author: BROSKY, Judge: WIEAND, Judge,

text:
    457 A.2d 514
    COMMONWEALTH of Pennsylvania, Appellant, v. Phillip TOMASSO.
    Superior Court of Pennsylvania.
    Argued April 21, 1982.
    Filed Jan. 21, 1983.
    Reargument Denied April 4, 1983.
    Petition for Allowance of Appeal Granted Oct. 6, 1983.

      . Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Richard W. Hoy, Philadelphia, submitted a brief on behalf of appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

This is an appeal taken by the Commonwealth from a judgment of sentence for Terroristic Threats and Robbery. After a trial without jury, sentence was imposed. Appellee was sentenced to seven years strict reporting probation in conjunction with participation in a drug treatment program. The Commonwealth filed a motion to modify the sentence which was denied after a hearing. Appellant raises two issues on appeal. They are: (1) That the sentencing court abused its discretion in not sentencing appellee in accordance with the interim sentencing guidelines act. (2) That an increase of sentence on appeal would not violate the prohibition against double jeopardy. Due to our deciding the first issue against appellant, the second issue is moot. We therefore affirm.

On appeal, appellant argues for five grounds supporting his contention on the first issue. The first matter before us is to determine which of these grounds have been preserved for appellate review. It is, of course, not sufficient that a general issue be preserved. The specific grounds supporting that issue must also be preserved. Commonwealth v. Polof 238 Pa.Super. 565, 362 A.2d 427 (1976). Failure to so preserve the distinct grounds for an issue deprives the trial court of the opportunity to make a fully informed evaluation of the issue.

In Commonwealth v. Stufflet, 291 Pa.Super. 516 at 519, 436 A.2d 235 at 237 (1981), this court stated:

In the usual case, the failure of counsel to interpose a timely objection at the sentencing proceeding results in a waiver of the issue ... as does the failure to file an appropriate motion to modify the sentence imposed.

(Citations deleted) (emphasis supplied).

Thus, a sentencing issue must be raised twice below (as well as on appeal): once before the trial court at the sentencing proceeding and again in the motion to modify sentence.

The same grounds for an issue must similarly be raised at each of these three levels to activate appellate review. This is merely a reflection of the procedures required to preserve non-sentencing issues. Namely, a timely objection must be made at trial, in post-trial motions and on appeal. The issue must be preserved in all three instances, as must the grounds supporting the issue.

On appeal, the Commonwealth argues that the sentence was unreasonable in that: (1) It failed to follow the interim guidelines. (2) It ignored the legislative intent of the interim guidelines to protect the public. (3) It was based on inaccurate information, the correct version of which is: (i) That the pre-sentence report did in fact recommend incarceration. (ii) That Judge Cain had not yet acted on appellee’s parole violation, (iii) That appellee had previously participated in drug treatment programs.

Argument (3)(i), above, was argued at the sentencing hearing but not brought out in the R. 1410 motion or hearing. It is, therefore, waived. Argument (3)(ii), above, was raised only on appeal and is, therefore, waived. Argument (3)(iii), above, was included in a report submitted at the R. 1410 hearing, and, for purposes of that proceeding is preserved. Commonwealth v. Woods, 275 Pa.Super. 392, 418 A.2d 1346 (1980). However, it was not raised at the sentencing hearing and is, therefore, waived.

Argument (1), above, was presented at both opportunities below, and is, therefore, preserved. Argument (2), above, was presented in different wording at the sentencing hearing. There, the Commonwealth made reference to the deadly weapon involved in the crime. In its R. 1410 motion, appellant made reference to appellee’s prior convictions for robbery. On appeal, as has been noted, the argument was phrased in terms of the need to protect the public. While phrased in different forms at each level, the same underlying argument was presented each time. This argument is also, therefore, preserved for appeal. To summarize, grounds (1) and (2) have been preserved for appeal. We can now turn to a review of the issue, as framed by the preserved arguments, on its merits.

The interim sentencing guidelines are not mandatory. “... the sentencing court shall consider as a guideline in imposing sentence...” (emphasis supplied). Where the court sentences an individual to a term less than that stated in the guidelines, the act requires that the court provide a contemporaneous written statement describing the reasons for the sentence. This was done.

Upon appellate review, the act provides that the appellate court shall vacate the sentence if the sentencing court sentenced outside the guidelines and the sentence was “unreasonable.” The sentence herein was outside the guidelines and our task is to determine if the sentence was unreasonable.

The two grounds upon which the sentence can be found to be unreasonable are the two grounds preserved for appeal. (1) The court failed to follow the interim guidelines. (2) The sentence ignored the legislative intent of the interim guidelines to protect the public.

With regard to the second argument, the trial court opinion dealt at length with appellee’s history. Particular emphasis was put on his successful progress in a drug rehabilitation program over a period of six months at the time of sentencing. The trial court opinion concluded that, “Provided he [appellee] successfully completes his rehabilitative treatment, the circumstances of his criminal conduct are unlikely to recur.”

The decision-making process of the trial court is apparent from its opinion and the transcripts of the sentencing hearing and sentence modification hearing. In that process the interest in protecting the public was not ignored. The reasoning went as follows: The appellee would pose less of a threat to society if he were to continue in the drug treatment program on strict reporting probation; than if he were to discontinue his participation in the program and be confined to prison. Following that prison term, appellee would eventually be released back into society without the benefit of his successful completion of the drug rehabilitation program. Since it was his drug abuse which had led to his criminal activity, the drug abuse and consequently the criminal activity could then be expected to resume.

Under these circumstances, we cannot say that the sentence ignored society’s interest in being protected. On that basis, the sentence was not “unreasonable.”

We affirm.

WIEAND, J., files dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. Not only do I disagree with the majority’s concept of waiver, but I believe the sentence of probation imposed upon appellee in this case was outside the sentencing guidelines and unreasonable. The conviction for robbery was appellee’s third felony conviction and his second robbery conviction within a six year period. He has yet to be sentenced to prison, primarily, it seems, because he is a drug abuser. Drug abuse, however, is not a mitigating factor; in most cases it is an aggravating circumstances. It should not be an adequate reason for departing from sentencing guidelines. This is particularly so where, as here, appellee has refused to cooperate with prior efforts designed to achieve his drug rehabilitation. Under these circumstances I would find that the applicable sentencing court abused its discretion by departing from the sentencing guideline which, in order to protect the public, recommended a sentence of imprisonment. I would remand for re-sentencing.

      . 18 Pa.C.S.A. 2706.

      . 18 Pa.C.S.A. 3701.

      . Pa.R.Crim.P. 1410.

      . Acts 1978, P.L. 1316, No. 319, § 5.

      . Two subsidiary matters were open questions in the law at the time of filing of briefs. First, does Pa.R.Crim.P. 1410 apply to appeals based on departures from the interim sentencing guidelines? Second, must the Commonwealth file such a R. 1410 motion to preserve its appeal? Both questions have recently been answered in the affirmative. Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (en banc) (Wieand, J.). Since the Commonwealth timely filed a R. 1410 motion, no bar is raised in this regard.

      . Or, alternatively, in the hearing on the motion to modify sentence.

      . Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980).

      . Or, where appropriate, in a pre-trial proceeding.

      . For example, if a motion to suppress the contents of a box taken from a locked automobile trunk is made at the suppression hearing and as error to deny in post-trial motions (and hearing) only on the grounds that the trunk should not have been opened; arguments will not be heard for the first time on appeal that the contents should be suppressed because the box itself should not have been opened.

      . Acts 1978, P.L. 1316, No. 319, § 5(a).

      . Id. § 5(b).

      . Id. § 5(e).

      . Appellant’s first issue, as to the failure to follow the non-mandatory guidelines, similarly does not result in the sentence being unreasonable.

      . The applicable guideline was contained in Section 5 of the Act of November 26, 1978, P.L. 1316, 42 Pa.C.S. § 2155 (note), which recommended a sentence of "not less than four years imprisonment” for a second conviction of robbery.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    457 A.2d 518
    Dorothy A. BOYLE and Roland J. Christy, Esquire, Executors of the Estate of Philip Horstman, Deceased v. Violet M. HORSTMAN, Lansdowne Savings and Loan Association and Marple Newtown Federal Savings and Loan Association. Appeal of Violet M. HORSTMAN. Dorothy A. BOYLE and Roland J. Christy, Esquire, Executors of the Estate of Philip Horstman, Deceased, Appellants, v. Violet M. HORSTMAN.
    Superior Court of Pennsylvania.
    Argued April 22, 1982.
    Filed Jan. 21, 1983.
    Reargument Denied April 4, 1983.
    Petition for Allowance of Appeal Denied July 22, 1983.

      David A. Scholl, Bethlehem, for Horstman.
    Roland J. Christy, Spring House, pro se and for Dorothy A. Boyle.

      Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WIEAND, Judge:

On June 9, 1976, Violet M. Horstman filed a petition to open a judgment which had been entered against her on January 14, 1966. After protracted proceedings, the trial court denied the petition on September 30, 1981. The reasons cited by the court in support of its order were (1) the long delay in moving to open the judgment and (2) Ms. Horstman’s failure to explain the default which resulted in the entry of the judgment against her. On appeal, she contends that the court failed to consider the equities and erred in refusing to open the judgment. We disagree and affirm the order of the learned trial judge.

