author: BECK, Judge:

text:
    470 A.2d 174
    In the Matter of Arthur Henry JAMES, Esq. Appeal of Arthur Henry JAMES, Esquire.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1983.
    Filed Jan. 6, 1984.

      Athena Mary Dooley, Philadelphia, for appellant.
    Howland W. Abramson, Philadelphia, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   BECK, Judge:

Arthur Henry James, Esq., was found guilty of contempt of court by the Honorable Edwin S. Maimed of the Court of Common Pleas, Philadelphia County, and fined $500 on February 1, 1980. He appeals from judgment of sentence.

James was representing a client, Eric Baynes, in criminal proceedings. In the course of defending Baynes, James asked for and received several continuances. N.T. 3. On February 1, James told Judge Malmed’s law clerk that he would appear in court that afternoon with a brief at 3:30. N.T. 2. He did not appear until approximately 4:55.

James explained that he failed to appear at the specified time because he went to see his client Baynes in the cell room to discuss post-trial motions. N.T. 4. He did not call the court to request a change of time or to offer any excuses for his failure to appear. When he finally appeared, he presented no brief to the court, although he had had a number of months to prepare one. N.T. 10. James was cited for contempt for his failure to appear at the agreed hour. Judge Maimed decided that he would not hold him in further contempt for the failure to submit the brief.

On appeal James argues that 42 Pa.C.S. § 4131(3) requires the Commonwealth to prove misconduct which intentionally interferes with the orderly process of the court. He maintains that because his absence resulted from his decision to interview his client, rather than an intent to obstruct the administration of justice, he should not be penalized. He cites Commonwealth v. Washington, 468 Pa. 506, 353 A.2d 806 (1976) in which the Supreme Court reversed a contempt conviction where the attorney failed to appear in court because he had overslept. James maintains that noncompliance, without a showing of intent, is not enough to support a conviction for contempt.

The law is clear that wrongful intent is a necessary element of criminal contempt. Commonwealth v. Starks, 312 Pa.Super. 232, 458 A.2d 600 (1983) (reversing a contempt conviction where the attorney refused to obey the court’s order because his physical and mental health prevented compliance). Nevertheless, a subjective intent to obstruct the administration of justice is not a requisite of criminal contempt. Commonwealth v. Falkenhan, 306 Pa.Super. 330, 452 A.2d 750 (1982); Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981).

We turn to Medve v. Walakovits, 305 Pa.Super. 75, 451 A.2d 249 (1982), cert. denied 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303, for an analysis of when the necessary intent is found in criminal contempt under 42 Pa.C.S. § 4131(2). In that case this Court reviewed a number of recent contempt appeals and held that the contemnor “can be held, as a matter of law, to have intended the natural consequences of his acts” (305 Pa.Super. at 80, 451 A.2d at 251). In Medve, the attorney was aware of his obligation to appear at a pre-trial settlement at a certain hour and decided to attend to other matters instead. He argued that his tardiness was a result of oversight, rather than an intentional act. We held that his tardiness resulted from a deliberate act which gave rise to a substantial certainty of the forbidden result or a reckless disregard of that result, and that the requisite intent could thereby be proved.

The tardiness of James in the instant case is quite similar. Once James decided to interview his client rather than appear in court, his behavior was such that he acted with a substantial certainty that he would be late or with a reckless disregard of such lateness. We therefore, under the rule of Medve, affirm the lower court.

Judgment of sentence affirmed.

      . § 4131. Classification of penal contempts
      The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:
      (1) The official misconduct of the officers of such courts respectively.
      (2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
      (3) .The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

      . James himself obtained a reversal for another contempt conviction during the time of the instant appeal. James was fined $200 for being an hour late for a different trial because he had overslept. We reversed on the grounds that lateness caused by oversleeping lacked the necessary improper intent. In Re James, 307 Pa.Super. 570, 453 A.2d 1033 (1982).

      . James argues that he is not guilty of § 4131(3), misbehavior in the presence of the court. He does not address the question of intent in § 4131(2), relating to disobedience and neglect. The trial courts did not specify which section of the statute was being applied. Based on the facts presented by this case, it is clear that § 4131(2) is the relevant division of the statute.


source: Caselaw Access Project

author: JOHNSON, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    470 A.2d 526
    COMMONWEALTH of Pennsylvania v. Michael J. DOWNING, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1983.
    Filed Dec. 2, 1983.
    Reargument En Banc Denied Feb. 13, 1984.
    Petition for Allowance of Appeal Granted May 24, 1984.

