author: CAVANAUGH, Judge: VAN der VOORT, Judge,

text:
    442 A.2d 739
    COMMONWEALTH of Pennsylvania, Appellant, v. Patrick RYAN and Marianne L. Casano.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed Feb. 26, 1982.
    Petition for Allowance of Appeal Denied June 1, 1982.

      Charles P. Eyer, Assistant District Attorney, Stroudsburg, for Commonwealth, appellant.
    Peter T. O’Malley, Scranton, submitted a brief on behalf of Ryan, appellee.
    George Westervelt, Stroudsburg, for Casano, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is an appeal by the Commonwealth from the lower court’s order of October 9, 1979, granting the defendants’ motions to suppress evidence. At issue here is which party has the initial burden of proof at a suppression hearing. We agree with the conclusion of the lower court that the Commonwealth bears the initial burden of establishing the admissibility of the challenged evidence, and also with its finding that the Commonwealth did not meet its requisite burden at defendants’ suppression hearing. However, we find that the court, having decided the burden of proof issue adversely to the prosecution, should have granted the Commonwealth’s motion to reopen the suppression hearing. Accordingly, we reverse the lower court’s order granting defendants’ suppression motions and remand this case for the reopening of the suppression hearing.

This is not the first time this case has been before this court. On June 3, 1977, the lower court granted defendants’ suppression motions on the ground that the magistrate improperly issued a search warrant for a premises outside his magisterial district. The Commonwealth appealed from that suppression order and this court reversed and remanded the case. Commonwealth v. Ryan, 257 Pa.Super. 538, 391 A.2d 612 (1978), aff’d, 484 Pa. 602, 400 A.2d 1264 (1979).

On October 3, 1979, a suppression hearing was held to dispose of the remaining arguments contained in defendants’ suppression motions. At that hearing, the prosecutor declined to present any testimony in support of the admissibility of the challenged evidence contending that (1) the decision of the Pennsylvania Supreme Court in Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), establishing the right of defendants to attack the veracity of search warrant affidavits, was improperly decided and should be reversed, and (2) assuming the continued validity of Hall, defendants, and not the Commonwealth, had the initial burden of establishing a prima facie case as to the untruthfulness of statements contained in a warrant affidavit. In response, defendants argued that Pa.R.Crim.P. 323(h) required that the prosecution go forward with evidence at a suppression hearing. At the conclusion of the October 3 proceeding, both counsel indicated their desire to submit briefs on the burden of proof issue.

In a letter to the suppression court dated October 5, 1979, the Commonwealth stated its understanding that the suppression hearing was “stalled” pending resolution of the burden of proof issue. The Commonwealth also informed the court that it was prepared to go forward with testimony should the court place that burden on the prosecution. Thereafter, the Commonwealth filed a motion to reopen the suppression hearing to present evidence in the event of an adverse ruling on the burden of proof question. On October 9, 1979, the suppression court granted defendants’ motions to suppress on the ground that the Commonwealth, by failing to introduce evidence at the October 3 hearing, had not met its requisite burden of proof. The court also denied the Commonwealth’s petition to reopen the suppression hearing for the presentation of evidence finding that the prosecution “. . . had ample opportunity to present the necessary evidence at the earlier date.” On October 23, 1979, the Commonwealth petitioned the lower court to reconsider the burden of proof issue in light of the decision of the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1979). That petition was denied without a hearing. This appeal followed.

In this appeal, the Commonwealth urges us to conclude, based on Franks, that the defendants have the initial burden, at a suppression hearing, of making a “substantial preliminary showing” of the validity of their challenge to a search warrant affidavit and that their challenge must further be established by a preponderance of the evidence. The Commonwealth argues that Franks established new standards for the burden of proof at a suppression hearing, thereby impliedly overruling Pa.R.Crim.P. 323(h) and decisional law in this Commonwealth placing the initial burden of proving the admissibility of the challenged evidence on the prosecution.

We find, however, that the Commonwealth’s reliance on Franks is misplaced. That decision can in no way be read to impose on a defendant the burden of going forward with evidence in support of suppression. Rather, the Supreme Court in Franks considered the narrow issue of whether a criminal defendant ever had a right to challenge the truthfulness of statements contained in a search warrant affidavit. In reversing the Delaware Supreme Court which has absolutely barred defendant’s veracity challenge, Justice Blackmun, writing for the majority, stated:

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

438 U.S. at 157, 98 S.Ct. at 2676, 57 L.Ed.2d at 672.

Franks thus established the right of defendants to a veracity hearing once a genuine attack on a warrant affidavit has been made. That decision, however, set forth only the minimal constitutional standard regarding the allowance of veracity challenges and fully recognized that “. . . the framing of suitable rules to govern proffers [of defendants concerning the untruthfulness of warrant affidavits] is a matter properly left to the States.” 438 U.S. at 172, 98 S.Ct. at 2685, 57 L.Ed.2d at 682. Indeed, in Commonwealth v. Bradshaw, 290 Pa.Super. 162, 167, 434 A.2d 181, 183 (1981), this court stated that our courts “do, of course, have the right to increase the substantive and procedural constitutional mínimums set forth in Franks.” Accordingly, we do not interpret Franks to establish binding procedural standards placing the initial burden of proof at a suppression hearing on the defendant. Nor do we find, as the Commonwealth argues, that such an interpretation of Franks is critical to the proper management of the criminal justice system.

It is incontrovertible that, here in Pennsylvania, the Commonwealth, and not defendant, has the initial burden of going forward with evidence and of establishing that the challenged evidence was not obtained in violation of defendant’s rights. Pa.R.Crim.P. 323(h). Thus, in Commonwealth v. Hall, 451 Pa. at 206-207, 302 A.2d at 345, the Pennsylvania Supreme Court rejected a similar argument by the Commonwealth that, prior to a suppression hearing, the defendant must first specify what part of the warrant was inaccurate:

The Commonwealth’s position, reduced to its essence, is that while appellant may have the right to challenge the veracity of facts recited in a warrant, he may not do so without first showing the potential falsity of those facts.
We must reject such an unduly restrictive interpretation of Commonwealth v. D’Angelo, supra. Such an interpretation would virtually emasculate the teaching of D’Angelo that facts supporting a warrant may be shown to be false or misleading.

More recently, this court has reaffirmed the Commonwealth’s initial obligation to establish the validity of a search warrant. In Commonwealth v. William Ryan, 268 Pa.Super. 259, 407 A.2d 1345 (1979), remanded, 489 Pa. 221, 414 A.2d 37, on remand, 277 Pa.Super. 262, 419 A.2d 762 (1980), appellant filed a pre-trial motion to suppress evidence seized pursuant to a search warrant. That motion was denied notwithstanding the Commonwealth’s failure to present any testimony at the suppression hearing and instead producing only the search warrants and accompanying affidavits. On appeal following defendant’s conviction, this court accepted defendant’s argument that his suppression motion was improperly denied because the court had shifted onto the defense the initial burden to disprove the truthfulness of information contained in the affidavit:

In the instant case the defendant was prevented from exercising his right to test the veracity of the information contained in the search warrant. The burden is on the Commonwealth to establish the validity of the search warrant and the burden is not carried by merely introducing the search warrant and affidavit with no supporting testimony because then the only way for the defendant to challenge the veracity of the information is to call witnesses himself and this effectively shifts onto him the burden of disproving the veracity of the information, an almost impossible burden. If the procedure followed by the Commonwealth in this case were upheld then policemen could recite in an affidavit as probable cause for the issuance of a search warrant any and all statements which they felt were of help in obtaining the warrant, irrespective of the truth or veracity of those statements, their legality or illegality, or constitutionality or unconstitutionality, realizing that such statements would be insulated from defendant’s right of cross-examination since the Commonwealth did not have to call witnesses who would be subject to cross-examination to establish the facts necessary to support the issuance of the search warrant. Therefore, we must hold that the Commonwealth failed to carry its burden of proof at the suppression hearing. To rule otherwise would permit police in every case to exaggerate or to expand on the facts given to the issuing authority merely for the purpose of meeting the probable cause requirement, thus precluding an objective determination of whether probable cause for the warrant existed.

268 Pa.Super. at 264-265, 407 A.2d at 1348. (Citations omitted).

The instant case is indistinguishable from Ryan. The Commonwealth declined to present any testimony to establish that the evidence seized was properly obtained. By refusing to do so, the Commonwealth shifted onto the defendants the burden of disproving the veracity of the affidavit, thereby violating Pa.R.Crim.P. 323(h). Both Hall and Ryan clearly indicate that this is not, and should not be, the proper procedure at a suppression hearing. Since we cannot agree with the Commonwealth that Franks realigned the burden of proof required of each party at a suppression hearing, and instead hold that the Commonwealth has the initial burden of establishing that the challenged evidence was not obtained in violation of defendant’s rights, we must affirm the suppression court’s conclusion that the Commonwealth did not meet its requisite burden at defendants’ suppression hearing.

