author: DEL SOLE, Judge: KELLY, Judge,

text:
    580 A.2d 868
    COMMONWEALTH of Pennsylvania, Appellant, v. Laurel June CAMPBELL, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Wayne Arnold CAMPBELL, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1989.
    Filed Sept. 28, 1990.

      Ross McKeirnan, Warren, for appellees.
    Before DEL SOLE, KELLY and HESTER, JJ.
   DEL SOLE, Judge:

These are appeals by the Commonwealth from an order granting, Appellees, Wayne and Laurel Campbell, a motion in arrest of judgment following their jury conviction of Endangering the Welfare of a Child, 18 Pa.C.S.A. § 4304. The question presented is whether or not there is sufficient evidence to support a guilty verdict against parents whose thirteen year old daughter became pregnant. Having reviewed the record, we affirm the decision of the trial court.

Appellees’ thirteen year old daughter, Stephanie, met an eighteen year old young man named Chad sometime in July of 1988. He was permitted to visit Stephanie at Appellees’ home while they were present. During July, Stephanie and Chad engaged in sexual intercourse on various occasions in the Appellees’ home. At one point, Stephanie became concerned about pregnancy and had a pregnancy test taken. The physician, Dr. McGeary, performed the test which was negative. In conveying the test results, Dr. McGeary spoke with Laurel Campbell, Stephanie’s mother. He advised that he would not recommend administering birth control pills to a thirteen year old but that pregnancy would be very unhealthy for a child of that age since the complications of obstetrical procedures under age fifteen are on average, much increased. Later, on August 1st, Dr. McGeary administered another pregnancy test to Stephanie which was repeated the following day. Both of these tests were positive. At the time of trial Stephanie was pregnant. Chad was charged with three counts of statutory rape, but under a plea agreement with the Commonwealth, if he testified in this case he would be placed in an ARD program, and if successfully completed, statutory rape charges would be dropped. There was no evidence in this case that the Appellees permitted, condoned, fostered or prompted Stephanie’s sexual activity which led to her pregnancy. Following a jury verdict of guilty, the trial court granted the defendant’s motion.

The Commonwealth claims that it presented sufficient evidence for a jury to convict the appellees of endangering the welfare of a child.

In reviewing an appeal from a trial court’s granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crimes charged. Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997, 998 (1986). [Citations omitted.]

Endangering the Welfare of Children, 18 Pa.C.S.A. § 4304, provides:

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the first degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

In Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770 (1976), our Supreme Court held that this statute will be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. The facts in Mack had not been established and, therefore, were not set forth on the record. The Supreme Court determined that it could only decide whether the statute contained an ascertainable standard and whether standard infringes upon first amendment rights. The Court held that § 4304 was not facially vague but “the ‘vagueness’ issue may be finally determined only with reference to the conduct of the person challenging the statute.” Mack, supra 359 A.2d at 772. In Mack, the Court also stated:

The common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it. [Citing Commonwealth v. Marlin, 452 Pa. 380, 386-87, 305 A.2d 14, 18 (1973).]

The Official Comment to Section 4304 provides further guidance with respect to the statute, it states “The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction.” (Purdon’s 1986)

In the case sub judice, the Commonwealth cites the following inapposite cases for the very unique fact scenario we have before us. In Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984), the defendant, the father of one of the two teenage girls he abused, was convicted under § 4304 for choking them, grabbing at their genitals, exposing his genitals and telling his daughter that he could prevent her pregnancy by using the condoms he removed from his pocket. In Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988), the parents of a seventeen month old girl were found guilty of simple assault and endangering the welfare of a child for using excessive force against their little girl by dragging the child, flinging her against a building and pushing her face in hot food among other things. In Ogin, we held that parents have the responsibility to advance physical, mental, and emotional health of their children, and extreme acts or grave omissions which adversely affect the child may come within the scope of § 4304. In Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985), where the parents of a two year old boy were convicted of involuntary manslaughter and endangering the welfare of a child for failing to provide their son with medical attention resulting in the child’s death from cancer. Appellant’s were members of the Faith Tabernacle Church and were relying on God for a cure to the exclusion of modern medicine.

The Commonwealth also cites Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986), where this court held that evidence is sufficient to prove the intent element of the offense of Endangering the Welfare of a Child when the accused is aware of his or her duty to protect the child, is aware that circumstances exist that threaten the child’s physical or psychological welfare and has either failed to act or has taken actions so lame or meager that such actions cannot reasonably be expected to be effective to protect the child’s physical or psychological welfare.

In Cardwell, we determined that the crime of endangering the welfare of a child is a specific intent crime and the intent required is the knowing violation of a duty of care. We then looked to the definition of culpability under 18 Pa.C.S.A. § 302(b) which provides, in part:

(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

In Cardwell, the mother was charged with endangering the welfare of her daughter for failing to take sufficient steps to protect the child from the child’s stepfather. For a period of four years, beginning when the child was eleven years of age, the stepfather sexually abused her, twice resulting in the child becoming pregnant. The Commonwealth provided evidence that the mother had direct knowledge of her husband’s sexual intercourse with her daughter but failed to remove the child from the situation or to protect her.

With the exception of Cardwell, the above cases are easily distinguished from the present case since they all involve physical abuse by the parents or guardian. In this case, the person who took sexual advantage of Stephanie was not a parent or guardian. Cardwell is somewhat similar to this case in that the mother was prosecuted for failing to intervene to prevent abuse. However, in Card-well, the mother did in fact know that her husband had impregnated her child twice and had continued with a pattern of abuse but she did not remove her from the home. In the instant case, the relationship between Stephanie and Chad with the ensuing pregnancy all occurred within a span of less than a month.

Admittedly, Appellees have an obligation to protect their child from any physical or psychological harm known to them. The Commonwealth alleges that Appellees had a duty to prevent their thirteen year old daughter from becoming pregnant, if they knew the sexual activity was continuing in their home while they were present. The Commonwealth contends that if Appellees were aware of Stephanie’s sexual activity and failed to prevent it from recurring, they have breached a duty of care to protect their daughter.

Stephanie Campbell testified that she did not tell her parents that she engaged in sexual activity and that she and Chad would sneak upstairs while her parents were home. After the first pregnancy test in July, obviously, the Appellees were aware that Stephanie had engaged in sexual activity. A caseworker from the Children and Youth Services testified that Mrs. Campbell told him that she knew Stephanie had engaged in sexual activity after the first pregnancy test, and, she was promoting the marriage of Stephanie to Chad. Further, Mr. Campbell advised that he had not discussed with his daughter the appropriateness of her being sexually active with an adult male.

Viewing this evidence in a light most favorable to the verdict winner, in this case the Commonwealth, and drawing the proper inferences from the evidence in the Commonwealth’s favor, we do not believe that the Commonwealth submitted sufficient evidence to prove that the Appellees endangered the welfare of their child. Section 4304 requires that a parent intentionally violates a duty of care, protection or support. However, this section does not contemplate that parents shall be found guilty because their children have become sexually active or pregnant. We hold that merely establishing that a teenage child has engaged in sexual activity or, has become pregnant is not sufficient to establish a violation of the statute on the part of the parents of that child. Even a parents’ knowledge that a child is sexually active is not sufficient to impose criminal responsibility.

It would be an impossible burden to place upon parents to require them to know everything there is to know about their child’s activities. In Pennsylvania, thousands of teens become pregnant each year, and we cannot use § 4304 to criminally punish the parents of these children simply because their child became pregnant. We do not mean to imply that we approve of teen sexual activity, however, many teens engage in that activity without their parents’ consent and/or knowledge. Section 4304 was not intended to provide criminal sanction of parents merely because their teenage children became sexually active or pregnant. Here, the Commonwealth has not shown any acts on the part of these Appellees that would be deemed to have endangered the child. The child’s sexual activity and the resultant pregnancy were a result of her own actions and not the result of any activities fostered or condoned by the parents. Section 4304 was simply not intended to cover the circumstances presented in this case.

Order of the trial court affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

While I agree with many of the concerns expressed by the majority, I find that I am constrained to respectfully dissent.

This case involves a Commonwealth appeal from a post-verdict order vacating appellees’ convictions of reckless endangerment based upon the trial court’s conclusion that the evidence was insufficient to sustain the verdict. I find the limited scope of the trial court’s authority in such matters critical to my analysis of this case.