      Michael J. Downing, in propria persona..
    Michael L. Turner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was found guilty of defiant trespass and acquitted of disorderly conduct in the Philadelphia Municipal Court as a result of an incident at the Temple University Law Library. He appealed his trespass conviction to the common pleas court and, following a trial de novo, was again convicted of defiant trespass. After denial of post-trial motions, Appellant was sentenced to one year probation. This appeal followed.

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the record indicates that Appellant, who was not affiliated with the University, had periodically used the law library, located in the Klein Building, in preparation of various lawsuits to which he was a party. He had obtained a general pass from the law school to use the library during its normal hours of operation.

On December 10, 1980, Appellant approached the Klein Building and encountered the following posted notice:

In order to accommodate law students studying and sitting for the final exams, the Klein Building will have restricted access from December 4th to December 23rd.
Admittance will be limited to faculty, staff and students of the School of Law and persons presenting written authorization from the Director of Administration, Eugene R. Lyons, or Law School Counsel, H. Patrick Swygert.
Thank you in advance for your cooperation.

Appellant proceeded to Professor Swygert’s office, also located in the Klein Building, and stated to Swygert that he wanted to see the Dean. Swygert informed Appellant that the Dean was unavailable and asked what he could do to assist Appellant. Appellant told Swygert that he wanted to use the law library and that he had a pass to use the library. Swygert then told Appellant that his pass was suspended during the examination period and that he could return after that period to use the library. Swygert handed Appellant a copy of the posted notice. Appellant then told Swygert that he needed to use the books in the library and would return at a later date to use them. Swygert told Appellant he could not use the law library during the restricted examination period. Appellant then left the Klein Building peaceably. Swygert prepared a memorandum, dated December 10, 1980, to the University security office stating that Appellant was not to be admitted to the building.

On December 19, 1980, Appellant returned to Swygert’s office on the eighth floor of the Klein Building and demanded that he be allowed to use the library, because it was his right. Swygert asked Appellant to leave and Appellant stated that he would not leave the building unless arrested or physically removed. Appellant was again asked to leave and upon his refusal, campus security was contacted. During this encounter outside Swygert’s office, Appellant was shouting at those present and at one point told Swygert to “go to hell”. The security officer, upon his arrival at Swygert’s office, spoke with Appellant, requesting that he leave. Appellant again refused. He was then arrested, escorted off the University premises, and released. Appellant immediately returned to the law library where he was arrested at the check-out desk of the library and charges of defiant trespass and disorderly conduct filed.

Professor Swygert testified at trial that he refused Appellant access to the law library for his failure to maintain the proper “decorum”, based on the two confrontations.

Appellant raises three issues on appeal: (1) did the trial court err in failing to grant Appellant’s demurrer and was the evidence insufficient, (2) was Appellant’s conviction for defiant trespass barred by 18 Pa.C.S.A. § 110(2) because of his prior acquittal of the disorderly conduct charge, and (3) did Appellant have a legal right and/or license to use the law library.

Appellant’s first argument alleges that the trial court erred in failing to grant his demurrer and that the evidence was insufficient to support Appellant’s conviction for defiant trespass. We note initially that the issue of the correctness of the ruling on a demurrer is not an appropriate appellate issue where the defendant did not rest following the adverse ruling, but instead chose to present evidence in his defense. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981). However, when there is an improper challenge to the trial court’s ruling on the demurrer, this court may treat the question as if properly framed, namely, whether the trial court erred in refusing Appellant’s motion in arrest of judgment — whether the evidence was sufficient in law to support the conviction. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

The defiant trespass statute, 18 Pa.C.S.A. § 3503(b) states:

(b) Defiant trespasser.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor; or
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders.

Section 3503(c)(2) sets forth:

(c) Defenses. — It is a defense to prosecution under this section that:
(2) the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises;

The facts as set forth supra clearly indicate that Appellant-entered the law library after notice against trespass had been given both by actual communication and by posted notice. However, in light of the affirmative defense provided by section (c)(2) of the trespass statute, we conclude that, based on the particular facts of the instant case, this conviction must be reversed.

Appellant’s position throughout these proceedings has been that the law library was legally required to be open to the public and that he complied with all lawful conditions imposed on access. We agree.

Our review of the record convinces us that prior to the restricted examination period, the law library was open to members of the public. Professor Swygert testified that the Klein Building was generally open to law students at any time. As for persons not affiliated with the University, the evidence presented discloses that Appellant had obtained various general passes to use the law library and had in fact used the library facilities on numerous occasions prior to the incident.