We do not agree, however, that suppression of the evidence was the appropriate remedy in this particular case. Rather, we find that the lower court, after holding that the Commonwealth had the initial burden of proof at the suppression hearing, and further concluding that the Commonwealth had not met its burden, should have granted the Commonwealth’s petition to reopen that hearing in order to present evidence relevant to defendants’ suppression claims.

At the October 3,1979 hearing, after the prosecutor stated his position that he was not required to present any evidence, he then indicated that the Commonwealth had rested “if you want to look at it that way.” Following argument by both counsel, the defense requested and was granted permission to submit a brief on the burden of proof issue. The Commonwealth also indicated its desire to file a brief on the burden question. Both parties then stated that they would present no further evidence at the hearing.

On October 5, 1979, along with its brief, the prosecution sent a letter to the court stating its understanding that the suppression hearing was “stalled” pending resolution of the burden of proof question. The Commonwealth also informed the court that it was prepared to present testimony should there be a ruling on that issue which was unfavorable to the prosecution. On October 8, 1979, in an abundance of caution, the Commonwealth petitioned the court to reopen the suppression hearing so that it could introduce evidence in the event the court decided the burden of proof question adversely to the prosecution. Defendants’ suppression motions were granted the following day and the court refused to reopen the suppression hearing.

Recently, this court, sitting en banc, considered the propriety of reopening a suppression hearing, after the issuance of a suppression order, to allow the Commonwealth to present additional testimony. In Commonwealth v. Branch, 292 Pa.Super. 425, 437 A.2d 748 (1981) (petition for allowance of appeal denied 10/6/81), this court held that the suppression court acted within its discretion in reopening defendant’s suppression hearing. In so doing, the court recognized the distinction between a pre-trial suppression determination and a trial verdict of guilt or innocence, noting that the former is subject to different, and more liberal, guidelines concerning finality. In that case, the prosecution was permitted to present testimony inadvertently omitted at the earlier suppression proceeding.

Applying Branch to the instant facts, we find that the lower court abused its discretion in not permitting the reopening of defendants’ suppression hearing. This conclusion is even more compelling than in Branch since the record fails to conclusively establish that the October 3 hearing was closed. In fact, a review of the suppression proceedings below indicates that all parties believed the suppression hearing to be in abeyance pending resolution of the burden of proof issue. Moreover, on several occasions before the suppression order was entered, the Commonwealth made clear that it was prepared to present testimony and even filed a petition to reopen the suppression hearing so that it could do so. Although the prosecutor’s refusal to present evidence was deliberate, and not inadvertent as in Branch, his obvious intention was to obtain a pre-hearing resolution of the burden of proof question. Under these circumstances, it would hardly be in the interests of justice to forever preclude the Commonwealth from presenting testimony on defendants’ suppression motions.

Because we hold that the lower court erred in denying the Commonwealth’s petition to reopen the suppression hearing, we remand this case with directions to the court below to renew the suppression hearing so. that the Commonwealth can meet its burden as required by Pa.R.Crim.P. 323(h). We further direct the lower court to review and rule on all arguments raised in defendants’ suppression petitions to prevent further piecemeal litigation of this case.

Case remanded for proceedings consistent with this opinion.

VAN der VOORT, J., files concurring and dissenting opinion.

VAN der VOORT, Judge,

concurring and dissenting:

I concur in the decision of the Majority to remand this appeal to the court below for the purpose of continuing the suppression hearing. However, I dissent from that part of the opinion which holds that the Commonwealth has the burden of proving the validity of the search warrant before the defendant may be called upon to show that some of the recitals in the affidavit are untrue.

A defendant in a criminal case is given the right to file a motion to suppress all or part of the evidence. Pa.R.Crim.P. 306 and 323. A pertinent part of said Rule 306 provides with respect to the motion as follows:

“. . . It shall state specifically the grounds upon which each type of relief requested therein is based, setting forth for each type of relief requested the facts in consecutively numbered paragraphs, and shall specify each such type of relief requested.”

The Rule provides that specificity is required of the motions embodied in an omnibus pretrial motion. Unless the defendant’s motion specifies what part of the affidavit is untrue, no hearing should be required. When a defendant files a proper motion making “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks v. Delaware, 438 U.S. 154, at page 155-56, 98 S.Ct. 2674, at page 2676, 57 L.Ed.2d 667, at page 672 (1979).

When the defendant has made a proper motion to suppress “[T]he Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights....” Pa.R.Crim.P. 323(h). (Emphasis supplied).

The Commonwealth is limited in its proof by Pa.R.Crim.P. 2003(a) and (b). Said Rule provides as follows:

(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
(b) At any hearing on a motion for the return or suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (a).

The Commonwealth is strictly limited to the search warrant and the affidavit accompanying it. There is a presumption as to the validity of the affidavit and warrant, Franks v. Delaware, supra, at 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. These documents constitute a prima facie showing of such validity. When the Commonwealth has made its prima facie showing the defendant is then in my judgment privileged to challenge the validity of the warrants by presenting evidence to show the untruthfulness of some or any of the allegations in the affidavit. He may present his own witnesses or call the affiant for cross examination. He is given the power of subpoena for the purpose of bringing witnesses or the affiant into court.

In the instant case, the motion (application) to suppress contained nothing but a sparce bald conclusion as to the invalidity of the search warrant affidavit. In the continued hearing which will take place the defendant should be given an opportunity to amend his Motion to Suppress, to specify more definitely the parts of the affidavit which he challenges and the basis for such challenge. If he does this then in my judgment a suppression hearing should be required.

      . This appeal is properly before us since the Commonwealth has alleged that the suppression grant has effectively terminated its prosecution of defendants. Commonwealth v. Martz, 259 Pa.Super. 201, 393 A.2d 787 (1978).

      . The gravamen of defendants’ suppression claims is that the search warrant affidavit is false and misleading in that it attributes to an informant that which was actually obtained through a New Jersey wiretap. Immediately before the October 3 proceeding, and pursuant to a court order, depositions were taken of individuals allegedly involved in the wiretap. At the suppression hearing, the Commonwealth invited defendants to submit those depositions to the court. Both parties opted not to present evidence but to instead address the burden of proof question. Therefore, the merits of defendants’ suppression claims were not considered by the lower court.

      . Apparently the Commonwealth has now abandoned its suppression hearing argument that defendants should not be entitled to veracity challenges at all as set forth in Hall. Indeed, to pursue that argument would be rather disingenuous in light of the Commonwealth’s claim that Franks must be applied to Pennsylvania suppression proceedings.

      . The Bradshaw court further noted that Franks had little impact on the rights of Pennsylvania criminal defendants to make veracity challenges, a right established in this jurisdiction long before the decision in that case:
      Long before Franks was even decided, it was well established that criminal defendants in Pennsylvania had the right to go beyond the “four corners” of the search warrant and challenge deliberate and material misstatements by the governmental affiant. Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973); Commonwealth v. D’Angelo, 437 Pa. 331, 263 A.2d 441 (1971); Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Scavincky, 240 Pa.Super. 550, 359 A.2d 449 (1976).
      290 Pa.Super. at 167, 434 A.2d at 183.

      . The Commonwealth seeks to distinguish Hall because appellant in that case had no pre-suppression access to information forming the basis of the allegedly improper search warrant. Here, the Commonwealth argues, since defendants took depositions from individuals involved in the wiretap, see footnote 2, supra, they had the discovery necessary to proceed at the suppression hearing. We find this distinction to be irrelevant. The burden of proof required at a suppression hearing is not altered based upon the existence or amount of knowledge a defendant is able to amass prior to the hearing.

      . Of course, boilerplate allegations regarding the invalidity of a search warrant are insufficient to trigger the Commonwealth’s burden of proof. Recently, Judge Hoffman, writing for the majority in Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 443 A.2d 795 (1981), noted:
      Merely introducing the warrant and affidavits may be sufficient to meet a “bald statement” that the Commonwealth failed to show probable cause. Commonwealth v. Ryan, 268 Pa.Super. at 266, 407 A.2d at 1348. When the defendant specifically complains of defects in the warrant or its execution, he thereby alerts the Commonwealth of a particularized burden of proof on those objections. To satisfy that burden the Commonwealth must introduce witnesses subject to the defendant’s cross-examination. Commonwealth v. Ryan, supra.

      . The Commonwealth apparently does not dispute that, if the initial burden of proof is placed on the prosecution, it failed to meet its burden at defendants’ suppression hearing.

      . This result is consistent with the remedy of a new suppression hearing which was granted by this court in Commonwealth v. Wil

        liam Ryan, supra, where the Commonwealth was also found to have failed to meet its burden of proof at a suppression hearing.

