v. Evans, 59 Pa.Super. 607 (1915); 19 P.S. § 1223 (1964), repealed by the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [377], 42 Pa.C.S.A. § 20002(a)(2) [377] (1979 Pamphlet) (effective June 27,1979). Thus, Bollinger is liable for the costs necessarily incurred in prosecuting him for forgery.¹⁴ The Commonwealth claims that these costs include $11,095.10 for the fees of an accountant retained by the district attorney to examine and audit the Memorial Stadium Fund, and an additional $1,182.19 for other prosecution expenses. However, the lower court found that the accountant’s services were of minimal value to the Commonwealth’s prosecution of Bollinger. Slip op. of the lower court at 2-3. A review of the record supports this assessment. The accountant’s testimony at trial had little bearing on any of the charges against Bollinger, and no relevance to the forgery charges. In addition, nothing in the record indicates that the accountant’s pre-trial investigations uncovered evidence that permitted the Commonwealth to secure the forgery convictions. Since Bollinger is liable for the accountant’s fees only if they were necessarily incurred to secure his convictions, Commonwealth v. Hower, 267 Pa.Super. 182, 406 A.2d 754 (1979); 16 P.S. § 1403 (1956), and since it was the Commonwealth’s burden to show that the fees were necessarily incurred, Commonwealth v. Coder, 252 Pa.Super. 508, 522, 382 A.2d 131, 138-139 (1977) (CER-CONE, J., dissenting), Bollinger is not liable for them.

The record, however, is inadequate for us to determine Bollinger’s liability for the remaining costs claimed by the Commonwealth. It seems clear that Bollinger is liable for some of the costs. However, the bill of costs submitted by the Commonwealth to the lower court does not disclose the nature of the largest expense ($767.99) included in the bill. Furthermore, the bill appears to include extraordinary transportation expenses that were unnecessary to Bollinger’s prosecution. See Slip op. of the lower court at 3-4.

The lower court refused to impose any costs on Bollinger, in part because of the difficulties in allocating to Bollinger his proper share of the costs. The court did, however, find Bollinger $3,000 with the understanding that the fine would be for “the use of the county, as a penalty, which would reimburse the county in part for the expenses of this prosecution . . . .” Slip op. of the lower court at 4. We need not decide now whether a court may properly refuse to impose costs on a convicted defendant when it fines the defendant in any amount exceeding the costs of prosecution, and also directs that the fine is for the use of the county. For the reasons already stated, we must vacate the judgment of sentence imposed on Bollinger, including the $3,000 fine. Thus, at this time, no order exists protecting the county’s right to reimbursement from Bollinger for the costs of his prosecution. Given this circumstance, we believe that the lower court’s order refusing to impose costs on Bollinger must be vacated. On remand the lower court should consider the issue of costs separately from the issue of what fine, if any, should be imposed upon Bollinger.

Donald Schlosser’s convictions are reversed and he is discharged; Clair Bollinger’s convictions of larceny by employee, theft by failure to make required disposition of funds, and misbehavior in office are reversed. His conviction for forgery is sustained, and the judgment of sentence imposed on the forgery conviction is vacated and the case remanded for resentencing. The lower court's order refusing to tax the costs of prosecution against Donald Schlosser, or to order him to make restitution is affirmed. The lower court’s order refusing to tax the costs of prosecution against Clair Bollinger is reversed.

PRICE, J., files a dissenting opinion in which VAN der VOORT, J., joins. JACOBS, former President Judge, did not participate in the consideration or decision in this case.

