author: FORD ELLIOTT, Judge:

text:
    628 A.2d 1132
    COMMONWEALTH of Pennsylvania, Appellant, v. William CURTIN. COMMONWEALTH of Pennsylvania, Appellant, v. John CONLEY.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed June 2, 1993.
    Reargument Denied Aug. 9, 1993.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Anthony M. Mariani, Pittsburgh, for Curtin, appellee.
    Alisa N. Carr, Pittsburgh, for Conley, appellee.
    Before McEWEN, FORD ELLIOTT and MONTGOMERY, JJ.
   FORD ELLIOTT, Judge:

The Commonwealth brings this instant appeal, challenging the trial court’s suppression of various items of evidence all related to video gambling devices. The evidence was seized during a massive police sweep involving the execution of over 100 search warrants. We find ourselves in agreement with the suppression court and will affirm the order dated February 26, 1992.

The factual background underlying this appeal is actually quite simple. For some time now, video gambling devices have been an entertainment staple at taverns, amusement parks, and other businesses throughout the Commonwealth.

Typically, these machines feature a game of chance such as poker or blackjack, to be played against the machine, or, as have appeared of late, are simply video slot machines. The patron inserts his cash wager, receives a given amount of credits, and then bets with these credits. If lucky, the patron will accumulate credits, tallied by the machine. When a certain numerical threshold is reached, the bettor may turn in his credits with the bartender or manager and receive a cash payment. The bartender or manager then clears the credits from the machine by use of what has come to be called a “knock-off’ switch. At this point, the machine is ready for use by a new customer.

Appellees were vendors operating these video gambling devices and having machines in many locations throughout Allegheny County. At the time the instant searches and seizures occurred, appellees were apparently the largest such vendor in Allegheny County.

In September of 1988, upon information that the video machines were, in fact, being operated in an illegal fashion, state and City of Pittsburgh police instituted a countywide sweep for these machines and the records pertaining to them. In preparation, search warrant applications were assembled for 102 different locations. Most of the premises were taverns, but one, located at Windgap Road and Berry Street, was a warehouse owned by appellees, and another, located at 930 Saw Mill Run Boulevard, was appellees’ business offices.

On September 22,1988,101 applications for search warrants were presented to District Justice Anna Marie Scharding of Mt. Oliver Borough. District Justice Scharding reviewed the applications in a morning session of 54 applications and an afternoon session of 47. Each application was approximately the same length. Although each application contained an individualized affidavit of probable cause, a substantial portion of each application was also comprised of boilerplate information. It was unclear from the testimony whether District Justice Scharding read every warrant application; however, District Justice Scharding granted each application, and the warrants were executed on the following day.

The lone warrant application which was not offered on September 22 with the 101 others was made the following morning on September 23. This application pertained to appellees’ business offices located at 930 Saw Mill Run Boulevard. Unlike the 101 applications presented September 22, there is no allegation or argument presented that District Justice Scharding failed to read the September 23rd warrant application in full. Following the approval of this search warrant, the police began their countywide sweep.

Most of the warrants were for searches and seizures at businesses that were generally open to the public. Two businesses in particular were not. Those two were the object of the searches conducted at appellees’ warehouse located at Windgap Road and Berry Street and at appellees’ business offices located at 930 Saw Mill Run Boulevard.

The business office location was used mainly for the storage of business records and customer billing; there was no walk-in trade. Three employees generally were on duty there. The front door of the building was permanently locked and the back door was usually locked. The building was posted with signs reading, “Warning, No Trespassing, Guard dog on duty,” and “Warning, No Trespassing.” On the day of the countywide sweep, the rear door of 930 Saw Mill Run Boulevard was left unlocked. Police entered this building to execute their search warrant without first knocking on the door and announcing their identity.

Two issues are presented for our review, both challenging the validity of the trial court’s suppression: 1) whether the review of the search warrant applications by the issuing authority was adequate, representing an independent and detached assessment of probable cause; and 2) whether the knock and announce rule applies to commercial property. We will resolve these concerns seriatim.

Preliminarily, we note our standard of review:

In an appeal from an order granting or denying a motion to suppress, the role of the appellate court is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, the Court may consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. DeBooth, 379 Pa.Super. 522, 527, 550 A.2d 570, 573 (1988), allocatur denied, 522 Pa. 588, 561 A.2d 740 (1989). We turn now to the issues.

The Commonwealth first asserts that the review of the 101 search warrant applications on September 22, 1988, by District Justice Scharding was adequate to satisfy constitutional demands. We observe an earlier discussion of those demands by our supreme court:

Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of our Pennsylvania Constitution prohibit unreasonable searches and seizures. They provide that no warrant shall issue except upon probable cause supported by oath or affirmation, and that the warrant must describe the place to be searched and the person or things to be seized. This constitutional protection against unreasonable searches and seizures is not some new thing produced by recent decisions in the courts. It is rooted in long recognized principles of humanity and civil liberty. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
In order to insure the protection of those constitutional provisions both this Court and the United States Supreme Court require law enforcement officers to obtain a judicially issued search warrant absent certain exigent circumstances. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62, cert. dismissed, 409 U.S. 1031, 93 S.Ct. 523, 34 L.Ed.2d 482 (1972); Commonwealth v. Cockfield, 431 Pa. 639, 246 A.2d 381 (1968); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966).
The magistrate’s function is more than the ministerial one of administering an oath to an officer who has set forth facts the officer believes constitute probable cause. The magistrate must make a judicial determination, albeit a nontechnical, common sense judgment, see Gates, as to whether probable cause exists. It is not enough for a policeman to present an affidavit to the magistrate prior to the search which affidavit the judiciary may consider on the issue of probable cause with complete hindsight after the police have completed their search. The magistrate must actually make a finding of probable cause to validate the warrant before he issues it.

Commonwealth v. Chandler, 505 Pa. 113, 124, 477 A.2d 851, 855-856 (1984). See also Commonwealth v. Peticca, 401 Pa.Super. 553, 585 A.2d 1065 (1991), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991).

The problem with the magistrate’s review of the warrant applications instantly is two-fold. First, by the magistrate’s own admission she did not read every page of every search warrant application. She maintained that she read the entire application only with regard to the first application. Thereafter, she claims to have read the individualized portions of each application but did not re-read the boilerplate sections, only glancing at those segments in order to determine that they were, indeed, identical.

Our second problem with the review of the warrant applications pertains to conflicting testimony. The suppression hearing below was handled in two sessions, one held February 22, 1991, and the other May 6, 1991. District Justice Scharding testified on both dates. Unfortunately for our determinations, the magistrate’s account conflicted between the two occasions. On February 22, District Justice Scharding’s testimony indicated that she may have failed to review the 101 warrant applications adequately. Her testimony was unclear and indicated either that she may not have ascertained that the boilerplate was identical in all of the applications or that she may not have read even the individualized parts of the applications:

[DEFENSE COUNSEL:]
Clearly you didn’t read any of them; isn’t that true?
[DISTRICT JUSTICE SCHARDING:]
I read the originals.
[DEFENSE COUNSEL:]
You read the original?
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
One original?
[DISTRICT JUSTICE SCHARDING:]
The original — the affidavit I believe is the same on most of them. I read the original before I signed it.
[DEFENSE COUNSEL:]
You read one of them — like one of them, and then for 53 of them you just signed; is that correct?
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
Assuming that the other 53 were the same as the one that you read; is that correct?
[DISTRICT JUSTICE SCHARDING:]
That’s correct.
[DEFENSE COUNSEL:]
Okay. You are not sure which one that one was? [DISTRICT JUSTICE SCHARDING:]
I read the first page of each affidavit, not all the copies. [DEFENSE COUNSEL:]
The first page of each affidavit—
[DISTRICT JUSTICE SCHARDING:]
The original of each affidavit, not all the copies of the affidavits.
[DEFENSE COUNSEL:]
Well, you indicated to me that you read one of the affidavits, and the affidavits were all the same?
[DISTRICT JUSTICE SCHARDING:]
No.
[DEFENSE COUNSEL:]
That’s what you said. Now, that’s what you just testified—
[DISTRICT ATTORNEY:]
I object. That’s not—
[DISTRICT JUSTICE SCHARDING:]
I read the original affidavit on each search warrant, scanned over it to make sure that it was the same wording as the original that I had read.
[DEFENSE COUNSEL:]
Magistrate, that’s not what I understood you just to say.
[DISTRICT JUSTICE SCHARDING:]
But I did not read each individual copy because there are—
[DEFENSE COUNSEL:]
We have 54 here.
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
Okay. It would be over 550 pages. It would be physically impossible for you to read this within two or three hours it seems to me. Would you agree?
[DISTRICT JUSTICE SCHARDING:]
I read the original affidavit—
[DEFENSE COUNSEL:]
Now, would you agree with my question? Would you agree with what I’ve just said to you, Magistrate Scharding?
[DISTRICT JUSTICE SCHARDING:]
Yes.'
[DEFENSE COUNSEL:]
Physically impossible. So clearly you could not and did not read—
[DISTRICT JUSTICE SCHARDING:]
Not every copy.
[DEFENSE COUNSEL:]
—all of these correct?
[DISTRICT JUSTICE SCHARDING:]
Right.
[DEFENSE COUNSEL:]
Okay. Now, what I understood you to say was that you read one of them?
[DISTRICT JUSTICE SCHARDING:]
Right.
[DEFENSE COUNSEL:]
All the way through?
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
Is that correct?
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
Okay. One of the 54?
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
All right. And then you assumed that the other 53 were the same?
[DISTRICT JUSTICE SCHARDING:]
Yes.
[DEFENSE COUNSEL:]
Is that correct?
[DISTRICT JUSTICE SCHARDING:]
Right. This is what I—
[DEFENSE COUNSEL:]
Okay. And therefore, you did not have to read any of these 53, just sign them; correct?
[DISTRICT JUSTICE SCHARDING:]
Correct.
[DEFENSE COUNSEL:]
And that’s what you did?
[DISTRICT JUSTICE SCHARDING:]
Yes.