      . Because of our disposition of this case, we will not address the merits of defendants’ suppression claims. However, we do note that, on remand, the lower court should not consider the Commonwealth’s failure to timely answer defendants’ suppression motions as an admission of well-pleaded facts. While we do not condone the prosecution’s post-suppression hearing answer to defendants’ suppression motions, we find that its filing did not offend the applicable Pa.R.Crim.P. 323(e). Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980); Commonwealth v. Reason, 485 Pa. 450, 402 A.2d 1358 (1979). Moreover, since the suppression proceedings spanned a two year period, defendants were hardly prejudiced by the tardy filing of the Commonwealth’s answer.

      . In Commonwealth v. Ryan, 268 Pa.Superior Ct. 259 at 266, 407 A.2d 1345, 1348 (1979) we held that “... A bald statement that the Commonwealth failed to show probable cause, without more, could be met by the introduction of the warrant and the affidavit.”


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    442 A.2d 746
    COMMONWEALTH of Pennsylvania v. Ernest C. CUSTOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 4, 1981.
    Filed March 5, 1982.

      Michael J. Weintraub, Trenton, N. J., for appellant.
    Michael Kane, District Attorney, Doylestown, for Commonwealth, appellee.

      Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   CERCONE, President Judge:

The sole question presented in this appeal is whether the prosecutorial misconduct which caused a mistrial in the court below amounted to “overreaching” and consequently precludes appellant’s retrial on grounds of double jeopardy. We conclude that it does not, and, therefore, affirm the order of the court below.

On April 24, 1976, Dennis Carson was operating his automobile in a southerly direction on Route 1, Bucks County, Pennsylvania. He was accompanied by a passenger, Albert Falls. As Carson was proceeding in the passing lane, he noticed a motorcycle in the passing lane on the northbound side of the road. As the vehicles approached each other, the motorcycle swung out onto the southbound side of the road in order to pass another vehicle in the northbound passing lane. Since the motorcycle was now in the path of Carson’s vehicle, Carson was forced to swerve to the right in order to avoid a collision. The appellant, however, testified that it was Carson who swerved into his path requiring him to take evasive action. In any event, the collision was avoided and Carson proceeded to a traffic light at which he came to a stop because the light had turned red in his direction. While he was stopped, the motorcycle he had previously observed going northbound now approached southbound from his rear. The motorcycle passed Carson and stopped two or three feet directly in front of Carson’s automobile. Appellant was the operator of the motorcycle with a young lady passenger on the rear seat. After he stopped the motorcycle, appellant dismounted, ran toward Carson’s automobile, and pulled a large hunting knife from a sheath under his jacket. As he approached the driver’s door, appellant reached into the car with the hunting knife and stabbed Carson in the lower part of the throat. Carson held appellant’s arm in order to fend off further blows which appellant was attempting to inflict. When he felt himself getting weaker, Carson exited the automobile from the passenger side door and ran to a diner located on the opposite side of the road. He collapsed in the doorway.

In the meantime, Carson’s passenger had also exited the automobile and was pursued by appellant still brandishing the knife. The passenger ran toward a fast food store near the intersection and, when he turned to defend himself, he found that appellant had discontinued the pursuit. Appellant returned to his motorcycle, but could not get the motor to start. At that point, a police officer arrived and ultimately arrested appellant after discovering what had transpired.

There were four independent eyewitnesses to the foregoing incident. At trial, appellant did not deny his involvement, but rather testified that he could recall nothing from the time he stepped off his motorcycle to the time the police had arrived. The appellant’s defense was, therefore, geared to establish his intoxication at the time of the incident, his loss of memory, and his history of alcoholism. This was all offered to buttress his defense of temporary insanity. The jury, nevertheless, found appellant guilty of criminal attempt to commit murder, simple assault, aggravated assault, recklessly endangering another person, and prohibited offensive weapons.

Upon the filing of post-verdict motions, however, the lower court granted appellant a new trial due to the prosecuting attorney’s relentless inquiries and statements with respect to appellant’s membership in the infamous Breed Motorcycle Club—a group of dubious reputation. Appellant now claims that double jeopardy bars his retrial because the misconduct in question allegedly amounts to “prosecutorial overreaching.”

It is our opinion that the lower court’s award of a new trial adequately protects appellant from the prejudice he encountered due to the prosecutor’s overzealous and misguided conduct. Although a prosecuting attorney has a duty, as representative of this Commonwealth, to seek justice, not convictions, we are unfortunately faced at various times with situations in which the frailties of human nature overcome the judicious sensibilities of the Commonwealth’s attorney. In such cases, the prosecutor’s myopic view of justice has disturbed the requisite impartiality of a judicial proceeding to the prejudice of the defendant. Our usual practice under these circumstances, and the one followed by the lower court in the instant case, is to grant the defendant a new day in court in order to protect his right to a fair and impartial trial. Normally, by voluntarily requesting a mistrial or a new trial, the defendant is deemed to have waived his constitutional right against twice being placed in jeopardy of life or limb for the same alleged offense. Comment, The Double Jeopardy Clause and Mistrials Granted on Defendant’s Motion: What Kind of Prosecutorial Misconduct Precludes Reprosecution?, 18 Duq.L.Rev. 103, 104-105 (1979). Nevertheless, reprosecution may be barred where the conduct involved amounts to governmental overreaching. Id. In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), Justice Roberts in a plurality opinion defined overreaching as either intentional or grossly negligent conduct on the part of the prosecution. This articulation of the standard for determining when retrial is barred, however, was short-lived. One year after the Bolden decision, an equally divided membership of the Supreme Court of Pennsylvania decided Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978). In Potter, the Court, per Justice Pomeroy, noted that the Bolden standard only reflected the view espoused by Justices Roberts and Manderino, and, moreover, that the language contained in Bolden was technically dictum as being merely gratuitous in terms of the holding of that case. Justice Pomeroy interpreted the case of United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) not as advocating a grossly negligent test as Justice Roberts opined, but rather as requiring intentional conduct on the part of the prosecution which is either undertaken to provoke a mistrial so as to afford the Commonwealth another perhaps more favorable opportunity to prosecute the defendant or that which is undertaken in bad faith in order to harass or prejudice the defendant. 478 Pa. at 263-65, 386 A.2d at 923-25. Although neither of these cases are dispositive of the question due to their lack of a clear majority, the latter view taken by Justice Pomeroy has been borne out by the recent cases of Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980) and Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980). See also Commonwealth v. Smith, 284 Pa.Superior Ct. 60, 425 A.2d 393 (1981); Commonwealth v. Thomas, 270 Pa.Superior Ct. 375, 411 A.2d 767 (1979). In Starks, a majority of the Supreme Court, per Justice Roberts, stated:

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. See United States v. Dinitz, supra at 611, 96 S.Ct. at 1081. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, supra [432 U.S. 23] at 32, 97 S.Ct. [2141] at 2147 [52 L.Ed.2d 80]; United States v. Dinitz, supra at 611, 96 S.Ct. at 1081-82. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

490 Pa. at 341, 416 A.2d at 500.

In that case, it was concluded that there was no overreaching because “the prosecutor’s statements themselves simply do not suggest a bad faith effort to prejudice or an intent to provoke mistrial.” Id., 490 Pa. at 343, 416 A.2d at 501. Similarly, Justice (now Chief Justice) O’Brien held in Lee:

Appellant argues that his retrial should have been barred because the prosecutor in the aborted first trial engaged in either intentional or grossly negligent misconduct by referring to Crawford’s having taken a polygraph examination. The test to be applied is whether the Commonwealth engaged in either intentional or bad faith “overreaching.” Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). In our view, references to a polygraph examination in the instant case does not rise to either level of overreaching. Instantly, the prosecutor, in the heat of legal argument and responding to a question from the Court, informed the Court that the witness in question had taken a polygraph examination. The trial court recognized this misconduct as error and granted appellant a mistrial. In our view, however, this type of prosecutorial misconduct, although erroneous, does not require the extreme sanction of barring retrial of appellant. Appellant’s argument is thus without merit.

490 Pa. at 350, 316 A.2d at 505.

Thus, it appears that Justice Pomeroy’s view, as expressed in Potter, prevails.

Finally, the Supreme Court’s most recent pronouncements on the subject illustrate the application of their newly clarified standard. See Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); Commonwealth v. Hoskins, 494 Pa. 600, 432 A.2d 149 (1981). In Hoskins, the Court was evenly divided on the issue of whether there was sufficient evidence of intentional prosecutorial misconduct to bar retrial. The prosecutor therein engaged in a persistent course of misconduct in questioning witnesses concerning improper, irrelevant and prejudicial matters even after the trial judge had sustained defense objections to those exact or similar inquiries. In his opinion in support of affirmance, former Justice Kauffman stated:

That the prosecutor employed improper tactics is unquestionable; indeed, that was the very reason we held that a mistrial was appropriate. Although appellant certainly is entitled to a new trial, he is not entitled to a discharge unless the mistrial were deliberately provoked or the prosecutor acted in bad faith. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). There is no accusation here of deliberate provocation and under all the circumstances of this case, I do not believe that bad faith has been shown.