The history of the litigation between Philip H. Horstman and Violet M. Horstman is tortuous. It began with the filing of a complaint on May 11, 1957. By that complaint Philip sought to enjoin his wife, Violet, from utilizing and/or disposing of certain bank accounts and other jointly owned property. An apparent settlement was agreed upon, but, because of Violet’s subsequent rejection of its terms, it was not consummated. Therefore, on December 21, 1962, an amended complaint was filed, which included an additional prayer for partition of entireties real estate. During the course of proceedings thereon, Violet Horstman was ordered to disclose certain financial information. She refused to do so. A petition to hold Violet in contempt because of such refusal was filed by Philip on March 16, 1962. The requested information remained undisclosed when, on February 9, 1963, Philip Horstman died. The executors of his estate were thereafter substituted as plaintiffs, and, on April 16, 1963, they obtained a second court order directing Violet to deliver the financial information to their attorney. Violet continued her refusal to deliver this information despite the subsequent commencement of at least two attachment proceedings against her. Finally, Philip’s executors filed a motion for the entry of judgment, and the court set a hearing thereon for January 7, 1966 at 10:00 a.m. Despite notice, neither Violet nor her attorney appeared. The hearing was continued until January 14, 1966, and notice thereof was again given. When Violet persisted in her refusal to appear, the court entered judgment against her for $12,101.64 and decreed that Philip’s executors were the owners of a one-half interest in the marital home situated in Broomall, Delaware County.

The monetary judgment was revived on August 19, 1974, following which two of Violet’s savings accounts were attached by garnishment proceedings. , On October 4, 1974, Violet filed a petition to strike the judgment. In due course, the petition was denied. That denial was affirmed per curiam in Horstman v. Horstman, 236 Pa.Super. 715, 347 A.2d 726 (1975), and allocatur was denied by the Supreme Court on February 9, 1976.

On June 9, 1976, the petition to open judgment which is presently at issue was filed. The trial judge, the Honorable Robert A. Wright, described the ensuing sequence of events: “Thereafter ... followed a most frustrating sequence of events involving counsel for both adversaries and attempts to conduct and complete certain discovery by way of written Interrogatories and oral Depositions. Counsel for both sides have embarked upon conduct which has delayed the resolution of this matter and which has brought uncomplimentary publicity into the picture. Delay upon delay has been introduced into this litigation, by both sides, even in the face of clear and explicit Orders of this Court. Three Orders of this Court have been appealed to the Superior Court since February of 1978, all three Appeals being quashed and remanded for further proceedings consistent with our Order of February 27, 1978 [which] set out a complete and specific discovery deadline schedule.” Trial court opinion of September 30, 1981 at p. 5. Upon the completion of extensive discovery, a hearing was held in the trial court following which, on September 30, 1981, appellant’s petition to open was dismissed.

Additional appeals from various orders entered during the course of the proceedings to open judgment were filed by both parties. By order of March 1, 1982 all appeals were consolidated. However, the impropriety of appeals from interlocutory orders, in the absence of statutory authority therefor, is well established. Robinson v. Pocono Futures, Inc., 275 Pa.Super. 44, 418 A.2d 602 (1980) (collecting cases); 42 Pa.C.S. §§ 742, 702(a), (b); Pa.R.A.P. 311, 312. Thus, appeals from orders supervising the use of depositions and interrogatories during the proceedings to open the judgment must be quashed. Our review is limited to the order determining finally the petition to open the judgment entered against the appellant.

A petition to open judgment is a matter of judicial discretion. It is an appeal to the court’s equitable powers and is to be exercised only when three factors coalesce. The petition must have been promptly filed; a meritorious defense must be shown; and the default must be reasonably explained. Kabanow v. Kabanow, 239 Pa.Super. 23, 24-25, 361 A.2d 721, 722 (1976). See also: Penneys v. Richard Kastner Co., Inc., 297 Pa.Super. 167, 169, 443 A.2d 353, 354 (1982); Bahr v. Pasky, 293 Pa.Super. 404, 406-407, 439 A.2d 174, 175 (1981); Conti v. Shapiro, et al, 293 Pa.Super. 301, 304, 439 A.2d 122, 124 (1981); Ruggiero v. Phillips, 250 Pa.Super. 349, 353, 378 A.2d 971, 973 (1977). A trial court’s decision will not be reversed in the absence of a manifest abuse of that discretion. Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 334, 446 A.2d 641, 642 (1982); Penneys v. Richard Kastner Co., Inc., supra; Paules v. Sminkey, 290 Pa.Super. 223, 227, 434 A.2d 724, 726 (1981); Cruse v. Woods, 279 Pa.Super. 242, 245, 420 A.2d 1123, 1124 (1980).

In the case sub judice the trial judge concluded, and we are constrained to agree, that appellant neither filed her petition to open promptly nor offered an adequate explanation for the default which resulted in the judgment against her. We also observe that she has failed to state a meritorious defense.

Although. appellant argues what she terms “the gross equities” of the case, she would have us ignore the IOV2 year delay which occurred before she filed her petition to open. This delay is unexplained. So also is her refusal to appear for hearing or comply with those court orders which resulted in the entry of judgment against her. Moreover, an examination of her petition to open judgment discloses the failure to present a defense to the amended complaint of her husband in which she was charged with excluding her husband from entireties property and using the same for her separate purposes. Her only contention is that the judgment against her was improperly entered and, therefore, is defective. However, this issue was previously decided in response to the motion to strike. “ ‘[IJssues decided by an appellate court on a prior appeal between the same parties will not be reconsidered on a second appeal.’ Albright v. Wella Corporation, [240 Pa.Super. 563, 567, 359 A.2d 460, 463 (1976)]____ ‘Under any other rule, litigation would never cease, and finality and respect for orderly processes of law would be overcome by chaos and contempt.’ Haefele v. Davis, [380 Pa. 94, 98, 110 A.2d 233, 235 (1955)].” Daniels v. State Farm Mutual Automobile Insurance Co., 305 Pa.Super. 352, 356, 451 A.2d 684, 686 (1982). Thus, the prior determination that the record supported the judgment is conclusive and binding with respect to appellant’s contention that the judgment was improperly entered because of outstanding preliminary objections to the complaint and because of insufficient notice of the hearings which appellant failed to attend.

In brief, the equities do not favor the opening of this judgment. Appellant has been guilty of unexplained delay and has failed to explain her default. The trial court could properly conclude that appellees were entitled to a termination of further litigation and the finality of the judgment which had been entered in their favor on January 14, 1966.

The order of September 30, 1981 is affirmed.

      . Because the appeal of the executors from an interlocutory order is being quashed, we find it unnecessary to decide their petition to be relieved from printing the record and for an extension of time within which to file an appellants’ brief at No. 2904 Philadelphia, 1981.


author: HESTER, Judge: JOHNSON, Judge,

text:
    457 A.2d 520
    COMMONWEALTH of Pennsylvania, v. Edgar Clinton WILTROUT, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 19, 1982.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Denied July 25, 1983.

      Dante G. Bertani, Public Defender, Greensburg, for appellant.
    Margaret E. Picking, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   HESTER, Judge:

On April 18, 1980, the appellant, Edgar Clinton Wiltrout returned from work to his trailer home in Westmoreland County in the early evening with plans to meet friends at the Foothills Tavern. Having bathed, and while dressing, his friend, Marion John Steppits arrived to accompany him.

When the appellant was prepared to leave his home, he instructed Steppits to remain until he returned from an errand. The appellant thereafter walked alone to CB City on Route 30, some 500 yards from his trailer home. CB City was located on Route 30, several hundred yards from the Beatty Crossroads. It was a retail enterprise owned and operated by Joseph Poponick; the building itself was owned by the appellant’s brother, Donald Wiltrout, and leased to Mr. Poponick.

Under the pretense of investigating an unauthorized person’s presence on the premises of CB City, the appellant entered the building' through the rear wall after prying open a plywood panel. This occurred following the close of business for the day. A security alarm system summoned Trooper Fred Street of the Pennsylvania State Police to the scene. Upon his arrival, Trooper Street detected inside movement through the glass front doors; thereafter, he skirted the outside and observed the loosened plywood rear panel. A leather valise and hammer were found next to the plywood panel.

Trooper Street returned to the front of the building where he was accosted by the store owner’s mother and Trooper John Mosser. They were both instructed to watch the front of the building while Trooper Street returned to the outside rear portion.

Upon arriving a second time at the point of entry, Trooper Street observed the outside plywood panel being pushed outwardly by the appellant attempting to exit surreptitiously. When Trooper Street identified himself and cautioned the appellant to continue exiting with his hands visibly in front of him, the panel closed and the appellant retreated to the inside.