Notes of testimony, 2/22/91 at 52-55.

To fulfill her obligation to make an assessment of probable cause, a magistrate must actually make herself aware of the entire contents of a search warrant application. Obtaining such actual awareness will not always entail reading a warrant application word for word in its entirety. The instant case is an excellent example of such. We believe it would have been wholly proper for District Justice Scharding to have read one application in its entirety and to have reviewed the remaining applications by reading the individualized portions and scanning the boilerplate sections to ascertain that they were, in fact, identical boilerplate. That is the method that the magistrate followed according to her testimony at the second suppression hearing on May 6, 1991. This method of review would have been found acceptable by this court. To the extent that the opinion of the suppression court indicates that every warrant application would have to be read word for word, cover to cover, it is in error.

However, because of the testimony adduced at the first suppression hearing, we are unable to conclude that District Justice Scharding followed an acceptable method of review. Her testimony on that occasion suggests that she did not at least briefly review the boilerplate of each application. Moreover, the testimony implies that she may also have not read some of the individualized parts of each application. In either case, such a method of review would be inadequate to meet constitutional requirements.

While we are not in full agreement with the suppression court’s rationale, we cannot say that its ultimate legal conclusion was erroneous. The suppression court clearly found that District Justice Scharding did not read every affidavit of probable cause. These affidavits constituted a vital part of the individualized sections of the warrant applications. Having failed to review each affidavit of probable cause, District Justice Scharding could not have made a determination of probable cause. The fruits of these searches must be suppressed and the court below properly did so. We will affirm the court below as to the suppression of evidence gathered pursuant to the 101 warrants issued on September 22.

The second issue presented is whether Pennsylvania’s “knock and announce” rule is applicable to commercial structures. This rule is found among our Rules of Criminal Procedure:

RULE 2007. MANNER OF ENTRY INTO PREMISES
(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identify, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

Pa.R.Crim.P. 2007. 42 Pa.C.S.A.

The knock and announce rule is derived from English common law:

The ‘knock and announce’ rule’s origins predate the United States Constitution. It was born in English Common Law and was subsequently adopted in America. In recent times, the ‘knock and announce’ rule has assumed a Constitutional dimension. Both our Court and United States Supreme Court have held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to the manner of a warrant’s execution. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). Even a valid warrant may not be executed in an unreasonable manner; unreasonableness is determined on a case-by-case basis. Id. The rule’s primary purpose is to prevent resistance to lawful authority based on the occupant’s efforts to protect his privacy expectation against unauthorized entry of persons unknown to him. It gives the individual a chance to surrender the premises peacefully in the face of lawful authority. Commonwealth v. Beard, 501 Pa. 385, 461 A.2d 790 (1983); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) (plurality opinion).

Commonwealth v. McDonnell, 512 Pa. 172, 176-77, 516 A.2d 329, 331 (1986).

The Commonwealth would argue that knock and announce has no application to commercial property. Relying on the common law origins of the rule, the Commonwealth posits that at common law, the rule’s primary purpose was to prevent the needless destruction of a person’s dwelling. Citing Semayne’s Case, 77 Eng.Rep. 194 (K.B.1603), and Lee v. Gansel, 98 Eng.Rep. 935 (K.B.1774), for the proposition that the law abhors the breaking and destruction of a place of habitation and safety without some default on the part of the owner, the Commonwealth contends this same rationale cannot apply to commercial property.

Further, the Commonwealth refers us to federal statutory and decisional law for additional support for this proposition. The knock and announce rule has been codified in the federal statutes:

§ 3109. Breaking doors or windows for entry or exit
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

18 U.S.C. § 3109.

As noted by the Commonwealth, some federal cases have interpreted the use of the word “house” in the statute to limit the application of the rule to dwellings. However, our research reveals a division of authority on this issue among the federal circuits. In any event, the case relied upon by the Commonwealth presents an interesting analysis. In United States v. Francis, 646 F.2d 251 (6th Cir.1981), cert. denied, Francis v. United States, 454 U.S. 1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981), DEA agents secured a warrant to search a barbershop owned by Francis. The factual context in which the warrant was executed must be recounted before the court’s analysis can be addressed:

After the warrants were issued but before they were executed the agents, through further contact with the informant, learned that he/she had very recently purchased heroin from defendant at the shop. The agents concluded that this new information coupled with the informant’s earlier observations gave them probable cause to arrest defendant before searching his shop. They placed the barbershop under surveillance on the evening of September 29. When defendant exited the agents followed and arrested him. They took him to a nearby parking lot where they searched him and interrogated him concerning drug activities. The search of defendant turned up two large rings of keys which included keys to the shop. The agents informed defendant when they arrested him that they had a search warrant for the barbershop.
The agents returned to the barbershop, both entrances of which were protected by an outer iron gate and an inner wooden door. They struggled with the keys for about five minutes in the presence of defendant before they successfully opened the iron gate at the front entrance. The District Court found that defendant gave them no assistance in effecting entry. The DEA agents had knowledge that some persons remained inside. Fearing that evidence of heroin trafficking was being destroyed, they did not further delay to find the key to the wooden inner door, but instead forced the door with a battering ram. At no time did they announce their purpose to the occupants or request their permission to enter.

United States v. Francis, 646 F.2d at 254.

On appeal, Francis challenged the search of the barbershop under both § 3109 and the Fourth Amendment. The Sixth Circuit Court of Appeals held that § 3109 applied only to dwellings; a barbershop, by its outward appearance, was not a place where one lived. However, the court noted a split in the circuits on this issue. In a separate analysis, the court then addressed whether the failure to knock and announce before entry by the police was a violation of defendant’s Fourth Amendment rights. The court stated that “the fourth amendment forbids the unannounced, forcible entry of a dwelling in the absence of exigent circumstances,” Francis, 646 F.2d at 258. The court went on to opine that because the Francis search involved a commercial establishment, and not a dwelling, that there was a diminished privacy interest to be protected. However, the court then declined to find that under the Fourth Amendment, knock and announce did not apply to commercial structures. Rather, the court decided that the officer’s actions could be upheld under one of the exceptions to the constitutional “knock and announce” rule.

The Ninth Circuit has had occasion to address this same issue and has found that “knock and announce” applies to a commercial establishment under § 3109. United States v. Phillips, 497 F.2d 1131 (9th Cir.1974). However, in United States v. Little, 753 F.2d 1420 (9th Cir.1984), the court upheld the execution of an arrest warrant by IRS agents who entered a business reception area through an unlocked door during business hours without knocking and announcing their identity. The defendant was found and arrested in the reception area. The court opined:

A reception area is used for purposes of greeting and screening those who enter an office to determine if the individual is properly there. Also, office workers are generally free to walk through this area. Since the public and office workers are allowed to walk freely into a reception area, an individual working in the office can have no reasonable expectation of privacy there. Accordingly, section 3109 does not apply to Indec’s reception area.
Appellants cite Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Lo-Ji Sales, Ine. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); and United States v. Phillips, 497 F.2d 1131 (9th Cir.1974), in support of their claim that § 3109 should apply to this situation. Appellants’ reliance on these cases is misplaced. Neither Wong Sun nor Lo-Ji Sales, Inc., involved § 3109. The issue before the court in Wong Sun was whether the police had probable cause to arrest the defendants. In LoJi Sales, Inc., the Supreme Court did not address the propriety of the police officer’s entry into an adult bookstore during business hours to effectuate a search warrant. The issue in Lo-Ji was the sufficiency of an affidavit and search warrant to seize certain items once the officers were on the business premises.
United States v. Phillips, is factually distinguishable. Phillips involved a nocturnal entry into a locked, occupied business. In concluding that § 3109 applied to such an entry, this court emphasized that ‘a locked commercial establishment, at least at night, is a “house” as that word is used in § 3109.’ 497 F.2d at 1133-34.