In any event, the Commonwealth argues that the law library was not open to the public at the time of the incident, due to the examination period restrictions. However, both the posted notice and Professor Swygert’s testimony reveal that although access during the examination period was restricted, there was no absolute bar to gaining access, as means of obtaining permission to use the law library were available. Specifically, Swygert testified that during the restricted examination period, certain categories of persons might be given permission:

In a given case we might permit a law student at a neighboring law school to use the facility, assuming the materials were not available at that student’s school; and I would suppose that we would permit a person who didn’t fit any of the above categories to use the law school, assuming that the individual presented himself or herself and indicated a need for the materials.

N.T. 9/18/81 p. 68.

Professor Swygert testified that a person not affiliated with the University could obtain permission to use the law library during the restricted examination period if certain conditions were met. That person was required to (1) present himself or herself, (2) demonstrate a need for access to the law library and (3) demonstrate an ability to maintain the proper “decorum”.

We therefore hold that the law library was open to the public as set forth in 18 Pa.C.S.A. § 3503(c)(2), subject to any member of the public desiring access being able to comply with the conditions as set forth.

We next address the question of whether Appellant complied with all lawful conditions placed on access to the law library. The record reveals that the purpose of the restrictions on access during the examination period was to screen outsiders seeking access to the law library in order to avoid overcrowding and to maintain an atmosphere in the law library conducive to examination preparation. While we need not decide the issue of the lawfulness of those restrictions at this time, such restrictions must be both reasonable and nondiscriminatory and may not be based simply upon an undifferentiated fear or apprehension of disturbance. Commonwealth v. Tate, 495 Pa. 158, 174 n. 14, 432 A.2d 1382, 1390 n. 14 (1981).

The record demonstrates that conditions (2) and (3), as set forth supra, were unwritten and afforded Swygert a measure of discretion in his determination. We must therefore determine whether Swygert abused that discretion when he refused to grant Appellant permission to use the law library.

The record discloses that, on December 10th, Appellant presented himself to Swygert at Swygert’s office and communicated his need and desire to use the law library. Professor Swygert testified:

Well, on December 10th, 1980 again in the afternoon, there was some noise outside my office. I got up from my desk. I went outside. I don’t believe my secretary was on duty at the time.
I went outside, Mr. Downing was there, and asked me — I asked Mr. Downing what I could do for him, and he stated that he wanted to see the Dean of the law school. I said to Mr. Downing at the time that the Dean was not available, the Dean was either off campus or in class, but I believe he was off campus; and that in his absence I was responsible for the law school. “What could I do for you?” And he said he wanted to use the law library and wanted to use some of the facilities of the library.
I told him that we were in the midst of exams. He told me he had a pass, which was issued by the former Director of Administration. I told him that that pass, like all other passes issued by the former Director of Administration, were all suspended during examination time; that after the examination period he could return to the building.
He told me that he had a need to use the books; that he would use the books; and that he would go back to the library and use the books. I told him that I am sorry but we can’t do this, we are, again, in the middle of our examinations period and that would he please calm down and understand that he could come at some later point.
Q. Did you tell him what the period we are talking about was?
A. Oh, yes, the examinations period was approximately December 4th to December 24th, or Christmas Eve, and I indicated to him that after the examinations period, from December 24th thereafter, he was free to return to the building.
Q. Did you personally make known on the 10th of December the contents of that notice to Mr. Downing?
A. The first time Mr. Downing came to my office on the 10th of December I gave him a copy of this notice.
Q. You handed it to him?
A. Yes, I reminded him of this policy. This was at the time he gave — Mr., Downing presented to me a building pass. I indicated to him that the pass, one, had been signed by Mr. Gallagher, I believe, the former Director of Administration; and, secondly, the pass was no good during examinations period. At that time he asked, well, by what authority was I acting, and I told him that I was acting by the authority invested in me by the Dean of the law school, as being responsible for administration at the law school.
He wanted to know whether we had anything in writing, and I gave him the notice.

N.T. 9/18/81 pp. 47-50.

The facts as set forth indicate that Appellant (1) presented himself to Swygert and (2) communicated his need and desire to use the law library. Nothing in the record would indicate that Appellant’s behavior on Deeember 10th was anything but exemplary. He merely wished to gain access to the law library by following the procedure established by the written posted notice. We also note that Appellant left the Klein Building on December 10th peaceably.