The law in such matters is well-settled. The Commonwealth has a right to appeal from a post-verdict order vacating a conviction based upon an alleged insufficiency of the evidence. On appeal, we are constrained to view the evidence in the light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences derivable from the evidence. Commonwealth v. Grayson, 379 Pa.Super. 55, 58, 549 A.2d 593, 594 (1988); Commonwealth v. Pearsall, 368 Pa.Super. 327, 329, 534 A.2d 106, 108 (1987); Commonwealth v. Cardwell, 357 Pa.Super. 38, 47, 515 A.2d 311, 315 (1986); Commonwealth v. Reddix, 355 Pa.Super. 514, 523-24, 513 A.2d 1041, 1045 (1986). In this respect it is important to note that the effect of a motion in arrest of judgment is to admit all the facts which the Commonwealth’s evidence tends to prove, and that the trial court has no authority to engage in a post-verdict redetermination of credibility or a re-assessment of the weight to be accorded the evidence in determining the legal question of sufficiency. See Commonwealth v. Coleman, 367 Pa.Super. 108, 120, 532 A.2d 477, 483 (1987) (collecting cases).

The evidence, viewed in the light most favorable to Commonwealth as we must, establishes the following. Appellees were aware that their thirteen year old daughter was engaging in sexual intercourse with an eighteen year old man in their home (N.T. 1/24/89 at 21-22); that appellees were aware of the dangers involved in a thirteen year old’s pregnancy (Id. at 6-7); that appellees failed in any way to prevent their daughter from continuing to have sexual relations in their home (Id. at 21-22); that appellees failed to talk to their daughter about the consequences of her sexual activities (Id. at 6); that appellees allowed their daughter to go unsupervised into her bedroom alone with the man whom they knew was having sexual intercourse with her while appellees were home (Id. at 11 and 22); and that appellees’ daughter became pregnant as a result of these sexual relations. The jury found this evidence to be sufficient to convict the appellees under the relevant statute. Due to our narrow scope of review, I find the trial court exceeded its authority and in this particular case, and I feel compelled to dissent.

      . The trial court granted Appellees’ post-verdict motions alleging insufficient evidence to sustain the verdict, but instead of granting the motion in arrest of judgment, the trial court improperly labelled the relief a judgment non obstante verdicto. An allegation that the evidence is insufficient to support a conviction is properly the basis for a motion in arrest of judgment. Commonwealth v. Leatherbury, 322 Pa.Super. 222, 469 A.2d 263 (1983). However, we do understand what the trial court intended to do and in effect did by concluding that the evidence was insufficient to sustain the verdict. Therefore, we will use the proper term of motion in arrest of judgment.

      . The testimony shows that the child sought the first pregnancy test without advising her parents of her concerns. Also, the testimony of her physician is that he instituted the conversation about birth control pills and stated his reluctance to prescribe them. There is no evidence in the record to support the conclusion that either parent sought birth control pills for the child. Also, there is no evidence in the record to support the inference in the Dissenting Opinion that the parents encouraged and promoted a sexual relationship between their daughter and the young man. Rather, the evidence is that the mother stated she was promoting their marriage.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    580 A.2d 872
    Lisa WALKER, Appellant, v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN and the Travelers Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued May 24, 1990.
    Filed Oct. 3, 1990.

      David Deratzian, Philadelphia, for appellant.
    Thomas P. Kelly, Philadelphia, for appellees.
    Before WIEAND, McEWEN and HUDOCK, JJ.
   WIEAND, Judge:

The issue in this appeal is whether an Assigned Claims Plan insurer is liable for benefits under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq., where the claimant has permitted a judgment to be entered against her in her action at law against the uninsured tortfeasor. The trial court held that the Assigned Claims Plan carrier was not liable under such circumstances and entered summary judgment in its favor. We affirm.

Lisa Walker sustained personal injuries in a two car accident at 38th and Chestnut Streets, Philadelphia, on October 5, 1984. At the time of the accident, Walker was driving an uninsured vehicle owned by Curtis Walker and collided with a vehicle owned and operated by Christopher Clinton. Clinton’s vehicle was also uninsured. In 1985, Walker received basic loss benefits in the amount of five hundred ninety ($590) dollars from Travelers Insurance Company, the carrier designated by the Assigned Claims Plan. When Travelers failed to receive information requested from the claimant, however, it terminated the payment of benefits and, in August, 1986, after repeated requests for information had gone unanswered, closed its file. In September, 1986, Walker filed a civil action seeking tort damages against Clinton, the other driver. Clinton employed counsel and defended the action. Pursuant to Philadelphia’s compulsory arbitration system, a hearing was held on October 9, 1987. Although Clinton was present at the hearing, Walker failed to appear. An award, therefore, was entered in favor of Clinton; and when Walker did not appeal, judgment was entered on the arbitrators’ award.

Walker then filed an action seeking additional benefits from the Assigned Claims Plan and its designated carrier, Travelers Insurance Company. After the pleadings had been closed, the defendants moved for summary judgment. Their motion was supported by unanswered affidavits reciting that Travelers had not been consulted or given notice of Walker’s action against Clinton. The trial court concluded that Walker’s conduct in the third party action had prejudiced the insurer’s subrogation rights and entered summary judgment in favor of the carrier. Walker appealed.

A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. No. 1035(b). In reviewing an order granting summary judgment, we examine the record in the light most favorable to the non-moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

The Motor Vehicle Financial Responsibility Law, at 75 Pa.C.S. § 1756, protects the subrogation rights of an assigned claims carrier as follows: In Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989), the Court concluded that this section of the statute “was enacted to effectuate the same results as section 2000(e)(2) of the Uninsured Motorist Act.” Id., 384 Pa.Superior Ct. at 52, 557 A.2d at 768. Section 2000(e)(2) denies uninsured motorist coverage when the party seeking benefits has, “without the written consent of the insurer, ... prosecut[ed] to judgment any action against any person who may be legally liable therefor.” Dyer v. The Travelers, Designee, 392 Pa.Super. 202, 205, 572 A.2d 762, 763 (1990). The Melendez Court held, therefore, “that claimants seeking recovery from the Assigned Claims Plan forfeit their right to recover from the Plan when [they] extinguish the insurer’s right of subrogation against the tortfeasor.” Id. See also: Dyer v. The Travelers, Designee, supra, 392 Pa.Superior Ct. at 205, 572 A.2d at 763; Cotton v. Insurance Co. of North America, 344 Pa.Super. 602, 497 A.2d 254 (1985).

The Assigned Claims Plan or its assignee is entitled to recover, in accordance with the tort liability law of this Commonwealth, reimbursement for benefits or coverages paid, loss adjustment costs and any other sums paid to an eligible claimant under this subchapter.

In Melendez, the claimant had recovered an arbitration award against the third party tortfeasors and, without the consent of the carrier, had released the third parties from any further liability. In the instant case, the claimant’s third party tort action resulted in a final judgment in favor of the alleged tortfeasor. This judgment has extinguished the insurance carrier’s subrogation rights as effectively as did the release in Melendez. Because Travelers’ subrogation interests have been extinguished without its consent by the final judgment in appellant’s legal action against the tortfeasor, appellant must be deemed to have forfeited any right which she might otherwise have to recover benefits from the assigned risk carrier.

Appellant seeks to distinguish Melendez because, in the instant case, Travelers had already made payments of first party benefits when appellant commenced a third party action. She argues that, because of such payments, Travelers had a duty to act promptly to protect its own subrogation interest by taking over appellant’s third party action. There is no merit in this argument. In the first place, Melendez and Dyer leave no room for such a distinction. Secondly, the record in this case is clear that Travelers was not given notice of appellant’s action against the tortfeasor and was not invited to join therein. Nevertheless, without the insurance carrier’s consent, appellant proceeded to extinguish the carrier’s subrogation rights. Having destroyed those rights, appellant cannot recover in this action against Travelers, and the trial court correctly so held.

