author: WICKERSHAM, Judge:

text:
    501 A.2d 643
    Louis and Jacqueline TUCKER, H/W and Christine Tucker, by Her Parents and Guardians, Louis and Jacqueline Tucker, Appellants, v. WHITAKER TRAVEL, LTD. and Apple Tours and the Ambassador Beach Hotel and Happy Trails Stables and the Hotel Corporation of the Bahamas T/A the Ambassador Beach Hotel. Louis and Jacqueline TUCKER, H/W and Christine Tucker, by Her Parents and Guardians, Louis and Jacqueline Tucker, Appellants, v. WHITAKER TRAVEL, LTD. and Apple Tours and Happy Trails Stables and the Hotel Corporation of the Bahamas T/A the Ambassador Beach Hotel.
    Superior Court of Pennsylvania.
    Argued April 17, 1985.
    Filed Oct. 18, 1985.
    Reargument Denied Dec. 26, 1985.

      John J. O’Brien, Jr., Philadelphia, for appellants.
    Jean C. Hemphill, Philadelphia, for appellees.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

Louis and Jacqueline Tucker and their daughter, Christine, brought this action to recover damages for injuries sustained by Jacqueline and Christine on December 4, 1982, in a horseback riding accident that occurred in the Bahamas.

Appellants set forth the circumstances that led to the accident as follows:

During November, 1982, [Appellants], Jacqueline and Christine Tucker purchased an “Apple Tour” to the Bahamas. The brochure for the tour stated, “Your choice of three or four nights at any of our three excellent Hotels.” One of the three hotels is the Ambassador Beach Hotel. The brochure also stated, “A hospitality desk will be available at the Ambassador Beach Hotel.”
Upon their arrival in the Bahamas, the Tuckers were taken to the Ambassador Beach Hotel, as they were advised by the Final Itinerary given to them by Whitaker Travel.
All the members of the Apple Tour were gathered in a room where they were addressed by a woman who identified herself as “Ruth”. Ruth wore an Apple Tour identification badge and informed the group that she was their Apple Tour representative.
Ruth required that all individuals present fill out registration cards for the Ambassador Beach Hotel. Ruth also advised the assembled group that if anyone needed anything they were to see her at the courtesy desk provided by Apple Tours in the Ambassador Beach Hotel.
The Tuckers wished to go horseback riding and Ruth sought and engaged a stable for the Tuckers. Mrs. Tucker paid Ruth three dollars ($3.00) for herself and her daughter. She was advised to pay fifteen,dollars ($15.00) to the stables. The Tuckers were transported to the riding stables together with two other young ladies in the stable’s service van.
All four advised the stable attendant that they were inexperienced riders and requested that they simply walk the horses. Near the end of the ride the guide fell off his horse and the horses broke off into a gallop. The other four horses followed and threw their riders. All four women were injured and all four received medical treatment. One rider died of head injuries. Mrs. Tucker continues to suffer pain from her disabling injuries. Christine Tucker sustained severe head injury causing paralysis, impairment of eyesight, impairment of ability to speak and traumatical epilepsy; all of which is permanent.

Brief for Appellants at 8-10.

Appellants brought this action against a variety of defendants including appellees herein, the Ambassador Beach Hotel and the Hotel Corporation of the Bahamas. Both of these defendants filed preliminary objections to appellants’ complaint, alleging that they were immune from the jurisdiction of the court under the Foreign Sovereign Immunities Act of 1976 [hereinafter referred to as “FSIA”], 28 U.S.C. §§ 1602-1611. The court below granted the appellees’ preliminary objections and dismissed appellants’ complaint as to the Ambassador Beach Hotel and the Hotel Corporation of the Bahamas. Appellants then filed the instant appeal.

The Ambassador Beach Hotel is owned and operated by the Hotel Corporation of the Bahamas. The Hotel Corporation, in turn, is a corporate entity established by the Bahamian Legislature and created and owned in full by the Commonwealth of the Bahamas. See The Hotel Corporation of the Bahamas Act, 1974; Act No. 20 of 1974. It is clear, therefore, that appellees are “agencies or instrumentalities” of a foreign state entitled to invoke the provisions of the FSIA. 28 U.S.C. § 1603(b).

Under the FSIA, foreign states and their agents are immune from the jurisdiction of federal and state courts in the United States unless the case falls within one or more of the specific exceptions provided in the FSIA. Appellants aver that the “commercial activity” exception is applicable in the instant case and that, therefore, the court below could have properly exercised jurisdiction over appellees. The “commercial activity” exception provides:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
* * * * * *
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

28 U.S.C. § 1605(a)(2).

Appellants contend that of the three clauses contained in section 1605(a)(2), both the first and third clauses provide the court with jurisdiction over the appellees. We will consider each of these clauses separately.

The first clause of section 1605(a)(2) states that courts of the United States have jurisdiction over a foreign state in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state.” Thus, this clause requires

“that the commercial activity involve substantial [contacts] with the United States, and that there be a close connection between the facts of the alleged injury and the transaction or conduct at issue, in order to establish lack of immunity under the FSIA. Sugarman v. Aeromexico, 626 F.2d 270 (3d Cir.1980).”

Tigchon v. Island of Jamaica, 591 F.Supp. 765 (W.D.Mich. 1984). Appellants set forth numerous examples of appel-lees’ alleged commercial activity in the United States. For the purpose of this appeal, we will assume that all of appellants’ allegations are true. Even with the support of this assumption, however, the instant litigation does not fall within the purview of the first clause of section 1605(a)(2). While appellees may indeed conduct commercial activity in the United States, it is clear that appellants’ cause of action is not “based upon” that alleged commercial activity or any “commercial activity carried on in the United States.” Rather, appellants’ suit is based upon the alleged negligence of appellees in the Commonwealth of the Bahamas. Thus, the first clause of section 1605(a)(2) is inapplicable to the case at bar.

The similar factual circumstances and legal result of Tigchon v. Island of Jamaica, supra, and Harris v. VAO Intourist, Moscow, 481 F.Supp. 1056 (E.D.N.Y.1979) support our decision. In both cases the plaintiffs allegedly suffered injuries abroad through an agency or instrumentality of a foreign state, and sought to establish jurisdiction under the “commercial activity” exceptions of section 1605(a)(2).

In Harris, an American citizen was killed in a hotel fire in Moscow. Suit was brought against two state-owned Russian tourist services, one of which, Intourist Moscow, owned and operated the hotel, and the other of which, Intourist USA, promoted tours between the United States and the Soviet Union. Intourist USA maintained an office in New York and conducted substantial business there, promoting the use of Intourist, Moscow’s hotel facilities in Moscow. The plaintiff there, however, arranged for his accommodations in Moscow through a private travel agency. Noting that the first clause of section 1605(a)(2) requires that a court action “be based upon” specific commercial activity conducted in the United States, a more stringent test than the typical “doing business” requirement of many long-arm statutes, the Court found the action “not based upon commercial activity in the United States.” Id. at 1061. The relationship between negligent operation of the National Hotel and Intourist’s United States activity was too attenuated to find that the action was “based upon” such activity..

Tigchon, supra at 767.

Similarly, in Tigchon, supra, plaintiff brought suit to recover damages for the death of her husband in a water-skiing accident at the Negril Beach Village, a resort hotel owned and operated by the Island of Jamaica. Plaintiff alleged that she and her husband obtained travel literature advertising the Negril Beach Village at a Michigan travel agency, and that Jamaica advertises the Negril Beach Village in the United States. Plaintiff also made other allegations concerning the “commercial activity” that Jamaica carries on in the United States. Despite these allegations, however, the Tigchon court held that the plaintiff’s cause of action was not “based upon” substantial contacts with the United States.

The death of plaintiff’s decedent is allegedly due to the negligent conduct of an employee of the Negril Beach Village accompanying plaintiff’s decedent while waterski-ing____ The Act clearly contemplates a direct connection between the injury suffered and the contacts with the United States. No such direct nexus exists between a one-line advertisement in a worldwide listing of hotels, an advertisement published by an independent tour operator, and the tragic death of Mr. Tigchon while water-skiing. Any links are simply too attenuated and indirect to satisfy the first clause of section 1605.

Tigchon, supra at 768.

We find that an identical result is warranted in the instant case. Even assuming that all of appellants’ allegations concerning appellees’ commercial activity in the United States are valid, it is nevertheless clear that any nexus between that activity and appellants’ cause of action is too attenuated to satisfy the first clause of section 1605.