1 . As the discussion below indicates, the majority believes the evidence was sufficient for the jury to find that Bollinger wrongfully obtained money from the City of York on the basis of false bills he prepared and submitted to the City for payment. However, in doing so, Bollinger did not commit larceny by employee. A person is guilty of larceny by employee if

being in the employ of another, by virtue of such employment, [he] receives and takes into his possession any chattel, money or valuable security, which is or may be made the subject of larceny, for, or in the name, or on account of his employer, and fraudulently embezzles the same, or any part thereof, although such chattel, money or security was not received into possession of such master or employer otherwise than by the actual possession of his employ-

Act of June 24, 1939, P.L. 872, § 815, 18 P.S. § 4815, repealed by the Act of Dec. 6, 1972, P.L.-, No. 334, § 5.

This statute, as the Historical Note accompanying it makes clear, was designed to eliminate a loophole existing at common law that allowed criminally culpable employee to escape punishment. At common law it was

not larceny in a servant or other employé, to convert to his own use property received by him for the use of his master or employer, which had never otherwise been in the possession of such master or employer, and where such servant or employé has done no act to determine his original lawful and exclusive possession, as by depositing the goods in the master's house or the like. ... A nice and highly artificial distinction between what was, and what was not, a sufficient possession in the master of the property purloined, [thus] enabled the offenders to escape with impunity. It [was] to obviate such results, which are really discreditable to criminal justice, and to protect masters and employers from the want of fidelity of those in whom they are compelled, from the exigencies of business, to confide, that this section was introduced. Historical Note to 18 P.S. § 4815 (1963).

When Bollinger received money from the City on the basis of the false bills he prepared and submitted, he did not violate this statute because he was not receiving property from a third party “for, or in the name, or oh account of his employer [i. e. the City].” Bollinger may have been guilty of other offenses when he received the money from the City — e. g. cheating by fraudulent pretenses, 18 P.S. § 4836 (1963) or embezzlement by public employee, 18 P.S. § 4822 (1963). Indeed, the Commonwealth indicted Bollinger on these offenses. However, since at trial the lower court sustained Bollinger’s demurrer to these charges, and since the Commonwealth has not appealed from the lower court’s order, it is unnecessary to decide whether the Commonwealth’s evidence would have been sufficient to convict Bollinger of these offenses.

Furthermore, the majority agrees with Judge PRICE that the Commonwealth failed to prove that Bollinger was guilty of larceny by employee based upon the other incidents mentioned by the lower court. We note, however, that we do not subscribe to the dissent’s statement that this failure of proof is tied to the $1,500 to $1,700 remitted by Bollinger to the City in 1974. That money comprised only rental monies collected in 1974; it did not comprise monies received in preceding years; N.T. at 184. However, the Commonwealth stipulated that the City received checks from the Memorial Stadium Fund in 1973 totalling $1,303.68, N.T. at 387, and failed to show that this remittance was insufficient to cover the amount owed by Bollinger to the City prior to 1974.

Also, for reasons similar to those mentioned above, the majority believes that Commonwealth’s proof was insufficient to convict Bollinger for theft by failure to make required disposition of funds, and that the evidence was insufficient to support Schlosser’s convictions. Although the evidence showed that Schlosser negligently mishandled the City’s affairs by failing to detect Bollinger’s forgeries and by instituting procedures that allowed Bollinger to commingle the City’s funds in a private bank account, we do not believe that the Commonwealth’s proof rose above a showing of incompetence to the level of bad faith or corrupt motive necessary for a conviction for misbehavior in office.

Finally, the author of this opinion wishes to note that although the majority of the court has concluded that the evidence was insufficient to sustain Bollinger’s conviction of misbehavior in office, this author believes that the evidence was sufficient. See generally Commonwealth v. Steinberg, 240 Pa.Super. 139, 362 A.2d 379 (1976); Commonwealth v. Green, 205 Pa.Super. 539, 211 A.2d 5 (1965).

2 . This forgery concerned a check that was issued by the City of York to Charles Moul, Sr., for work allegedly performed at the Memorial Stadium Complex. At trial, Moul could not remember whether or not he performed this work, and did not state what amount, if any, he received from Bollinger for whatever work he may have performed.