Appellant also contends that the Assigned Claims Plan acted arbitrarily and violated principles of due process. We do not consider this argument. It was not previously raised in the trial court and, therefore, has not been preserved for appellate review. See: Gerace v. Holmes Protection of Phila., 357 Pa.Super. 467, 476, 516 A.2d 354, 359 (1986), appeal denied, 515 Pa. 580, 527 A.2d 541 (1987); Kovach v. General Telephone Co. of Pennsylvania, 340 Pa.Super. 144, 149, 489 A.2d 883, 885 (1985).

Judgment affirmed.

      . Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000.

      . Knowledge of appellant’s action against the tortfeasor will not be inferred from the notice given by a passenger in the Walker vehicle that the passenger was pursuing a legal action against the alleged tortfeasor.


author: CERCONE, Judge:

text:
    580 A.2d 875
    COMMONWEALTH of Pennsylvania, Appellant, v. Elizabeth DALESSIO.
    Superior Court of Pennsylvania.
    Submitted July 9, 1990.
    Filed Oct. 9, 1990.

      Charles B. Coleman, Asst. Dist. Atty., Reading, for the Com., appellant.
    Harry C. Jackson, Lancaster, for appellee.
    Before TAMILIA, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order dismissing with prejudice criminal charges filed against appellee, Elizabeth Dalessio. For the reasons set forth below, we reverse.

The record shows that appellee was arrested after a search of her residence conducted in January of 1988 by the Pennsylvania State Police revealed the presence of methamphetamine, as well as chemicals, glassware, formulas and equipment used in the manufacture of methamphetamine. The State Police had secured a search warrant, the validity of which has not been challenged in the instant appeal. Appellee was subsequently charged with possession of a Schedule II controlled substance (methamphetamine), possession with intent to deliver (methamphetamine), and criminal attempt to commit unlawful manufacturing of a controlled substance (methamphetamine). A preliminary hearing was held on February 22, 1988 and the charges against appellee were bound over the Court of Common Pleas at Docket Number 389-88.

Prior to the preliminary hearing, The Pennsylvania State Police had secured a second search warrant for appellee’s residence. The search conducted pursuant to this additional warrant resulted in the seizure of approximately ten ounces of a brown liquid (methamphetamine). Appellee was once again charged with possession of a Schedule II controlled substance (methamphetamine) and possession with intent to deliver (methamphetamine). This second set of charges was bound over to the Court of Common Pleas of Berks County at Docket Number 865-88. The two cases were subsequently consolidated for purposes of trial.

On December 5, 1988, appellee pled guilty to all the charges pending against her. On February 1, 1989, appellee was granted post-sentencing permission to withdraw her guilty pleas and the matter proceeded to trial on May 30, 1989. However, a mistrial was declared on June 2, 1989 because the Commonwealth sought to admit a document into evidence to which appellee had been denied access pursuant to a discovery request. The lower court ordered the Commonwealth to bring appellee to trial within one hundred twenty (120) days of the mistrial. The docket entry states that the “Rule 1100 date [is] changed to 9/30/89.”

A second trial for appellee did not begin on or before September 30, 1989. She therefore filed a petition to dismiss under Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. on October 3, 1989. Following argument, the lower court granted appellee’s motion and dismissed with prejudice the charges pending against her. Appellant, the Commonwealth of Pennsylvania, then filed the instant timely appeal which raises the following two issues for our consideration:

A. Does Pennsylvania Rule of Criminal Procedure 1100 as amended provide that a defendant free on bail be brought to trial within 365 days of the filing of the complaint?
B. Is an order of a court of common pleas judge granting an extension for a new trial determinative in assessing compliance with the speedy trial rule even when said order differs from Pennsylvania Rule of Criminal Procedure 1100[?]

We shall address the latter contention first.

The Pennsylvania Constitution gives our supreme court exclusive power to establish rules for the state’s courts. In re 42 Pa.C.S. § 1703, 482 Pa. 522, 529, 394 A.2d 444, 448 (1978). Our supreme court has empowered the courts of common pleas to enact rules of local procedure governing criminal proceedings. Pa.R.Crim.P., Rules 1 & 6, 42 Pa.C.S.A. However, a court of common pleas cannot adopt a local rule which circumvents the procedural rules promulgated by the Pennsylvania Supreme court. Commonwealth v. Pugh, 476 Pa. 445, 449 n. 4, 383 A.2d 183, 185 n. 4 (1978); Rule 6, supra. We find it beyond cavil that the lower court may not abrogate the Rules of Criminal Procedure by order when it has been forbidden to do so by local rule. We therefore conclude that the Court of Common Pleas of Berks County was required to apply Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. to the instant case.

The instant case is governed by the following provisions of Rule 1100:

(d)(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial, unless the defendant has been released on bail, in which instance trial shall commence in accordance with the provision of subsection (a)(3).

Pa.R.Crim.P., Rule 1100(d)(1), 42 Pa.C.S.A. Subsection (a)(3) states:

(a)(3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint was filed.

Pa.R.Crim.P., Rule 1100(a)(3), 42 Pa.C.S.A. As appellee had been released on bail, a rigidly literal construction of subsections (d)(1) and (a)(3), when read in pari materia, would seem to indicate that the Commonwealth was required to bring appellee to trial within 365 days of the date on which the criminal complaints were filed against her. However, a panel of this court has recently construed new Rule 1100(d)(1) to intend that:

When a trial court has granted a new trial, and no appeal has been perfected:
the new trial shall commence within 120 days of the date of the entry of the order granting a new trial, unless the defendant is released on bail, in which instance, the new trial shall commence within 365 days of the order granting a new trial.

Commonwealth v. Wamsher, 395 Pa.Super. 384, 397, 577 A.2d 595, 601-02 (1990). In the case sub judice, the Commonwealth was required to bring appellee to trial within 365 days of June 2, 1989, the date on which she was granted a new trial. Appellee was therefore not yet entitled to discharge on October 3, 1989. Although we are cognizant of the fact that the trial judge did not have the guidance of Wamsher at the time the order was entered in the instant case, we are constrained to follow Superior court precedent and reverse the ruling of the lower court. See also Commonwealth v. Marconi, 523 Pa. 342, 343 n. 1, 567 A.2d 628, 628 n. 1 (1989) (explicating the tolling effect of an appeal on the Rule 1100 run date).

The order of December 5, 1989 is vacated and the case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . 35 Pa.S.A. § 780-113(a)(16).

      . Id. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 901(a).

      . This action is based on Rule 1100, as amended December 31, 1987, effective immediately. The 1987 changes to Rule 1100 promulgated by our supreme court amended former subsection 1100(e)(1) and renumbered this provision at Rule 1100(d)(1). This fact may account for the numeration inconsistencies found between appellant’s briefs and the lower court opinion.


author: TAMILIA, Judge: JOHNSON, Judge,

text:
    580 A.2d 877
    COMMONWEALTH of Pennsylvania v. Bennie Harry BRIMAGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 9, 1990.
    Decided Sept. 7, 1990.
    Reargument Denied Oct. 17, 1990.

      Paul R. Gettleman, Zelienople, for appellant.
    Maria Y. Copetas, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, JOHNSON and CERCONE, JJ.
   TAMILIA, Judge:

On November 1, 1979, appellant was convicted by a jury of first degree murder and violating the Uniform Firearms Act and sentenced to imprisonment for the rest of his natural life. On April 2, 1982, the Supreme Court affirmed the judgment of sentence per curiam. Commonwealth v. Brimage, 497 Pa. 589, 442 A.2d 693 Appellant subsequently filed a Post Conviction Hearing Act (PCHA) petition, counsel was appointed and hearings were held on December 20, 1982 and June 24, 1983. On October 28, 1983, the petition was denied after the court found appellant’s claims of ineffective assistance of trial counsel to be without merit, and no appeal was taken.

The issue before us concerns appellant’s second petition for post-conviction collateral relief, this time under the Post Conviction Relief Act (PCRA). In his petition, appellant alleges ineffectiveness of PCHA counsel for failure to file an appeal from the denial of his PCHA petition. The trial court denied appellant’s PCRA petition without a hearing, finding appellant is not entitled to relief under the PCRA and further proceedings would serve no purpose. Appellant appeals from this Order arguing his absolute right to appeal from the original PCHA denial should be reinstated and the court erred in dismissing his PCRA petition without a hearing.