Similarly, we find that appellants’ cause of action also fails to satisfy the third clause of section 1605. The third clause provides that a foreign state is not immune from jurisdiction in a case based upon “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” In the case at bar, the cause of action is clearly based upon an act performed outside the United States in connection with a commercial activity of the foreign state elsewhere. It is equally clear, however, in accordance with case law, that the act did not cause a direct effect in the United States.

We again turn to Harris v. VAO Intourist, Moscow, supra, to clarify section 1605(a)(2). In that case, plaintiff brought suit pursuant to the commercial activity exception of section 1605. In dismissing the action, the Harris court held:

Obviously the negligent operation of a hotel in Moscow causing the death of a United States resident has effects in the United States; here it leaves aggrieved relatives in this country. But the precise issue is not whether the fire had any effect here, but whether it had a ‘direct effect’ in the United States within the meaning of the statutory language. Indirect injurious consequences within this country of an out-of-state act are not sufficient contacts to satisfy the ‘direct effect’ requirement of section 1605(a)(2). Congress explained that the third clause of section 1605(a)(2) embraces ‘commercial conduct abroad having direct effects within the United States which would subject such conduct to the exercise of jurisdiction by the United States consistent with principles set forth in section 18, Restatement of the Law, Second, Foreign Relations Laws of the United States (1965)’ H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 13, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 6604, 6618. The reference to section 18 of the Restatement (Second) of the Foreign Relations Laws of the United States suggests that the term ‘direct effect’ requires a substantial impact in this country that is a directly foreseeable result of the negligent act outside the country; it is essentially a long-arm provision.

Id. at 1602. Thus, despite the obvious economic and emotional effect upon the decedent’s family in this country, the court found that defendant’s negligence in Moscow did not have a “direct effect” in the United States.

As stated in Close v. American Airlines, Inc., 587 F.Supp. 1062 (S.D.N.Y.1984), “personal injury, or even death, inflicted on Americans while they are abroad does not have a direct effect in the United States, within the statute, simply because of the consequent economic loss to the American victims or their heirs.” Id. at 1064. Thus, it is clear that the alleged negligence of appellees did not cause a “direct effect” in the United States. Therefore, the third clause of section 1605(a)(2) is also inapplicable to the case at bar.

Since none of the exceptions to the jurisdictional immunity granted to foreign states under the FSIA are applicable to the instant case, the'trial court did not err in determining that it did not have jurisdiction over appellees. Thus, the court properly granted appellees’ preliminary objections and dismissed appellants’ complaints as to appellees.

Orders affirmed.

      . Appellants first brought suit by a complaint in assumpsit and trespass filed in July, 1983. The original complaint named as defendant "The Ambassador Beach Hotel c/o The Hotel Corporation of the Bahamas.” Shortly thereafter, appellants were informed that the Ambassador Beach Hotel was owned and operated by the Hotel Corporation of the Bahamas.
      Appellants responded to this information in two ways. First, they amended their original complaint to name not only "The Ambassador Beach Hotel c/o The Hotel Corporation of the Bahamas” but also to add as a defendant "The Hotel Corporation of the Bahamas trading as the Ambassador Beach Hotel.” Second, on October 27, 1984, appellants filed a new, identical action in the Court of Common Pleas of Philadelphia County naming as defendant "The Hotel Corporation of the Bahamas t/a The Ambassador Beach Hotel.”

      . Appellants appealed from the lower court’s orders entered March 2, 1984, March 19, 1984, April 11, 1984, May 22, 1984, and June 18, 1984. The appeals were then consolidated for consideration before this court. All of the orders under review concern the grant of appellees’ preliminary objections, the denial of appellants’ preliminary objections and the dismissal of appellants’ complaints against appellees herein. Appellants raise the following issues in this appeal:
      A. Whether preliminary objections of defendant-appellees, Ambassador Beach Hotel and the Hotel Corporation of Bahamas, were properly sustained in the absence of discovery and upon the presumption of the truth of the averments in plaintiffs’ complaint?
      B. Whether it is incumbent upon the lower court to take evidence upon averment of fact contained in preliminary objections and in particular when such preliminary objections do not contain a notice to plead?
      C. Whether state court has jurisdiction over foreign corporations owned by a foreign government (Bahamas) which corporations are engaged in commercial activity in the United States?
      Brief for Appellants at 7. As we will clarify infra, we find that we need discuss only issue C.

      . It is clear that none of the other exceptions to the jurisdictional immunity of a foreign state as enumerated in § 1605 apply in the case at bar.

      . Clause two, which deals with "an act performed in the United States,” is clearly inapplicable to thp instant case.

      . We note that in issues A and B, appellants aver that the lower court erred in dismissing their complaint without permitting discovery or taking evidence. Since, even assuming the validity of appellants’ allegations, the lower court did not have jurisdiction over appellees, such discovery and evidence were unnecessary and could not support the reinstatement of appellants’ complaint as to appellees.

      . Appellants cite Sugarman v. Aeromexico, 626 F.2d 270 (3d Cir.1980) in support of their position. We agree with the Tigchon court’s analysis of that case:

        Sugarman v. Aeromexico, 626 F.2d 270 (3d Cir.1980) is readily distinguishable. There, the national airline of Mexico had daily flights between the United States and Mexico, a clearly more substantial presence in the United States than the purported contacts had by Jamaica here. Moreover, the plaintiffs suit was based upon the canceling or delay of an Aeromexico flight to the United States, leaving the plaintiff stranded in a Mexico airport for 15 hours. His suit was thus directly “based upon” Aeromexico’s contacts with the United States. The same cannot be said of [appellants’] suit here. The action must therefore be dismissed.

        Tigchon v. Island of Jamaica, 591 F.Supp. 765, 768 (W.D.Mich.1984).

      . Given our assumptions and decision as to issue C, we find it unnecessary to address issues A and B as stated by appellants.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    501 A.2d 648
    In re ADOPTION OF M.J.H., a Minor. Appeal of K.B.M. and G.M.
    Superior Court of Pennsylvania.
    Argued May 14, 1985.
    Filed Nov. 29, 1985.

      John A. Knorr, Pittsburgh, for appellant.
    Dennis D. Workman, Patrick T. Narcisi, Pittsburgh, for minor child.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   SPAETH, President Judge:

This appeal is from an order sustaining exceptions to and vacating an order terminating appellee’s parental rights. Appellee is the father of M.J.H., a girl born March 3, 1979. On October 6, 1979, while M.J.H. lay in the arms of her mother, S.H., appellee shot and killed S.H. On March 22, 1980, appellee was convicted of the first degree murder of S.H., and of recklessly endangering the life of M.J.H., and on May 27, 1981, he was sentenced to a life term in prison. Appellants are MJ.H.’s maternal grandparents. On June 3, 1983, they petitioned to adopt M.J.H., and in connection with that petition sought to terminate appellee’s parental rights on the grounds set forth in 23 Pa.C.S. § 2511(a)(1), (2) and (5). After hearing, the trial court entered an order terminating appellee’s parental rights. On appellee’s exceptions, the court en banc, one judge concurring in the result and the third judge, who had been the hearing judge, dissenting, concluded that grounds for termination had not been established. We reverse the order of the court en banc and reinstate the order terminating appellee’s parental rights. While we agree with the court en banc that grounds for termination have not been established under 23 Pa.C.S. § 2511(a)(1) or (2), we hold that by virtue of appel-lee’s willful killing of S.H., and his consequent life imprisonment, grounds have been established under 23 Pa.C.S. § 2511(a)(2), which provide that parental rights may be terminated where the parent’s “repeated and continual incapacity ... has caused the child to be without essential parental care, control or subsistence, necessary for his physical or mental well-being and the conditions and causes of the incapacity, ... cannot or will not be remedied by the parent.”

Section 2511 of the Adoption Act, Act of October 15,1980, P.L. 934, No. 163, 23 Pa.C.S. § 2511, provides in pertinent part:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a).

As the hearing judge and the court en banc recognized, parental rights may not be terminated under these provisions unless the evidence in support of termination is clear and convincing. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). As an appellate court we are bound by the hearing judge’s findings of fact when they have been approved by a court en banc to the same extent that we are bound by a jury’s verdict. Curtis v. Redevelopment Authority of City of Philadelphia, 482 Pa. 58, 393 A.2d 377 (1978); August Petroleum Co. 77B v. Casciola, 303 Pa.Super. 374, 449 A.2d 735 (1982). Here, the court en banc did not disturb the facts as found by the hearing judge. Instead, taking the facts as found, the court reversed the judge’s conclusions of law. Our task, therefore, is to examine the court en banc’s application of law to the facts. If we conclude that the court’s order is predicated upon an error of law, we may reverse. Winpenny v. Winpenny, 296 Pa.Super. 299, 442 A.2d 778 (1982).