Trooper Street returned to the front and instructed Trooper Mosser to continue his vigil of the front entrance. Trooper Mark Griffin, the last enforcement officer to arrive, accompanied Street through the rear panel into the building. Once inside, they immediately encountered a group of boxes scattered on the floor. The appellant was not discovered in either the storage or showroom areas. A piece of the suspended ceiling in the showroom was lying on the floor thereby alerting the troopers to the possibility that the appellant was concealing himself above the ceiling; however, a search of that space proved fruitless. The appellant was eventually found partially concealed in the restroom’s suspended ceiling with only his legs and feet visible. He was pulled to the floor and detained by Trooper Mosser while Troopers Street and Griffin checked for any other intruders. No one was found.

Appellant was arrested and charged with burglary. A jury trial commenced on November 10, 1980 and a verdict of guilty was returned. Motions for a new trial and in arrest of judgment were filed, but subsequently denied. On September 1, 1981, the appellant was sentenced to a term of imprisonment of not less than four (4) nor more than ten (10) years. His motion for reconsideration of the sentence was denied and this appeal followed.

Appellant’s first contention is that the trial court erred in admitting into evidence a photograph of the valise and hammer. He alleges that a foundation for the demonstrative evidence was never laid and that such evidence was irrelevant. We disagree with both allegations.

The photograph of the valise and hammer was designated as Commonwealth’s exhibit # 5. Trooper Carl Schweinsburg, a records and identification officer with the Pennsylvania State Police, took this particular photograph, along with others. He testified to having taken photograph exhibit # 5 on April 18, 1980 and to recognizing his handwriting setting forth the incident number, date and initials on the back. Furthermore, Trooper Street, while occupying the witness stand, identified the satchel and hammer depicted in the photograph as items found beside the plywood panel that was ripped from the rear wall of CB City. This testimony satisfied the prerequisites for admitting photographs as evidence set for in Adamczuk et al. v. Holloway, et al., 338 Pa. 263, 13 A.2d 2 (1940). Where a witness is familiar with the items photographed and is competent to testify that they are accurately depicted therein, then, if relevant, the photograph should .be admitted. Adamczuk, et al., supra.

The determination of the relevance of evidence is accomplished through a conjunctive test. First, the evidence must affect a matter in issue; secondly, it must render the desired deduction more probable than it would be without the evidence. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981); Commonwealth v. Stevenson, 280 Pa.Super. 293, 421 A.2d 729 (1980). The prime inquiry confronting the lower court was whether the appellant entered CB City with the intent to commit the crime of theft of movable property. The appellant insists that he entered the building for the alleged purpose, of apprehending a person whom he suspected of entering the building. Moreover, the appellant never disclosed to anyone another intention. Consequently, the issue of intent was determinable only through the use of circumstantial evidence. The satchel raises the inference that the intruder intended to carry citizens’ band radio equipment from the premises. While assisting the jury in comprehending the shape, size, texture and durability of the satchel, the photograph also reflected its capacity to carry such items. Accordingly, it renders the inference of the intent to commit theft more probable. We conclude, therefore, that it satisfies the two-prong relevancy test. Certainly, at the very least, we cannot conclude that the lower court abused its discretion in admitting the photograph. Commonwealth v. Thornton, supra, and Stevenson, supra.

The appellant argues next that the trial judge erred in refusing two points of charge submitted by him. The points of charge submitted, but refused, are as follows:

1. The jury must be satisfied beyond a reasonable doubt that Mr. Wiltrout knew the nature of his conduct and it was a conscious object to engage in this conduct, i.e., burglary at the time of entry. 18 P.S. § 302 (sic).
2. If the jury believes beyond a reasonable doubt that Mr. Wiltrout possessed the specific intent to commit a crime other than theft even merely mischief, at the time of entry, and that crime was not proven by the Commonwealth, the jury must aquit Mr. Wiltrout. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979).

It is the appellant’s position that the above two submitted points for charge raised the subject of intent and should have spurred the court to give a thorough jury instruction on the critical role of intent in a burglary offense. The appellant is specifically critical of the court’s “analysis of the possible evidentiary methods of showing specific intent, without elucidating one iota the main point, the elements of explanation of what the legal and common sense understanding of what constitutes specific intent to commit a crime, as the same is required to be proven as the basis for the finding of a burglary by a jury.” This quoted passage leaves us somewhat unguided by the appellant’s precise complaint here; we will, however, review the charge of intent for any vagueness and ambiguity.

The court initially instructed the jury on the element of intent accordingly:

“In this case, he’s not charged with the crime of theft. He’s charged with the crime of burglary, which is entering a building with the intention of—state of mind—intention of committing the crime of theft.
Now, when we talk about intention, of course, we’re talking about a mental element. Ordinarily it is not possible to prove intent by direct evidence unless, of course, the Defendant makes a statement about the state of mind. The Defendant took the stand and testified as to what his state of mind was. That’s direct evidence.
On the other hand, intention can be proven by circumstantial evidence. By circumstantial evidence I mean inferences that may reasonably be drawn from all the facts and circumstances including the Defendant’s acts and conduct, which have been shown by the evidence in the case. Thus, you may conclude that the Defendant intended to commit the crime based solely on the crime of theft, when he entered the building based solely upon circumstantial evidence alone only if the circumstantial evidence is strong enough to convince you that the Commonwealth has established this intent beyond a reasonable doubt.”

While deliberating, the jury requested further explanation of the element of intent and the Court responded with the following charge:

“Now, intention. Ordinarily, it’s not possible to prove intention by direct evidence unless, of course, there’s evidence that the Defendant made a statement concerning his state of mind. However, intention, like any other matter, may be proved by circumstantial evidence. That is by inferences that reasonably may be drawn from all the facts and circumstances including the Defendant’s acts and his conduct, which have been shown by the evidence in the case. Thus, you may conclude that the Defendant intended to commit the crime of theft when he entered the building based on circumstantial evidence alone, but only if the circumstantial evidence is strong enough to convince you that the Commonwealth has established this intention beyond a reasonable doubt. Now, we have conflicting evidence of that. Mr. Wiltrout took the witness stand and he testified that his intention was to catch the thief or prowler. But you can also or you may, you don’t have to, but you may infer from the surrounding circumstances circumstantially what was his intention. Facts and circumstances can show one’s intents as well as direct evidence. But in order to convict of the crime of burglary, not only does there have to be the entry into the building, but that the entry was made by a person with the intention of committing the crime of theft.”

In another portion of the renewed charge the court said:

“But again keep in mind the Commonwealth is not alleging here that the defendant committed the crime of theft. Rather they’re alleging he entered the building with the intention of committing the crime of theft. Burglary is entry into a building with the intention, mental state of intention of committing a certain crime. In this case the Commonwealth claims the defendant was going to commit the crime of theft.”

Burglary is committed when a person enters a building without authority with the specific intent to commit a crime therein. 18 Pa.C.S.A. § 3502(a). It is rationally deducible that two separate forms of intent are implicit in this statutory definition. First, there must be the intent to enter the building without authority. The appellant does not object to this portion of the intent charge presumably due to the fact that he admits his forced entry into the building. As the afore-quoted passages indicate, the court’s charge on the entry into the building with the intent to commit a crime was complete and accurate. In accordance with decisional law, the court implicated that the specific intent to carry the charge of burglary can be inferred from the defendant’s conduct, words and accompanying circumstances. Commonwealth v. Jacob, 247 Pa.Super. 373, 372 A.2d 873 (1977); Commonwealth v. Freeman, 225 Pa.Super. 396, 313 A.2d 770 (1973).

Appellant cites Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979), as support for his submitted charge that where the jury believes the appellant committed a crime other than theft at the time of entry, and that crime was not proven by the prosecution, then the jury must acquit him. This is an incorrect recitation of the law in Madison, supra. The Madison court simply held that where the prosecution specifies the crime that the accused intended to commit at entry, then it must prove the intent for the specific crime. Our review of the record leads us to conclude that there was enough circumstantial evidence here to sustain an intent to commit theft.

Lastly, the appellant finds error with his counsel’s failure to object to the alleged improper designation of an assistant district attorney to initial and approve bills of information. The District Attorney of Westmoreland County filed a written Designation of Authority empowering his entire staff of assistant district attorneys to approve criminal charges. This particular bill reflected a rubber stamp facsimile of the District Attorney’s signature followed by “ACG”, an assistant district attorney’s initials. The appellant assumes the position that only specific designations of authority are proper. None of the case law advanced by the appellant supports a requirement for a specific designation by name. So long as the designation, either general or specific is of record, an assistant district attorney’s initials adjacent to his employer’s stamped signature satisfy the promoted policy. The safeguard here is to insure that the specific charges are given due consideration by a qualified member of the prosecutor’s staff so that bills receive more than' cursory treatment and mere rubber stamp approval. Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981); Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982). This practice of assuring that a specific body of persons upholds this safeguard is in compliance with procedural and statutory law. Pa.R.Crim.P. 225(b); 42 Pa.C.S.A. § 8931(e), (i).

Judgment of sentence affirmed.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I concur in the majority’s resolution of the first two issues raised by appellant. However, as to appellant’s third issue, I am compelled to dissent to the views expressed by the majority regarding whether a district attorney’s blanket designation of all Assistant District Attorneys as having the authority to act in his stead comports with the requirements of the Judicial Code, 42 Pa.C.S.A. § 8931.