494 Pa. at 604, 432 A.2d at 152.

On the other hand, Justice Roberts, in his opinion in support of reversal, was of the opinion the Commonwealth had a fragile case which prompted the prosecutor’s undertaking to engage in repeated acts of misconduct. He, therefore, concluded:

With unmistakable clarity, the prosecutorial misconduct here signals, in the words of Starks, “the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.” On the record the defense request for a mistrial falls outside the general rule that retrial is not barred where a defendant obtains a new trial by way of a mistrial request. See United States v. DiFrancesco, supra [449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328] and United States v. Dinitz, supra. The sole remedy for the intolerable level of misconduct demonstrated on this record is to direct dismissal of the indictments.

Id., 494 Pa. at 615, 432 A.2d at 157.

The Hoskins decision, therefore, does not represent a dispute with respect to the standard to be applied in a double jeopardy situation, but rather represents a difference of opinion as to the application of the intentional misconduct standard to a given set of facts.

Likewise, in Virtu, the application of the standard was at issue. Apparently, it is the first case in Pennsylvania history to bar retrial due to prosecutorial overreaching. Writing for the majority therein, former Justice Kauffman held that the bad faith part of the Starks standard had been met:

Rather than evidencing innocent error or good faith, however, the prosecutor’s actions in the proceedings below appear to have been directed precisely to avoid resolution of the Fifth Amendment questions outside of the presence of the jury. The only plausible explanation for his behavior, is that the difficulty of eliciting crucial testimony, in consequence of the witness’ anticipated assertion of his privilege against self-incrimination, led [the prosecution] to attempt a maneuver designed to prejudice appellant by forcing the witness to assert the privilege in the presence of the jury.
The record here conclusively displays an extraordinary course of prosecutorial overreaching, including direct misrepresentation to the court, taken in deliberate bad faith. This kind of intentional prosecutorial misconduct is a threat to the very integrity of our judicial process, and must not be condoned. Commonwealth v. Starks, supra, n. 7.
We are reluctant to mandate dismissal of charges against this or any other defendant in the absence of a completed fact finding procedure. But extraordinary prosecutorial misconduct necessitates commensurately strong sanction. If protection against double jeopardy is to have any meaning at all, it must be invoked when an initial trial has been aborted as a result of a bad faith strategy pursued by the prosecution in a deliberate effort to prejudice the accused in the presence of the jury. Thus, the Commonwealth is now precluded by constitutional restraints against double jeopardy from seeking a second opportunity to obtain a conviction of this defendant.

495 Pa. at 69, 432 A.2d at 203-204.

Indicating his disagreement, Justice Larsen penned a dissenting opinion in which he took the position that a deliberate bad faith attempt to prejudice or harass the defendant had not been shown:

To rule that a single instance of prosecutorial misconduct, as we have here, rises to the level of bad faith/harassment type overreaching, especially in the absence of a finding of bad faith by the lower court, in effect elevates all non-inadvertent prosecutorial misconduct to Dinitz overreaching status, since virtually all prosecutorial trial tactics are designed to prejudice the accused’s prospects for acquittal. Every deliberate act which was later determined to be prosecutorial misconduct would thus entitle the defendant to discharge.

Id., 495 Pa. at 72, 432 A.2d at 205 (Larsen, J., dissenting). Thus, in Virtu, a majority of our Supreme Court has indicated that the double jeopardy standard for prosecutorial overreaching is something more than mere hollow pretense.

In a broader view, these two cases illustrate the problems associated with the application of any standard which delves into the mental state of the prosecutor. See Comment, The Double Jeopardy Clause and Mistrials Granted on Defendant’s Motion: What Kind of Prosecutorial Misconduct Precludes Reprosecution?, 18 Duq.L.Rev. 103, 110 (1978) (“establishing the requisite mental state of the prosecutor is an awesome burden, if not an insuperable one, in the absence of an express declaration by the prosecutor that he is engaging in the activity for the explicit purpose of provoking a mistrial request” ). This is not to say that such a standard is, therefore, unworkable for the Virtu decision is an indication to the contrary. See also note 11, supra. Rather, it is a situation where the courts must exercise sound discretion in determining when a finding of intentional misconduct is appropriate. As always, such discretion is best exercised by the trial judge who can observe the pertinent conduct and demeanor of the prosecutor to determine his motivations, or lack thereof, better than we can on a cold record. See Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970).

The record in the instant case evidences improper conduct by the prosecutor in continually attempting to elicit testimony regarding appellant’s membership in the notorious Breed Motorcycle Club. Initially, the prosecutor’s questions went to appellant’s general attire at the time of the incident. From this rather innocuous line of questioning, the prosecutor went into more and more detail about the colors and emblems exhibited upon appellant’s motorcycle jacket which identified him as a member of the Breed Motorcycle Club. At first, defense counsel did not object and, when he eventually did, the objection was summarily overruled. The issue was, nevertheless, put in question at a later time with the following exchange:

Q. Members of the Breed motor cycle gang—motor cycle club—whatever, do they frequent Phil’s Bar?
[DEFENSE ATTORNEY]: Objection, Your Honor.
THE COURT: Sustained
[PROSECUTOR]: Are you friends with members of the. Breed motor cycle—
[DEFENSE ATTORNEY]: Objection.
THE COURT: Sustained. I will see counsel at sidebar.
(Whereupon a sidebar conference was conducted out of the hearing of the jury as follows:)
[DEFENSE ATTORNEY]: Your Honor, I would like to move for a mistrial.
THE COURT: I beg your pardon?
[PROSECUTOR]: If I may lay a foundation, Your Honor, the defense in this case is insanity, that he committed these acts due to an insane state. It is the Commonwealth theory of this case that Mr. Custor was wearing his Breed colors that day. Wearing Breed’s colors is something particular. It is in the nature of perhaps members of the armed forces wearing their uniform and that branch being challenged. On that occasion he was wearing Breed’s colors and there was an altercation on the highway and it is my intention to build up a case in order to show the Commonwealth’s theory that motive in this case was Mr. Custor was, in a way, standing up for his colors. He was acting out as he felt necessary as a member of the Breeds and that is the theory.
With this witness, the reason I.am bringing this out, I think to go into anything as far as the witness on why he might be biased or why he might be coming into court with tainted testimony. The fact that Mr. Custor is a member of the Breeds, the fact that Breed’s members associate the bar, frequently associate the bar, could go to either friendship on the part of this witness or Mr. Custor or fear on the part of this witness, and that is why it goes to bias or motive for testifying.
THE COURT: His motive was to do what?
[PROSECUTOR]: You have to know something about the nature of the motor cycle club. I hope to do it when the defendant takes the stand; but as far as the witness is concerned, the important thing is whether or not he might be biased one way or another to shape his testimony.
THE COURT: Well, we will permit you to ask him whether members of the Breed Motor Cycle Club do, in fact, attend that bar and whether because of that fact he is here but I am not going into a trial—I think it would be improper—of the Breed Club. I know what you want to do. I know your reputation.
[PROSECUTOR]: I have some knowledge of violence by some of the Breeds.
THE COURT: But the jury doesn’t know that and I don’t think because of the members of Breed it necessarily follows that he did what he did today, he did on the 24th.
[PROSECUTOR]: But as far as this witness goes, I think there would be either out of friendship or out of any other motivation.
[DEFENSE COUNSEL]: May I be heard, Your Honor? Your Honor, with all due respect to [Prosecutor], he is reaching for a justification. His sole purpose was to inflame the minds of the jury. Whether or not this gentleman was friendly with the Breed and whether or not Breed might have a motive or the motive might be because of the Breed colors if there was a motive that the Commonwealth wanted to establish, they should have brought that out on the Commonwealth case. I don’t have any obligation to call Mr. Custor even though I stated in my opening that I don’t want to call him.
THE COURT: I agree with all that; but if the Commonwealth can attempt to show a motive for dishonesty on the part of this witness, I would limit it to that.
[DEFENSE COUNSEL]: Your Honor, the only thing that should be an issue would be whether or not he had a friendship with the defendant.
[PROSECUTOR]: I just think the rules of evidence let you. go into bias.
THE COURT: Not far afield.
[PROSECUTOR]: Limit it to whether or not members of the Breed frequented the place and he was on a friendly basis with him?
THE COURT: Yes, that is all.
[PROSECUTOR]: Okay.
[DEFENSE COUNSEL]: I don’t understand what difference it would make if he was friendly with other members of the Breed.
[PROSECUTOR]: I am saying if a certain club frequented a bar and a person is friendly, that could influence the witness in his testimony either out of reluctance to tell what actually happened because they frequented his bar and just want to go against what, you know, their theory of the case is or that out of friendship for him he will testify to what they tell him.
[DEFENSE COUNSEL]: That is a fishing expedition.
THE COURT: You can rehabilitate your witness if there is anything wrong. You can ask him about the fact that the Breed members attend the bar.
[DEFENSE COUNSEL]: I don’t want to bring the Breed up. He is bringing it up to inflame the jury.
[PROSECUTOR]: That is not the purpose, Your Honor.
THE COURT: To the extent that I have mentioned. The motion is refused.
(Conclusion of sidebar conference)