The Pennsylvania Constitution provides a right of appeal to criminal defendants:

§ 9. Right of appeal
There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

Article 5, § 9. The courts of this Commonwealth have long held that this right of appeal is absolute to criminal defendants where it is a direct appeal from the judgment of sentence. In Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989), the defendant was found guilty of rape and terroristic threats. His post-trial motions were denied, he was sentenced and no appeal was taken from the judgment of sentence. Through new counsel, appellant subsequently filed a PCRA petition alleging his trial counsel was ineffective for failing to file a direct appeal, and appellant requested the court to allow an appeal nunc pro tunc. The trial court found trial counsel had, in fact, failed to file the appeal but did not find ineffectiveness because the court found the underlying issues to be without merit. On appeal, this Court found it was error to deny a defendant’s right to appeal from the judgment of sentence.

“[A]n accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives the right, i.e. for not protecting the accused’s right in the absence of an effective waiver.”

Id., 385 Pa.Superior Ct. at 444, 561 A.2d at 759, quoting Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980).

The appellate courts have never dealt directly, however, with the issue in the instant case, i.e. whether a defendant has an absolute right to appeal from an Order denying a first-time petition for post-conviction collateral relief. The issue was hinted at in Hoyman where we said:

[Commonwealth v. Ciotto, 382 Pa.Super. 458, 555 A.2d 930 (1989)] indicates that the right of direct appeal is superior to that of an appeal in collateral proceedings because appellant need not establish the merit of the issues he seeks to raise. The Court in [Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980)] recognized as much when it noted, “[the] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is ‘totally without merit.’ ” Wilkerson, supra, 490 Pa. at 299, 416 A.2d at 479.
Nor do the decisions in Commonwealth v. Lawson, [519 Pa. 504, 549 A.2d 107 (1988)] and [Blackwell v. Commonwealth, 124 Pa.Cmwlth. 9, 555 A.2d 279 (1989) ] command a contrary result. Although Lawson and Blackwell have some similarities to the case before us, there is a critical distinction between them. Mr. Lawson was the beneficiary of one (1) direct appeal and Mr. Blackwell was the beneficiary of two (2) direct appeals. Mr. Hoyman, through no fault of his own, has had none. Thus, Mr. Lawson’s and Mr. Blackwell’s constitutional rights to take a direct appeal were not violated and the only remaining source of relief was in a collateral proceeding where the underlying substantive issues were presented in the context of ineffective counsel. Here, Mr. Hoyman having established that an important state constitutional right has been denied him is entitled to have that right reinstated and to proceed with a direct appeal. In the case at bar, appellant told the Assistant Public Defender who had represented him at trial he wanted to take a direct appeal, and it was determined at the PCRA hearing that she knew of appellant’s request that a direct appeal was to be filed on his behalf. Through no fault of his own a direct appeal was not filed. Because a miscarriage of justice has occurred in the case at bar, appellant is entitled to the relief he seeks in this PCRA proceeding, i.e., a direct appeal.

Id., 385 Pa.Superior Ct. at 445, 561 A.2d at 759 (emphasis in original).

Although Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), like Hoyman, supra, does not specifically address the question at issue here, a careful reading of Lawson leads us to the conclusion that an appeal from an Order denying post-conviction relief is not an absolute right, even when it is the first petition for relief. In Lawson, the defendant was tried by the court sitting without a jury and convicted of first degree murder on September 10, 1974. Trial counsel filed boilerplate post-trial motions which were denied and no appeal was taken. The defendant, with new counsel, filed a petition for post-conviction relief alleging ineffectiveness of trial counsel, and the court granted leave for defendant to file post-trial motions nunc pro tunc. The court heard argument on the motions, denied them and defendant took appeals to this Court and the Supreme Court, all without obtaining the desired relief. A petition for writ of certiorari to the United States Supreme Court was also denied. In February, 1981, the defendant filed his second petition for post-conviction relief, alleging ineffectiveness of trial and appellate counsel for failure to raise the issue of a Rule 1100 violation. This petition was denied without a hearing and defendant followed up with a third and fourth petition for relief. Our Supreme Court found that PCHA proceedings could not be used by defendants to destroy the concept of finality of verdicts in criminal cases. After reviewing the provisions of the PCHA, the Supreme Court said:

[W]e cannot permit our continuing concern for assuring that persons charged with crime receive competent representation in their defense to be exploited as a ploy to destroy the finality of judgments fairly reached. We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.
We are satisfied that, under our rules, we have provided ample safeguards to assure that a person convicted of a crime is provided ample opportunity to assert a legitimate complaint. In this case, after the initial grant of P.C.H.A. relief, the appellee raised a direct appeal which included review by the Special Transfer Docket Panel, by this Court on a Petition for Allowance of Appeal, and also by the United States Supreme Court by Writ of Certiorari. In addition, there were other petitions, filed, albeit pro se, requesting further collateral review which were denied.
We hold today that the mere assertion of ineffective assistance of counsel is not sufficient to override the waiver and “finally litigated” provisions in the P.C.H.A., as to permit the filing of repetitive or serial petitions under the banner of that statute. A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate. With regard to the instant case, the petitioner does not attack the fairness of the trial that resulted in his conviction, nor does he even assert that he was innocent of the criminal charges involved. What he seeks to do is to negate his obligation to stand trial, and in that effort relies on a procedural technicality. There has been no showing of a miscarriage of justice that would warrant entertaining his repetitive application for collateral relief. This petition should have been dismissed by the court without a hearing.

Id,., 519 Pa. at 513, 549 A.2d at 112.

Thus, defendant Lawson filed his first PCHA petition to reinstate his rights to file appropriate post-trial motions and take a direct appeal from the judgment of sentence, which, as we have previously stated, is an absolute right in criminal cases. His second PCHA petition raised issues of ineffectiveness and at this point, the Supreme Court said such petitions must show relief is warranted due to a miscarriage of justice; allegations of ineffectiveness are not sufficient to support review of repetitive PCHA petitions. Although Lawson was claiming a procedural defect which would have freed him from a life sentence, it was necessary to show a “miscarriage of justice” to be eligible for collateral relief.

Appellant’s situation can be equated with defendant Lawson’s situation and for that reason we deny appellant’s claim. Appellant took a direct appeal from his judgment of sentence and the Supreme Court affirmed the jury verdict. Appellant filed a PCHA petition, hearings were held and the petition was subsequently denied. No appeal was taken so appellant filed a second petition for post-conviction relief, this time under the PCRA, which has stricter standards to meet to obtain relief. See Lawson, supra, n. 12. Appellant claims he has an absolute right to appeal from an Order of the PCHA court, but Lawson proves otherwise. Even though appellant’s second petition actually seeks an appeal from the first petition, appellant must meet the requirements set forth in the PCRA to obtain relief and this he fails to do. There is not an absolute right to appeal from a PCHA or PCRA Order once a direct appeal from the judgment of sentence has been taken; nor is appellant entitled to a hearing on the second petition he filed.

The Supreme Court promulgated rules of criminal procedure, effective July 1, 1989, which authorize disposition without a hearing of post-conviction petitions for collateral relief.

Rule 1507. Disposition Without Hearing
(a) The judge shall promptly review the motion, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 10 days of the date of the notice. The judge thereafter shall either order the motion dismissed, or grant leave to file an amended motion, or direct that the proceedings continue.

Pa.R.Crim.P. 1507(a).

The Comment to Rule 1507 states:

The judge is permitted, pursuant to paragraph (a), to summarily dismiss a motion for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the motion, the answer if any, and all other relevant information that is included in the record. If after this review, the judge determines that the motion is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the motion as provided herein.
A summary dismissal would also be authorized under this rule if the judge determines that a previous motion involving the same issue or issues was filed and was finally determined adversely to the defendant. A second or subsequent motion should be summarily dismissed when the judge determines that the defendant has failed to make a strong prima facie showing that a miscarriage of justice may have occurred. See Commonwealth v. Lawson, 467 Pa. 15 [519 Pa. 504], 549 A.2d 107 (1988).