In relevant part, 42 Pa.C.S.A. § 8931 states the following:

(d) Duties of prosecuting attorneys—... The district attorney or his designee shall have the duty to inquire into and make full examination of all facts and circumstances connected with each ... case to determine if the facts and circumstances warrant the filing of an information or informations premised upon the transcript...
(e) Disposition of cases—The district attorney shall sign all informations.
(i) Definition—As used in this section “district attorney” includes ... any assistant district attorney whose authority to act for the district attorney under this section is evidenced by a written designation executed by the district attorney ... and filed with the clerk of the courts.

Pursuant to § 8931(i), a properly designated assistant district attorney may undertake the duty of the district attorney in reviewing and signing a criminal information. See e.g. Commonwealth v. Dupree, 290 Pa.Super. 202, 434 A.2d 201 (1981).

The following designation was on file at the clerk of the courts’ office of Westmoreland County:

DESIGNATION OF AUTHORITY

I, Albert M. Nichols, District Attorney of Westmoreland County, Pennsylvania do hereby State and Aver under oath that all Assistant District Attorneys employed by me in the conduct of the said District Attorney’s Office, have been, are now, and will continue to have full authority to act in my stead, and perform all of the duties of prosecuting attorneys and have authority to act for the District Attorney under Section 8931 of the Judicial Code, 42 Pa.C.S.A. 8931.
/S/ ALBERT M. NICHOLS
District Attorney of Westmoreland County

(ACKNOWLEDGEMENT)

Appellant argues that a more specific designation of the persons empowered with the District Attorney’s authority is required in order to comport with the intent of the Judicial Code. The majority denies appellant’s contention as follows: “None of the case law advanced by the appellant supports a requirement for a specific, designation by name. So long as the designation, either general or specific is of record, an assistant district attorney’s initials adjacent to his employer’s stamped signature satisfy the promoted policy.”

In my view, the Judicial Code requires something more than a mere blanket designation. The Judicial Code entrusts the district attorney or his designee with the power and ability to sanction the intrusion by the State into the lives of our citizenry without the benefit of the cherished institution of indictment by grand jury. In so doing, the Code has established the district attorney, or his designee, as the critical initial check point along the serious and solemn path down which a citizen must confront the prosecutorial force of the State. Ultimately, however, under § 8931(i), it is the district attorney alone who is responsible for this burden, not his designee. For pursuant to § 8931(i), it is only the district attorney who can delegate to a designee this authority. I cannot agree that the Judicial Code in ultimately placing this responsibility upon the district attorney and in permitting its delegation, intends that it should be bandied about so lightly as is the case with a blanket designation of authority to all assistant district attorneys. To allow the district attorney to delegate this responsibility in such a manner denigrates its importance. It is not an undue burden upon the district attorney for this court to require the delegation of authority to be performed with specificity, in recognition of the importance of this awesome responsibility, and in so doing, to require the district attorney to evidence his judgment that every individual to be entrusted with this power is indeed qualified to exercise it.

Moreover, I believe that these concerns are not the only ones done injury by the views expressed in the majority opinion. By requiring that the district attorney’s written designation be filed in the Clerk of Courts office, I believe § 8931(i) of the Judicial Code contemplates that defense counsel, as well as the public at large, would be able to ascertain from a review of the written designation specifically who had the authority to review informations and whether a person so empowered had done so. By permitting the district attorney to file a blanket designation, the majority imposes upon defense counsel the burden of having to determine whether the information was reviewed by a person who falls within the class of persons specified in the written delegation. I do not believe that the intent of the Judicial Code, as set forth above, is furthered by this unnecessary burden placed upon those who would examine a public record.

Although the majority’s views decide only the ineffectiveness claim and do not become the substantive law of Pennsylvania, I feel compelled to set forth my views to the contrary on this most important issue.

Accordingly, I would find this issue to be of arguable merit. I would therefore vacate judgment of sentence and remand for an evidentiary hearing to determine whether trial counsel had a reasonable basis for his failure to challenge the designation.

      . See Brief for Appellant, Exhibit B, Certified Copy of the Designation.

      . Because trial counsel failed to properly preserve the designation issue by raising it in post-verdict motions, we normally would not consider its merits on appeal. However, the improperly preserved claim may be considered solely for the purpose of resolving the question of ineffectiveness. Commonwealth v. Sherard, 483 Pa. 183 n. 5, 394 A.2d 971 n. 5 (1978); Commonwealth v. Gaston, 474 Pa. 218 n. 4, 378 A.2d 297 n. 4 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687 (1977).


author: CAVANAUGH, Judge:

text:
    457 A.2d 527
    Marlin E. WIEST, Appellant, v. EAZOR EXPRESS, INC., Merchants Mutual Insurance Company and Erie Insurance Exchange. Marlin E. WIEST v. EAZOR EXPRESS, INC., Merchants Mutual Insurance Company and Erie Insurance Company. Appeal of EAZOR EXPRESS, INC., & Merchants Mutual Insurance Company.
    Superior Court of Pennsylvania.
    Argued May 11, 1982.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Denied Aug. 19, 1983.

      F. Shipman, Harrisburg, for Wiest, appellant (at No. 129) and appellee (at No. 136).
    Jered Larue Hock, Harrisburg, for Eazor Express, Inc., appellant (at No. 136) and appellee (at No. 129).
    Before CAVANAUGH, CHULLO and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant, Marlin E. Wiest, was operating a tractor-trailer on the Indiana Toll Road in St. Joseph’s County, Indiana, on March 1, 1976. At that time he was employed by Eazor Express, Inc., one of the appellees herein. The appellant was involved in an accident with another tractor-trailer owned by Cedar Rapids Steel Transport, referred to hereinafter as CRST. As a result of the accident the appellant was seriously injured. He negotiated a settlement with CRST and from this fund the appellees sought to recover by way of subrogation the amounts paid to the appellant by appellees under the Workmen’s Compensation Act.

The appellant filed a petition for declaratory judgment naming Eazor Express, Inc., Merchants Mutual Insurance Company, Inc., Mutual Insurance Company and Erie Insurance Exchange as respondents. The petition requested the court below to interpret the Pennsylvania No-Fault Motor Act as follows:

(1) That the Act is applicable to the subject accident and Petitioner is entitled to Basic Loss Benefits;
(2) That security for the payment of Basic Loss Benefits is the insurance coverage on the vehicle operated by Petitioner, which insurance coverage was with Eazor and Merchants; in the alternative, if it is determined that the insurance coverage on the vehicle is not the security for the payment of Basic Loss Benefits, then the security was the insurance policy issued to Petitioner by Erie under which Petitioner was insured; and
(3) That Eazor and Merchants have no rights of subrogation against proceeds from a settlement effectuated between Petitioner and the insurance carrier for CRST. The court below denied the petition and our appeal is

limited to Paragraph (3) of the petition set forth above since the appellant has been paid in full all of the basic loss benefits he is entitled to and has agreed that the issues raised in Paragraphs (1) and (2) above are moot.

The primary issue raised on appeal is whether Eazor Express, Inc. and Merchants Mutual Insurance Company have subrogation rights in the settlement between appellant and CRST to the extent that the appellees had paid workmen’s compensation benefits to the appellant. At the time of the accident, which occurred in Indiana, the appellant was a resident of Pennsylvania and was an employee of Eazor Express. The appellant was the owner-operator of the tractor trailer involved in the accident. After the accident, the appellant entered into negotiations with the insurance carrier for CRST and it was agreed that a portion of the proposed settlement between the appellant and CRST which represented Eazor’s and Merchants’ claim for subrogation would be placed in escrow pending a determination of the issue.

The appellant has been paid workmen’s compensation benefits by Eazor’s carrier Merchants Mutual Insurance Company and he contends that the appellees are not entitled to subrogation of any of the amounts paid or to be paid to him by CRST. The court below found that Eazor and Merchants Mutual Insurance Company have subrogation rights in the settlement between appellant and CRST for the amounts paid as workmen’s compensation benefits paid to the appellant and we agree.

If the accident in the instant case had occurred in Pennsylvania neither the appellant nor appellees as subrogees would have had a cause of action against CRST for the amounts paid as workmen’s compensation as the workmen’s compensation benefits are not in excess of basic loss benefits. Appellant concedes that since the accident he has been receiving “basic loss benefits” in the form of workmen’s compensation benefits. As pointed out in Brunelli v. Farelly Brothers, 266 Pa.Super. 23, 28, 402 A.2d 1058, 1061 (1979):

Since No-fault has abolished the tort liability of a tortfeasor involved in an automobile accident except for amounts in excess of “basic loss benefits”, and since workmen’s compensation benefits are not amounts in excess of “basic loss benefits” (as determined earlier in this opinion), neither the employee-victim nor the workmen’s compensation insurer, his would-be subrogee, has a cause of action against the third party tortfeasor for the sum paid or payable to the employee as workmen’s compensation benefits.6

However the accident did not occur in Pennsylvania. The Act clearly distinguishes the rights to benefits based on whether an accident occurs within or without the state. The Act also provides that tort liability against third party tortfeasors is partially abolished as to accidents occurring within the state and reads at 40 P.S. § 1009.301(a) as follows:

§ 1009.301 Tort liability

(a) Partial abolition.—Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle,

Lyngarkos v. Commonwealth, 57 Pa.Commw. 121, 426 A.2d 1195, 1198 (1981) states:

While it is true that the No-fault Act has partially abolished tort liability for motor vehicle injuries, this abolition applies only to injuries that take place in the Commonwealth. Section 301(a) of the No-fault Act, 40 P.S. § 1009.301(a).