United States v. Little, 753 F.2d at 1436.

It is important to note that the court did not apply a diminished privacy interest to the reception area. Rather, the court found no expectation of privacy in those areas of commercial establishments which are open to the public. We find the analysis of the Ninth Circuit to be cogent.

In Pennsylvania, the “knock and announce” rule has been repeatedly recognized as having a constitutional predicate to prevent unreasonable searches and seizures. Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992); Commonwealth v. McDonnell, supra; Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991); Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1988). Echoing the language of McDonnell, supra, “Both our Court and United States Supreme Court have held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to the manner of a warrant’s execution____ Even a valid warrant may not be executed in an unreasonable manner; unreasonableness is determined on a case-by-case basis.” McDonnell, 516 A.2d at 331. No Pennsylvania case has drawn a distinction as to the applicability of knock and announce in a residential setting versus a commercial setting. Nor do we find a basis for such a distinction. In arriving at this conclusion, we return to the rationale underlying the knock and announce rule:

‘The, purpose[s] of the “knock and announce” rule,’ as articulated by this court in Commonwealth v. Morgan, supra, ‘[are] to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry.’ Morgan, 517 Pa. at 97, 534 A.2d at 1056.

Commonwealth v. Parsons, 391 Pa.Super. 273, 278-79, 570 A.2d 1328, 1331 (1990).

Viewed in the light of these three-fold interests, the knock and announce requirement of Rule 2007 would apply equally to residential and commercial property alike. Moreover, the distinction which we see as critical, as did the Ninth Circuit, is whether the commercial property in question is open to the public.

First, in regard to the prevention of violence or injury either to occupants or police, we believe that the knock and announce rule is as important in a commercial setting as in a private residence. Just as a homeowner would seek to protect a home and family from unannounced intruders, it is not unlikely that a business proprietor might respond to a violent entry in kind. Businessmen, far more often than homeowners, are the targets of armed robbery. Very often the value of chattels and cash on hand located on commercial property exceeds that which ordinarily would be found in a home. These factors coupled with the non-presence of young children might actually heighten the possibility that businessmen would maintain (and use) firearms on commercial premises. Some business enterprises employ armed security guards to prevent just such intrusions. Of course, the danger of violence and injury mainly arises where the commercial property is closed to the general public. Where police enter an area of commercial premises that are open to the general public, they could not be mistaken for unauthorized intruders.

Second, in a situation such as that presented instantly, where appellees have sought to secure their business property from entry by the general public, we think that conduct fairly well announces to the world that they expect whatever is contained therein will be free from outside examination or interference. In other words, by bolting the doors at 930 Saw Mill Run Boulevard, appellees created an expectation of privacy. Under such circumstances, the knock and announce rule protects the selfsame privacy interests that are present where police seek to invade a person’s home pursuant to a warrant. As such, those privacy interests are just as deserving of accommodation by the police.

The third interest which the knock and announce rule attempts to serve, is the protection of property from damage attendant to forced entry. Of course, this interest would exist equally regardless of whether the property is residential or commercial in nature and restricted from general public entry.

We also believe that where commercial premises are open to the public, the interests served by the knock and announce rule are largely nonexistent. First, there is no danger of a violent response where there is no need to force an entry. Second, there can be no expectation of privacy in any area where any member of the public might venture. Third, if there is no need to force an entry, there is no likelihood of property damage.

Further, we see little reason for imposing greater strictures upon the execution of searches of certain edifices merely because they are also employed as dwellings. Many ongoing criminal enterprises employ dwellings as bases of operation. It can hardly be denied that a “crack house” is a commercial establishment. Nor can a bookmaking parlor operated in the home be viewed otherwise. Why should our law afford such an enterprise greater comity in the execution of warrants than it affords more outwardly commercial undertakings simply because the criminals operate from a place of residence? Moreover, can it seriously be advocated that a commercial warehouse has a lessened privacy interest where signs are posted to warn against trespassers and doors are kept locked or bolted so as to prohibit uninvited entry?

Rather, we find that unannounced entry is equally repugnant to constitutional safeguards regardless of whether the entry occurs in private residential or private commercial property. If commercial property is open to the public, there can be no privacy interest subject to protection upon entry. An officer executing a search warrant may enter onto the premises with the same license as any member of the public. Therefore, we hold that the knock and announce provisions of Rule 2007 apply equally to residential and commercial property alike, where the commercial property is not open to the general public.

Violation of Rule 2007 has been held to require application of the exclusionary rule to the seized evidence where fundamental constitutional concerns are implicated. Commonwealth v. Chambers, supra. We believe such concerns are implicated here.

We have found no merit in either contention raised by the Commonwealth. The mass review of the search warrant applications by District Justice Scharding was inadequate. Moreover, with regard to the sole valid warrant, the police failed to conduct the search pursuant to mandated knock and announce procedure.

Accordingly, the order of the trial court dated February 26, 1992, is hereby affirmed. Jurisdiction relinquished.

      . The Commonwealth has certified that their prosecution is substantially handicapped by the instant suppression as required under Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . Although this appears to be a matter of first impression, we note that in Commonwealth v. Perry, 254 Pa.Super. 549, 386 A.2d 86 (1978), a panel of this court resolved a controversy involving the search of commercial premises. It is clear from that opinion that the court assumed that knock and announce applied equally to commercial property.

      . "Since the magistrate did not read every page of every warrant, nor did she read every affidavit of probable cause of every warrant, the warrants must be held to be invalid.” Suppression court opinion, 3/2/92 at 7 (emphasis added).

      . Suppression court opinion at 7. Having support in the record for such finding, our standard of review requires us to accept it.

      . Section 3109 applies to the execution of both search and arrest warrants. See Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

      . Again, we note that in Commonwealth v. Perry, supra, the court assumed that knock and announce applied to commercial property. See footnote 2.

      . We likewise do not think that the presence of employees somehow vitiates the expectation of privacy any more than the presence of invited guests would vitiate the expectation of privacy in the home.

      . We are aware that there are four instances where a failure to knock and announce is excused:
      1. the occupants of the premises remain silent after repeated knocking and identification;
      2. the police are virtually certain that the occupants of the premises already know their purpose;
      3. the police have reason to believe that an announcement prior to entry would imperil their safety; and
      4. the police have reason to believe that evidence is about to be destroyed.

        Chambers at 408-09, 598 A.2d at 541. However, the Commonwealth does not argue that any of these exceptions are applicable instantly.

      . We believe that the evidence seized at the Windgap Road/Beriy Street property might also be subject to suppression for failure of the police to knock and announce. However, we need not reach this determination as we have already found that evidence properly suppressed under the first issue presented herein.


source: Caselaw Access Project

author: CAVANAUGH, Judge.

license: Public Domain

text:
    628 A.2d 1141
    COMMONWEALTH of Pennsylvania v. William MASON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1992.
    Filed May 28, 1993.
    Reargument Denied Aug. 5, 1993.

      Peter C. Bowers, Philadelphia, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   CAVANAUGH, Judge.

This appeal is from a judgment of sentence imposed after a jury found appellant guilty of various drug offenses, weapons violations, and bribery. Appellant, William Mason, was arrested in the parking lot of a 7-11 store in Bensalem, Bucks County, after police, who suspected him of possessing drugs in his van, determined that he had an outstanding traffic arrest warrant and that his license was suspended. After Mason was in custody, he attempted to secure a break for himself by offering money and drugs to the arresting officers in return for his immediate release. Mason directed the officers to the spot in his van where the illegal drugs were, however, they did not accept them as proffered by Mason. Rather, they seized the contraband, and used it as the basis upon which to charge Mason with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. Also seized from the van were a hand grenade and .44 caliber Magnum gun.

On appeal, Mason challenges the rulings of the suppression court and alleges several instances of ineffectiveness on the part of trial counsel. We have analyzed all these issues and, upon consideration of the record and briefs, find them to be without merit.