The trial court held hearings on September 14 and October 12, 1983. The facts as developed at those hearings may be summarized as follows.

At the time of S.H.’s death M.J.H. was seven months old. Appellee and S.H. had been married for four years. Testimony of appellant G.M., the maternal grandmother, suggests that the marriage was a troubled one. About two months before M.J.H.’s birth, S.H. left the home she shared with appellee to live with her parents because appellee had beaten her. N.T. 86-87, 155. Two weeks after MJ.H.’s birth, she returned home. N.T. 15. G.M. testified that appellee did not want M.J.H. N.T. 87.

Appellee was arrested and placed in the county jail the day after he killed S.H. N.T. 154. MJ.H. stayed with appellee’s parents until December 1979, when appellee was released on bail. N.T. 174. Appellee then moved in with his parents, and until trial in March 1980 he cared for M.J.H. with the help of his mother. N.T. 155. He “changed her diapers, bathed her, fed her, changed her clothes ... bought her clothes.” N.T. 146.

Meanwhile, appellants petitioned for MJ.H.’s custody, and in June 1980 the trial court awarded them custody, with appellee’s parents awarded visitation for two days per month. N.T. 161, 174. While appellee was in the county jail, and later when he was imprisoned in the state penitentiary, his parents, at his request, took MJ.H. to visit him. While M J.H. was staying with appellee’s parents and appel-lee was in the county jail, the visits occurred about three times per week. N.T. 176. Later, when appellants gained custody, M.J.H. visited appellee in prison during her twice-monthly visits with his parents. Id. These visits continued until September 19, 1983, when the trial court ordered them to stop pending the outcome of these proceedings. In response to a question why he opposed appellants’ adoption of MJ.H., appellee stated: “Because I want to keep my little girl, and someday I will be out and would like to raise her.” N.T. 171.

Appellee testified, and his testimony was corroborated by the testimony of his parents and sister, that he sent cards and letters to M J.H. in care of his family and letters to his family asking about MJ.H.’s welfare and that they purchase gifts for her from him. See, e.g., N.T. 150, 165, 176, 181, 188. Appellee’s mother testified that “[appellee] would write letters every week asking about [MJ.H.] and when she would go to visit him, they really got along good. He played with her in the play area, and they had a good relationship.” N.T. 176.

Appellant G.M. testified that while M.J.H. was staying at appellants’ home, appellee did not communicate with M.J.H. N.T. 49, 68. Appellee testified that he did not do so because he never received any response from appellants. Appellee testified that he had made four unsuccessful attempts to telephone M.J.H. at appellant’s home. N.T. 150, 164.

Appellee provided no financial support for M.J.H. In explanation, he testified that he was able to earn from work in prison only $40 to $45 per month, which he spent for cosmetics and cigarettes. N.T. 151, 168, 169. He also testified that he had asked his family to keep track of the amounts they spent on M.J.H. so that he could repay them in the future. N.T. 176.

“It is the policy of this Commonwealth to preserve and protect the family whenever possible.” In re William L., 477 Pa. 322, 347, 383 A.2d 1228, 1240, cert denied sub. nom. Beatty v. Lycoming County Children’s Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). In recognition of the primacy and sanctity of the family, we said thirty years ago:

A family is an institution which preceded governments. Its sanctity was universally recognized before judges or statutes or constitutions or welfare organizations were known to man. The right of a child to a mother and a mother to a child are rights created by natural law. They are rights attributable to the nature of mankind rather than to the enactments of law.
It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity.
In re Rinker, 180 Pa.Super. 143, 147-48, 117 A.2d 780, 783 (1955).

And see Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life,____for as noble a purpose as any____”). Because the family occupies so important a place in our society, and terminating a parent’s rights represents a destruction of the family, the Constitution requires that grounds for termination be proved by clear and convincing evidence. Santosky v. Kramer, supra. Nevertheless, when the evidence meets that standard, “the interest of the parent in keeping the child conflicts with the interest of the child in its essential physical and emotional needs and the Legislature has constitutionally mandated that the interests of the weaker party, the child, should prevail.” In re William L., supra, 477 Pa. at 339, 383 A.2d at 1236.

Have Grounds for Termination Been Proved Under Section 2511(a)(1)?

Appellants argue that “for a period of at least six months ... [appellee] failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1). See In re Adoption of McCray, 460 Pa. 210, 215-16, n. 6, 331 A.2d 652, 655 n. 6 (1975) (unlike Adoption Act of 1925, Act of April 4, 1925, P.L. 127 § 1, which required both a settled purpose to relinquish and a failure to perform parental duties, under Adoption Act of 1970, Act of July 24, 1970, P.L. 620, § 311, 1 P.S. § 311, parental rights may be terminated upon proof of either ground).

“Parental duties” have been defined as many sided: Pennsylvania law has recognized that not only is there a duty to love, protect and support one’s child, Wischman Adoption Case, 428 Pa. 327, 331, 237 A.2d 205, 207 (1968), there is also a duty to maintain communication and association with that child. See Appeal of B., supra; Jacono Adoption Case, [426 Pa. 98, 231 A.2d 295] supra; and In re Adoption of J.R.F., 27 Somerset L.J. [295] 298 (Pa.C.P.1972). Consequently, being a parent is more than a passive state of mind or a financial obligation; rather “it is an active occupation, calling for constant affirmative demonstration of parental love, protection and concern---- [A parent] must exert himself to take and maintain a place of importance in the child’s life.” Appeal of B., supra, 456 Pa. [429] at 333, 321 A.2d [618] at 620, quoting In re Adoption of J.R.F., 27 Somerset L.J. at 304-305. Viewing the performance of parental duties as an affirmative obligation to perform a composite of “tasks,” it becomes clear that dereliction of one responsibility, albeit a responsibility as important as support, may not under the particular circumstances warrant a complete termination of parental rights.
In re Adoption of McAhren, 460 Pa. 63, 71-72, 331 A.2d 419, 423 (1975) (emphasis in original).

The failure, for a six month period, to perform some, or even many, of the “composite of ‘tasks’ ” that parental duties comprise is therefore, without more, frequently insufficient to warrant destroying the parent-child relationship. Thus, the court will refuse to find abandonment when the child has been placed in the custody of others and the parent makes no contacts for more than six months, if the parent has used “all reasonable means available to preserve his parent-child relationship.” Matter of Kapcsos, 468 Pa. 50, 61, 360 A.2d 174, 179 (1976). Similarly, a failure to provide financial support to one’s children may not alone prove failure to perform parental duties. See, e.g., Adoption of McAhern, supra (father did not support children because mother thwarted his efforts to see them). In In re Adoption of McCray, supra, the Supreme Court stated:

[A] parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness “in declining to yield to obstacles” his rights may be forfeited. 460 Pa. at 216-17, 331 A.2d at 655, quoting In re Adoption of J.F.R., 27 Somerset L.J. at 304) (footnotes omitted).

In McCray, the Court affirmed the termination of a father’s parental rights under Section 2511(a)(1). The father had been incarcerated on several occasions, most recently for a term of five to ten years for armed robbery. During a four-year period the father sent the child one birthday card and a gift. He testified that his efforts to find her were thwarted by prison officials, but the record revealed that he had made only two attempts. In holding that the father had not performed “any parental duties”, the Court noted that the father had not taken advantage of visitation rights or counselors and had not made “sincere or persistent efforts to locate or inquire about his daughter.” 460 Pa. at 217, 218, 331 A.2d at 655, 656.

Appellants concede that incarceration alone is not sufficient to terminate parental rights under Section 2511(a)(1). They argue, however, that appellee’s efforts to maintain a relationship with M.J.H. have not demonstrated the “reasonable firmness in declining to yield to obstacles” required by Adoption of McCray, supra. In support of this argument appellants point out that appellee has not telephoned or written to M.J.H. while she has been in their custody, and that neither has he provided for her support.

The record does not clearly disclose that appellants did not interfere with any efforts appellee may have made to communicate with M.J.H. at appellants’ home, although it is clear that appellants did not approve of MJ.H.’s visits to the prison. N.T. 67, 80. Assuming, however, that appellants did not interfere, still, the record reveals that appellee wanted to visit M.J.H.; that M.J.H. went with appellee’s parents to the prison at least twice monthly on a regular basis following appellee’s incarceration and until such visits were terminated by court order; and that appellee frequently asked his parents and sister about MJ.H.’s welfare, wrote to her in their care, and arranged for them to make purchases for her, for which he hoped to be able to repay them. While it is true that appellee has made no financial contribution to M.J.H.’s support, it seems apparent, and appellants made no effort to prove otherwise, that with earnings of only $40 to $45 per month, appellee was unable to provide support.