Thus, the lower court allowed testimony concerning the fact that members of the Breed Motorcycle Club frequently patronized the bar at which the witness was employed as a bartender. This was admitted solely for the limited purpose of impeaching the witness’ credibility due to friendship with, and/or fearfulness of, the members of the club. Despite this limitation, the prosecutor continued undauntedly in his misguided attempt to establish the prosecution’s theory of motivation:

BY [PROSECUTOR]:
Q. Mr. Custor, on April 24, 1976 you were wearing a motor cycle club jacket?
A. Yes.
Q. And that jacket is a Breed Motor Cycle Club?
A. Yes.
Q. Can you tell us what it means to be wearing the colors?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustain the objection. May I see counsel at sidebar, please?
(Whereupon a sidebar conference was conducted out of the hearing of the jury as follows:)
THE COURT: That case has been tried once. I do not want it to have to be tried a second time by irrelevant matters being brought into this case.
[PROSECUTOR]: It is our contention that it is not irrelevant matters. In this case I think the Court is just being too cautious just due to the fact that the Breed—It is a fact that it is a club and there is something psychological to be wearing the club colors. When you are wearing the club colors, you are not supposed to take any type of grief from anybody on the highway. You’re in command on the highway. That is the importance. The defendant is given great leeway in building up the defense.
THE COURT: They should be. If you read the cases, you would understand.
[PROSECUTOR]: But the Commonwealth—
THE COURT: Not the point.
[PROSECUTOR]: If I may, a case that came in—another case we had at lower level. There was a gang rape by Breed members and the evidence was allowed to come in about Breed members and about how they get patches for gang rape, et cetera, and when it is relevant to that case, it is relevant to this case.
THE COURT: What are you going to show if this fellow answers? Are you going to show anything in rebuttal?
[PROSECUTOR]: Mr. Custor was not ready to take any type of grief from anybody on the highway.
THE COURT: How are you going to show that?
[PROSECUTOR]: Through the defendant.
THE COURT: Well, then get to the point.
[PROSECUTOR]: I don’t know how he is going to answer the questions of course.
THE COURT: My question was—
[PROSECUTOR]: I will go on. You can rule on it as it comes up. If I feel it is relevant, I will bring it up. I am certainly not using it for the purpose of inflaming. I think it is relevant for the theory of the case, Your Honor.
THE COURT: Well, if you say that one of the precepts of the Breed was not to take any nonsense or insults from anybody on the highway—
[PROSECUTOR]: There is something else, Your Honor. The information we have is that Mr. Custor, although he is a member of the Breed, he is not exactly one of those strong members. It is our theory that Mr. Custor’s wearing his Breed uniform was an attempt to build himself up in the community. Along with that statement, I don’t see anything wrong with that whole thing. There’s psychological factors that should go in now for the cross examination of the psychiatrist.
The psychiatrist comes in with his insanity theory and I want to pose to the psychiatrist other things as far as feelings to show himself to a group. All that stuff has to become relevant when it comes down to insanity as a defense.
[DEFENSE COUNSEL]: That is a fishing expedition.
[PROSECUTOR]: It is not fishing if it’s relevant.
[DEFENSE COUNSEL]: You have one purpose and one purpose only in bringing all that out and you know it as well as I do and it is not a fair trial.
THE COURT: If you want to ask him whether he belongs to the Breeds; if you want to ask him whether the precepts of the Breed are as you say they are or whether the patches are worn for altercations with people on the highway or whatever you think they are, I will allow that over your objection.
[DEFENSE COUNSEL]: Okay.
THE COURT: But if you are not able by competent evidence to refute him, then you will have to take the consequences of that.

As it developed at trial, the prosecutor was unable to adduce any evidence concerning his theory that, as a member of the Breed Motorcycle Club, the appellant would not “take any type of grief from anybody on the highway.” This could not be established through the appellant’s testimony as the prosecutor anticipated:

[PROSECUTOR]:
Q. Mr. Custor, is there a particular meaning when you are wearing the colors of the motor cycle club?
A. Shows what bike club you’re in.
Q. And do you feel any particular feelings when you are wearing that motor cycle club jacket?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
WITNESS: What feelings should I have? Just pride in your own club.
[PROSECUTOR]:
Q. I beg your pardon?
A. It’s pride in the club.
Q. In this case it would be pride in the Breed Motor Cycle Club?
A. It’s a bike club.
Q. So, you are angry when someone infringes on your right of way or you believe your right of way? .
A. I guess you could say so.
Q. And particularly when you are wearing Breed colors because you have a certain pride in your club?
[DEFENSE COUNSEL]: Objection.
THE COURT: Is that a statement or is that a question?
[PROSECUTOR]: It’s a question, Your Honor.
THE COURT: Please state that.
[PROSECUTOR]: Don’t you have a particular feeling when you are wearing Breed colors and someone infringes on your right of way when you are on the highway on your motor cycle?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
WITNESS: No, sir.
BY [PROSECUTOR]:
Q. It’s no different?
A. It’s not different to me.

Nor could the Prosecution’s theory concerning appellant’s motivation be established through the psychiatrist:

Q. Did Mr. Custor inform you that the day he was riding on his motor cycle he was wearing his motor cycle colors?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
WITNESS: No. I didn’t go into that.
BY [PROSECUTOR]:
Q. You didn’t go into that?
A. About what he was wearing, no I didn’t go into what he was wearing.
Q. Did he tell you that he has a feeling of pride when he is wearing those colors?
A. No.
[PROSECUTOR]: Did you discuss with Mr. Custor his feelings of someone interfering in his right of way when he’s wearing motor cycle colors?
A. No.
[PROSECUTOR]: Did you discuss with Mr. Custor his feelings of someone interfering in his right of way when he’s wearing motor cycle colors?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustained.

Nevertheless, the prosecutor argued his theory of motivation to the jury in his summation despite having failed to produce any evidence in it’s support:

Why did he do it? He told you he’s wearing motor cycle colors. He has pride in those colors. He’s on the motor cycle. If you look at the motor cycle—suped up motor cycle—
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustained.
Well, you can see for yourself the motor cycle in the pictures. Mr. Custor is in command of the highway driving down the road. A person comes into his right of way and almost strikes him. Mr. Custor, in pride for what he stands for, turns around. He’s angry; he’s upset. He has motivation.
[DEFENSE COUNSEL]: Objection.
THE COURT: I beg your pardon?
[DEFENSE COUNSEL]: Your Honor, that wasn’t established at all in the testimony that he was proudly having the right of way on the road or—
THE COURT: Well, let counsel argue. The jury heard the evidence and can determine whether counsel’s argument is a valid one or a fallacious one.
He turns around and he goes after the individual, and who is that individual? In this case it was a black man. I in no way play up any—see any evidence establishing the argument that racial feelings may have had a point in this case. When the police arrested Mr. Carson, what did he say? “I got myself a nigger.” Those are the words he used. Didn’t deny saying that statement. Ask yourselves what might have been the motivation on the part of Mr. Custor. Pride in what he stands for on the motor cycle, a person obeying his right or way, a black man doing so? . . . Mr. Kelly also gives, as a defense witness putting your best foot forward, testimony about Phil’s Place, a place frequented by this motor cycle club.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Your Honor, may I have a sidebar for a moment?
THE COURT: Yes.
(Whereupon a sidebar conference was held out of the hearing of the jury as follows:)
[DEFENSE COUNSEL]: I would again move for a mistrial based on that statement. Its whole purpose is to inflame the minds of the jury.
THE COURT: Did you hear what he had to say?
[PROSECUTOR]: Yes, Your Honor. It goes to—As I said before when he was testifying, it is going to influence one way or another due to the fact—
THE COURT: I think that is absolutely without a foundation reason. There is nothing in the evidence to show anything wrong with this club.
[PROSECUTOR]: Pardon me?
THE COURT: There is nothing in the evidence at all concerning anything about the club other than the name.
[DEFENSE COUNSEL]: The frequenting of the bar. They use the bar. You wouldn’t let me pursue it any further than that if you recall.
THE COURT: Yes, I do recall that. Kelly said that they came in there to drink—members of it. I will overrule the motion but—
[DEFENSE COUNSEL]: I just wanted it on there for the record.
THE COURT: But you are getting close to trouble, [Prosecutor], in your arguments.
[PROSECUTOR]: I don’t feel it does, Your Honor.
THE COURT: I am not going to declare a mistrial at this stage. Let us see what happens later.
(Sidebar concluded)
... It was a calculated act, a calculated act to get back at a man who invaded his space, a calculated act aimed at a man who challenged him, who questioned his authority on the road, who questioned what he stood for.