The lower court’s opinion, as supported by the evidence of record, accurately recounts the circumstances surrounding the investigation and arrest of appellant:

At approximately 10:55 p.m. on August 2, 1990, Bensalem Township Police Officer Christopher Barry was on patrol and received a radio transmission which provided the officer with descriptions of “two suspicious vehicles possibly involved in drug activity” at building “D” of the Hillbrook Apartments, located at Knights Road and Dunksferry Road in Bensalem Township, Bucks County. The first vehicle was described as a black Chevrolet van, Pennsylvania registration number UXW340, and the second as a silver Ford automobile, Pennsylvania registration number UUL024.
When Officer Barry arrived at the apartment complex, he identified the black Chevrolet van but not the silver automobile. The van was unoccupied and was illegally parked. A briefcase was situated between the van’s two front seats. Officer Barry checked the registration of the van by police radio and was told that the van was registered to William and Karen Mason. The officer remained by the van for about ten minutes, and when the van’s driver did not return he ticketed the illegally parked vehicle and left the apartment complex.
Officer Barry was familiar with both William Mason and the van registered to Mr. Mason before he received the August 2, 1990 radio transmission. While assigned to the narcotics division of the Bensalem Township Police Department from March 1989 to January 1990, and in the months since January of 1990, Officer Barry had received reports from various informants about an alleged Bensalem area cocaine dealer named William Mason, also known as “Hillbilly”, who was known to drive a black van and sell cocaine at the Petticoat Junction Bar.
Officer Barry was also aware that on March 31, 1990, Officer Robert Gorman personally observed the defendant sell an informant cocaine inside of the defendant’s van at building “D” of the Hillbrook Apartments. Officer Gorman was in an unmarked car approximately 50 to 60 feet from the van when he saw the informant enter the defendant’s van, and saw the defendant take a glassine baggie from a briefcase and hand the informant the baggie in exchange for cash. Laboratory analysis confirmed that the substance in the bag was cocaine.
In addition to the already recited incidents, Officer Barry was also aware at the time of the August 2, 1990 radio broadcast that the defendant had a suspended driver’s license and an outstanding traffic warrant. Officer Barry had checked the status of the defendant’s driver’s license in late March or early April 1990 following the already noted drug purchase observed by Officer Gorman, and found that the defendant’s license was suspended. At the time of the August 2, 1990 radio call, Officer Barry had with him a current list, issued on July 6, 1990 of those persons with outstanding traffic warrants from District Justice Ritter’s District Court. The defendant’s name was on that list; see also the warrant list, Exhibit “A”, admitted into evidence at trial.
At 11:29 p.m., a few minutes after leaving the Hillbrook Apartment parking lot, Officer Barry received a second radio call advising him that the black Chevrolet van had subsequently been seen at a 7-11 convenience store located about a mile away at the intersection of Hulmeville Avenue and Park Avenue, Bensalem Township, Bucks County. Officer Barry drove to the convenience store where he observed the defendant who was seated inside the van and was talking to someone outside the van. Officer Barry turned his car around and as he was doing so, the van began to back out of its parking space. Officer Barry stopped the van and got out of his police car. As he approached the van, he noticed the defendant appeared “very, very nervous, shaky, he was sweating profusely and appeared ... to be overly friendly.”
Officer Barry introduced himself within a few feet of the van, and told the defendant that he was investigating a radio call which reported the defendant’s van as being involved in possible narcotics activity at the Hillbrook Apartments. The defendant introduced himself as “Hillbilly”, and said that he was delivering pizza at the Hillbrook Apartments for a local pizza shop, Bella Pizza. Officer Barry asked the defendant for some identification and whether he had a valid driver’s license. The defendant said that his name was William Mason and, according to the officer’s recollection, at the time the defendant said that he did in fact have a valid driver’s license. However, at the suppression hearing the defendant testified that when he was asked about his driver’s license he immediately told the officer that his license was suspended. At some point during the conversation, Officer Barry smelled an odor associated with methamphetamine in the area of the van.
Officer Barry then went to his patrol car to check, via police radio, whether the defendant had a valid driver’s license and whether he still had an active traffic warrant. The defendant was left unattended and went into the convenience store. Police headquarters confirmed that the defendant’s driver’s license was suspended and that the defendant still had an outstanding warrant from district court. When the defendant came out of the 7-11, Officer Barry asked him about the traffic warrant. Mr. Mason said that there had been a warrant from Justice Ritter’s District Court, but that he had paid the fine on the warrant that morning. Officer Barry asked the defendant whether he had a receipt for the payment and the defendant said he did not. The defendant testified at the suppression hearing that he did have an outstanding warrant when Officer Barry stopped him, and that he “lied” to the officer about having paid the fine that morning “because he was worried”. The defendant did not articulate his worries with any particularity-
Officer Robert Gorman was also at the convenience store on duty pursuing an unrelated matter. The two officers discussed the situation, and Officer Gorman confirmed that the defendant was the person whom he had seen sell cocaine at the Hillbrook Apartments on March 31,1990 and that the van was the same vehicle in which the sale was made. The two officers approached Mr. Mason and the van. As they did so, Officer Gorman without having been told of the smell by Officer Barry, noticed an odor of methamphetamine coming from the van.
Officer Barry then asked the defendant if the officers could search the van. The defendant told them he did not want them to search the van because he had “girlie magazines” in it. Officer Barry told him that he was not interested in any magazines and that he thought that there were narcotics in the van.
At that point, the defendant started to back away from the officers and said, “Please don’t do this I’m trying to get out of it.” The suppression court found this statement to be a reference to drug trafficking. The officers believed that the defendant might attempt to flee and so the defendant was arrested for the summary warrant, pat searched and handcuffed. The defendant was not questioned during these arrest procedures. As Officer Barry began to walk the defendant away from the van and toward the patrol car, the defendant initiated conversation with Officer Barry by saying that he would give the officer all of the money and drugs he had on him if Officer Barry would let him go.
In order to have some corroboration for the defendant’s statement, Officer Barry asked Officer Gorman to step over to the patrol car. After Officer Gormari did so, Officer Barry asked the defendant if he had heard the defendant correctly, to the effect that if the officers let the defendant go, they could keep the money and the drugs. The defendant responded, “yes”. Officer Barry then asked the defendant about what quantity and type of drugs they were talking about and the defendant said about an ounce of cocaine.
The defendant was then placed in the back seat of the patrol car, at which time he told the officers that he would get the cocaine for them from the van. While still in handcuffs, the defendant was taken out of the police car and walked to the van. The defendant said that the drugs were under a clipboard located between the two front seats. Officer Barry then for the first time entered the van and found a pouch under the clipboard which contained 48.16 grams or 1-2/3 ounces of cocaine, a digital scale, a sifter with cocaine residue, 1.28 grams of marijuana, 3 tablets of diazepam, 2-1/2 tablets of alprazolam, a quantity of methamphetamine and other paraphernalia.
The defendant was then transported to Bensalem Police Headquarters where he was searched and given his Miranda warnings. After being informed of these rights, and signing a release, the defendant provided the police with a statement in which he said among other things that he had been selling cocaine for about a year and at one point had more than fifty customers, and that he was about to sell the cocaine found in his van at a bar in Philadelphia known as Purgatory’s.
The defendant’s van was seized following the defendant’s arrest, and a search of the van uncovered a .44 caliber Magnum revolver loaded with six hollow point bullets behind a cushion on the driver’s seat as well as an explosive device which had to be detonated by the Philadelphia Bomb Squad.

Lower Court Opinion, March 17, 1992 at 1-8 (page citations omitted.)

We observe that appellant testified at trial and admitted that the physical evidence consisting of drugs and weapons were discovered by the police in his van. He disputed, as he had at the suppression hearing, that he had consented to the search.

The first four issues presented by appellant relate to the denial of his motion to suppress statements and physical evidence. The standard of review of the denial of a suppression motion is as follows:

In reviewing a trial court’s denial of a motion to suppress, the appellate court’s responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Hughes, 521 Pa. 423, 438, 555 A.2d 1264, 1271 (1989). In making this determination, we will consider the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Id., 521 Pa. at 438, 555 A.2d at 1271-72 (quoting Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976)).

Commonwealth v. Brundidge, — Pa.-,---, 620 A.2d 1115, 1116 (1993).

The first issue is whether the investigation conducted by Officers Barry and Gorman exceeded the permissible scope of their authority to act upon the outstanding traffic warrant. Mason contends that the officers did not have an articulable basis to believe that further criminal activity was afoot, and, therefore, the search of the van was overextensive.

Appellant does not dispute that at the time Officer Barry approached him in the 7-11 parking lot there existed a current warrant for his arrest (relating to traffic offenses) and that his license was under suspension. He concedes that Officer Barry could legitimately arrest him on this basis. Mason argues that no other elements were present that would support the search of the van.

Where the driver of a vehicle is arrested pursuant to a warrant, the validity of a warrantless search of the automobile depends upon the officer’s reasonable belief, i.e., probable cause, that its contents offend the law. The right to arrest alone does not determine the permissibility of the search. See Commonwealth v. Germann, 423 Pa.Super. 393, 397-400, 621 A.2d 589, 591-592 (1993); Commonwealth v. Parker, 422 Pa.Super. 393, 399-401, 619 A.2d 735, 738 (1993); Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988).

We find that there were sufficient elements present to cause Officers Barry and Gorman to have probable cause to believe that the van was being used in furtherance of a felony and that it contained contraband. The facts relevant to the determination of probable cause included: the previous radio call that evening to Officer Barry to investigate suspicious drug activity involving Mason’s van; Mason’s nervous demeanor when Officer Barry approached his van at the 7-11 store; Mason’s untruthful answers to Officer Barry’s inquiries concerning the traffic arrest warrant, payment of fines, and the status of Mason’s driver’s license; and the officer’s smelling methamphetamine odor from the van. These factors alone, without considering the dated information of Mason’s previous drug sales and his disputed consent to search, establish that the police had probable cause to believe that criminal activity was afoot. See Bailey, supra, where the odor of a “chemical-type” smell combined with an officer’s observance of a clear plastic bag containing a white substance was probable cause to search the entire vehicle. Compare Commonwealth v. Parker, supra, where a consensual search conducted after a valid traffic stop was found to be beyond the permissible scope of the stop. In Parker, the accused was cited for driving without a license, however, there existed no other objective circumstances to support a suspicion that drugs or other contraband were hidden in the vehicle.