Appellants rely heavily upon In re Adoption of McCray, supra, but the facts of that case are significantly different. There, over a four-year period the incarcerated father made only two actual contacts and two additional attempts to communicate with his daughter. Here, appellee saw and corresponded with M.J.H. and inquired about her on a regular basis. It should also be noted that the burden of proof applied and approved in McCray was only a preponderance of the evidence.

Counsel for M.J.H., arguing for termination of appellee’s parental rights, concedes that appellee “has attempted to discharge some of his parental duties through his parents,” but argues that “given the fact [that appellee] is serving a life sentence this surrogate situation cannot reasonably be found to be temporary”. Brief submitted on behalf of M.J.H. at 12. We have considered this argument carefully and acknowledge its force where, as here, the child has been in “temporary” care for five years. It should be noted, however, that M.J.H. is in the legal custody of appellants and that that custody, for practical purposes, is permanent. In addition, no case of which we are aware has held that a parent, forced by circumstances to rely on surrogates for the care of his children or to maintain contact with them has by reason of that fact alone demonstrated a failure to perform parental duties. As the Supreme Court has stated:

We can conceive of no reason why the surrogate concept should not be equally applicable to the discharge of parental responsibilities of a parent who has lost custody of the child involuntarily. Although a parent who does not have custody must express in a positive manner, her affection for the offspring and her interest in maintaining the parental relationship, it might well be under the circumstances of a given case that the use of a surrogate would be in the most feasible and effective means to accomplish that end.
In re Adoption of P., 475 Pa. 197, 208, 380 A.2d 311, 316 (1977).

Also, the Supreme Court has declined to terminate the parental rights of a parent whose child has been in long-term foster care. In re M.A.K., 489 Pa. 597, 414 A.2d 1052 (1980).

When, as here, a child has been placed in the custody of others and the parent has made consistent efforts with the resources available to him “to take and maintain a place of importance in the child’s life,” Adoption of McAhren, supra, and has, with those resources, tried to take some responsibility for the “composite of ‘tasks’ ” associated with parenthood, id., we are unable to say that the parent has failed to perform parental duties within the meaning of Section 2511(a)(1). We conclude, therefore, that the court en banc’s reversal of the hearing judge’s holding that appellee had failed to perform parental duties under Section 2511(a)(1) was justified.

Have Grounds for Termination Been Proved Under Section 2511(a)(2)?

Parental rights may be terminated under Section 2511(a)(2) if three conditions are met: “(1) repeated and continued incapacity, abuse, neglect or refusal must be shown; (2) such incapacity, abuse, neglect or refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In re Geiger, 459 Pa. 636, 639, 331 A.2d 172, 174 (1975). Unlike Section 2511(a)(1), Section 2511(a)(2) does not emphasize the parent’s refusal or failure “to perform parental duties.” Rather, its emphasis is on the child’s present and future need for “essential parental care, control or subsistence necessary for his physical or mental well-being.” As the Supreme Court stated in In re William L., supra, 477 Pa. at 331, 383 A.2d at 1232, “Section 311(2) is concerned only with the welfare of children whose essential needs have not been met, and whose parents cannot or will not meet those needs in the future.” See In re R.I., 468 Pa. 287, 361 A.2d 294 (1976); In re Geiger, supra. Under Section 2511(a)(2), the parents’ interests in the continued relationship with, their children are protected by the requirement that their parental rights may not be terminated unless it is proved that their incapacity “cannot or will not be remedied.” See, e.g., Bartasavich v. Mitchell, 324 Pa.Super. 270, 471 A.2d 833 (1984); In the Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982). If, however, the parents’ incapacity cannot be remedied, then, even though the parents demonstrate their love for the children and make sincere efforts to perform parental duties, their parental rights may be terminated.

In re William L., supra, demonstrates this proposition. There a mother had placed three of her children in foster care when she found herself unable to care for them. The mother was provided with nutrition aids to assist her in caring for her infant daughter, who remained in the home. Despite such assistance and her own efforts, the mother’s skills as a parent did not improve. During visits in the mother’s home with the three children who were in foster care, “havoc prevailed.... in which [the mother] chased one child after another attempting to keep them under control.” In re Williams L., supra, 477 Pa. at 343, 383 A.2d at 1238. Psychological tests revealed that the mother’s social skills and her ability to function independently were at the level of a twelve year old. In addition, there was testimony that she had difficulty understanding housework, cooking and child care. In affirming the trial court’s order terminating the mother’s parental rights under Section 311(2) of the Adoption Act of 1970, the Supreme Court stated:

The language of Section 311(2) should not, therefore, be read to compel courts to ignore a child’s need for a stable home and strong, continuous parental ties, which the policy of restraint in state intervention is intended to protect, where, as here, disruption of the family has already occurred and there is no reasonable prospect for reuniting it without serious emotional harm to the child. In such circumstances, the issue is not whether the state should intrude to disrupt an on-going family relationship, but whether the state should seek to preserve in law a relationship that no longer exists in fact,____
In re William L., supra, 477 Pa. at 348-49, 383 A.2d at 1241.

See also In re R.I., supra (mother unable to provide basic food and shelter despite efforts to improve her situation).

We believe that the present case, while of course different on its facts, is within the principle of In re William L., supra. M.J.H. is without essential parental care. For practical purposes, she has no parents, and her needs are being met by others. As the hearing judge aptly and succinctly described M.J.H.’s position: “The crime of first degree murder essentially deprived the child of both natural parents, resulting in the elimination of the mother and the continued incapacity of the father to provide essential parental care.” Tr.Ct. Dissenting Slip op. at 7.

The court en banc cites two cases for the proposition that incarceration may not serve as the basis for finding parental incapacity under Section 2511(a)(2). In the first case, Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972), a mother pleaded guilty to aiding and abetting the rape, by her paramour, of her daughter and was sentenced to an indeterminate prison term of up to six years. On her appeal from an order terminating her parental rights to several of her children under Section 311(2) of the Adoption Act of 1970, the Supreme Court reversed, stating: “Though the single act is egregiously offensive, it does not, in itself, meet the statutory standard of continued abuse necessary to support involuntary termination.” 449 Pa. at 547, 297 A.2d at 119 (emphasis in original). In the second case, Bartasavich v. Mitchell, supra, this court reversed an order under Section 2511(a)(2) terminating the parental rights of a father who had pleaded guilty to voluntary manslaughter of his wife, the mother of the child in question. These cases, however, are inapposite.

In Jones, the mother’s act did not result in the elimination of a parent for the children involved. Moreover, although it is not clear what the term of the mother’s prison sentence was, it was of a short duration (up to six years), as compared with the life term that appellee is sentenced to serve. Thus, it could not be said in Jones as it can in this case that the parental incapacity cannot be remedied.

In Bartasavich the father’s act did result in the death of a parent for the child involved. However, the father was convicted of voluntary manslaughter, not of first degree murder, and when we heard argument, he had been paroled, thus again, as in Jones, making it possible that the absence of parental care that the child suffered while the father was in prison would be remedied. It should also be noted that another ground for our reversal in Bartasavich was that the trial court had not used the clear and convincing evidence standard required by Santosky v. Kramer, supra, and, moreover, had “assessed the burden against [the father]”, requiring him to prove his fitness as a parent. Bartasavich v. Mitchell, supra, 324 Pa.Superior Ct. at 275, 471 A.2d at 836.

In its opinion the court en banc states: “The record ... was replete with evidence of the father’s capacity to be a parent, viz., his care of the child before incarceration, his constant efforts since to do all he can to maintain the relationship within the constraints of his imprisonment, the petitioners’ uncooperativeness, and his negligible earnings.” Tr.Ct. Slip op. at 7. We are unable to join in this appraisal. While, as we have discussed, the evidence cited by the court is sufficient under Section 2511(a)(1) to protect appellee’s parental relationship with his child, it is not conclusive of the issue whether his parental rights may be terminated under Section 2511(a)(2). Section 2511(a)(2), focusing as it does on the needs of the child, requires us to examine, not the fact of a parent’s incarceration, but its effects on the child. Here, appellee’s willful killing of S.H. was in its consequences tantamount to a forfeiture, or perhaps more accurately, a throwing away, of his claim to family life and to being himself a parent to M.J.H. By his act he left M.J.H. motherless and fatherless. His life imprisonment makes him incapable of providing M.J.H. with what she needs on a day-to-day basis, and this incapacity will not be remedied. Appellee’s cards and letters, his frequent expressions of interest, do not provide for MJ.H.’s essential needs. A child’s life does not come to a standstill when her mother is killed and while her father serves a life term in prison. We do not question the sincerity of appellee’s desire to raise M.J.H., but his desire is unrealistic. M.J.H. will be an adult when appellee’s prison term ends. We decline to “preserve in law a relationship which no longer exists in fact.” William L., supra. M.J.H. should have the chance to belong to a family where she will be loved and cared for and where her essential needs will be met on a day-to-day basis, free of the worry that her relationship with her parents will again be disrupted. We are convinced that by our order, her “needs and welfare” may be met. 23 Pa.C.S. § 2511(b).