The trial court thoroughly reviewed appellant’s petition claiming counsel was ineffective for failing to file an appeal and the court found appellant was not entitled to relief under the PCRA, 42 Pa.C.S. § 9543, Eligibility for relief. As authorized by Rule 1507, the court disposed of the petition without a hearing since the court believed no purpose would be served by further proceedings. We find the trial court acted properly as appellant is not entitled to relief under the PCRA and we affirm the Order.

Order affirmed.

JOHNSON, J. files a concurring opinion.

JOHNSON, Judge,

concurring.

On October 30, 1989, the Honorable Gerard M. Bigley entered an order pursuant to Pa.R.Crim.P. 1507(a). Judge Bigley was satisfied that there were no genuine issues of material fact, that Bennie Harry Brimage (Brimage) was not entitled to P.C.R.A. relief, and that no purpose would be served by further proceedings. The trial court gave Brimage notice of its intention to dismiss the P.C.R.A. petition. In response, counsel for Brimage did nothing more than to restate that Brimage’s 1982 P.C.H.A. counsel was “ineffective for not taking an appeal” from the trial court’s order denying post-conviction relief filed October 31, 1983. Understandably, in my view, Judge Bigley thereupon filed an opinion and order denying P.C.R.A. relief.

I would agree with my distinguished colleagues that the order denying P.C.R.A. relief must be affirmed. However, I would not reach the question of whether a defendant has an absolute right to appeal from an order denying a first-time petition for post-conviction relief. On the facts of this case, the order denying P.C.R.A. relief must be affirmed based solely upon the posture adopted by Brimage through his counsel.

Brimage was convicted by a jury of first degree murder and sentenced to life imprisonment. That judgment of sentence was affirmed by our Supreme Court. Commonwealth v. Brimage, 497 Pa. 589, 442 A.2d 693 (1982) (Per Curiam). Brimage filed a pro se petition for relief under the Post Conviction Hearing Act in June, 1982. Counsel was appointed and, on December 20, 1982, a hearing was held. On October 31, 1983, Judge Bigley filed an eleven page opinion together with an order of court, dated October 28, 1983, dismissing the P.C.H.A. petition. No appeal was taken from the 1983 order denying P.C.H.A. relief.

Now, six years later, in August 1989, a motion for post-conviction collateral relief is filed, on a form made obsolete by the Post Conviction Relief Act, as amended April 13, 1988, immediately effective. The original 1989 petition found in the record certified to this court has neither been signed nor verified by the defendant, Brimage. Petition Under Post Conviction Hearing [sic] Act, filed August 3, 1989, page 6, R.R. 19a. The fact that the petition has not been verified is enough, in my judgment, to warrant our affirmance of the trial court order denying relief. Pa.R. Crim.P. 1501, 1502(a)(14). See 42 Pa.C.S. § 9545(b).

If we ignore the fact that Brimage has neither signed nor verified the petition, the claimed eligibility for relief arises from (1) alleged ineffectiveness of counsel and (2) “the abridgement of a right guaranteed by the constitution ...,” apparently the alleged “absolute right of appeal” mentioned in the Brief of Appellant.

Judge Bigley correctly looked to the Post Conviction Relief Act to determine whether Brimage was eligible for any relief. Judge Bigley found, as would I, that Brimage’s claims are not cognizable under the Act.

The Post Conviction Relief Act is the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that existed in April 1988, including habeas corpus and coram nobis. 42 Pa.C.S. § 9542. The Act is not intended to provide a means for raising issues waived in prior proceedings. Id.

First Brimage’s claim that his 1982 P.C.H.A. counsel was ineffective because “counsel failed to file an appeal,” is Without merit. I agree with Judge Bigley that the mere assertion that prior counsel failed to file an appeal, without more, does not bring into question the reliability of the adjudication of guilt. Under the Act, eligibility based upon ineffectiveness of counsel must result from:

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S. § 9543(a)(2)(h), (emphasis added). Brimage has not set forth in his brief, and I cannot fathom, how the failure to file an appeal in a collateral proceeding operates to so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Under the Act itself, the ineffectiveness claim must fail.

Moreover, even if the statute by its express terms did not preclude Brimage’s first claim, the law of our Supreme Court is dispositive. In Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), our Supreme Court announced that a second or any subsequent post-conviction request for relief should not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Rather than addressing himself with, and directing this court’s attention to, any perceived miscarriage of justice, present P.C.R.A. counsel merely tells us that, in the event an appeal is allowed, Brimage and/or his counsel will assert “all the matters raised in the lower court in the [1982] PCHA petition.” Petition, supra, page 3, R.R. page 16a.

More recently, our Supreme Court once again has instructed us that allegations of the deprivation of the right to effective counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant. Commonwealth v. Hutchinson, 521 Pa. 482, 486, 556 A.2d 370, 372 (1989). As the Commonwealth points out in its brief, Brimage has failed to articulate for this court what issues he wished to have raised on direct appeal. The 1982 Petition contains twelve numbered paragraphs of allegations along with, at least, fifteen subparagraphs. At the time the 1982 petition was originally filed, Brimage asserted that he intended to pursue all those issues raised within those paragraphs and sub-paragraphs. I would neither assume that all twenty-seven issues are proper subjects for appeal nor would I relieve Brimage of his obligation to argue to this court whether any of those twenty-seven issues involve a miscarriage of justice.

Finally, Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) remains good law. Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel must set forth, in the P.C.R.A. petition now before this court, an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that prior counsel may have, in fact, been ineffective. Assuming that ineffectiveness claims may be laid against counsel who has appeared in a collateral proceeding, successor counsel still would have the obligation of detailing sufficient facts, accompanied by meritorious arguments, to support the claimed ineffectiveness. Here, counsel has done neither.

With respect to Brimage’s second issue, the alleged “absolute right of appeal,” the short answer is simply that the Act contains no such provision. 42 Pa.C.S. § 9550(b) (repealed) provided, at the time the order denying the 1982 P.C.H.A. petition was entered, that “This order [finally disposing of the petition] constitutes a final judgment for purposes of review.” The language is carried forward almost verbatim into the P.C.R.A., where it sets forth, in 42 Pa.C.S. § 9546(c):

(c) Status of order.—The order constitutes a final judgment for purposes of review.

Brimage would have us restore his right to appeal the issues contained in his 1982 P.C.H.A. petition, more than seven years after those issues had been reviewed by the trial court and rejected in a careful and thorough opinion. He has not explained to my satisfaction why he is not bound by the Act, which, in pertinent part, provides:

§ 9544. Previous litigation and waiver
(a) Previous litigation.—For the purpose of this sub-chapter, an issue has been previously litigated if:
(3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

42 Pa.C.S. § 9544(a)(3). To be eligible for relief, a person must both plead and prove by a preponderance of the evidence, among other things, that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3). The former requirement, that an issue be “finally litigated” (former 42 Pa.C.S. § 9544(a), repealed by amendment, Act 47 of 1988, April 13, 1988, P.L. 336, at 340), along with its requirement that the petitioner “has knowingly and understandingly failed to appeal the trial court’s ruling” is no longer the law. Under the present Act, the mere fact that Judge Bigley did, in 1982 and 1983, consider and decide the only issues now urged upon this court is sufficient to end the matter. And this most certainly must be true where there is not even an attempt to argue a miscarriage of justice, other than in the abstract.

I would not reach the issue of any alleged absolute right of appeal on the facts presented here. The appellant has not brought any food for thought to the table. The statute is clear. I would affirm. And I would acknowledge the concise and cogent opinion of the distinguished trial judge, the Honorable Gerard M. Bigley.

      . Effective April 13, 1988, the Pennsylvania Legislature repealed in part and substantially modified in part the Post Conviction Hearing Act, renaming it the Post Conviction Relief Act. Act of April 13, 1988, No. 47 § 3, 1988 Pa.Legis.Serv. 227, 42 Pa.C.S. §§ 9541-9546.

      . The Order denying appellant's PCRA petition is accompanied by an Opinion and dated December 5, 1989. Appellant, however, fails to append this Opinion to his brief and instead includes the Opinion relating to the denial of the PCHA petition. Appellant also lists the “Order in Question” as the October 30, 1989 Order of Court which actually is a notice of intent to dismiss which is not an appealable Order. The notice of appeal does state the Order being appealed is the December 5th Order and we will proceed accordingly.