Since the appellant was not barred from pursuing his claim based on tort liability, and in fact reached a settlement with CRTS, we must decide if his employer and its insurance carrier, are entitled to subrogation. The Pennsylvania Workmen’s Compensation Act provides in 77 P.S. § 671:

“[wjhere the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer .... ”

It is basic that if an employer’s liability is occasioned by the fault of a third person, the employer may pursue its subrogation rights under the Workmen’s Compensation Act. See Fashion Hosiery Shops v. Workmen’s Compensation Appeal Board, 55 Pa.Cmwlth. 465, 423 A.2d 792 (1980). Since appellant has recovered from CRST an amount which included payments made to it or to be made by the appellees under the Workmen’s Compensation Act it is clear that his employer or, its carrier, would be entitled to subrogation to these payments unless barred by the No-Fault Act. Appellant’s claim against CRST was based on its tort liability and appellant’s settlement with CRST would not have been possible had the accident occurred in Pennsylvania as there would have been liability in tort only for the amounts in excess of basic loss benefits and workmen’s compensation payments are included within basic loss benefits.

Appellant contends that “Under Brunelli, supra, a workmen’s compensation carrier has no rights of subrogation for payments made to an employee injured while operating a motor vehicle while in his employment.” This contention is without merit as Brunelli dealt with an accident occurring in Pennsylvania and tort liability has been partially abolished for accidents occurring in this state except for amounts in excess of “basic loss benefits”. Appellant also relies on Vespaziani v. Insana, 293 Pa.Super. 117, 437 A.2d 1234 (1981) and Walls v. City of Pittsburgh, 292 Pa.Super. 18, 436 A.2d 698 (1981) in support of his contention that rights of subrogation do not exist in this case. However, in both Walls and Vespaziani the accidents occurred in Pennsylvania. Also, Walls, supra, dealt with a contractual provision pertaining to subrogation in an insurance contract. This issue is not involved in our case. In Vespaziani the injured worker received no-fault insurance and workmen’s compensation benefits. The court held that the carrier that provided workmen’s compensation benefits to Vespaziani could not intervene when Vespaziani brought an action in trespass against the driver and owner of the other vehicle. This court stated at 293 Pa.Super. 117, 121, 437 A.2d 1234, 1236:

However, Vespaziani is not entitled to recover the workmen’s compensation benefits from the driver and owner of the other vehicle. He is not because he is only entitled to recover from them an amount computed after subtracting those benefits. To resort to a colloquialism: Vespaziani is suing the driver and owner of the other vehicle for apples. Transport is only entitled to oranges.

In the instant case the appellant settled with CRST for apples and oranges and the appellees are entitled to receive back as many oranges as they gave the appellant.

Appellant also relies on Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980) (opinion by Spaeth, J. dissenting opinion by Cavanaugh, J.) in which a resident of New Jersey was injured in an automobile accident in Bucks County, Pennsylvania. This court held that the complaint stated a cause of action in Pennsylvania as the medical expenses met the threshold necessary to bring an action in tort in New Jersey although not sufficient under Pennsylvania’s No-Fault Act. It was held that the right of a non resident to sue in tort in Pennsylvania for an accident occurring in Pennsylvania is dependent on his right to sue under the law of his domicile. Appellant argues that based on this opinion the right of a victim of an automobile accident to sue in tort shall be determined by the law of the state of domicile. We agree, and decide that under Pennsylvania law the appellant had a cause of action against CRST in tort for the injuries that he suffered in Indiana and the appellees are entitled to subrogation for the amounts paid to the appellant by CRST which equal the payments made by his employer’s workmen’s compensation carrier.

Order affirmed.

      . Appellant also states as an issue: “Is the subject petition barred by the applicable statute of limitations?” Presumably this refers to the petition as far as the appellant’s claim for no-fault benefits which claim has been abandoned. In the part of his brief dealing with the statute of limitations issue the appellant states:
      It is suggested, however, that this issue is now moot since Appellant has received, by way of workmen’s compensation benefits, all "basic loss benefits” to which he would be entitled.
      We also respectfully suggest that the major issue for resolution, subrogation rights of Appellees Eazor and Merchants, is not controlled by a limitation period.

      . The Pennsylvania No-Fault Motor Vehicle Act states at 40 P.S. § 1009.201:
      § 1009.201 Right to basic loss benefits; limitation on benefits
      (a) Accident within this State.—If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.
      (b) Accident outside this State.—If the accident resulting in injury occurs outside of this Commonwealth, a victim or a survivor of a deceased victim is entitled to receive basic loss benefits if such victim was or is:
      (1) an insured; or
      (2) the driver or other occupant of a secured vehicle.

      . Brunelli v. Farelly Brothers, 266 Pa.Super. 23, 25, 402 A.2d 1058, 1059 (1979) states:
      Although the No-fault statute does not specifically prohibit subrogation by a workmen’s compensation insurer, a careful analysis of that convoluted, ungrammatical statute leads us to the conclusion that the workmen’s compensation insurer is not subrogated, at least under the facts of the case before us, to any recovery by the injured employee. (Emphasis added).

      . Walls v. City of Pittsburgh, 292 Pa.Super. 18, 22, 436 A.2d 698, 700 (1981) states with reference to the No-Fault Act:
      In enacting this law, the legislature intended that, in any dispute thereunder, the courts find in favor of the insured person unless legal or equitable factors at least as strong as those in favor of coverage militate against it.
      However, this does not mean that where the words of the No-Fault Act are clear that we should disregard them to pursue what a litigant perceives to be the spirit of the law. See DuBose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980).


author: McEWEN, Judge:

text:
    457 A.2d 531
    COMMONWEALTH of Pennsylvania v. Jeffrey SPIEGEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1981.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.

      Frank R. Bartle, Lansdale, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   McEWEN, Judge:

We here consider an appeal from the judgment of sentence imposed after appellant was convicted by a jury of robbery, theft, possession of instruments of crime and conspiracy and sentenced to a term of imprisonment of from six to twelve years. We affirm.

The conviction of appellant arose out of an incident which occurred when appellant and his co-defendant, Richard Whittall, broke into a Bucks County apartment, occupied by a husband and wife, by prying open the door with a screwdriver. The robbers threatened both victims verbally while pointing a shotgun at them, bound their hands and feet and forced them to lie on their faces in the living room of the apartment. While both assailants were described as Caucasian males, one was said to be “extremely large, like a lot of fat and [with] very, very large hands”, wearing a black ski cap pulled down over his face but allowing a view of his chin with a growth of reddish blond stubble; the other assailant was described as a slender dark-haired individual who was smaller than the other man, with a small mustache and without a mask. The larger of the two men, Whittall, was described as the leader who bound the hands and feet of the victims and stood guard over them with a shotgun while appellant searched for and gathered money and jewelry throughout the apartment. The entire occurrence lasted approximately one hour. It was the larger man who issued a warning as they departed that the victims should not report the incident.

The male victim subsequently identified appellant in two separate photographic arrays, one conducted several days after the robbery and the other one day prior to the preliminary hearing. The woman was unable to identify appellant at the first photographic array but when, at the subsequent array, she was shown a picture of appellant in which his hair was shorter and more closely resembled the hair style of the shorter of the two men, she then identified appellant. Both victims identified appellant as well as Whittall at the preliminary hearing as the individuals who perpetrated the robbery. Both victims also testified that on the day before trial they positively identified appellant during a six man physical lineup in the office of the prosecutor on the basis of their recollection of him from the night of the robbery.

The detective who directed the lineup in the office of the Bucks County District Attorney on the day before trial testified that both victims individually identified appellant from a group of six subjects as one of the individuals who committed the robbery. He further testified that counsel for appellant was present during the individual identification by each of the victims.

Three other witnesses for the Commonwealth offered testimony as to the complicity of appellant in the occurrences. One testified that shortly before 6 p.m. on the same evening as the robbery in the instant case, while visiting at the home of her sister in the Mount Airy section of Philadelphia, she and her relatives were also the victims of a robbery. She described the intruders as two men, one dark-haired with a trimmed black mustache and the other a heavy set man with very large hands and blond hair on his arms; she testified that like the victims in the Bucks County robbery, she and her relatives were forced to lie face down and were bound hand and foot by the heavy man who stood guard over them while the smaller man gathered the loot throughout the house. She further testified that the heavy set man stated that “you people were just not lucky” and indicated that they were not the intended victims of this robbery. (N.T. p. 166). This witness identified both co-defendant Whittall and appellant Spiegel during her testimony as the perpetrators of the Mount Airy robbery.