3 . It may be noted that the fictitious bill Bollinger prepared in Fuller’s name was only for the installation and completion of a 2,300 foot fence. The bill did not state that it included the cost of the fence itself.

4 . Also, it may be noted that although Fuller acknowledged one other specific payment from Bollinger, a $400-$450 loan to go to Hawaii, Fuller subsequently repaid $260-$270 of the loan by endorsing over his City paychecks to Bollinger.

5 . Although Bollinger’s failure to testify at trial cannot be construed as an inference of guilt, it may properly be noted to dispel the erroneous implication in the dissenting opinion that he did testify. See op. at 129.

6 . Although Mitchell denied ever receiving these checks, or that the checks were endorsed by either him or his wife, the Commonwealth stipulated that if officers of the Drovers and Mechanics Bank were called, they would testify that these checks were either deposited or cashed by Mitchell’s wife.

Bollinger’s attorney also introduced three other checks payable to Mitchell on Bollinger’s personal account that were written between September and November 1971. The amounts of these checks do not appear in the trial transcript, and the exhibits have not been transmitted to us on this appeal. However, the amounts of these checks also appear to have been small.

7 . Mitchell testified that at least some of the payments he received from Bollinger were for services rendered at a concession stand at the Memorial Stadium Complex. This stand was leased by the City for a percentage of the proceeds to a private concessionaire, who in turn employed Bollinger to assist in running the stand. There was no evidence that the City was ever directly involved in the operation of the stand or that it was obliged to provide personnel to operate it, although Mitchell did testify that he sometimes worked in the stand on City time until he was told in 1974 by a City official that he should stay out of it. Thus, it appears that part of Bollinger’s payments to Mitchell were on behalf of the concessionaire, not the City.

8 . Bollinger argues that the lower court abused its discretion by granting the Commonwealth’s motion to consolidate the trials because most of the evidence presented at trial was against him and not Schlosser. Bollinger also argues that the lower court erroneously admitted evidence that was inadmissible against Schlosser; there is no question however, that this evidence was admissible against Bollinger. Finally, Bollinger argues that because the lower court dismissed at trial five of the seven charges against Schlosser, it should have ordered a new trial.

9 . As noted above, the Commonwealth has filed two appeals, one of which challenges the lower court’s refusal to impose costs upon Schlosser, or to order Schlosser to make restitution. Since this court has concluded that the evidence was insufficient to sustain any of Schlosser’s convictions, the lower court did not have the power to enter such orders.

10 . It may be noted that the Commonwealth’s right to appeal in future cases attacking a sentence on the ground that the sentencing court abused its discretion will be greatly expanded once the Pennsylvania Sentencing Commission promulgates sentencing guidelines. See Act of Nov. 26, 1978, P.L. 1316, No. 319, § 3, 18 Pa.C.S.A. § 1386 (Supp. 1979-80) (eff. Jan. 1, 1979).

11 . Although Bollinger was not sentenced until after the effective date of the Crimes Code, it has been held that for crimes committed under the old Penal Code, the sentencing provisions of the Penal Code apply, no matter if the defendant is not sentenced until after its repeal. Commonwealth v. Stouffer, 241 Pa.Super. 142, 359 A.2d 829 (1976).

12 . 18 Pa.C.S.A. §§ 1106(a), 1321(c) (Supp. 1979-80) are the current provisions permitting a court to order the perpetrator of the crime to make restitution to the victim.

13 . Bollinger has not asserted that the district attorney is without standing to represent the interests of the county on this appeal, and we have not considered the issue. But cf. Commonwealth v. Trunk, 320 Pa. 270, 182 A. 540 (1936) (in a criminal prosecution the district attorney represents the interests of the county as well as the interests of the Commonwealth).

14 . Bollinger, however, is not liable for the costs of prosecution on any of the charges on which he was not convicted, or on the convictions that we reverse today. Commonwealth v. Smith, supra; Commonwealth v. Soudani, supra.