       The new provisions enacted by the General Assembly in the Act of April 13, 1988, clearly reflect a legislative perception that courts had been too generous in entertaining claims for relief under the former statute. For example, under the new 42 Pa.C.S. § 9543(a)(2)(ii), a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel's stewardship "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”


author: HESTER, Judge:

text:
    580 A.2d 884
    COMMONWEALTH of Pennsylvania, Appellant, v. Arthur William CAGLE.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Decided Sept. 24, 1990.

      Roseann B. Termini, Asst. Dist. Atty., Harrisburg, for Com., appellant.
    James C. Blackman, Warren, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge:

The Commonwealth appeals from the September 27, 1989 order of the Court of Common Pleas of Warren County dismissing criminal charges against appellee, Arthur Cagle, for driving under the influence, homicide by vehicle, and homicide while driving under the influence. The trial court determined, following a hearing, that the District Attorney of Warren County deliberately delayed prosecution of appellee for eighteen months in order to first represent the deceased victim’s estate, institute necessary orphan’s court matters, and collect proceeds from appellee’s insurance company on behalf of the estate. Although no statute of limitation expired, the trial court granted appellee’s motion to quash the criminal complaint after finding that the delay was deliberate, no additional evidence to prosecute was discovered through the delay, and appellee’s defense was prejudiced as a result of the delay.

We, however, conclude that the trial court’s finding of prejudice as a result of the delay is unsupported in the record. In addition, there is nothing in the record indicating that the Commonwealth’s delay was intended to gain tactical advantage over appellee. Since these two elements must be established before a criminal indictment may be dismissed, Commonwealth v. Lightman, 339 Pa.Super. 359, 489 A.2d 200 (1985), we are constrained to conclude that the trial court abused its discretion in dismissing the prosecution without record support for its finding of prejudice and without finding the required intent by the Commonwealth to profit by its deliberate delay. Accordingly, we remand for an evidentiary hearing on these issues.

The record reveals the following. On April 25, 1987, appellee and his girlfriend were involved in a motorcycle accident on Route 62 in Warren County. A witness observed appellee driving the motorcycle just prior to the accident. The motorcycle left the road, hit a culvert, and climbed an embankment. His girlfriend, Judy Roth, was thrown from the motorcycle and died. Pennsylvania State Trooper John Heary investigated the accident scene, took measurements, and visited appellee at Warren General Hospital. A blood sample revealed that appellee had a blood alcohol content of .22 percent.

District Attorney Hernán later determined that further investigation should be performed before charges could be filed. He then requested the following information from the police: 1) appellee’s height and weight; 2) details of appellee’s hospital treatment and the drawing of his blood; and 3) statements by appellee or witnesses to the accident. He sent a letter to state police sergeant Gorsacz requesting that Trooper Heary be reassigned from his normal duties in order to complete the investigation. Despite the request, Trooper Heary never was assigned exclusively to the investigation, and the trooper did not keep Hernán informed regarding the status of his investigation.

In November, 1987, Mrs. Shirley Barges, Judy Roth’s mother, consulted Hernán for advice on obtaining custody of Judy Roth’s surviving minor child. She also inquired regarding collection of insurance proceeds. Hernán agreed to represent both Mrs. Barges and her daughter’s estate. Subsequently, when Trooper Heary telephoned Hernán in December, 1987, to inquire about the status of the Cagle prosecution, Hernán informed Trooper Heary that he no longer could prosecute the case due to a conflict of interest resulting from his representation of Mrs. Barges and her daughter’s estate. He then referred the matter to the attorney general for prosecution.

On December 30, 1987, realizing the consequences of his conflict of interest, Hernán telephoned the Pennsylvania Attorney General’s office to inform them of the situation. In April, 1988, following Trooper Heary’s return from his scheduled vacation, the attorney general ordered an investigation into the matters originally requested by Hernán. Trooper Heary then interviewed appellee for the second time. During the interview, appellee asserted that the motorcycle inexplicably shimmied and he lost control. Trooper Heary then discovered that a key witness, Linda Blanchard, who observed appellee driving in the opposite direction just prior to the accident and gave a statement to police, had moved from Pennsylvania without leaving a forwarding address. In December, 1988, Trooper Heary eventually discovered both that Linda Blanchard lived in Texas and the name of the bar which appellee had left just prior to the accident. The Commonwealth issued a criminal complaint on March 16, 1989.

Appellee filed a motion to quash the criminal charges alleging prosecutorial misconduct due to deliberate delay by the Commonwealth resulting in missing witnesses and actual prejudice to his defense. At the hearing, appellee argued that the eighteen-month delay prejudiced him since key defense witnesses, several individuals who observed him in the bar and Linda Blanchard, were not available. In support, appellee alleged that he no longer could identify or locate the patrons who were in the bar and that Linda Blanchard was not within the jurisdiction of the court. Appellee further argued that the unnecessary delay by the prosecution was caused deliberately by the self-serving decision of the district attorney to represent Mrs. Barges.

The trial court’s decision to dismiss the prosecution placed great emphasis on the fact that the Commonwealth’s delay was deliberate and that the delay was unexcused since all of the information necessary to prosecute appellee had been available earlier. The trial court secondarily found that appellee was prejudiced by lack of access to key witnesses due to the delay. Since the Commonwealth could not produce a reasonable explanation for the delay, the trial court dismissed the charges against appellee.

We note initially that there is no right to a speedy arrest; speedy trial rights attach only after formal indictment or arrest. Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984). “It is settled that pre-arrest delay does not violate fundamental conceptions of justice except where the delay causes actual and substantial prejudice to the defendant and the government intentionally delayed prosecution solely to gain a tactical advantage over the defendant.” Commonwealth v. Lightman, supra, 339 Pa.Super. at 368, 489 A.2d at 204 (emphasis added) (footnote omitted), citing United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 480-81 (1971). Constitutionally, “investigative delay does not deprive [a defendant] of due process, even if defense might have been somewhat prejudiced by the lapse of time," Commonwealth v. Arnold, supra, 331 Pa.Super at 362, 480 A.2d at 1075, citing United States v. Lovasco, 431 U.S. 783, 795, 796, 97 S.Ct. 2044, 2051, 2052, 52 L.Ed.2d 752, 762, 763 (1977).

We agree with the Commonwealth that appellee failed to substantiate his claims of actual prejudice from delay.

An accused person who claims a due process violation from pre-arrest delay must show both that the delay caused him substantial prejudice, and that the prosecution’s reasons for the delay were improper. Only after the substantial prejudice is established should the court inquire into the reasons for the delay, for it is only such prejudice which “makes a due process claim concrete and ripe for adjudication.”

Commonwealth v. Murphy, 305 Pa.Super. 246, 252, 451 A.2d 514, 517 (1982) (emphasis added) (footnote omitted), quoting United States v. Lavasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.E.2d 752 (1977). Instantly, appellee asserts prejudice from delay and thus, carries the burden of proof. See Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987) (where witness died during delay in filing charges defendant is required to prove how witnesses would have tended to exculpate him). Nevertheless, the Commonwealth contradicted appellee’s assertion at the hearing that Linda Blanchard was not available. The Commonwealth stated that she had been located in Houston, Texas, in December, 1988, but admitted at the hearing that it did not possess a current address for her. No determination ever was made by the trial court whether she would be available to testify.

Further, appellee’s assertion that he no longer can identify or locate individuals from the bar due to the delay is vague and lacks specificity. He fails to supply any description of who may have observed him, what effort he made to locate them, and what exculpatory evidence they would have offered. The trial court never determined whether he satisfied his burden of proof. Id. Moreover, Trooper Heary stated that he had interviewed several persons from the bar, so that they may not be unavailable to appellee.

We conclude that the trial court erred in focusing upon the reasons for delay without determinating first whether substantial prejudice existed. The trial court made no factual findings of prejudice. It never resolved whether Linda Blanchard would testify or that appellee substantiated his claim of prejudice from being unable to locate missing witnesses whom he could have identified earlier. In addition, the trial court never addressed the Commonwealth’s allegation that appellee had obtained statements from bar patrons shortly after the accident.