The order of the trial court is reversed and the order terminating appellee’s parental rights is reinstated.

      . The sentencing court suspended sentence for reckless endangerment.

      . Appellants’ argument that appellee’s life sentence is the kind of court order contemplated by Section 2511(a)(5) is without merit.

      . On one occasion appellee wrote appellants, asking them to visit him to discuss insurance. Appellants did, and M.J.H. accompanied them.

      . Section 2511(a)(1) of the Adoption Act of 1980, Act of October 15, 1980, P.L. 934, No. 163, is a reenactment of Section 311(1) of the Adoption Act of 1970.

      . Section 2511(a)(2) of the Adoption Act of 1980 is a reenactment of Section 311(2) of the Adoption Act of 1970.

      . See also Joint State Government Commission, Official Comment, Adoption Act of 1970 (Section 311(2) "centers judicial inquiry upon the welfare of the child rather than the fault of the parent”).

      . The court en banc suggests that the order terminating appellee’s parental rights violated the Double Jeopardy Clause, Pa. Const. Article I, § 10 ("termination of parental rights ... would be a sentence added onto the sentence [of life imprisonment]”). Tr. ct. op. at 7. In his exceptions to the termination order, appellee did not argue double jeopardy; the issue therefore was not before the court en banc, and is not before us. But see Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938) ("Congress may impose both a criminal and a civil sanction in respect of the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.); Commonwealth v. Brooks, 330 Pa.Super. 355, 479 A.2d 589 (1984) (collecting cases).


text:
    501 A.2d 656
    COMMONWEALTH of Pennsylvania v. Derrick SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 6, 1985.
    Filed Nov. 29, 1985.
    Petition for Allowance of Appeal Denied May 21,1986.

      Joseph S. O’Keefe, Norristown, for appellant.

      Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, TAMILIA and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Derrick Smith appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County.

On January 22, 1983, police were called to appellant Smith’s residence, where they found Smith and the body of his common law wife, Vivian Pickens. Pickens had been strangled with an electric cord attached to a curling iron. Appellant told police “I killed my baby and she ain’t here no more.” N.T. 1/30/84, 19.

Appellant was arrested and taken to the police station where he made a formal statement admitting that he had strangled Pickens. Four hours later, he tried to take his own life by hanging himself in the interrogation room.

Appellant was then referred to the Hahnemann Mental Health Services Division as a psychiatric in-patient. The Rule 1100 run date in his case was initially set at July 21, 1983. On July 12, 1983, Smith waived his Rule 1100 rights until October 21, 1983. The Commonwealth concurrently filed a timely petition to extend until the same date. At a pre-trial hearing on July 21, 1983, Smith was found incompetent to stand trial and the Commonwealth amended its original petition to request extension until a date ninety days after he was declared competent. This extension was granted. Appellant was found competent to stand trial on September 20, 1983 and the 90-day extension period was fixed at December 19, 1983. This period was subsequently extended when appellant again waived the rule until February 1, 1984. Appellant was tried on January 30-31, 1984. He was convicted of first degree murder by the Honorable Juanita Kidd Stout. Post-trial motions were filed, argued and denied on April 12, 1984, at which time appellant was sentenced to life imprisonment.

Smith, now represented by new counsel has filed this appeal raising five issues. The first issue that appellant presents is whether he was brought to trial within the time prescribed by Rule 1100. The remaining issues concern the effectiveness of trial counsel in various instances before, during, and after trial.

Rule 1100, as pertinent to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial. Pa.R.Crim.P. 1100(a)(2). Any delay beyond 180 days must be accounted for either by an extension granted to the Commonwealth under Rule 1100(c), or by an exclusion of time attributable to defense delay under Rule 1100(d). Commonwealth v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). After analyzing the procedural history of this case, we conclude that all periods of delay have been properly accounted for under the rule.

The running of the 180-day period was initially tolled by Smith’s waiver of July 12, 1983 or in the alternative, by the Commonwealth’s petition to extend. The running of the 180-day period was otherwise tolled during the same time by Smith’s incompetency to stand trial. The period excluded from the rule by his incompetency included all time until September 20, 1983, when appellant was found competent. At that point, in accord with the Commonwealth’s amended petition to extend, Rule 1100 was further tolled for 90 days. Finally, the rule was again tolled on October 16,1983, when appellant waived the running of the rule until February 1 of the following year.

Regarding the October 16 waiver, appellant’s right to speedy trial and the effect of that right were fully discussed in the colloquy and appellant’s responses show his comprehension of the right. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981); Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Since the record indicates that appellant’s waiver was his informed and voluntary decision, it will be accorded prima facie validity. See Commonwealth v. Green, 503 Pa. 278, 469 A.2d 552 (1983); Commonwealth v. Carey, 313 Pa.Super. 20, 459 A.2d 389 (1983). The validity of this waiver is additionally supported by the fact that unlike the contested first waiver of July 12, 1983, the October 16 waiver was made after Smith was declared competent to stand trial. Thus, treating appellant’s waiver as valid without evidence to the contrary, he was timely brought to trial two days before the expiration of that waiver.

In reaching our conclusion, we are guided by the dictates of our Supreme Court in Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981):

Rule 1100 'serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brockle-hurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n. 4, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
* * * * * *
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

See Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 499 A.2d 381 (1985); Commonwealth v. Fisher, supra.

Here, it is obvious that the Commonwealth engaged in no misconduct which would thwart appellant’s right to a speedy trial. The record shows quite the opposite; that the Commonwealth was ready to afford appellant his speedy trial right and was frustrated in its effort by the “unfortunate happenstance” of appellant’s bouts with mental infirmity. See, Commonwealth v. Fisher, supra. It was because of appellant’s mental condition that the Commonwealth made its request for an extension, because a psychiatric report found appellant incompetent to stand trial when he made his July 12 waiver. Similarly, only when notified at the July 21 hearing that appellant remained incompetent to stand trial at that time did the Commonwealth request the amended extension date. Once appellant was finally found competent to stand trial, his own waiver further extended the running of the rule. Since the Commonwealth cannot be blamed for failure to timely prosecute where any delay was occasioned by defendant’s mental state or his own waiver, we cannot find Rule 1100 to have been violated in this case.

We turn next to appellant’s allegations of counsel’s ineffectiveness. As we observed in Commonwealth v. Hill, 340 Pa.Super. 155, 489 A.2d 889 (1985):

Our standard for review of ineffective assistance of counsel claims has changed recently; our prior practice had been to remand for a hearing on ineffectiveness whenever such a claim was made on appeal, if no hearing hád been held by the trial court. The Supreme Court, however, condemned that practice in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), and set forth a new procedure; the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit. If they have no merit, no evidentiary hearing is necessary. Id., 505 Pa. at 360, 479 A.2d at 957. Accordingly, we must decide whether appellant’s claims have merit.

Id., 340 Pa.Superior Ct. at 160, 489 A.2d at 891.

Initially, we address appellant’s claim that counsel was ineffective for failing to object to the Commonwealth’s oral amendment to its petition for extension of time. Rule 1100(c) permits the Commonwealth to apply to the trial court for an order extending the time for commencing trial against a defendant. The Commonwealth timely filed a written petition in compliance with the requirements of the rule. On July 21, 1983, at a pretrial hearing at which appellant’s counsel was present, the Commonwealth requested an amendment to this petition when evidence of appellant’s incompetency necessitated a change in the date requested. This was not a new request but merely a reasonable amendment to the existing petition which previously established the Commonwealth’s diligence and provided appellant with the requisite notice.

Appellant cites Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976) and other cases as support for the proposition that a petition for extension must be in writing and asserts that trial counsel was therefore ineffective for failing to object to the oral amendment. Appellant mistakenly treats the amendment as a separate entity from the original petition. Our own examination of the petition as amended leads us to conclude that it did not suffer the fatal defects of those petitions in the cases cited by appellant. In those cases, the prosecution filed mere form petitions making only the bare assertion that the Commonwealth had observed “due diligence” in its effort to have the case tried in a timely manner. In the instant case however, the Commonwealth’s petition as amended fully recited the facts which occasioned the delay, including appellant’s waiver and incompetency to stand trial. Clearly, the petition as amended was not the same as those our court denounced in Ray and the other cited cases.