A further Commonwealth witness testified that he was acquainted with both appellant and co-defendant Whittall and was in their company during the afternoon and evening of the date of the robberies. He testified that he joined both individuals in Levittown, was with the two of them in the Mount Airy section of Philadelphia at approximately 6 p.m. and travelled with them to the home of co-defendant Whittall’s mother in Levittown. He stated that on the day of the robbery appellant had short hair, was of the same build, wore a mustache but no beard and that the co-defendant of appellant had one or more inches of reddish brown beard and was wéaring a dark wool hat. This companion further testified that he remained at the home of the mother of Whittall from approximately 11:00 p.m. until 12:30 a.m. when the other two returned there.

A Philadelphia Police Department Detective testified that he conducted the search of the Whittall residence, pursuant to a search warrant, four days after the robbery and uncovered a number of items connected with the robbery of the Bucks County residence as well as the robbery of the Mount Airy home. The items recovered included identification cards, passports, credit cards and jewelry belonging to the victims of the two robberies. It was also established that the Whittall residence was located approximately three to four miles from the Bucks County apartment occupied by the victims in this case.

Appellant initially argues that the charges against him must be dismissed for the reason that the district attorney failed to sign the informations lodging charges against him in violation of Pa.R.Crim.P. 225(b). He argues that: (1) this defect renders the informations void ab initio; (2) such a challenge to the validity of the information cannot be waived; and (3) all procedures and actions conducted pursuant to such unsigned bills of information are nullities and, therefore, the charges against him must be dismissed. We disagree. Counsel for appellant failed to raise this argument in either his pretrial application or in post-trial motions and did not express this objection until the time originally set for sentencing.

We recently held in Commonwealth v. Veneri, 306 Pa. Super. 396, 452 A.2d 784 (1982), that the signature requirement of Pa.R.Crim.P. 225(b) is directory only, that the absence of a signature renders an information merely voidable and that the defect is curable by amendment, if properly raised in a pretrial motion to quash, pursuant to Pa.R. Crim.P. 306. Therefore, we conclude that appellant, by failing to raise the validity of the unsigned information in a pretrial motion, has waived this issue.

Appellant additionally contends that trial counsel was ineffective by reason of a failure to request dismissal of the charges since the bills of information were not signed in accordance with Pa.R.Crim.P. 225(b). We concluded in Commonwealth v. Veneri, supra, that once the Commonwealth has begun to support the charges alleged in the informations by proof at trial or where the defendant stands convicted, the right to seek dismissal of the charges for lack of a signature no longer exists and, thus, cannot be asserted by way of a collateral attack alleging ineffective assistance of counsel. Since there is no longer any merit to the claim at this stage of the proceedings, there can be no showing of ineffectiveness. See Commonwealth v. Veneri, supra.

Appellant further argues that the trial court erred in admitting evidence of the robbery committed by appellant and Whittall earlier the same day in Philadelphia since appellant had not, at the time of trial, been convicted of that robbery.

“It is well established that evidence of other criminal activity generally is inadmissible against the defendant at his trial on another charge. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973).” Commonwealth v. Martinez, 301 Pa.Super. 121, 124, 447 A.2d 272, 273 (1982) (quoting Commonwealth v. Stokes, 279 Pa.Super. 361, 371, 421 A.2d 240, 245 (1980)). “The rule stems from a recognition that evidence of other crimes is likely to prejudice the finder of fact and create an emotional reaction effectually stripping the accused of the presumption of innocence because proving commission of one crime does not entail proof of another, but merely bad character which cannot support an inference of guilt.” Commonwealth v. Hawkins, 295 Pa.Super. 429, 437, 441 A.2d 1308, 1311 (1981); See e.g. Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978); Commonwealth v. Roman, supra. However, under certain circumstances which constitute exceptions to the general rule, evidence of other crimes is admissible when it tends to prove:

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) the identity of the person charged with the crime on trial. In other words, evidence of a prior criminal act is admissible where there is a logical connection between the prior criminal act and the crime currently on trial that proof of one naturally tends to show that the accused is the person who committed the other.

Commonwealth v. Westerfer, 294 Pa.Super. 459, 463, 440 A.2d 556, 558 (1982) (quoting Commonwealth v. Brown, 280 Pa.Super. 303, 307, 421 A.2d 734, 736 (1980)); See also Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). “Even when one of these exceptions applies, however, the trial court must still balance the need for the other crimes evidence against the potential prejudice to the accused.” Commonwealth v. Hawkins, supra 295 Pa.Super. at 437, 441 A.2d at 1312; See Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186, 191 n. 11 (1977); Commonwealth v. Hude, 256 Pa.Super. 439, 445, 390 A.2d 183, 190 (1978).

Appellant contends that the evidence admitted in the instant case does not fall within any of the exceptions to the general rule; specifically he claims that the testimony presented concerning the robbery in Mount Airy does not indicate the existence of a common scheme, plan or design since there was nothing so unusual or distinctive about the two crimes as to logically connect them to one another. Absent any showing of a logical connection between the two crimes, appellant contends that the evidence of the Mount Airy robbery was not properly admissible to establish his identity alone. We disagree. While there were some dissimilarities between the two crimes, e.g., (1) the fact that in the Mount Airy robbery neither of the men were masked; and (2) that the items taken in each robbery were somewhat different, we believe that the two residential robberies shared sufficient similarities to establish a common scheme or plan. It is immediately clear that the modus operandi in each robbery was nearly identical: (1) two men entered each residence unannounced; (2) in each occurrence one robber was described as very large and the other as of average size; (3) the larger of the two men did most of the talking; (4) the victims in each robbery were bound hands and feet by the larger man and ordered to lie face down; (5) the larger man stood guard over the victims of each robbery while the shorter man searched the residence and gathered valuables; (6) the intruders concentrated primarily on jewelry and money as well as credit and identification cards; (7) the conspirators made remarks during each incident that the victims were simply unlucky because other parties had been the original targets of robbery. Moreover, the two offenses were committed on the same day within six hours of each other and, more significantly still, some of the items which were taken in both robberies were discovered after a search of the residence of co-defendant Whittall. We believe that the evidence of the robbery which took place in Mount Airy was so closely linked to the Bucks County robbery that it was sufficient to establish a common scheme or plan embracing the commission of both robberies and that the modus operandi in each was so distinctive that proof of one tended to prove the other.

Finally, appellant argues that trial counsel was ineffective by reason of a failure to file a motion to suppress the identifications made by the Bucks County victims. Appellant asserts that it was not possible to determine whether the two pretrial photographic arrays were impermissibly suggestive and, if so, whether they caused the in court identifications of the victims to be tainted, in the absence of a suppression hearing upon those identifications. We find no merit to this argument, since our review of the record persuades us that such a motion would have been futile.

Even if the photographic array had been suggestive, a proposition of some considerable question, it does not necessarily follow that the trial identifications were thereby rendered inadmissible since we' employ a totality of the circumstances approach to determine whether a questioned identification is reliable. Commonwealth v. Satchell, 306 Pa.Super. 364, 452 A.2d 768 (1982). We stated in Commonwealth v. Bradford, 305 Pa.Super. 593, 451 A.2d 1035 (1982), that:

A consideration of the totality of the circumstances requires a close examination of (1) the suggestive factors involved in an identification process and (2) whether or not, despite the suggestive factors involved in the process, other factors are present which clearly and convincingly establish that the witness’ identification has an ‘independent origin’ in the witness’ observations at the time of the crime, (citations omitted). Id., 305 Pa.Superior at 597, 451 A.2d at 1037, quoting Commonwealth v. Fowler, 466 Pa. 198, 204, 352 A.2d 17, 20 (1976).

The suggestiveness of a challenged identification is only one factor to be considered in determining the admissibility of identification testimony. Suggestiveness alone does not warrant exclusion.” Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979). Rather, “it is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which is the basis for the exclusion of [the] evidence.” Id., quoting Commonwealth v. Sexton, 485 Pa. 17, 22, 400 A.2d 1289, 1291 (1979) and Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401, 410-411 (1972). The Commonwealth has the burden of establishing by clear and convincing evidence that “the totality of the circumstances affecting the witness’ identification did not involve a substantial likelihood of misidentification.” Commonwealth v. Fowler, supra 466 Pa. at 203, 352 A.2d at 19; Neil v. Biggers, supra. In evaluating the totality of the circumstances and in making this determination, we must consider the following factors:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977); Commonwealth v. Ransome, 485 Pa. 490, 496, 402 A.2d 1379, 1382 (1979).

The most important factor in the totality of the circumstances test is the opportunity of the witness to view the suspect at the time of the crime. Commonwealth v. Davis, 293 Pa.Super. 447, 439 A.2d 195 (1981). This would seem to be particularly so when the witness was the victim, for as we have recently noted, “[wjhenever a victim of a crime has an opportunity to observe the criminal, the impression of the face of an assailant is etched upon the prey by the terror of the occasion....” Commonwealth v. Bradford, 305 Pa.Super. 593, 598, 451 A.2d 1035, 1037 (1982).