After having been granted a new trial at the post-verdict stage, the appellant now contends that this prosecutorial misconduct amounted to overreaching thereby precluding retrial. Through counsel, he alleges that prosecutor’s actions were either intentional or grossly negligent. We have previously determined herein that Pennsylvania does not subscribe to the gross negligence standard. See discussion, supra. Moreover, we agree with the decision of the lower court that the prosecutor’s conduct, though ill-advised, was not intentionally designed to cause a mistrial or to prejudice the appellant.

It cannot be justifiably said that the prosecutor intentionally provoked the granting of a new trial 'so as to secure another more favorable opportunity to convict the appellant. The case against the appellant was overwhelming and the asserted insanity defense was tenuous at best. Under these circumstances, it is highly unlikely that the prosecutor would have deliberately sought to abort the pending proceeding.

Likewise, the prosecutor cannot be charged with having undertaken this strategy in bad faith to prejudice or harass the appellant. Initially, when the prejudicial evidence of appellant’s membership in the Breed Motorcycle Club came into the record, there was no objection. When the appellant’s counsel finally did begin to object, the lower court ruled on the objections in a contradictory and inconsistent fashion. At first, this evidence was allowed over objection. Later, this type of evidence was admitted for the limited purpose of impeaching the credibility of a defense witness to show his bias, but not to establish the prosecution’s theory of motivation. Still later, the court gave the prosecutor the leeway to establish his theory of motivation after all, despite the total lack of a foundation in the record for it. This was allowed only at the insistence of the prosecutor that he would establish a basis through the appellant himself as well as through the psychiatrist. The lower court then reluctantly allowed him to do so, but warned him that he would have to accept the consequences if he failed to later establish his foundation. Throughout this continuing controversy at trial, the prosecutor vehemently sought to persuade the court that his misguided theory of motivation was a proper one which he was entitled to pursue. In the final analysis, he did so persuade the court, but he, nevertheless, failed to establish the evidentiary basis for his theory. The indecisiveness on the part of the lower court did little to discourage the vigor of the prosecutor on this matter. There is nothing in the record to suggest anything other than that the prosecutor was proceeding under a bona fide belief that his theory was a proper one. He tv/ice expressly disclaimed allegations that he was undertaking this course of conduct to intentionally prejudice or harass the appellant. While the prosecutor’s declarations of intent, or lack thereof, are certainly not dispositive, they can properly be considered in the analysis for determining prosecutorial overreaching. Since there is nothing in the record to establish the prosecutor’s intent to provoke a new trial »or bad faith attempt to harass or prejudice the appellant, there is, therefore, no reason to disturb the lower court’s decision that the double jeopardy clause does not bar appellant’s retrial in the present case.

Affirmed.

      . The instant case is an appeal from appellant’s second trial at which this evidence was allowed. A new trial had previously been ordered pursuant to post-verdict motions because the court below would not allow such evidence to be admitted in appellant’s initial trial.

      . Crimes Code, 18 Pa.C.S. § 901.

      . Id. at § 2701.

      . Id. at § 2702.

      . Id. at § 2705.

      . Id. at § 908.

      . Before appellant’s third trial was to begin, he filed a pretrial motion to dismiss the charges against him on grounds of double jeopardy.

      . In Potter, Justice Roberts authored the opinion in support of reversal in which he advocated adoption of the gross negligence standard:
      I find totally unpersuasive the reasons offered by the Opinion of Mr. Justice Pomeroy that an intentional misconduct standard protects the right of an accused not to be placed twice in jeopardy. Moreover, the Opinion of Mr. Justice Pomeroy ignores the public, interest in the prompt and proper resolution of criminal litigation. The important public interest in vindicating its criminal laws in one trial can better be served if the inquiry in such cases focuses on whether the misconduct of the prosecuting attorney was grossly negligent. The grossly improper prosecutorial misconduct in appellant’s second trial, as in the previous trial, in no way advanced the Commonwealth’s interest in affording appellant a fair trial. Instead, that gross misconduct unjustifiably caused the reversal of appellant’s second trial, and all the attendant delays, burdens and unnecessary expenditures of judicial, professional, and public resources. I would discharge appellant because of the gross negligence of the prosecuting attorney in appellant’s second trial.
      478 Pa. at 277, 386 A.2d at 931.

      . Our United States Court of Appeals for the Third Circuit has also recently rejected a gross negligence standard. See U. S. v. Leppo,
        641 F.2d 149 (3d Cir. 1981). But see U. S. v. Charette, 625 F.2d 57 (5th Cir. 1980).

      . The opinion in support of reversal, penned by Justice Roberts, quotes the language from Commonwealth v. Starks requiring misconduct which is either intended to provoke a mistrial or undertaken in bad faith to prejudice or harass the defendant. Justice Roberts then concluded that the course of conduct taken by the prosecution in Hoskins was of the kind which the double jeopardy clause was intended to proscribe.

      . The author notes that this is also a problem with adopting a gross negligence standard: “any inquiry into the mental state of the prosecutor is, of course, a difficult one, and the precise point at which an impropriety becomes gross negligence is difficult to isolate.” Id. at 131 (footnotes omitted).

      . Even if it were determined that the prosecutor herein acted in reckless disregard of a clear warning by the trial judge, this would still not be enough to establish governmental overreaching. See Commonwealth v. Thomas, 270 Pa.Superior Ct. 375, 411 A.2d 767 (1979) (petition for allowance of appeal denied).


author: BECK, Judge:

text:
    442 A.2d 757
    COMMONWEALTH of Pennsylvania v. Edward HAINES, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed March 5, 1982.

      Renald S. Baratía, Easton, for appellant.
    Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from judgment of sentence following a non-jury trial wherein appellant was convicted of two counts of theft: theft by unlawful taking or disposition and receiving stolen property.

Appellant initially claims that the verdict did not conform to law. Specifically, he alleges that since the trial judge failed to comment as to the separate counts of the information, his silence constituted an acquittal of all unmentioned counts. That argument is novel, but clearly incorrect. It is premised upon a misreading of this court’s opinion in Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975). In that case, the trial judge found defendant guilty of one of three counts in the indictment.

The trial judge found appellant guilty of “the charge of possession of dangerous drugs, of these drugs, beyond a reasonable doubt in the opinion of the Court.” However, he made no comment as to the other two counts of the indictment. . . . When the trial judge found appellant guilty of possession and made no comment at that time as to other counts of the indictment, this acted as an acquittal of the unmentioned counts. Commonwealth v. Curry, 285 Pa. 289, 132 A. 370 (1926); Commonwealth v. Day, 114 Pa.Superior Ct. 511, 174 A. 646 (1934).

Id. 235 Pa.Super. at 207-208, 340 A.2d at 888 (footnote deleted).

Had the trial judge in the instant case found appellant guilty of theft by unlawful taking or disposition while omitting mention of receiving stolen property, we would be bound by Samuels to find that appellant was acquitted of the latter charge. But here the trial judge found appellant guilty on the entire information.

Appellant also argues that his demurrer following completion of the Commonwealth case should have been sustained. It is clear, however, that since appellant did not rest following the trial court’s denial of his demurrer and instead presented evidence, the ruling on the demurrer is no longer an appealable issue. See Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, Mastrangelo v. Pennsylvania, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Pritchard, 270 Pa.Super. 461, 411 A.2d 810 (1979).

Appellant suggests that the Commonwealth did not sustain its burden of proving the charges beyond a reasonable doubt. In Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979), this court neatly summarized the test for determining the sufficiency of the Commonwealth’s evidence.

The inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient.

Id., 271 Pa.Super. at 149, 412 A.2d at 619.

It is also clear that in reviewing the evidence, we must consider it in the light most favorable to the verdict winner. See Commonwealth v. Joyner, 489 Pa. 502, 414 A.2d 1003 (1980); Commonwealth v. Ilgenfritz, supra. Accordingly, we shall proceed to review the evidence in that light.

Walter Smith, Jr., who is employed at his father’s store, testified that he was the lone employee in that store between 12:00 noon and 1:00 p.m. on April 22, 1978. (N.T. 8.) He stated that appellant entered the store during the hour in question and that he knew appellant from previous purchases. Smith, Jr. also testified that appellant parked his van between two and three feet from a front door which opened only from the inside. Appellant entered through a side door which was the only entrance used by customers. (N.T. 10.) Appellant asked Smith, Jr. to get a hardware item for him, and Smith, Jr. walked to the rear of the store and up some stairs to find the item. (N.T. 12.) He was absent from the main store area for between three and five minutes during which time appellant was alone in that part of the store. (N.T. 13.) He testified that when he returned, he told appellant that he did not have the part in stock, and appellant left the store. (N.T. 15.)