A delay of eighteen months is not in itself evidence of prejudice. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (seven and one-half year delay not in itself prejudicial where the delay was not intentional in order to gain unfair advantage and no actual prejudice was demonstrated); Commonwealth v. Murphy, supra (thirty-two month delay did not violate due process). The primary safeguard against undue delay between crime and arrest is the applicable statute of limitations except where there is no limitation such as in murder. Commonwealth v. Arnold, supra.

While we deplore the prosecutor’s conduct in this case, we fail to see how that conduct prejudiced appellee. We further fail to find any evidence in the record to suggest that the delay was for the purpose of gaining tactical advantage over appellee. The Commonwealth’s prosecution may be precluded only where the delay actually prejudiced appellant and deliberately was intended for that purpose. Commonwealth v. Lightman, supra; Commonwealth v. Daniels, supra. The record does not substantiate either finding. Any deliberate misconduct by the prosecutor is a separate matter for the Disciplinary Board of the Supreme Court of Pennsylvania.

We are constrained to conclude that the court erred in focusing principally on the lack of excuse for the delay, without first making factual determinations to support its finding of actual prejudice due to the delay. The trial court must determine whether Linda Blanchard can testify and whether appellee’s inability to locate witnesses from the bar both is substantiated and prejudicial. The trial court also must determine whether there is evidence that the Commonwealth’s delay was a deliberate attempt to prejudice appellee’s defense. Accordingly, a new hearing on these issues is required.

Reversed and remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.


author: BROSKY, Judge.

text:
    580 A.2d 1110
    COMMONWEALTH of Pennsylvania v. Debra Irene GUMBY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed Sept. 12, 1990.

      Gary S. Fronheiser, Boyertown, for appellant.
    Mark C. Baldwin, Asst. Dist. Atty., Reading, for Com.
    Before WIEAND, MONTGOMERY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s convictions for bringing contraband into prison and possession of marijuana, a Schedule I Controlled Substance. Appellant presents the following issues for review: (1) whether the trial court erred in denying appellant’s motion to suppress evidence; and (2) whether the trial court erred in failing to declare a mistrial after one of the Commonwealth witnesses referred to appellant’s exercise of her right to remain silent. For the reasons set forth below, we affirm the judgment of sentence.

The relevant facts are as follows. On February 25, 1988, appellant, Debra Gumby, went to the Berks County Prison for the purpose of visiting one of the inmates who was lodged therein, Sammie Williams. Prior to her arrival, Sergeant Herberto Colon, an Assistant Shift Commander at the prison, had received information from a confidential informant relating to Williams. The informant stated that Williams was receiving narcotics through his visitors, but was unable to further identify the visitor. See Suppression Hearing Transcript, 6/9/88, at pp. 5-6. Upon learning of this information, Colon informed Lieutenant Charles Eckenroth, who was in charge of the Visitors Area at the prison. When appellant arrived at the prison, Eckenroth was notified and he summoned a prison matron to conduct a strip search. Appellant refused to consent to the search, and was informed that she would be escorted off of the prison grounds by the police. After being informed of these consequences, appellant decided to consent to the search. Accordingly, appellant was escorted into the ladies’ room by the matron. While in the restroom, appellant removed a balloon that was concealed on her person and attempted to flush it down the toilet. In an attempt to prevent the destruction of the contraband, the prison matron and appellant scuffled briefly. Upon hearing the struggle, Eckenroth entered the restroom and successfully retrieved the balloon before it was carried into the sanitation system. The contents of the balloon were later analyzed and found to contain marijuana. As a result, appellant was convicted of the above charges in a jury trial held in October, 1988. Post-trial motions were thereafter filed and denied, and appellant was sentenced on November 21, 1988. In addition, appellant filed a motion for modification/reconsideration of her sentence, which was subsequently denied because of her pending appeal with this court. This timely appeal followed.

Appellant first contends that th.e trial court erred in denying her motion to suppress the contraband. When reviewing a suppression ruling:

we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error----

Commonwealth v. Parsons, 391 Pa.Super. 273, 277, 570 A.2d 1328, 1330-1331 (1990) (citations omitted). We will review appellant’s arguments with this standard in mind.

In support of her argument, appellant first avers that the authorities lacked the reasonable suspicion to conduct a search because she was not specifically identified by the confidential informant. Further, appellant contends that she did not consent to the search because her consent was coerced. Finally, appellant alleges that the evidence should have been suppressed because her brief detention at the prison constituted an illegal arrest. We find these arguments to be without merit.

61 P.S. § 384 expressly authorizes prison officials to search any person or visitor coming to the prison who is suspected of carrying any type of narcotic. In interpreting this statute, this court has found the following elements to be necessary:

first, that the person must be “reasonably suspected” of having narcotics; second, that after being informed that before he may make his visit he must submit to a search, the person must consent to be searched; and third, that the search that the warden then conducts must be a reasonable search.

Commonwealth v. Dugger, 311 Pa.Super. 264, 302-303, 457 A.2d 877, 897 (1983), reversed on other grounds, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (the Supreme Court expressly affirmed this court’s interpretation of the statute and adopted the “reasonable suspicion” standard for evaluating a prison search. See Dugger, 506 Pa. at 541, 486 A.2d at 384.).

Although appellant correctly refers to the reasonable suspicion standard, she contends that this standard requires the search be directed towards a particular individual. Accordingly, appellant reasons that the prison officials had no authority to conduct a search of her person because the informant did not identify her by name. Contrary to appellant’s interpretation, prison officials are expressly authorized to search all visitors to the prison. See 37 Pa.Code § 93.3(i)(2). Moreover, the standard set forth above does not mandate that the visitor be identified by name; all that is required is reasonable suspicion. As a result, our Supreme Court has recognized that more leeway is allowed in permitting searches than might ordinarily be found in a non-penal environment, because a prison setting involves unique concerns and security risks. See Dugger, 506 Pa. at 542, 486 A.2d at 384. In addition, the information supplied to the authorities in this case was certainly adequate to support the finding of reasonable suspicion. Sergeant Colon testified that he had personally known the confidential informant for over eight years and that the informant had supplied reliable information in the past. See Suppression Hearing Transcript, 6/9/88, at pp. 5 and 11. While it is true that the informant did not particularly identify appellant, he did inform Sergeant Colon that Williams was receiving narcotics through his visitors. See id. at pp. 5-6. Further, Colon testified that he had personally observed Williams and had suspected that he was “high”. See id. at pp. 9-10 and 13. Accordingly, we find that this evidence refutes appellant’s contention that reasonable suspicion to search her did not exist.

Appellant next asserts that her consent to the search was coerced. In evaluating the voluntariness of a defendant’s consent, this court has previously observed that “ ‘[t]he issue of whether consent has been voluntarily given is a question of fact which must be determined in each case from the totality of the circumstances.’ ...” Commonwealth v. Mancini, 340 Pa.Super. 592, 603, 490 A.2d 1377, 1383 (1985), quoting Commonwealth v. Walsh, 314 Pa.Super. 65, 74, 460 A.2d 767, 771 (1983). In addition, we have observed that

[c]onsent must at least be freely given to be effective. This means there must be a total absence of duress or coercion, express or implied____ Further, it is well established that the consent may not be gained through stealth, deceit or misrepresentation, and that if such exists this is tantamount to implied coercion.

Commonwealth v. Walsh, supra, 314 Pa. at 75, 460 A.2d at 771-772 (citations omitted). With these principles in mind, we review the totality of the circumstances surrounding appellant’s consent.

The record demonstrates that appellant was informed by either Lieutenant Eckenroth or the prison matron of the reason for the search. See Suppression Hearing Transcript, 6/9/88, at pp. 20, 26 and 33. Further, appellant was told of the consequences of her refusal to be searched, see id. at p. 27, and that she would be free to leave if she did not consent to the search. See id. at p. 33. Finally, we note that before the search began, appellant removed the marijuana from her brassiere and attempted to dispose of it by flushing it down the toilet.

Appellant does not dispute that the above facts, standing alone, are sufficient to support a finding of consent; rather, she argues that her consent was coerced because she was not permitted to immediately leave the prison after she initially refused to consent. With respect to this argument, this court has noted that “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” Commonwealth v. Mancini, supra, 340 Pa.Super. at 603, 490 A.2d at 1383. More importantly, while the record demonstrates that appellant was briefly prohibited from leaving the prison for security reasons, there is no evidence that appellant was in custody, as she was told that she was free to leave. See Suppression Hearing Transcript, 6/9/88, at p. 33. Accordingly, we find that appellant’s brief detention for security reasons was insufficient to support a finding of coercion.