Appellant cites the recent case Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992), for the proposition that absent reasonable grounds to suspect illegal activity, a warrantless search of a vehicle may not be conducted pursuant to a lawful traffic stop. In Lopez, this court held that a driver’s consent to search his car and towed vehicle was tainted by the illegal detention. The driver in Lopez was in violation of the traffic code because he had failed to cross the tow chains. No other irregularities or other objective factors were present to justify the police officer’s continued detention of the driver or his request for consent to search.

The situation in Lopez differs markedly from the one in the instant case. Here, the police officers were in possession of information that appellant’s van was involved in suspicious drug activity some one-half hour before the stop. They smelled methamphetamine odor coming from the inside of the van. The appellant gave them false information concerning his driving status and his payment of traffic fines. These circumstances provided the officers with probable cause to believe that controlled substances would be discovered in the van.

Because Officer Barry had probable cause to arrest Mason when he prevented Mason from driving out of the 7-11 parking lot, based upon the officer’s knowledge of the outstanding warrant and the suspended status of Mason’s driver’s license, recent cases suppressing evidence because of lack of reasonable suspicion or probable cause of a traffic violation are not applicable to analysis of this case. Cf. Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992) and Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992). DeWitt and Whitmyer pertain to a determination of the legality of a motor vehicle stop. In the instant case, the focus of the inquiry is the propriety of the search after a stop based upon an outstanding traffic warrant. Having determined that there existed an adequate basis upon which the officers had probable cause to believe that evidence of a crime was contained in the van, we find that appellant’s first issue is without merit.

The second issue is whether Mason’s consent to search the van was obtained through coercion and duress. Given our finding that there was probable cause to search the van, this issue need not be discussed at length. In the interest of judicial economy and since the question of consent was raised before and addressed by the lower court, we will treat this issue. Voluntariness of consent is a question of fact to be determined from all the circumstances. Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992).

Appellant argues that the arrest was used as a tool to obtain his consent to search his van. He bases this argument upon the sequence of events where the officers first asked for consent to search, this was declined, appellant was arrested on the traffic warrant, and the officers again asked for consent to search. Missing, however, from appellant’s rendition is the offer by appellant to give the officers his drugs and money if they let him go and his offer to show them the drugs in the van. The suppression court accepted the testimony of Officer Barry that Mason suggested to the officers that he show them the drugs and that he described their location in the van. The court found as fact, and the record supports, that the officers made no threats or promises to Mason. The facts of this case outline more an offer to produce the drugs than a consent to search for them.

Mason was under arrest and he had not been informed of his Miranda rights when he consented to the search. These are factors to consider when determining coercion. See Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988). He had been told that Officer Barry believed there was enough information to present to a magistrate to obtain a, search warrant. It was at this point Mason attempted to negotiate his release by offering the officers drugs and money. Based upon all the circumstances, we find that appellant’s consent to the search was voluntary.

The next issue is whether Mason’s statements made before he was advised of his Miranda rights should have been suppressed. Mason was advised of his Miranda rights after he arrived at the police station. While he was at the scene at the 7-11 parking lot he was not warned of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He claims that he was subject to custodial interrogation in the parking lot and in the patrol car.

The lower court found that statements made by Mason at the scene were made either before he was in custody or not in response to interrogation. In his brief, Mason argues that since he was the focus of an investigation, i.e., suspected drug dealing, he was entitled to Miranda warnings. This “focus of investigation” criteria was disavowed by the supreme court in Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (plurality). Being the focus of an investigation does not mean that one is necessarily subject to custodial interrogation. Appellant also argues that because the officers made it clear to him from the start that they were investigating suspicions of drug activity, this was not an ordinary traffic stop, and that the leeway given officers to question drivers at traffic stops is not applicable. Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980).

We find that upon review of the record, the conclusion of the lower court that Mason was not in custody prior to his formal arrest is supported by the evidence. “The test for determining whether or not a person is in custody for Miranda purposes is whether he ‘... is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation ...’” Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992) (citations omitted). Here, Officer Barry parked his vehicle behind Mason’s van. He approached Mason and told him he was investigating a recently received report of suspicious drug activity at the Hillbrook Apartments. He then asked for consent to search. Upon being denied, Officer Barry decided to arrest Mason for the motor vehicle offenses. Until the formal arrest, appellant was not in custody. Mason went into the 7-11 store unescorted while Officer Barry was outside at his patrol car. We find that nothing said during this period was subject to suppression because appellant could not reasonably conclude that he was deprived of his freedom of action in any significant way.

After he was arrested, appellant volunteered to give drugs and money in return for release. The lower court found that he did this not in response to interrogation from the police. The record supports this finding based upon Officer Barry’s testimony. It was appellant who initiated the conversation after his arrest. Therefore, Miranda warnings were not required to be given. Commonwealth v. Odrick, 410 Pa.Super. 245, 599 A.2d 974 (1991).

As a final issue relating to suppression, appellant argues that there was no probable cause to search the van. We have already concluded that probable cause to search did exist, and there is no need to reiterate that discussion.

The final issue raised on appeal is whether trial counsel failed to render effective assistance. Appellant cites counsel’s failure to call certain fact and character witnesses, failure to seek sequestration, conflict of interest, and failure to raise and preserve all suppression issues.

The supreme court has recently articulated the standard to be applied to claims of ineffective assistance of counsel as follows:

First, we must determine whether the underlying claim is of arguable merit. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If the claim is devoid of merit, our inquiry ceases for counsel will not be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If, however, the claim possesses merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Commonwealth v. Tressler, 526 Pa. 139, 142, 584 A.2d 930, 931-932 (1990). Thus, the mere allegation that trial counsel pursued a wrong course of action will not make out a finding of ineffectiveness.

Commonwealth v. Savage, 529 Pa. 108, 112, 602 A.2d 309, 311 (1992).

We will not consider claims of ineffective assistance of counsel in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981); Commonwealth v. Murphy, 527 Pa. 309, 314 n. 2, 591 A.2d 278, 280 n. 2 (1991); Commonwealth v. Ingram, 404 Pa.Super. 560, 578, 591 A.2d 734, 742 (1991).

Attached to appellant’s brief are letters from eight people pertaining to his nickname and his character. First, appellant contends that trial counsel should have called a Nina Bencardino. However, the only reference to Ms. Bencardino is in the statement of appellant’s wife, Karen Mason. This hearsay statement is not a sufficient showing of the potential testimony of Ms. Bencardino. Therefore, appellant has not made an adequate proffer of the proposed testimony of this person. See Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1987).

Regarding the persons whose letters are attached to appellant’s brief, the following standard is applicable:

In order to successfully set forth a claim of ineffectiveness of counsel for failure to call or investigate a potential witness, an appellant must establish four essential points of information. First, he must identify the alleged witnesses. Second, he must demonstrate defense counsel knew of the existence of those witnesses prior to the time of trial. Third, he must demonstrate the witnesses would have provided material evidence at the time of trial. And fourth, the appellant must establish the manner in which the witnesses would have been helpful to his case. Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990). Where it is clear that the allegations against defense counsel are baseless or without merit an evidentiary hearing is unnecessary. See Commonwealth v. Egan, 335 Pa.Super. 474, 484 A.2d 802 (1984).

Commonwealth v. Phillips, 411 Pa.Super. 329, 346, 601 A.2d 816, 824 (1992).

Several of the letters state, that to the author’s knowledge, appellant’s nickname was Wild Bill and not Hillbilly, as testified to at trial by the police officers. However, appellant himself admitted on the stand that for a time his nickname was Hillbilly. Appellant, therefore, has not shown that this proposed testimony would have been helpful to his case since it would have contradicted his own sworn testimony.

As to the references to appellant’s character, the Commonwealth points out in its brief that most of the letters do not present facts relevant to appellant’s reputation in the community. Personal opinions regarding an accused’s character are not admissible as reputation and character evidence. Commonwealth v. Rue, 362 Pa.Super. 470, 524 A.2d 973 (1987). Although reputation evidence alone may create a reasonable doubt as to guilt, see Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989), mere expressions of a witness’ personal opinion are not probative of reputation.

The two letters which refer to reputation state, “Bill is known too [sic] many people as a good law-abiding person,” John F. Hughes (father-in-law) and, “Billy ... has also been known by many people to be a good person,” Angelina Sherwood (mother). Appellant has not proffered evidence that trial counsel knew of these persons at the time of trial. Further, we are unable to conclude that appellant was prejudiced by the absence of this testimony. Appellant admitted at trial that he possessed all the drugs introduced as evidence and that he intended to sell at least a portion of the cocaine at a bar in Philadelphia. We find that the presumption of effectiveness has not been overcome.