The testimony of the two victims of the instant robbery indicates that each victim had a more than ample opportunity to view appellant under a condition of good lighting in the apartment at various times during the period of approximately one hour which the perpetrators took to complete the crime. Both victims provided the authorities with detailed and accurate descriptions of appellant. We further note that appellant was not, unlike his codefendant, Whittall, wearing a mask on the night of the robbery. We conclude, therefore, that the identification of appellant provided at trial by each victim had an independent origin in the observations of each witness at the time of the crime. Thus, even if the unchallenged photographic arrays had been suggestive—a conclusion without support in the record—under the totality of the circumstances test, there was no likelihood of misidentification. See Neil v. Biggers, supra; Commonwealth v. Fowler, supra; Commonwealth v. Bradford, supra; Commonwealth v. Williams, 274 Pa. Super. 464, 418 A.2d 499 (1980).

Since our review of the totality of the circumstances makes clear that the identifications of each victim had an independent basis and involved no substantial likelihood of misidentification, it would have been futile for counsel for appellant to have filed a motion to suppress the identifications. This conclusion is confirmed by the fact that each victim independently identified appellant as one of the robbers in a certain and unhesitating fashion during a pre-trial physical lineup—a lineup witnessed by counsel for appellant. Therefore, counsel for appellant cannot be deemed to have been ineffective for declining to file such a motion for, where the argument underlying the ineffective assistance of counsel claim is without merit, there can be no showing of ineffectiveness. See Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Ransome, supra.

Judgment of sentence affirmed.

      . In light of our decision we need not decide whether the other crimes evidence was also admissible under the identity exception although it would seem to be admissible. See Commonwealth v. Lee, 297 Pa.Super. 216, 226 n. *, 443 A.2d 804, 808 n. * (1982), McCormick, Evidence § 190 (2nd Ed.1972).


author: MONTEMURO, Judge:

text:
    457 A.2d 537
    COMMONWEALTH of Pennsylvania, Appellant, v. Philip M. WHITE.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1982.
    Filed March 4, 1983.

      Eric I. B. Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Richard E. Johnson, Philadelphia, for appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

The primary issue in this appeal is whether an informant’s prior information which led to six arrests, with contraband seized in all cases, is sufficient to establish the informant’s reliability.

On April 17, 1980, Corporal Clifford Ludd of the Philadelphia Narcotics Unit appeared before the Honorable Michael Bednarek and obtained a search warrant for the appellee, Philip White’s apartment, located on the second floor of 3336 North 5th Street, Philadelphia. Seized pursuant to this warrant were approximately two (2) ounces of heroin, various items used to cut and package the drug, a .22 caliber rifle, and $277.00 in U.S. currency. The appellee was arrested and charged with possession and possession with intent to deliver a controlled substance. The affidavit in support of probable cause recited the following:

On 4-15-80, I received information from a reliable informant who in the past six (6) months has given me information along with other members of the Narcotics Unit leading to six (6) arrest [sic] and three (3) purchases with contraband being seized in all cases, and the arrest [sic] awaiting trial. My informant stated that between 4-13-80 and 4-15-80 in the P.M. hours (the exact date and time being omitted to protect the identity of the informant) that he/she was inside the above listed location and he/she did observe the above named in possession of numerous glazzine packets containing a powder (which the named identified as HEROIN), tin foil wrapped packets (which the named identified as METH), and manila envelopes which the named identified as (Marihuana) [sic]. My informant futher [sic] stated that he/she did observe the named sell these items to various persons in exchange for U.S. Currency. As a result of this information I did go to that location on 4-15-80 in the P.M. hours (between 8:00 PM and 9:30 PM) and conduct [sic] a surveillance of same at which time I observed four (4) persons go to the location enter stay a few minutes and leave. Therefore due to the reliability of my informant, and my surveillance, I believe that the named in [sic] involved in the dispensing and storage of Controlled Substances from inside the location, and that this Warrant should be granted.

The appellee filed a pre-trial motion to suppress the physical evidence seized pursuant to the search warrant.

At the suppression hearing conducted on March 9, 1981, the Honorable Paul Silverstein ruled to quash the warrant on the ground that the Commonwealth had not demonstrated the credibility of the informant. The Commonwealth appeals from this ruling maintaining - that the informant’s information which previously led to six arrests in conjunction with Corporal Ludd’s personal surveillance was sufficient to establish the credibility of the informant or the reliability of the information. The appellee argues that the affidavit did not set forth enough information to show that the informant had knowledge of sufficient facts to conclude that the suspect was engaged in criminal activity and that the affiant is not justified in his belief that the informant is trustworthy.

The constitutional guidelines for issuing a search warrant when probable cause is based on hearsay information are well established.

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of affiant, ... the magistrate must be informed of some of the underlying circumstances from which informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which .the officer concluded that the informant, whose identity need not be disclosed ... was credible or his information reliable, (citations omitted).

Aguilar v. Texas, 378 U.S. 108, 114, 115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964). The first prong of this test, we find, is satisfied. The circumstances upon which the informant implicated the appellee consisted in the personal observation of both the appellee in possession of various narcotics which the informant was able to identify and a sale of these narcotics to others in exchange for U.S. currency. All of this took place in the premises that were the subject of the search. These facts reflect the informant’s knowledge that the appellee was involved in criminal activity.

The second prong of this test pertains to the credibility of the informant or the reliability of the information. In deciding whether this prong has been met, there are four factors to be considered: “(1) Did the informant give prior reliable information? (2) Was the informant’s story corroborated by any other source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip?” Commonwealth v. Archer, 238 Pa.Super. 103, 108, 352 A.2d 483, 486 (1975). This court has also made clear that the affidavit need not satisfy the Magistrate of all four of these criteria. Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 454 A.2d 84 (1982); Commonwealth v. Ambers, 255 Pa.Super. 381, 310 A.2d 347 (1973).

It is now axiomatic that prior arrests attributed to information supplied by the informant need not result in convictions to establish the credibility of the informant, or the reliability of his information. Commonwealth v. Pros docimo, supra; Commonwealth v. Chatman, 275 Pa.Super. 5, 418 A.2d 582 (1980); Commonwealth v. Benjamin, 260 Pa.Super. 1, 393 A.2d 982 (1978). “While past reliability is most often established through a showing of convictions which resulted from the information supplied by the informer, there is no logical reason for mandating that all information lead to convictions before reliability is established.” Commonwealth v. Archer, supra, 238 Pa.Super. at 109, 352 A.2d at 486. The essential fact is that the informant gave prior information implicating others in criminal activity which information proved to be correct. Commonwealth v. Benjamin, supra, 260 Pa.Super. at 7, 393 A.2d at 985; Commonwealth v. Chatman, supra; Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982). That is, that past investigative leads that proved reliable and accurate are a sufficient indication of reliability. Commonwealth v. Benjamin, supra.

The appellee cites our holding in Commonwealth v. Chatman, supra, wherein an equally divided court affirmed an order of the lower court which held that an affidavit which is devoid of any relevant details pertaining to prior arrests and which does not otherwise contain any indicia of trustworthiness is insufficient to establish the credibility or reliability of the informant.

In Chatman, the pertinent portion of the affidavit read as follows:

“This informant has given information in the past which led to the arrest of Curtis Williams and Earl Montel.”

Id. 275 Pa.Super. at 7, 418 A.2d at 583. This was considered insufficient to enable an issuing magistrate to make an independent and informed judgment. Aguilar v. Texas, supra.

In the most recent case on this issue, Commonwealth v. Prosdocimo, supra, this court analyzed and found probable cause in an affidavit which contained the following recitation:

The affiants were given information by person who has been [sic] reliable in the past that Rick Prosdecimo [sic] is concealing and dispensing Dilaudids from his apt. [sic]. The informant has observed this activity on a number of occasions in the past and as late as the week of 2-6-77. The informant has just been talking with Rick and Rick told the informant that he has 500 D’s on hand right now and the he was waiting for a number of persons to come to the apt. now to buy some. The informant stated that we should hit it this night as he would sell most of them tonight as he was going to turn tomorrow. By turn the affiants know he means purchase more of them for sale. Information from this informant has resulted in the arrest of Charles Connors of 159 Greenfield Ave. on 9-29-76 and the arrest of Robert Mahaven of 1680 Skyline Dr. on 2-17-76.
Because Rick may sell out tonight the affiants are requesting a night time search warrant to be issued.

In Prosdocimo, we distinguished Chatman on the ground that, there, the affidavit failed to set forth the dates of the arrests and the addresses of the persons arrested which might have otherwise provided more of a background to support a finding that the informant was credible or his information reliable. Although the affidavit in Prosdocimo did not specifically indicate the accuracy of the informant’s prior implication in criminal activity of the person who had been arrested, this court emphasized a number of the surrounding circumstances contained in the affidavit which, when taken together, established the reliability of the informant. This determination was based on the proposition that any information that may be considered in an analysis of the first prong of the Aguilar test (knowledge of the informant) may also be considered in the analysis of the second prong (veracity).