Additionally, the period at issue in the requested extension was otherwise excluded by Rule 1100(d)(3)(i). See Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979). Thus, any objection to the postponement of trial to a time after appellant became competent would have been futile. Counsel cannot be deemed ineffective for failure to file a motion to dismiss or for failure to oppose the Commonwealth’s petition when such actions would have been frivolous. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983).

Moreover, even were we to find that trial counsel erred in failing to object to amendment of the petition, our supreme court’s ruling in Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983) indicates that appellant may not now be discharged under Rule 1100 by accusing trial counsel of ineffective assistance, because appellant was not prejudiced. As the Court stated in Crowley:

When defense counsel fails to object to a Commonwealth petition for an extension of time, we will not discharge the defendant unless he has been deprived of his underlying right to a speedy trial under either the Sixth Amendment to the United States Constitution or Article 1, Section 9 of the Pennsylvania Constitution. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Such a failure to assert a basic constitutional right is likely to also involve an additional Sixth Amendment denial of the basic right to effective counsel.

Id., 502 Pa. at 404-05, 466 A.2d at 1015. We find that any delay incurred because of counsel’s inaction in the instant case did not seriously implicate appellant’s right to a speedy trial. Indeed, its effect protected appellant’s even more basic right to a fair trial when he was competent.

We turn to appellant’s assertion that trial counsel was ineffective in permitting appellant to waive Rule 1100 on July 12, 1983. Appellant claims that because he was incompetent to stand trial when he waived Rule 1100, that waiver was automatically invalidated. Appellant equates his incompetency to stand trial with his incompetency to waive his right under the rule.

We are unpersuaded by this logic. Here, appellant waived the rule in a formal colloquy with Judge Paul Ribner. Judge Ribner found him to have knowingly and voluntarily waived Rule 1100 in that proceeding. See Commonwealth v. Green, supra, Commonwealth v. Carey, supra. When Judge Ribner arrived at this conclusion, the court was in possession of the psychiatric report of June 29, 1983 in which Dr. Grosso found appellant incompetent to stand trial. It should be noted, however, that the same report also indicated that Smith had a full understanding of court procedure and the functions of the different parties to a trial, and comprehended the nature of the act for which he was charged. These facts lead us to conclude, as obviously did Judge Ribner, that appellant’s incompetency was specific to his ability to stand trial and that his capacity to make a valid waiver was not affected.

Appellant next complains that trial counsel was ineffective in not requesting a competency hearing before trial. He claims that having once been declared incompetent, his attorney should have requested a hearing on his competency. Appellant misreads 50 P.S. § 7402(d), which provides, as follows:

(d) Hearing; When Required. — The court, either on application or on its own motion, may order an incompetency examination at any stage in the proceedings and may do so without a hearing unless the examination is objected to by the person charged with a crime or by his counsel. In such event, an examination shall be ordered only after determination upon a hearing that there is a prima facie question of incompetency.

(Emphasis added.)

Where there is no objection by counsel to an incompetency examination, a hearing is not a precondition to such an examination. In fact, in the instant case, appellant was thrice examined by order of the court and ultimately found competent to stand trial. Requesting a competency hearing under such circumstances would have been an exercise in futility, and counsel was not ineffective for failing to make such a request. See Commonwealth v. Edward, 303 Pa.Super. 454, 450 A.2d 15 (1982); Commonwealth v. O’Brien, 273 Pa.Super. 198, 417 A.2d 236 (1979).

Appellant’s claim that trial counsel was also ineffective for failing to object when the 180-day period expired on December 19, 1983 may be summarily • dismissed. As we have previously concluded, appellant made a valid waiver of Rule 1100 until February 1, 1984. Counsel cannot be ineffective for failure to file a Rule 1100(f) petition when such a motion would not have been appropriate. See Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983); Commonwealth v. Davis, 279 Pa.Super. 218, 420 A.2d 1111 (1980).

Finally, we address appellant’s claims that trial counsel provided ineffective assistance during trial and thereafter in various instances. Appellant complains that trial counsel was ineffective for failing to litigate the pretrial motion he filed seeking to suppress appellant’s confession. Appellant actually made two confessions; the first one a spontaneous utterance at the scene of the murder, N.T. 1/30/84, 19; and, the other a statement to police after his arrest, N.T. 1/30/84, 76-80. An examination of the record shows that the first statement was a non-custodial one, where no Miranda warnings were necessary, while the other statement was given voluntarily with all necessary warnings. Trial counsel cannot be held to have been ineffective for failing to raise issues which are clearly nonmeritorious. Commonwealth v. Ross, 273 Pa.Super. 67, 416 A.2d 1092 (1979).

Appellant also accuses counsel of ineffectiveness in being inadequately prepared for trial; in failing to investigate the circumstances of the crime; and in his interviewing and preparing witnesses. The trial record does not support such allegations. Counsel showed diligence in filing pre-trial motions for the appointment of an investigator and a medical expert; and further, in procuring witnesses in support of Smith’s insanity defense. Appellant seeks to use his trial attorney’s presentation of Lawrence Smith’s testimony as evidence that he was unprepared for trial. A reading of the record shows however, that counsel’s line of questioning was intended to reveal that Smith, although appellant’s brother, was a potentially hostile witness since he had been subpoenaed by the Commonwealth. Even if the effect of Lawrence Smith’s testimony was to harm rather than help appellant’s case, this does not establish ineffective assistance. See Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 289 (1983) (defense counsel’s calling two witnesses who harmed defendant’s case did not constitute ineffectiveness).

Appellant also cites counsel’s visiting him in prison only once as evidence that counsel was unprepared for trial. This claim lacks merit since the shortness of time spent consulting with a defendant, does not, standing alone, render counsel ineffective. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). We conclude that appellant has not proved counsel was unprepared for trial so as to render his assistance ineffective.

Finally, appellant accuses his trial counsel of ineffective representation for having filed “boiler-plate” post-trial motions which he failed to brief or argue. Because appellant does not articulate any specific issues that trial counsel properly should have raised however, this claim must fail. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979). We note also that the trial judge indicated that no meritorious issues existed. N.T. 4/12/84, 2. Counsel’s failure to file post-trial motions will not warrant a finding of ineffective assistance where counsel is justified in concluding that such motions would be of no arguable merit. See Commonwealth v. Bradley, 326 Pa. Super. 262, 473 A.2d 1082 (1984) (counsel not ineffective where he justifiably concluded from judge’s decision denying defendant’s suppression motion that motion was of no arguable merit). Regarding counsel’s failure to brief or argue these motions, appellant neglects to point out how a brief would have improved his position and misstates the facts, since argument does appear in the notes of testimony of April 12, 1984, pages 2-3. Counsel cannot be held to have been ineffective simply because his argument did not have the effect desired by appellant. In sum, we conclude that all allegations of counsel’s ineffectiveness with respect to post-trial motions are without merit.

Since we have dismissed all of appellant’s issues, we affirm the judgment of sentence of the lower court.

Judgment of sentence affirmed.

      . Appellant frames these issues more specifically, as follows:
      1. Was trial counsel ineffective in failing to object to the Assistant] District Attorney’s application to orally amend the petition for extension of time?
      2. Was trial counsel ineffective in failing to object to the commencement of trial after the extended run date?
      3. Was trial counsel ineffective in having the appellant waive Rule 1100, while incompetent to stand trial?
      4. Was trial counsel ineffective in failing to request a competency hearing for the defendant?
      5. Was trial counsel ineffective in filing only "Boiler Plate” [pjost verdict motions?
      6. Was trial counsel ineffective in failing to either brief or argue post verdict motions?
      7. Was trial counsel ineffective in withdrawing his motion to suppress the statements of the defendant?
      8. Was the verdict entered against the defendant a nullity?
      9. Should the appellant be discharged as the Commonwealth failed to bring the defendant to trial within the time as extended by the Court of Common Pleas?
      10. Was trial counsel ineffective in failing to adequately prepare his case for trial?
      Brief for Appellant at 2.

      . The rule provides in pertinent part as follows:
      Rule 1100. Prompt Trial
      (a)’
      ******
      (2) Trial ... shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . Rule 1100(c) provides as follows:
      (c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
      (2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
      (3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
      (4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.

      . Rule 1100(d) provides as follows:

        (d) In determining the period for commencement of trial, there shall be excluded therefrom:

      (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;

        (2) any period of time for which the defendant expressly waives Rule 1100;

        (3) such period of delay at any stage of the proceedings as results from:

        (i) the unavailability of the defendant or his attorney;

      (ii) any continuance granted at the request of the defendant or his attorney.
      (Emphasis added.)