Appellant’s cursory allegation of ineffectiveness for failure to seek sequestration of Commonwealth witnesses constitutes a claim that is presented in a vacuum. None of the testimony is identified as being molded or influenced by the testimony of other witnesses. No showing of prejudice by lack of sequestration has been made.

The next issue alleges that trial counsel may have suffered from an actual conflict of interest because he represented Ms. Bencardino, the alleged confidential informant, in a prior child custody case. Appellant posits that since trial counsel did not call Bencardino at the suppression hearing to contradict the testimony of Officers Barry and Gorman, a showing of actual conflict existed. Conspicuously absent from any portion of the material presented to this court by appellant is any document authored by Bencardino in which she supports any of the allegations or representations made by appellant. This dearth of proof requires a conclusion that appellant has failed to sustain his burden to prove trial counsel’s ineffectiveness.

Finally, we find that trial counsel adequately raised and preserved all grounds for suppression of evidence. We have reviewed these issues on their merits as presented on appeal, and there is no arguable merit to the claim that trial counsel’s representation was deficient in this regard.

Judgment of sentence affirmed.

      . New counsel represents Mason on appeal.


author: BROSKY, Judge.

text:
    628 A.2d 1151
    COMMONWEALTH of Pennsylvania v. Michael P. MEEHAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1993.
    Filed July 15, 1993.

      Rowley, President Judge, concurred in result.

      Dominic Centrella, Norristown, for appellant.
    Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order of the lower court denying appellant’s request for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The sole issue presented for review is whether appellant validly waived his constitutionally guaranteed right to be represented by counsel at the PCRA hearing. In addition to the issue raised in his brief, appellant has filed a pro se application for relief in which he requests the appointment of new counsel. For the reasons set forth below, we affirm the order of the PCRA court and deny appellant’s pro se application for relief.

Since appellant’s pro se filings have created undue complexity and confusion in this case, we will recount the relevant facts and procedural history because an understanding of these matters is crucial to our disposition of this appeal. Appellant, Michael Meehan, was employed as a manager at Snuffy’s Tavern located in Pottstown, Pennsylvania. On the morning of May 11, 1987, James Sheehan, the owner of Snuffy’s Tavern, confronted appellant regarding a shortage in the bar’s weekend receipts. Appellant quit his job and departed from the bar. Appellant later returned to the bar armed with a gun. Although Mr. Sheehan asked appellant to leave the bar, appellant refused and a physical altercation ensued in which appellant repeatedly struck and kicked Mr. Sheehan in his head and upper torso. As a result of the beating inflicted by appellant, Mr. Sheehan sustained a broken nose as well as bruises and cuts which required thirty-three sutures to close. Appellant also suffered bruises, swollen lips and blackened eyes in the fight. Appellant was thereafter arrested and charged with various offenses arising out of this incident.

Although appellant was scheduled for arraignment on these charges, he failed to appear and a bench warrant was issued for his arrest. Due to appellant’s absence, the Commonwealth requested and was granted an extension of time in which to bring appellant to trial.

In December 1987, the Montgomery County authorities learned that appellant was incarcerated in Morris County, New Jersey. Upon discovering appellant’s location, a detainer was filed with the New Jersey authorities. New Jersey retained control over appellant until he was paroled; appellant was then returned to Pennsylvania pursuant to the detainer. At a hearing conducted in May 1988, the trial court revoked the bench warrant because appellant’s failure to appear was apparently due to his incarceration. A public defender, Fiorindo Vagnozzi, Esq. was appointed to represent appellant. Mr. Vagnozzi was later permitted to withdraw his representation.

Appellant failed to appear at the next scheduled proceeding and a bench warrant was again issued for his arrest. Appellant was subsequently located in the Lycoming County Prison where he was incarcerated on unrelated charges. At a hearing held in January 1989, the bench warrant was revoked because the Commonwealth had failed to send notice of the proceeding to appellant’s correct address. Bench warrants were again issued in February and July of 1989, but were later revoked by the trial court.

Appellant was finally brought before the court on the instant matter in August 1989 at which time a public defender, Joseph Hylan, Esq., entered his appearance on appellant’s behalf. Although Mr. Hylan was the designated attorney of record, appellant contacted Mr. Vagnozzi by letter and instructed him to file a Rule 1100 petition to dismiss the charges. Mr. Vagnozzi was further requested to advise appellant of any plea offers by the Commonwealth. Mr. Vagnozzi filed a Rule 1100 petition in which he asked that appellant be released on nominal bail. Mr. Vagnozzi also met with appellant and the district attorney and successfully negotiated a plea bargain pursuant to which appellant would plead guilty to one count of simple assault in exchange for the prosecutor’s agreement to nol pros the remaining charges. The prosecutor also agreed, due to appellant’s insistence, that appellant would be given a sentence of two years’ probation. Appellant entered his plea on August 29, 1989 and the plea bargain was accepted by the court. Appellant was immediately sentenced to probation in accordance with his agreement. Appellant neither sought to withdraw his plea nor filed a direct appeal.

When appellant later discovered that his guilty plea had collateral consequences with respect to other unrelated charges, appellant filed two pro se PCRA petitions on March 29, 1990 and April 23, 1990 alleging that his guilty plea was unlawfully induced by trial counsel and that trial counsel was ineffective in failing to apprise appellant of his right of appeal and in neglecting to file a motion to dismiss the charges under Rule 1100, the Interstate Agreement on Detainers Act and the Uniform Criminal Extradition Act. Appellant’s petitions further contained boilerplate allegations that his constitutional and due process rights had been violated and that trial counsel had failed to protect appellant’s rights in accordance with the ABA standards of defense. The trial court summarily dismissed both petitions without appointing counsel. Appellant thereafter initiated a timely pro se appeal to this court. In its opinion, the trial court acknowledged its error in dismissing appellant’s petitions without appointing counsel and suggested that the case be remanded so that counsel could be appointed.

Appellant withdrew his appeal in response to the trial court’s opinion. David Huganir, Esq. was thereafter appointed to represent appellant. However, appellant was dissatisfled with Mr. Huganir because he previously had been a member of the public defender’s office. Appellant consequently filed a pro se motion for the appointment of new counsel. The lower court denied this request and appellant timely filed a pro se appeal therefrom. Appellant also filed a pro se motion for recusal with the lower court. In response, the trial court entered an order explaining that the appeal deprived the court of jurisdiction to act upon the recusal motion. Appellant subsequently withdrew his appeal after he received assurances that no conflict of interest actually existed between Mr. Huganir and the public defender’s office.

A supplemental PCRA petition was filed on appellant’s behalf on July 12, 1990. The supplemental petition essentially repeated all of the grounds for PCRA relief set forth in 42 Pa.C.S.A. § 9543. However, the petition contained more specific allegations that all prior counsel who represented appellant were ineffective: (1) in failing to investigate and prepare an adequate defense to the charges; (2) in failing to follow appellant’s instructions; (3) in failing to ensure that appellant received the benefit of his plea agreement; (4) in failing to file a motion to withdraw the plea after discovering that the agreement had been breached; and (5) in failing to file a timely appeal. Appellant also alleged that he was entitled to relief because Mr. Vagnozzi was unauthorized to act on appellant’s behalf.

A hearing on the above petitions was held on September 30, 1991. At the hearing, appellant agreed to withdraw his motion for recusal of the trial judge. Post Conviction Hearing Transcript (P.C.H.T.) 9/30/91 at 39-40. Post-conviction counsel, the district attorney, appellant and the trial judge additionally reviewed the scope of the hearing and appellant’s continued representation by Mr. Huganir. During this discussion, appellant agreed that the hearing should primarily focus on Mr. Vagnozzi’s alleged ineffectiveness in failing to file a Rule 1100 motion to dismiss the charges and the fact that counsel improperly induced appellant’s guilty plea. Although appellant initially agreed to proceed with counsel, he subsequently interrupted Mr. Huganir’s examination of Mr. Vagnozzi and informed the court that he wanted to represent himself. The court gave appellant the option of proceeding pro se or continuing with Mr. Huganir as his counsel. Appellant chose to proceed pro se.

At the conclusion of the hearing, the lower court indicated that the case would be taken under advisement. Appellant’s petition was denied by order entered on October 2, 1991. However, the PCRA court never advised appellant of his appellate rights by certified mail as mandated by Pa.R.Crim. P., Rule 1508(e), 42 Pa.C.S.A. Appellant filed this untimely pro se appeal on November 6, 1991.