The information contained within the four corners of the affidavit in the instant case is substantially similar to the information analyzed in Prosdocimo. Reviewing the affidavit, we find that the issuing magistrate was informed of the following: (1) Corporal Ludd is a member of the Narcotics Division of the City of Philadelphia Police Department; (2) the crime for which the search warrant was sought was violation of the Narcotics laws; (3) the informant was considered reliable by police who specialize in narcotics investigations, a factor which the magistrate could well include in the bases for a conclusion that the informant was credible; (4) there were specific illegal substances named by the informant (Heroin, Methamphetomine and Marijuana) which were the object of the search and which the informant observed being sold by the appellee to others in exchange for currency; and (5) the informant, within six months of the application for the warrant, supplied information leading to six arrests and three (3) purchases with contraband being seized in all cases. We believe that this last element is especially supportive of reliability in light of our holding in Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979). In Albert we held that an informant’s information which had resulted in prior arrests and seizures of drugs would justify an independent finding of reliability.

Upon consideration of the facts set forth in the affidavit as well as all relevant case law, we find that probable cause has been established in accordance with the criteria set forth in Aguilar v. Texas, supra.

The Order of the court below granting appellee’s motion to suppress is reversed and this case is remanded for trial. This court does not retain jurisdiction.

      . 35 P.S. § 780-113(a)(16), (30).

      . It is well settled that the Commonwealth is entitled, to appeal a suppression order which substantially impairs the presentation if its case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); Commonwealth v. Gullet, 459 Pa. 431, 329 A.2d 513 (1974).

      . This test has been employed extensively in this jurisdiction. See, e.g., Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Turner, 284 Pa.Super. 395, 425 A.2d 1161 (1981); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980); Commonwealth v. Forster, 253 Pa.Super. 433, 385 A.2d 416 (1978).

      . The test required for this second prong permits the issuing authority to complete the evaluation of the informant by a conclusion either that the informant was credible or that his information was reliable. Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 454 A.2d 84 (1982).

      . From the record, this case determined that the issuing magistrate was aware of the following data:
      Detective Barry Fox, one of the applicants for the warrant, is a member of the Narcotics Division of the Pittsburgh Police Department.
      The crime for which the search warrant was sought was violation of the Narcotics laws.
      The informant was considered reliable, a conclusion of the police, but, nonetheless, a conclusion of police specializing in narcotics investigations and seeking a warrant for narcotics violations, a factor which the magistrate could well include in the bases for a conclusion that the informant was credible.
      The application for warrant did not specify a number of illegal substances as the object of the search, nor even a particular class of substances as the object of the. search, but rather provided a quite specific indication of one particular substance, namely: Diluadid. The informant had not simply supplied information on one earlier occasion, that had led to merely an investigation, but had earlier supplied information that (1) twice (2) resulted in arrests of (3) specific individuals (4) on two specific occasions separated by six months (5) within the past year.
      It was necessary to proceed in urgent fashion.

      . Our conclusion in this case does not reflect an acceptance of the affidavit of probable cause as a model or a guide for the drafting and composition of future affidavits. We simply hold that the issuing authority had a sufficient basis for a determination of probable cause. See Commonwealth v. Prosdocimo, supra.


author: CERCONE, President Judge: WICKERSHAM, Judge,

text:
    457 A.2d 541
    COMMONWEALTH of Pennsylvania v. Philip James HUGHES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1982.
    Filed March 11, 1983.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and ROWLEY, JJ.
   CERCONE, President Judge:

Appellant, Philip James Hughes, takes this appeal from the order of the lower court dismissing without a hearing appellant’s petition under the Post Conviction Hearing Act (PCHA). For the reasons set forth below, we hereby reverse and remand for a hearing.

In his PCHA petition, appellant alleges that he was arrested on August 20, 1975 and charged with two counts of possession with intent to deliver (heroin and cocaine) and with carrying firearms. For purposes of Pa.R.Crim.Pro. 1100, the initial rúndate was February 16, 1976. The record shows that appellant’s case was originally scheduled for trial on January 19, 1976, but the case was continued to February; a notation on the docket, dated January 23, 1976, says only that a petition for extension of time was granted. The docket does not reveal who requested this continuance or who was present. On February 6, 1976, the case was again continued; as before, the docket gives no other information regarding the continuance and, in fact, does not even list a new trial date.

The next docket entry was made on March 11, 1976. This entry reads: “Waived Rule 1100 (180 days) in open court. Case continued until April Term 1976”. The transcript, which consists of only one page, does not indicate the presence of appellant. Rather, the record reflects that appellant was at that time in Huntingdon Prison. Appellant’s case vis-a-vis Rule 1100, was not in any meaningful sense discussed at this hearing. The Commonwealth recited that it was ready to proceed on March 9, 1976 but that defense counsel would on that date be unavailable because he was scheduled to try another case. Defense counsel then related that since appellant was in Huntingdon Prison, counsel was requesting a continuance to the April term. The court granted the continuance.

The next notation on the docket was made on April 8, 1976 and, once again, the record only says that the 180 day rule was waived and the case continued. The same “waiver” was again noted on the docket on May 28, 1976. Next, several more continuances, although without waivers, were noted on the docket. Appellant was ultimately brought to trial on September 22, 1976, 399 days after the filing of the complaint, and convicted. Appellant’s case was appealed by an attorney from the public defender’s office, and the conviction was affirmed.

A petition for allocatur was filed with the Supreme Court. During the pendency of this petition, appellant filed his first PCHA petition, which was denied because of the outstanding allocatur petition. When allocatur was denied, appellant filed the herewithin PCHA petition. Counsel from the public defender’s office was appointed to represent appellant in this matter. Counsel properly raised the alleged ineffectiveness of both trial and appellate counsel for failing to raise the Rule 1100 issue. As was indicated, the lower court dismissed without a hearing this PCHA petition.

At the outset, we note that the section 1180-9 of the PCHA specifically sets forth the situation upon which a hearing may be granted or denied. In relevant part, the statute provides:

If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

In interpreting this section, this Court has said that while the right to an evidentiary hearing is not absolute, unless the court is certain of the total lack of merit of an issue raised in a PCHA petition, a hearing should be held on the issue. Commonwealth v. Rhodes, 272 Pa.Superior Ct. 546, 416 A.2d 1031 (1979). More to the point of the instant matter, it has been held that if a PCHA petitioner alleges facts which would establish that counsel failed to raise an issue of arguable merit and that no reasonable basis existed for counsel’s failure to raise such issue, then petitioner should have been granted a hearing on such issue. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978).

From the face of appellant’s petition, it appears that appellant has raised an issue of arguable merit. Appellant was not tried until 399 days had elapsed from the time of his arrest. Although the record shows that numerous continuances were granted, the record does not show, with two exceptions, at whose behest these continuances were attained. Neither does the record show that at any time the Commonwealth applied for an extention under Rule 1100(c) and proved that trial could not be commenced within the prescribed period despite due diligence. Furthermore, the fact that several of the docket entries assert that Rule 1100 was waived does not change our position. As the Supreme Court said in Commonwealth v. Myrick, 468 Pa. 155, 160, 360 A.2d 598, 600 (1976):

As long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity. Absent this record indication of validity, the waiver will be ineffective, (emphasis added).

There are no formal requirements for a valid waiver of Rule 1100 but the Supreme Court has specifically said that either a colloquy or a signed statement in the record would be sufficient indication that the waiver was, prima facie, informed and voluntary. Id., 468 Pa. at 161, 360 at 601. See also Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981). In appellant’s case, we have neither. It therefore appears that appellant has “allege[d] facts that if proven would entitle [appellant] to relief.” The Post Conviction Hearing Act, supra, 19 P.S. § 1180-9. Under the PCHA, appellant is therefore entitled to a hearing, and we accordingly remand for a hearing.

Furthermore, we note that although the PCHA court did take steps toward protecting appellant’s right to counsel under the Act by appointing a public defender to assist appellant with his petition, nevertheless, on remand new counsel not associated with the public defender’s office must be appointed, since appellate counsel and PCHA counsel were both from the public defender’s office. The Supreme Court has ruled in numerous cases that a PCHA petitioner may not be represented by an attorney from the same public defender’s office as the allegedly ineffective attorney owing to the “appearance of a conflict of interest threatening [PCHA counsel’s] duty of zealous advocacy.” Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). See also Commonwealth v. Lutz, 483 Pa. 518, 397 A.2d 787 (1979); Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). Accordingly, we rule that on remand new counsel not associated with the public defender’s office must be appointed.

Case remanded for a hearing and for appointment of new counsel not associated with the public defender’s office. This court does not retain jurisdiction.

WICKERSHAM, J., files a dissenting statement.

WICKERSHAM, Judge,

dissenting:

I find no merit in appellant’s Post Conviction Hearing Act petition. Accordingly, I would hold that it was properly denied without a hearing.

       The two exceptions include the continuance granted to defense counsel on March 11, 1976 and another continuance granted to defense counsel on July 20, 1976. However, we have no such information regarding the remaining five continuances. Furthermore, both of these continuances granted to defense counsel occurred after the apparent rúndate of February 16, 1976.