      . See Pa.R.Crim.P. 1100(d). The law is clear that the Commonwealth is constitutionally barred from trying a defendant who is incompetent. Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975);
        Commonwealth v. Garnett, 336 Pa.Super. 313, 485 A.2d 821 (1984); Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980).

      . Whether the issue underlying a claim of ineffectiveness is of "arguable merit" is the first prong of the two-pronged test used by our courts to determine ineffective performance of counsel. Only if appellant’s claim satisfies this first prong is an evaluation of counsel’s trial tactics necessary to determine whether the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). See Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973); Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984).

      . See supra at note 3.

      . See supra at note 4.

      . We note that counsel’s stipulation to the contents of Dr. Grosso’s September 12 report did not amount to "his stipulating to the defendant’s competency.” See Brief of Appellant at 4. This stipulation merely saved the psychiatrist a trip to court to testify to the same opinion stated in the September 12 report. Appellant was only found legally competent after Judge Stout considered the report and decided to accept the expert’s opinion.

      . Smith’s later suicide attempt is irrelevant to his Miranda waiver and confession since Smith was calm and coherent during the taking of his statement at the police station. Cf. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982) (later symptoms of drug withdrawal irrelevant to defendant’s earlier confession).


author: WIEAND, Judge:

text:
    501 A.2d 664
    COMMONWEALTH of Pennsylvania, Appellant, v. Christine CARLISLE, Loretta Marinacci, Appellees.
    Superior Court of Pennsylvania.
    Submitted April 9, 1985.
    Filed Nov. 29, 1985.

      Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Yaier Y. Lehrer, Pittsburgh, for appellees.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   WIEAND, Judge:

This appeal by the Commonwealth from an order suppressing evidence of a gambling operation seized by police during execution of a search warrant requires that we determine (1) whether the affidavit recited facts sufficient to constitute probable cause, and (2) whether the premises to be searched were described in the warrant with sufficient particularity. We conclude that the search warrant was valid and reverse the order of the trial court suppressing evidence seized by the police.

On May 9, 1983, police applied for a warrant to search. The application described the premises to be searched as “9935 Frankstown Rd. Penn Hills Pa. This is a two story frame house with red and grey shingles and cedar shakes on front, white trim and front porch.” The probable cause for the warrant was stated as follows:

The affiants have received information from a reliable informant who has provided information in the past that has resulted in the arrest of Thomas Morrison in Feb. 1981 and also the arrest and conviction of Neil Harrington in July 1981 for lotterys [sic]. This informant has stated that he plays numbers with an actor known as Bud by calling the number 241-1966 or 241-1967. He states that he calls these numbers at various times during the day. He also states that he has placed number bets with the actor as recent as 5-9-83. The informant states that he only knows the actor as Bud. Dels, from the Vice Control Section checked the above numbers and found that 241-1966 goes to Sue Fletcher, 9935 Frankstown Rd. Penn Hills, 1st fl. apt. 1. The number 241-1967 is listed to Carol Sheehan of the same address and apartment. These numbers were checked with Bell Telephone security. Dets. from the Vice Control Section called these numbers on various occasions during the past week and found them usually busy and when someone did answer it was on the first ring. The affiants have been assigned to the Vice Section for aprox [sic] 5 years and the above pattern is consistent with a numbers operation.

(Emphasis added.) Christine Carlisle and Loretta Marinacci were present in apartment # 1 when the warrant was executed on May 9th. Seized, among other things, were numbers sheets, owe sheets, a log book, and telephones bearing the telephone numbers stated in the warrant application. Thereafter, Carlisle and Marinacci were arrested and charged with criminal conspiracy and conducting a lottery. They filed a joint motion to suppress the evidence seized on May 9th. An evidentiary hearing was held, and on September 9, 1983, the court granted the motion. The Commonwealth appealed.

The magistrate’s determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 547 (1983); Commonwealth v. Corleto, 328 Pa.Super. 522, 528, 477 A.2d 863, 866 (1984). “[A] magistrate is not required to find a prima facie showing of criminal activity but rather the probability of criminal activity. While the inquiry is restricted to the four corners of the affidavit, the affidavit is to be interpreted in a common-sense and realistic fashion.” Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983) (citations omitted). “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Miller, 334 Pa.Super. 374, 382, 483 A.2d 498, 501-502 (1984), quoting Illinois v. Gates, supra 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also: Commonwealth v. Gray, supra 322 Pa.Super. at 46-47, 469 A.2d at 173.

“[A] ‘tip’ from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant’s credibility.” Commonwealth v. Miller, supra 334 Pa.Super. at 381, 483 A.2d at 501. See also: 68 Am.Jur.2d Searches and Seizures § 65 (1973). Reliability is sufficiently shown by past investigative leads which proved reliable and accurate. Commonwealth v. White, 311 Pa.Super. 146, 152, 457 A.2d 537, 539 (1983). The passage of time following the last offering of information does not render an informant unreliable. Commonwealth v. Healey, 331 Pa.Super. 199, 204, 480 A.2d 313, 316 (1984) (five years). The credibility of an informant and the reliability of his or her information may also be determined by independent corroboration of the tip. See: Commonwealth v. Gray, supra 322 Pa.Super. at 47, 469 A.2d at 174; Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973). The affidavit, however, need not meet all these criteria. Commonwealth v. Gray, supra.

The affidavit in the instant case contained information which was adequate to establish the reliability of the informant. He told police that he had placed recent bets, one earlier on the same day, by calling telephone numbers which police traced to apartment # 1 at 9935 Frankstown Road, Penn Hills. The informant had proved himself reliable on at least two prior occasions. This was itself adequate to demonstrate reliability and show probable cause to believe that an illegal gambling operation was being conducted. The police, however, attempted to corroborate this information by placing calls of their own. These calls disclosed a pattern consistent with a numbers operation. The fact that the pattern may also have been consistent with a lawful use of the telephone did not destroy the probable cause established by information derived from the informant. See: Commonwealth v. Corleto, supra (innocent details and/or conduct consistent with activity of law abiding citizens may confirm an informant’s tip).

The warrant issued by the magistrate was stated expressly to be for premises described in the application. The premises described in the application were a two story frame house, but the statement of probable cause further restricted the premises being used to conduct a gambling operation to “1st fl. apt. 1.” In executing the warrant, the police searched only apartment # 1 on the first floor, where they discovered and seized the evidence suppressed by the pre-trial hearing court.

The general rule is that “a search warrant directed against a[n] ... apartment house, or other multiple-occupancy structure will be held invalid for lack of specificity if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units.” 68 Am.Jur.2d Searches and Seizures § 77 (1973). Where “the description provided is precise enough to enable the executing officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity.” In re Search Warrant B-21778, 341 Pa.Super. 350, 359, 491 A.2d 851, 856 (1985). See also: 68 Am.Jur.2d Searches and Seizures §§ 74, 77 (1973). When the application in this case is viewed in a common sense and realistic manner, as we are directed, it is clear that the warrant was not invalid for lack of specificity. The address was ascertained and the house described. The apartment in which the illegal gambling operation was being conducted was described as apartment one on the first floor. A warrant issued for the premises so described did not fail for lack of a specific description of the premises to be searched.

The only apartment searched, moreover, was apartment one on the first floor. Even if the warrant be interpreted as authorizing too extensive a search, therefore, it is apparent that the appellee-occupants of apartment # 1 were not aggrieved thereby. See: Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978).

We conclude, for these reasons, that the suppression court erred when it held the search warrant invalid and suppressed evidence of an illegal gambling operation seized during the execution of such warrant.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . This appeal is proper. The Commonwealth has certified that the order in question substantially handicaps prosecution. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Sheppard, 341 Pa.Super. 403, 491 A.2d 879 (1985).

      . See: Commonwealth v. Stamps, 493 Pa. 530, 537, 427 A.2d 141, 144 (1981); Commonwealth v. Edwards, 493 Pa. 281, 290, 426 A.2d 550, 554 (1981).


text:
    501 A.2d 667
    COMMONWEALTH of Pennsylvania, Appellee, v. David Paul DOSCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Nov. 29, 1985.