Since lodging his appeal, appellant has inundated this court with myriad pro se filings. Appellant first filed an application for remand on February 11, 1992. The petition was denied by order entered on May 29, 1992. Appellant next filed an application for relief in August, 1992 followed by a request for the appointment of appellate counsel which was filed in September, 1992. Appellant also filed a motion for stay of proceedings in November, 1992. By order entered on December 18 1992, this court denied appellant’s motion for stay but granted his request for appellate counsel. Dominic Centrella, Esq., who currently represents appellant, was thereafter appointed. Appellant continued his pro se filings despite the fact that Mr. Centrella had entered his appearance. In January, 1993 appellant filed another application for relief which was denied by order entered on May 3, 1993. Appellant’s most recent filing is the application for relief which is currently before us for disposition.

We must first ascertain whether we have jurisdiction to entertain the appeal. See Commonwealth v. Doleno, 406 Pa.Super. 286, 288, 594 A.2d 341, 342 (1991). As indicated above, appellant has appealed from the order denying his petition for post-conviction relief. An order of this type is final for purposes of appeal. See Pa.R.Crim.P., Rule 1509, 42 Pa.C.S.A. The appellate procedural rules further provide that an appeal must be filed within thirty (30) days after the entry of the order from which the appeal is taken. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.

The record reveals that the order denying appellant’s PCRA petitions was entered on October 2, 1991. Appellant thus had thirty days from this date, or until November 1,1991 in which to initiate his appeal. Unfortunately, appellant’s notice of appeal was not filed until November 6, 1991. The appeal is untimely and therefore should be quashed. See Commonwealth v. Doleno, 406 Pa.Super. at 288, 594 A.2d at 342. However, in his correspondence with this court, appellant argues that this untimeliness should be excused due to the PCRA court’s failure to comply with Rule 1508(e) of the Pennsylvania Rules of Criminal Procedure which provides, in relevant part, that “[i]f the case is taken under advisement the judge shall advise the defendant of the right to appeal by certified mail, return receipt requested.” Pa.R.Crim.P., Rule 1508(e), 42 Pa.C.S.A.

It does not appear from our review of the certified record that the PCRA court complied with this rule. It is evident from appellant’s prior pro se appeals that he is well aware of his appellate rights and of the correct mode for perfecting a“ timely appeal. However, we cannot say with certainty that the PCRA court’s failure to follow the directives of Rule 1508 had no effect on appellant’s ability to perfect his appeal since he was incarcerated in a distant county. Under these circumstances, we will proceed to consider the merits of this appeal. See Note, Pa.R.A.P., Rule 105, 42 Pa.C.S.A. (Rule 105(b), which prohibits the courts from enlarging the time period for filing a notice of appeal, is not intended to affect the power of a court to grant relief in the case of fraud or breakdown in the processes of a court) and Commonwealth v. Doleno, 406 Pa.Super. at 289, 594 A.2d at 342 (Superior Court declined to quash an untimely appeal where the trial court did not follow the correct post-trial procedure).

We must next consider appellant’s application for relief. See Commonwealth v. Blystone, 421 Pa.Super. 167, 176, 617 A.2d 778,' 783 (1992) (evaluating the merits of a pro se appellate filing, despite the defendant’s representation by counsel, where the defendant raised allegations regarding counsel’s ineffectiveness which were not discussed by counsel). Appellant asserts in his application that counsel has misinterpreted the focus of this appeal and that the brief filed by counsel is defective. For these reasons, appellant requests us to direct the trial court to appoint new counsel. With regard to a request for the appointment of new counsel, it has been generally recognized that:

an indigent defendant has an absolute right to free counsel. However, he is not entitled to free counsel of his choice. The right to counsel does not give a defendant the right to delay the [proceedings] indefinitely because he is dissatisfied with competent counsel appointed by the court, [who is] ready and willing to represent him.

Commonwealth v. Neal, 387 Pa.Super. 165, 174-175, 563 A.2d 1236, 1241 (1989), allocatur denied, 525 Pa. 597, 575 A.2d 564 (1990) (citations and quotation marks omitted). “As a general rule, however, a defendant must show irreconcilable differences between himself and his court-appointed counsel before a ... court will be reversed for ... refusing to appoint new counsel.” Commonwealth v. Ingram, 404 Pa.Super. 560, 569, 591 A.2d 734, 738 (1991), allocatur denied, 530 Pa. 631, 606 A.2d 901 (1992). In addition, “[t]he decision whether to grant a request for a change of counsel is a matter vested within the sound discretion of the [lower] court. Our rules of criminal procedure provide that a motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons.” Commonwealth v. Basemore, 525 Pa. 512, 522, 582 A.2d 861, 865 (1990), cert. denied, — U.S.-, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992) (citations and quotation marks omitted). We will consider appellant’s request for the appointment of new counsel with these principles in mind.

Appellant first suggests that the brief is defective because counsel has designated this as an appeal from the November 17, 1992 order of the lower court. Appellant has correctly noted that this appeal is from the order of October 2, 1991 rather than the November order. Contrary to appellant’s claims, however, this minor defect does not render the counselled brief inoperative. As demonstrated by the argument set forth in the brief, counsel is aware of the fact that the focus of this appeal is the PCRA hearing conducted in the lower court and his inclusion of the wrong order appears to have been the result of an inadvertent mistake rather than a fundamental misconception of the nature of the appeal. Moreover, counsel’s error does not affect either the merits of the appeal or our ability to engage in effective and meaningful review. Appellant also has not been prejudiced by counsel’s mistake. Counsel’s mischaracterization of the order from which the appeal was taken thus does not necessitate any grant of relief.

Appellant also disagrees with counsel regarding the issues to be reviewed. Specifically, appellant contends that the question raised by counsel is moot as it was previously addressed by this court in our order entered on December 18, 1992. Appellant thus believes that counsel should have raised issues pertaining to the PCRA court’s findings.

Notwithstanding appellant’s contrary interpretation, our order of December 18, 1992 did not definitively resolve the question of whether the trial court erred in depriving appellant of his right to counsel during the PCRA hearing. If our order had disposed of this matter as appellant suggests, no appeal would be before us. A conclusion that appellant was deprived of his right to counsel at the PCRA hearing would have required this court to vacate the PCRA court’s order and remand the matter for a new hearing. However, our order did not so provide. Rather, a review of the order demonstrates that we merely appointed new counsel to ensure that appellant’s rights were protected at the appellate level, and to give this court the benefit of counsel’s legal expertise in framing and discussing the allegations of error. Consequently, the order of December 18 does not render moot the issue now raised by counsel on appellant’s behalf and the brief cannot be deemed defective on this basis.

Appellant’s pro se arguments do not support the conclusion that appellate counsel has misperceived the scope of this appeal or that the counselled brief filed is so defective as to require the appointment of new counsel. Appellant has failed to persuade us that irreconcilable differences exist between himself and present counsel, nor has he demonstrated any other substantial reason why new counsel should be appointed. We therefore deny his pro se application for relief.

We now turn to the merits of this appeal. As indicated above, the question which we must address is whether appellant validly waived his right to be represented by counsel at the PCRA hearing. In support of his position, appellant argues that his waiver of counsel was not knowing, intelligent or voluntary because the PCRA court failed to conduct a detailed colloquy pursuant to Pa.R.Crim.P., Rule 318(c), 42 Pa.C.S.A. and the Note thereto.

As acknowledged by our Supreme Court, “it is, of course, firmly established that an accused has a constitutional right to representation by counsel during trial.” Commonwealth v. Monica, 528 Pa. 266, 273, 597 A.2d 600, 603 (1991). The right to counsel has been further extended to post-conviction proceedings. See Pa.R.Crim.P., Rule 1504(a) and (c), 42 Pa. C.S.A. and the Note thereto (mandating the appointment of counsel to represent the defendant on his or her first motion for post-conviction collateral relief or whenever the interests of justice require it). However, a criminal defendant also has the right to self-representation which may be exercised under specific conditions. Pa.R.Crim.P., Rule 318(a), 42 Pa.C.S.A. and Commonwealth v. Ellis, — Pa. -, -, 626 A.2d 1137, 1138 (1993) (citations omitted). While a defendant may waive his right to counsel,

such a waiver must be the free and unconstrained choice of its maker, and also must be made knowingly and intelligently. To be a knowing and intelligent waiver[,] the defendant must be aware of both the right and of the risks of forfeiting that right. Furthermore, the presumption must always be against the waiver of a constitutional right. Nor can waiver be presumed where the record is silent. The record must show, or there must be an allegation and evidence which show, that [a defendant] was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver....
[T]he procedure to be followed when a defendant seeks to waive his right to counsel is provided in Pa.R.Crim. 318(c)____ Therefore, a trial judge must thoroughly inquire on the record into [a defendant’s appreciation of the right to effective assistance of counsel and to represent oneself at trial, at guilty plea hearings, at sentencing and at every critical stage of a criminal proceeding.

Commonwealth v. Monica, 528 Pa. at 273-274, 597 A.2d at 603 (citations and quotation marks omitted). Accord Commonwealth v. Smith, 426 Pa.Super. 144, 146-148, 626 A.2d 614, 616-617 (1993). We will evaluate the validity of appellant’s waiver in accordance with these principles.