Walter Smith, Sr., the storeowner, testified that he left his store at approximately noon and returned at approximately 1:00 p. m. that day. He stated that he inventories “small items that are vulnerable to theft” each time he entered and each time he left the store. (N.T. 26-27.) He testified that there were 35 chain saws on display the morning of April 22nd and that he did not sell any before noon. They were all there when he left for lunch; when he returned, however, he noticed that two were missing. (N.T. 27-28.) Smith, Sr. stated that he gave Police Chief Lehr of the Borough of Riegelsville the serial numbers and the models of the missing saws. (N.T. 30.) Chief Lehr testified that in the course of the investigation he discovered that a chain saw was being repaired at a garage and that the serial number of that saw was the same as that of one of the missing saws. (N.T. 45.) He traced the saw to Richard Seawood who turned it over to Chief Lehr. (N.T. 46.)

Seawood testified that he bought the chain saw from a man whose identity Seawood did not know. The man told him that defendant sent the unidentified man because he knew Seawood needed a chain saw. (N.T. 55.) Seawood later called defendant seeking to ascertain the salesman’s name; he wanted to inform him that the saw was broken. Defendant told him he did not know the man’s name. (N.T. 59.) When defendant testified, he corroborated the fact that he did not know the man’s name. (N.T. 76.)

. It is clear that in the instant case it was the province of the trial judge as the trier of fact to pass upon the credibility of witnesses and to determine the weight of the evidence. See Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979). We defer to the conclusion as to credibility that was enunciated in the trial court’s opinion:

We did not find the testimony of the defendant or Mr. Seawood to be credible and we believe that the unnamed man whom the defendant claimed to have sent to Seawood is a product of someone’s imagination.

While it is true as the trial court noted that there was no evidence unquivocally placing the chain saws in the hands of defendant, we hold that the Commonwealth, albeit circumstantially, sustained its burden to prove beyond a reasonable doubt that defendant was guilty of theft. A defendant is guilty of 18 Pa.C.S.A. § 3921(a) “if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” We hold that the trial court’s verdict was premised upon a reasonable inference from the evidence that the saws were taken during the hour defendant was in the store and from the evidence connecting defendant to the recovered saw. Since there was sufficient evidence to convict defendant of theft by unlawful taking or disposition, it necessarily follows that the evidence was also sufficient to convict him of receiving stolen property. Defendant is guilty of receiving stolen property, 18 Pa.C.S.A. § 3925(a), “if he intentionally receives, retains or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen.”

This Court in Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980) reasoned that the “misappropriator” of the goods could be convicted of receiving stolen property.

Given the drafters’ intent to remove “all artificial distinctions between different forms of theft (including receiving stolen property),” Commonwealth v. Belcher, supra, 233 Pa.Super. [212] at 217, 335 A.2d [505] at 507, and to make the focus in the criminal prosecution of all theft offenses the accused’s “thieving the state of mind,” it would be anomalous to hold that one who is the original misappropriator of property cannot be convicted under section 3925 as the receiver of the property when the language of section 3925 is so worded as to proscribe the misappropriator’s conduct.

Id. 279 Pa.Super. at 26-27, 420 A.2d at 726.

The Shaffer court further stated that a thief’s conduct will almost always be proscribed by both section 3921 and section 3925, two counts of the same offense and concluded:

If the indictment or information charges one offense in two or more counts, the accused may have the superfluous counts dismissed. United States v. Bloom, 78 F.R.D. 591, 604 (E.D.Pa.1977). If convicted, the accused may receive but one sentence on the theft offense. 18 Pa.C.S.A. § 3902.

Id. 279 Pa.Super. at 27 n.2, 420 A.2d at 727 n.2.

Appellant received only one sentence for the theft offense. It appears that the above cited intent of the drafters to consolidate the theft offenses was served. Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3902.

      . 18 Pa.C.S.A. § 3921(a).

      . 18 Pa.C.S.A. § 3925(a).

      . It should be noted that on cross-examination, Smith, Sr. contradicted himself as to the exact number of saws before and after lunch. Still, he emphasized the fact that there were “two big gaps” where the chain saws had been. (N.T. 38.)

      . Appellant was sentenced to pay court costs in the amount of $350. Further, he was ordered to make restitution to the victim in the amount of $550.


text:
    442 A.2d 760
    COMMONWEALTH of Pennsylvania v. Tanya Marie WILSON, Appellant. COMMONWEALTH of Pennsylvania v. Vera WARD, Appellant. COMMONWEALTH of Pennsylvania v. Bonnie Sue GATES, Appellant. COMMONWEALTH of Pennsylvania v. Vickie EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1981.
    Filed March 5, 1982.

      Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellants.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

These are appeals from judgments of sentence. They are separate cases but involve the same legal issues and almost identical facts. Therefore, they have been consolidated pursuant to Pa.R.A.P. 513. The appellants were charged initially with criminal solicitation under 18 Pa.C.S.A. § 902. In each case, the prosecution was permitted to amend the informations to charge a count of prostitution pursuant to 18 Pa.C.S.A. § 5902. All four appellants were found guilty in separate non-jury trials of both counts. Each was fined $100.00 and given a six month suspended sentence.

Appellants argue that the evidence presented was insufficient to sustain a verdict of guilty of criminal solicitation. That statute reads:

A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S.A. § 902.

In Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980), this court upheld convictions for criminal solicitation and prostitution in a similar situation. There was evidence in that case that appellant offered to engage in specific sexual acts for money, used phrases commonly spoken by prostitutes to describe those acts, and undressed in front of the officer. The evidence adduced at trial in the instant cases clearly supports the finding that the appellants solicited the police officers to engage in specific conduct which would establish the officers’ complicity in the commission of the crime of prostitution—engaging in sexual activity as a business.

Appellants argue that since the police officers would not be criminally liable for the underlying crime of prostitution, appellants could not be found guilty of soliciting them to commit that crime. Appellants misread the statute. Under the clear meaning of the criminal solicitation statute, an individual who “encourages or requests another person to engage in specific conduct which would establish his complicity.. . ” in the commission of the crime violates the statute. There is no requirement in the statute that the one being solicited be criminally chargeable for the underlying crime. The statute addresses itself to the act of the solicitor in obtaining another individual’s “complicity” in a crime.

Prostitution requires participation of a partner. The appellants in this instance, at a minimum, invited the police officers to be those partners. At the point where the officers’ complicity in the crime was brought about by the act of the appellants, the appellants violated the criminal solicitation statute.

Appellants next claim that amendment of the information to include prostitution amounted to the charging of a different offense in contravention of Pa.R.Crim.P. 229. They are incorrect. That rule permits amendment where the new charge involves the same basic elements and fact situation:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The amendment of the information is reflective of the logic of Commonwealth v. Danko, which held that the police officer need not involve himself in sexual intercourse with the defendant in order for the evidence to support a finding beyond a reasonable doubt that appellant was engaged in sexual activity as a business.

The test for determining if the requirements of Rule 229 have been met is enunciated in Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979):

The purpose of Rule 229 is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. See Commonwealth v. Jones, 250 Pa.Super. 471, 378 A.2d 1245 (1977); Commonwealth v. King, 227 Pa.Super. 168, 323 A.2d 260 (1974). In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct.

(Footnotes deleted.)

It is clear that the original information indicated that prostitution was the underlying crime being charged and cited the offers made by the appellants to the officers of sex in exchange for money. Appellants had notice of both crimes. As was indicated in Danko, appellants’ behavior was sufficient to support convictions for both criminal solicitation and prostitution.

Appellants assert that the Commonwealth’s evidence was insufficient as a matter of law to sustain a conviction for prostitution. That offense is defined under 18 Pa.C.S.A. § 5902(a)(1):

(a) Prostitution—A person is guilty of prostitution, a misdemeanor of the third degree, if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business.

As noted above, the Danko court construed a sufficiency of the evidence argument in the context of a mere offer to engage in oral intercourse for a fee. Defendant in that case accepted payment and undressed; she did not engage in the act. Each appellant in the instant case offered to engage in oral and vaginal intercourse with the officers, but no sexual behavior transpired.

The Danko court resolved this “sufficiency” question: The question, therefore, is whether the evidence was sufficient to demonstrate beyond a reasonable doubt that. appellant was engaging in sexual activity as a business, either as an inmate of a house of prostitution or otherwise, and not whether she engaged in intercourse with the officer. We hold that it was sufficient. The evidence that appellant offered to engage in specific sexual acts for a price, used words commonly used by prostitutes to describe those acts, accepted the money offered for one of those acts, and undressed in preparation for it, was sufficient to prove that she was then engaging “in sexual activity as a business.” There was no need for the officer to participate in the sexual activity to the extent of having intercourse with appellant.

Id., 281 Pa.Super. at 108, 421 A.2d at 1170-71.

In the cases of appellant Wilson and appellant Edwards, the officers testified from their reports containing notes they previously recorded. Defense counsel objected to their use. Appellants argue that three factors must be established before the officers could use their notes to refresh their recollection. Commonwealth v. Proctor, 253 Pa.Super. 369, 373, 385 A.2d 383, 385 (1978) (footnote deleted), supports their argument:

“To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness’ present memory is inadequate; (2) that the writing could refresh the witness’ present memory; and (3) that reference to the writing actually does refresh the witness’ present memory.”