      Joseph E. Breman, Kittanning, for appellant.
    George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.
    Before SPAETH, President Judge and, ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

David Paul Dosch was tried by jury and was found guilty of burglary and theft offenses. Although he filed post-trial motions, they were later withdrawn as part of a negotiated plea agreement. Pursuant to this agreement, Dosch entered pleas of guilty to numerous additional charges which related to an escape from the Armstrong County Prison. On November 24, 1981, Dosch was sentenced to prison for not less than five nor more than twenty years on the burglary conviction and to not less than two nor more than four years on the escape related offenses. The sentences were to run consecutively. No direct appeal was filed. On May 13, 1983, Dosch filed pro se a petition for relief under the Post Conviction Hearing Act. Counsel was appointed, and an evidentiary hearing was held. Thereafter, the court denied post conviction relief. On appeal therefrom, Dosch’s primary argument is that his pleas of guilty to the escape related offenses were invalid (1) because they were part of an agreement requiring him to surrender his right to file post-trial motions in a separate proceeding and (2) because it was induced by the threat of a harsher penalty if he elected to go to trial. Dosch also argues that trial counsel was ineffective in the burglary case (1) because he failed to present a timely pre-trial motion to suppress appellant’s confession and (2) because he permitted appellant to waive an allegedly erroneous evidentiary ruling at his trial by withdrawing his post-trial motions. There is no merit in any of these contentions; and, therefore, we will affirm the order of the P.C.H.A. court.

The plea agreement required appellant to enter pleas of guilty to some of the escape related offenses — the remainder were to be nol prossed — and to withdraw the post-trial motions pending in the burglary and theft cases. In return, the Commonwealth agreed to recommend a five to twenty year sentence for burglary and theft and a consecutive sentence of two to four years for the escape related offenses.

Appellant’s contention that the trial court should not have accepted his negotiated pleas is based upon language contained in the concurring opinion written in Commonwealth v. Marsh, 448 Pa. 292, 293 A.2d 57 (1972). In that case, the defendant had entered a plea of guilty to murder. Following a degree of guilt hearing he was adjudged guilty of murder of the first degree and sentenced to life imprisonment. He subsequently filed a P.C.H.A. petition and was able to obtain a new degree of guilt hearing. See: Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970). The validity of his guilty plea, however, was upheld. Before the new degree of guilt hearing, Marsh entered a plea agreement wherein the Commonwealth was to stipulate that defendant’s degree of guilt was no higher than murder of the second degree, and defendant was to agree not to pursue any further appeal challenging the validity of his guilty plea. The trial court refused to accept the plea agreement and, after a degree of guilt hearing, found the defendant guilty of first degree murder and sentenced him to life imprisonment. Marsh again appealed. A majority of the Supreme Court affirmed, holding that the trial court was not required to accept the agreement. Commonwealth v. Marsh, supra 448 Pa. at 295, 293 A.2d at 60. In a concurring opinion, the suggestion was made that it would have been error to sanction a plea arrangement by which a defendant bargained away his right to appellate review of the validity of his plea of guilty. Such an arrangement, the author of the opinion concluded, would invite attempts to insulate convictions unlawfully obtained from appellate review. Id., 448 Pa. at 299, 293 A.2d at 61-62 (Roberts, J., concurring).

Appellant urges us to adopt the rule advocated by the author of the Concurring Opinion. This we cannot do. A majority of the Supreme Court failed to join the concurring opinion; and, therefore, it did not preeedentially alter the law of this Commonwealth. The existing state of the law was recited in Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982) as follows:

It is beyond cavil that a defendant has an absolute right to appeal, Pa. Const, art. V, sec. 9, and the ultimate decision of whether to do so must be made by the defendant and not counsel. Commonwealth v. Hertzog, 492 Pa. [632, 639] 425 A.2d 329[, 333] (1981) (collects cases); Commonwealth v. [Wilkerson], 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). At the same time, it is well settled that a defendant may waive the right to appeal, provided such waiver is a “knowing and intelligent” act on the part of a defendant. Commonwealth v. Mika, 277 Pa.Super. 339, [343,] 419 A.2d 1172, 117[4] (1980).

Id., 294 Pa.Superior Ct. at 536-537, 440 A.2d at 595 (footnote omitted). In the instant case, appellant surrendered his right of post-trial review in one case and entered pleas of guilty in other cases in order to take advantage of specific sentence recommendations. Such an agreement was not invalid.

Moreover, in this case appellant has not argued that he should be allowed to reinstate his post-trial motions. His argument, rather, is that his pleas of guilty to the escape related charges were invalid because, as part of the same settlement package, he agreed to waive the right of review of the trial resulting in the conviction for burglary and theft. We reject this contention. It represents a non sequitur to the concerns expressed by the author of the concurring opinion in Marsh. Appellant’s pleas of guilty in this case were entered voluntarily with a full understanding of the rights he was surrendering. Sentence was thereafter imposed. He has failed to show any prejudice in the nature of manifest injustice sufficient to permit him to withdraw his pleas of guilty a year and a half after sentence was imposed. See: Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973).

Appellant’s allegation that his guilty pleas were unlawful because induced by the threat of a harsher sentence is not supported factually or legally. The testimony of trial counsel, which the P.C.H.A. court found credible, was that he had advised appellant that to have any control over the sentence to be imposed upon him, it would be necessary to enter into plea negotiations. This advice was correct. It did not render appellant’s negotiated guilty pleas invalid. Moreover and in any event, a plea is not rendered involuntary merely because it is prompted by a belief that it will enable a defendant to obtain a more lenient sentence. See, e.g.: Commonwealth v. O’Donnell, 472 Pa. 25, 27, 370 A.2d 1209, 1210 (1977); Commonwealth v. White, 446 Pa. 378, 382, 288 A.2d 759, 761 (1972); Commonwealth v. Phillips, 248 Pa.Super. 400, 405-406, 375 A.2d 158, 160-161 (1977).

When appellant withdrew his post-trial motions, he thereby waived the right to obtain appellate review of evidentiary rulings which had been made during the trial resulting in verdicts of guilty. See: Commonwealth v. Sheid, 443 Pa. 82, 84-85, 278 A.2d 160, 161 (1971); Commonwealth v. Flynn, 295 Pa.Super. 513, 517-519, 442 A.2d 256, 258-259 (1982). Whether the travelers’ checks, which appellant had been accused of stealing and negotiating, were properly authenticated before being received into evidence was an issue which appellant waived when he withdrew his post-trial motions. Appellant argues, however, that trial counsel was ineffective because he allowed appellant to waive this issue. There is no merit in this contention. In the first place, the effect of withdrawing his post-trial motions was fully explained to appellant by the court (N.T. 6/8/81, pp. 21-22). Secondly, appellant acknowledged at the P.C.H.A. hearing that he had understood the consequences of withdrawing his post-trial motions pri- or to sentence (N.T. 2/23/84, pp. 13-14). The record demonstrates that appellant’s withdrawal of post-trial motions was a knowing and voluntary decision made by appellant.

Counsel was not ineffective because he recommended that appellant accept the plea bargain offered by the Commonwealth. Counsel’s recommendation was not only reasonable but clearly calculated to serve the interests of appellant. It was recommended in order that appellant might receive a sentence recommendation which the District Attorney would not otherwise have made.

Finally, appellant argues that trial counsel was ineffective for failing to file a timely motion to suppress appellant’s confession. The only basis for suppressing the confession was that appellant, because of drug abuse, was “disoriented” when, on December 19, 1980, he voluntarily surrendered to police, waived his rights under Miranda, and made an inculpatory statement. His counsel testified, and the P.C.H.A. court found, that appellant had told his trial counsel only a few days before trial that he was “disoriented” at the time of his statement and that counsel had moved immediately to suppress the same. Because this was only a few days before trial was scheduled to commence, however, the court dismissed the motion. The P.C. H.A. court found that this delay had been attributable to appellant and that counsel had not been ineffective. The record discloses no good reason for interfering with the P.C.H.A. court’s finding.

Moreover, appellant presented evidence at his trial that he had been “upset” and “disoriented” at the time of making his statement. The evidence which he presented was rejected by the jury. His evidence was wholly inadequate to render his statement involuntary. He had surrendered himself voluntarily, and, in the company of his priest, had voluntarily waived his Miranda rights and had made an inculpatory statement. Appellant’s claim of “disorientation” was subjective and was wholly inadequate to support suppression of his statement. See: United States ex rel. Bishop v. Rundle, 309 F.Supp. 312 (E.D.Pa.1970), affd, 437 F.2d 204 (3rd Cir.1971); Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978); Commonwealth v. Culberson, 467 Pa. 424, 358 A.2d 416 (1976); Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984); Commonwealth v. Dewitt, 271 Pa.Super. 156, 412 A.2d 623 (1979); Commonwealth v. Watson, 239 Pa.Super. 426, 360 A.2d 710 (1976). It cannot be said, therefore, that appellant was prejudiced in any way because the suppression motion had been untimely filed. See: Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Order affirmed.