Appellant further alleges that her consent was coerced by the fact that she could lose her visitation privileges for a period of six months to one year. This factor, however, is irrelevant to our consideration of whether appellant was coerced by the prison authorities. While it may be true that the possible loss of visitation privileges is “coercive” to the extent that it may deter a visitor from smuggling contraband into the prison, “coercion” of this type was not intended to be protected by the Fourth Amendment. As discussed above, the “coercion” sought to be avoided would involve stealth, deceit, misrepresentation or physical duress applied by the law enforcement authorities. See Walsh, supra. In this case, the record is devoid of this type of prohibited conduct. The prison authorities did not in any way force appellant to reveal the contraband which she had concealed on her person; they only advised her of the consequences of her refusal to consent to a search. In addition to these considerations, we note that visitors do not possess an absolute right to enter a prison, see e.g., 61 P.S. § 630, 37 Pa.Code § 93.3 and Commonwealth v. Dugger, 311 Pa.Super. at 311, 457 A.2d at 901 (dissenting opinion) (Wieand, J.). In fact, the privilege may be completely withdrawn where an individual poses a threat to the security of the institution. See e.g., Dugger, id. (dissenting opinion), and 37 Pa.Code § 93.3(i)(l). Therefore, by warning appellant that she could lose her visitation privileges if she did not consent to a search, the prison officials were merely enforcing their prerogative to deny visitation privileges to individuals who were suspected of posing a threat to the security of the prison. For these reasons, we conclude that the possible loss of appellant’s visitation privileges did not constitute coercion.

Appellant also suggests that the trial court erred in suppressing the evidence because it was obtained as a result of an illegal arrest. For support, appellant refers us to the case of Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980). Harris is factually distinguishable from this case, however. In Harris, the defendant was a passenger in a van which, along with another vehicle and its occupants, was suspected of involvement in a robbery. After pursuing the van and the other vehicle, both vehicles were pulled over and the occupants were taken to the police station for the purpose of checking the validity of the operators’ licenses. While at the police station, the defendant requested to use the men’s room. After gaining access to the restroom, the defendant deposited stolen credit cards and other evidence in the toilet tank. On appeal, the Supreme Court held that the evidence should have been suppressed as the result of an illegal arrest. In reaching this result, the court reasoned that because the defendant was not driving the van, the police lacked sufficient probable cause to detain appellant and inspect his driver’s license.

In Harris, we note that the standard used in evaluating the validity of the arrest was based on probable cause. In applying this standard, the Harris court concluded that the evidence was insufficient to establish probable cause, because of the unique facts contained in the record. In this case, however, the standard to be used in searching a visitor is “reasonable suspicion”, not probable cause. See Dugger, supra.. As discussed above, we concluded that the prison authorities had more than sufficient reasonable suspicion to search appellant. Therefore, appellant’s argument that the arrest was illegal due to lack of probable cause is without merit.

More importantly, we are unable to conclude that the brief detention to which appellant was subjected constituted an arrest. An arrest has been defined as “ 'any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.’ ” Commonwealth v. Freeman, 386 Pa.Super. 105, 109-110, 562 A.2d 375, 378 (1989), quoting Commonwealth v. Lovetle, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).

The record indicates that appellant was informed that she was free to leave the prison. See Suppression Hearing Transcript, 6/9/88, at p. 33. However, appellant was also informed that she would have to wait for a police escort for security reasons. See id. As explained by Eckenroth, it was the policy of the prison to have the police escort visitors, who were suspected of carrying contraband and who refused to be searched, outside the prison grounds. See id. at pp. 26-27, 33-34 and 41-42. Eckenroth further testified that the reason for the police escort was to prevent visitors from discarding any contraband on the prison grounds where it could be later picked up by the inmates. See id. at p. 39. Therefore, the record indicates that appellant was only restricted from roaming the prison grounds for security reasons. This temporary restriction on appellant’s freedom cannot be deemed an arrest, for she was not restrained in any way, and was informed that she was free to leave the prison. In view of the unique circumstances relating to prison security, and in view of the fact that appellant was expressly given permission to leave the prison, we hold that appellant’s brief detention did not constitute an illegal arrest.

The second issue raised by appellant involves the trial court’s failure to declare a mistrial after one of the Commonwealth’s witnesses made reference to appellant’s right to remain silent. As stated by our Supreme Court, “a motion for a mistrial is addressed to the discretion of the [trial] court. It is primarily within the court’s discretion to determine whether a defendant was prejudiced by the misconduct.” Commonwealth v. Duffey, 519 Pa. 348, 362, 548 A.2d 1178, 1184-1185 (1988). We will address appellant’s assignment of error in accordance with this standard.

The specific reference complained of was elicited during the direct examination of Officer Douglas Knoblauch. Officer Knoblauch was asked by the prosecutor to describe the events which occurred after he arrived at the prison, and testified as follows:

A. —was standing with Prison Matron Sims. Okay? I at that point confronted Miss Gumby as to who I was, why I was there, and at that point I read her her constitutional rights.
Q. Before she was read her rights,—
A. Yes?
Q. —before she was placed under arrest,—
A. Yes?
Q. —did she make any statement?
A. No.- I then asked her for some identification, which she did not identify herself to me. I asked her if she wanted to discuss this incident with me. She said she did not.

See N.T., 10/12/88-10/13-88, at p. 136.

Appellant correctly notes that references to a criminal defendant’s posi-arrest silence are improper. See e.g., Commonwealth v. Freeman, supra, 386 Pa.Super. at 110-111, 562 A.2d at 378. However, there does not appear to be a similar prohibition with respect to references to a defendant’s pre-arrest silence. See Commonwealth v. Gbur, 327 Pa.Super. 18, 26, 474 A.2d 1151, 1155 (1984); cf., Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). Without regard to. whether the question is deemed to refer to appellant’s pre-arrest or post-arrest silence, we find that the trial court properly denied appellant’s motion for mistrial, as defense counsel waived her objection to the prosecutor’s question.

‘It is fundamental that the parties in a trial are obligated to inform the court of alleged violations of evidence law or trial procedure, and that failure to so inform the court by a timely and specific objection, motion, exception, request, or offer of proof will constitute a waiver of that ground for relief.’... [Therefore,] ‘[t]he failure to raise an issue, objection, or argument in a timely manner during trial forecloses further review of an alleged error in post-trial motions or at the appellate level.’...

Commonwealth v. Schneider, 386 Pa.Super. 202, 214, 562 A.2d 868, 874 (1989) (citations omitted), allocatur denied, — Pa. -, 575 A.2d 564 (1990).

The record demonstrates that defense counsel did not object to the prosecutor’s questioning until after the witness had been cross-examined and excused from the witness stand. See N.T., 10/12/88-10/13/88, at p. 157. We find, as did the trial court, that defense counsel’s objection was untimely, and therefore, that any objection to the question must be deemed waived. Accordingly, we discern no error in the trial court’s denial of the motion for mistrial.

In sum, we conclude that the trial court did not err in denying appellant’s motion to suppress the evidence, as there was no indication that appellant’s consent to the search was coerced or that the evidence was obtained as the fruit of an illegal arrest. Further, we conclude that the trial court properly denied appellant’s motion for a mistrial, since appellant’s trial counsel waived any objection to the allegedly improper question by waiting until after the witness had been excused before raising the issue. Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 5123(a).

      . 35 P.S. § 780-113(a)(31).

      . The confidential informant was also an inmate at the prison. Sergeant Colon testified that he had known the informant for approximately eight years and that the informant had supplied reliable information in the past. See Suppression Hearing Transcript, 6/9/88, at pp. 5 and 11.

      . The purpose of the police escort was not to arrest appellant; rather, Eckenroth testified that it was the prison’s policy to escort visitors suspected of carrying contraband out of the prison so that the contraband could not be discarded upon the prison grounds where it could be subsequently retrieved by the prisoners. See Suppression Hearing Transcript, 6/9/88, at pp. 26-27.