Appellants also claim as error the fact that the officers brought their reports to the stand, instead of being referred to the writings by counsel.

While the latter claim did point to cognizable error on the part of the trial judge, it was harmless beyond a reasonable doubt. No conceivable prejudice could be shown. Also, the record supports the satisfaction of the three requirements cited in Proctor. The officers only consulted their reports when they were asked exactly what appellants told them prior to arrest. They testified at trial that they did not recall the exact words. That the writing could refresh present memory and that reference to it actually did so refresh are manifestly obvious.

Judgments of sentence affirmed.

McEWEN, J., concurs in the result.

      . The act for which the appellants were originally charged was the offer to engage in sexual activity for a price. The original informations cited specifically the offers.

      . In the case of Tanya Marie Wilson, Officer Goshert of the Harrisburg Police Department testified that appellant offered to perform “a half and half’ (oral and vaginal intercourse) for $30.00. (N.T. 8.) Detective Shultz testified that Vera Ward stated that she was usually paid $20.00 for a “blow job” (oral intercourse) and $25.00 for “a fuck” (sexual intercourse). (N.T. 10.) Officer Goshert testified that Bonnie Sue Gates stated that he would receive “a half and half” for $30.00. (N.T. 5.) Finally, in the case of Vickie Edwards, Officer Zurat testified that appellant offered both him and Officer Goshert “a half and half” for $30.00 each. She accepted $55.00, but was arrested before performing the above acts. (N.T. 11.)

      . See In re Appeal No. 180, 278 Md. 443, 365 A.2d 540 (1976), in which the Maryland Court of Appeals construed the state’s statute (Maryland Code 1957 Art. 27, Section 15(e)) proscribing solicitation for purposes of prostitution. The Court rejected the argument that a person can only be convicted of solicitation if the solicitee could be found guilty of committing the underlying offense. The Maryland statute combines in one law the crime of solicitation and prostitution. It specifically proscribes solicitation “for the purposes of prostitution.” In Pennsylvania, criminal solicitation (18 Pa.C.S.A. § 902) is a crime separate from prostitution (18 Pa.C.S.A. § 5902).

      . The Proctor court quoted directly from Moncrief v. City of Detroit, 398 Mich. 181, 247 N.W.2d 783, 787-788 (1976).


author:
SHERTZ, Judge:
      MONTEMURO, Judge,

text:
    442 A.2d 764
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas F. ALLEN.
    Superior Court of Pennsylvania.
    Argued June 2, 1981.
    Filed March 5, 1982.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellant.
    Keith L. Kilgore, Lebanon, for appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.

       Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

   SHERTZ, Judge:

The Commonwealth appeals from an Order of the court below discharging appellee by virtue of Pa.R.Crim.P. 1100, following his conviction for receiving stolen property. For the reasons which follow, we reverse.

A criminal complaint was filed against appellee on January 20,1977 establishing an initial Rule 1100 rúndate of July 18, 1977. On May 3, 1977, appellee executed a written waiver of his Rule 1100 rights and on June 27, 1977 appellee requested a continuance of the pretrial hearing on his application to suppress evidence. The trial court granted the request and rescheduled the hearing to July 25, 1977, seven days after the initial Rule 1100 rúndate. The court rescheduled the pretrial hearing a second time and it was finally held on August 12, 1977. On or about that date, the court further granted appellee’s request and continued the case until September 6, 1977 and directed the District Attorney to list the case for trial during the September Term of Criminal Court. On September 16, 1977, ten days past the continuance date set by the trial judge, the Commonwealth filed a petition to extend the time for commencement of trial, to which appellee filed an opposing answer. After a hearing on October 31, 1977, the trial court dismissed the petition as being premature on the basis of “stipulations and statements between and by counsel.”

The case proceeded to trial on November 7, 1977 and ended in a mistrial on November 10,1977. On November 17, 1977 the Commonwealth again filed a petition to extend. Appellee opposed the extension and filed, for the first time, a motion to dismiss under Rule 1100. Following a hearing, the motion was denied. A second trial commenced on January 3,1978 and appellee was found guilty of receiving stolen property. Appellee then filed post-trial motions arguing, inter alia, that he was denied his right to a speedy trial. The lower court agreed with this claim and ordered appellee discharged. This appeal by the Commonwealth followed.

The initial argument presented by the Commonwealth is that appellee waived his Rule 1100 rights by failing to file a motion to dismiss prior to the commencement of the initial trial. We agree.

It is well established that a defendant waives his Rule 1100 rights by failing to file a motion to dismiss prior to the commencement of trial. Commonwealth v. McCloud, 487 Pa. 191, 409 A.2d 29 (1979); Commonwealth v. Baines, 480 Pa. 26, 389 A.2d 68 (1978); See Commonwealth v. Chase, 494 Pa.Super.Ct. 212, 431 A.2d 224 (1981).

Following the grant of a new trial, a defendant’s rights to a speedy trial are prescribed by Rule 1100(e). A trial following a mistrial is treated as a new trial granted by the trial court. Hence Rule 1100(e)(1) is applicable here. See Commonwealth v. Legree, 256 Pa.Super.Ct. 128, 389 A.2d 634 (1978); Commonwealth v. Bytheway, 290 Pa.Super.Ct. 148, 434 A.2d 173 (1981); Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). Appellee’s new trial, which commenced fifty four days after the trial court declared a mistrial in appellee’s first trial, satisfied the requirements of Rule 1100(e).

In Commonwealth v. Hughes, 256 Pa.Super.Ct. 105, 389 A.2d 623 (1978), we concluded that, following the grant of a contested petition to extend time for the commencement of trial under Rule 1100, it would be futile to require a motion to dismiss to be filed if defendant’s challenge on appeal rested on the same grounds as did his objection to the extension. The rule, as recently stated by our Supreme Court in Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980), is as follows:

Where an extension is granted to the Commonwealth pursuant to section (c) of Rule 1100 and trial commences within the period allowed by the extension, no written application to dismiss need be filed as objection to the extension preserves the issue. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

Id., 489 Pa. at 544 n.1, 414 A.2d at 1024 n.1.

The exception to the requirement of an application to dismiss, as articulated by Drake, Coleman and Hughes, is inapplicable to the present case. Here the trial court did not grant the Commonwealth’s petition to extend; rather, the trial court dismissed the petition as premature upon stipulation of the Commonwealth and the appellee. Therefore, it cannot be said that it would have been futile for the appellee to file a motion to dismiss following the lapse of 180 days and prior to the commencement of the first trial. Had appellee filed a timely motion to dismiss, the trial court would have been obliged to consider the Rule 1100 question on the merits. The failure of appellee to do so worked a waiver. Therefore, we reverse the order of the trial court discharging the appellee and remand the case to the lower court with the directive that it reinstate the conviction of the appellee on the aforementioned charge and proceed accordingly with sentencing.

Reversed and remanded.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

For the following reasons, I dissent. The majority asserts that appellee waived his rights under Rule 1100.. I disagree with their assertion and also with the Commonwealth’s alternative argument.

On September 16,1977, the Commonwealth filed a petition to extend the rúndate. Appellee opposed the petition. An opposition to a petition for an extension of a rúndate can serve in lieu of a motion to dismiss for purposes of avoiding a finding of a waiver. See Commonwealth v. Hughes, 256 Pa.Super. 105, 389 A.2d 623 (1978). In the instant case, the petition was dismissed on the stipulations and statements of counsel; thus, the petition was never argued on the merits. It is clear from the record that all parties, including the court, were proceeding under the assumption that the petition was premature, an assumption that was incorrect. I see no reason why only appellee should be prejudiced when the erroneous assumption was one shared by all the parties, including the lower court judge. For these reasons, I feel that appellee did not waive his Rule 1100 rights.

The Commonwealth, in the alternative, asserts that a remand is necessary to enable them to show due diligence, contending that the erroneous assumption at the Rule 1100 hearing prevented the introduction of necessary testimony on the record. From a close reading of the appropriate dates, it is apparent that such a remand would serve no purpose because the September 16 petition was not timely presented.

Giving the Commonwealth the benefit of the doubt on all excludable periods, the September 16 petition was still ten days late. Thus, the Commonwealth violated Section C of Rule 1100, precluding any showing of due diligence.

For the foregoing reasons, I feel that the lower court correctly discharged appellee. Accordingly, I dissent.

      . 18 P.S. § 3925.

      . Pa.R.Crim.P. 1100(e) provides:
      (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.
      (2) When an appellate court has granted a new trial, or has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.

      . Admittedly, the scenario in this case is confusing. Much of the problem was caused by a written waiver of 1100 rights signed by appellee on May 3, 1977. The waiver was deficient in many respects, namely in that it appeared to be indefinite.