Appellant argues that the PCRA court erred in failing to conduct the detailed waiver inquiry set forth in Rule 318. However, Rule 318 was designed to apply to trial proceedings rather than post-conviction hearings. In reviewing the questions contained in the Comment to Rule 318, it is apparent that some of the questions are irrelevant when viewed in the context of a post-conviction proceeding. For example, a defendant need not be apprised of the charges against him, the elements of each offense, and the permissible sentencing ranges or fines since, having been convicted, the defendant is presumably aware of both the offenses and any sentence or fine imposed therefor. We therefore conclude that inquiry into all of the areas set forth in the Comment to Rule 318 need not be conducted for a waiver of the right to counsel in a PCRA proceeding to be deemed valid. Nonetheless, the defendant must be apprised of his right to counsel and of the risks of forfeiting that right. See Commonwealth v. Monica, supra. Such inquiry would necessarily include a discussion of whether the defendant understands: (1) his right to be represented by counsel; (2) that if he waives this right, he will still be bound by all normal procedural rules; and (3) that many rights and potential claims may be permanently lost if not timely asserted. See Comment to Rule 318.

In this case, the PCRA court was aware that appellant was dissatisfied with counsel’s representation and explicitly explained the consequences of his actions to appellant. Before the hearing commenced, the following discussion took place:

By virtue of correspondence that I was made privy to or actually was addressed to me, I was advised at various times that Mr. Meehan didn’t want Mr. Huganir and I think that I probably should address that question first. So, Mr. Meehan, let me address this to you. Let me explain to you how it is going to be. Mr. Huganir was appointed by me because I have known him for eighteen years and I know him to be an experienced criminal defense attorney and a member of this bar. He is qualified. There is no question in my mind about that.
If you want him to represent you, he will represent you today because I have appointed him and that is his job. If you don’t want him to represent you, that is your choice, too, but you need to know this. If you discharge him, you are on your own. You can’t discharge him and say keep appointing somebody until I find somebody I like. Do you understand that?
DEFENDANT MEEHAN: Yes, sir.
THE COURT: So what do you want to do? Do you want Mr. Huganir to represent you today or do you wish to go on your own?
DEFENDANT MEEHAN: No, I’d like Mr. Huganir to represent me.

N.T. (PCRA Hearing), 9/30/91 at 4-5. The hearing then proceeded with counsel attempting to represent appellant, despite appellant’s pro se interventions. During the examination of Mr. Vagnozzi, counsel informed the court that appellant wanted to complete the questioning and the following discussion took place:

MR. HUGANIR: My client says that he has to go to the bathroom to relieve himself.
THE COURT: All right.
MR. HUGANIR: And that it appears that he is in a position now to relieve me and that he will pursue further questioning of Mr. Vagnozzi.
THE COURT: Mr. Meehan, what are we doing here? DEFENDANT MEEHAN: Your Honor, you know, I don’t mean to take up the Court’s time like this. You know, as I explained to Mr. Vagnozzi the last time he was up to see me, he had said to me—
THE COURT: Let’s not talk about what you are going to ask him. Are you discharging Mr. Huganir?
DEFENDANT MEEHAN: Your Honor, he’s not even prepared. He’s never seen this amended petition he’s claiming. I have all this evidence to introduce as evidence. He hasn’t seen any of it. If anything, I’d ask for a postponement. No, I don’t want to relinquish counsel, but then again you can see apparent from his actions here, that — I mean, there’s no sense of order here. There’s ,no direction that we’re following. We seem to be wandering off and wasting the Court’s time and my time. That’s not what I wish, no. I don’t want to relinquish counsel, but I can do a hell of a lot better job here. I think I know — I’m in the best position to know what happened in this case.
THE COURT: You get a choice. Either Mr. Huganir represents you or you represent yourself. Those are the two options.
DEFENDANT MEEHAN: I will represent myself, Your Honor.
THE COURT: You understand you can’t change your mind now?
DEFENDANT MEEHAN: I understand that.
THE COURT: I am not going to appoint anybody else.
DEFENDANT MEEHAN: I understand that, Your Honor. Could I have co[-]counsel with Mr. Huganir as co[-]counsel?
THE COURT: No. He’s either the counsel or he ain’t the counsel.
DEFENDANT MEEHAN: That’s fine. He’s released.

Id. at 60-62.

Although the PCRA court did not phrase its inquiry in the precise terms set forth in the Comment to Rule 318, the court’s entire discussion demonstrates that appellant was adequately apprised of his right to counsel and of the consequences which would follow in the event that he elected to represent himself. Despite this knowledge, appellant advised the court that he could do a better job than counsel and that he would rather represent himself than continue with Mr. Huganir. Under these circumstances, we find appellant’s waiver to have been knowing, intelligent and voluntary.

Even were we to conclude that a violation of Rule 318 occurred, relief is warranted only if appellant suffers actual prejudice as a result thereof. Commonwealth v. Bastone, 321 Pa.Super. 232, 236, 467 A.2d 1339, 1341 (1983); Commonwealth v. Davis, 393 Pa.Super. 88, 101-102 n. 7, 573 A.2d 1101, 1107-1108 n. 7 (1990), allocatur denied, 527 Pa. 597, 589 A.2d 688 (1991). Appellant does not explain the manner in which he was prejudiced by any defect in the waiver colloquy. Nor does he argue that he would not have waived his right to counsel if more specific inquiry had been made into the relevant areas enumerated in the Comment to Rule 318. Our own review of the record similarly discloses no prejudice to appellant.

Order affirmed. Pro se Application for Relief denied.

ROWLEY, P.J., concurs in the result.

      . The PCRA modified in part, repealed in part and renamed the former Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Because appellant’s petition was filed after the effective date of the amendments to the PCHA, his petition will be evaluated under the PCRA rather than the PCHA. See Act of April 13, 1988, P.L. 336, No. 47, § 6 (providing that all petitions for post-conviction collateral relief filed after the effective date of the act must be evaluated under the PCRA).

      . Although the supplemental petition was signed by counsel, Mr. Huganir indicated that the petition was drafted by appellant and that it was signed at appellant’s direction. Post Conviction Hearing Transcript (P.C.H.T.) 9/30/91 at 5.

      . Appellant had been represented by various public defenders at the bench warrant/bail revocation hearings. None of these counsel entered an appearance on appellant’s behalf and they never represented appellant with respect to the underlying charges.

      . According to appellant, the plea agreement required the district attorney to send a letter to Mrs. LuAnn Yohn, the prison release officer of Lycoming County. The letter was to inform Mrs. Yohn that the bench warrant issued for appellant’s arrest in February, 1989 had been erroneously lodged and that it was subsequently revoked by the Montgomery County Court. In addition, appellant was to be given a copy of the letter at the time his plea was entered. Although the letter was written, it was not sent until December 6, 1989. Appellant believes the plea agreement was breached because the letter was not sent at the time his plea was entered.

      . This argument is directed at the fact that Mr. Vagnozzi had formally withdrawn his appearance and a subsequent appearance was entered by Mr. Hylan. Appellant thus argues that Mr. Vagnozzi was unauthorized to represent appellant because Mr. Hylan was the designated attorney of record.

      . In this document, appellant requested this court to remand the case for the appointment of counsel and/or a re-hearing as to the claims raised in his supplemental PCRA petition. '

      . In denying the application, this court specifically indicated that relief would not be granted because appellant had decided to proceed pro se during the PCRA hearing.

      . Appellant additionally filed a motion for appointment of counsel with the trial court. The trial court entered an order denying appellant’s motion on November 17, 1992.

      . We shall only consider the issue presented in appellant’s brief. Although appellant indicated in his petition that other unspecified issues regarding the PCRA court’s findings should be considered in this appeal, we are not required to consider the merits of such claims. See Commonwealth v. Ellis, - Pa. -, - and -, 626 A.2d 1137, 1139 and 1141 (1993) (providing that there is no constitutional right to hybrid representation either at trial or on appeal and that the appellate courts are not required to consider pro se filings or briefs where a defendant is represented by counsel on appeal). Even were we to attempt to consider these issues, a review of the certified record discloses that appellant has not established any of the elements enumerated in 42 Pa.C.S.A. § 9543(a)(2).

      . During the initial discussion with the court, counsel indicated that appellant had drafted a supplemental PCRA petition which counsel had only signed at appellant’s direction. P.C.H.T. 9/30/91 at 5. Counsel further explained that because he had not been consulted with respect to the supplemental petition, he was not ready to proceed on the issues raised therein, and that he was only prepared to present evidence relating to appellant's Rule 1100 claim. Id. at 5 and 10. Counsel also repeatedly stated that he could not control appellant and that appellant wanted to introduce certain evidence in support of the allegations raised in the supplemental petition. Id. at 21, 41-42 and 48. Appellant even objected to answers by Mr. Vagnozzi although he was represented by counsel at the time. Id. at 55. The record thus demonstrates that appellant, rather than counsel, was in control of the proceedings.