From these facts, we are unable to discern why Appellant was excluded on December 10th and for the remainder of the examination period. Professor Swygert alleges that Appellant exhibited a lack of “decorum”. However, Appellant’s obstreperous behavior was confined to the December 19th confrontation outside Swygert’s office. Nowhere in the record does there appear any evidence that Appellant’s behavior prior to December 10th or after the confrontation outside Swygert’s office on December 19th was anything but proper, nor does the Commonwealth argue that Appellant’s behavior was improper. In fact, the evidence reveals that Appellant had general passes prior to December 10th to use the law library and had used the library on numerous occasions without complaint. Finally, the record fails to disclose that Appellant’s behavior at the time of his arrest in the law library was improper in any respect. Therefore, upon a review of the evidence, we believe that Appellant, on December 10th, had complied with all lawful conditions imposed on access and was improperly denied access to the library.

Concerning the December 19th confrontation outside Swygert’s office and Appellant’s subsequent arrest within the law library, we discern no cause and effect relationship. In order for a person to be lawfully excluded from using the law library for not demonstrating an ability to maintain the proper “decorum”, there must be some relationship between that person’s behavior outside the library and their anticipated behavior within the library itself. This relationship goes to the application of the restrictions imposed on access and a person’s compliance with those restrictions.

We shall assume that “decorum” is an appropriate condition placed on access in the instant case. As we have stated previously, Appellant’s behavior, other than outside Swygert’s office on December 19th, was proper. Our review of the December 19th confrontation outside Swygert’s office indicates that Appellant’s conduct, although overzealous, merely involved his attempts to enforce what he considered to be his right to use the law library. Appellant had previously attempted to meet the necessary qualifications for gaining access to the law library and had been improperly refused permission. We cannot say that Appellant’s vigorous attempts to enforce his perceived rights under the instant circumstances, where the conduct occurred outside Swygert’s office, had any relationship to Appellant’s conduct should he have been allowed to use the library.

We note finally that the Commonwealth has not sought to argue that any cause and effect relationship existed, nor does the record provide any basis for a conclusion that such a relationship existed.

We conclude that the record discloses that Appellant complied with all conditions imposed on access as required by 18 Pa.C.S.A. § 3503(c)(2).

We therefore hold that, subject to the restrictions placed on access during the examination period, the law library was open to the public and that Appellant complied with all lawful conditions imposed on access to the law library. As such, the evidence was insufficient to support Appellant’s conviction.

Because of our determination of this issue, we need not address Appellant’s remaining issues.

Judgment of sentence is reversed and Appellant discharged.

CAVANAUGH, J., files a dissenting statement.

CAVANAUGH, Judge,

dissenting:

Since, as I read the evidence, it fully supports the verdict in every respect and since I do not see the result to be affected by 44 U.S.C.S. § 1901 et seq., I respectfully dissent.

      . 18 Pa.C.S.A. § 3503(b).

      . Id. § 5503.

      . The main floor of the law library is located on the third floor and Professor Swygert’s office on the eighth floor of the Klein Building.

      . Appellant raises the undisputed fact that the law library was a member of the Federal Depository Library system. See 44 U.S.C.S. § 1901 et seq. He argues that because of its membership in this system, the library was required to be open to the general public. See 44 U.S.C.S. § 1911 ("Depository libraries shall make Government publications available for the free use of the general public However, because of our determination in this case, we need not now evaluate the impact or effect of the library's membership, as it relates to whether the library was required to be open to the public.

      . It is well-settled that a college or university has the right to adopt and enforce reasonable, nondiscriminatory rules and regulations governing utilization of its facilities, although the control exercised by administration officials must conform to the Constitution and such conformity dictates equal application of reasonable and unambiguous regulations. Wood v. Davison, 351 F.Supp. 543 (N.D.Ga.1972). See also Sill v. Pennsylvania State University, 318 F.Supp. 608 (M.D.Pa. 1970), aff'd 462 F.2d 463 (3rd Cir.1972). Also, college officials possess authority and have a duty to make and enforce reasonable rules applicable to students, faculty and campus invitees alike to ensure maintenance of order and decorum within the educational system. Stacy v. Williams, 306 F.Supp. 963 (N.D.Miss.1969), aff'd 446 F.2d 1366 (5th Cir.1971). See also Smith v. Ellington, 334 F.Supp. 90 (E.D.Tenn.1971).

      . We find no basis for a contrary determination based solely on Swygert’s statement to Appellant requesting him to "please calm down”, absent any explanation as to why this statement was made.


author: WIEAND, Judge: McEWEN, Judge,

text:
    470 A.2d 532
    COMMONWEALTH of Pennsylvania v. Regina K. WEBSTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1983.
    Filed Dec. 9, 1983.
    Reargument Denied Feb. 13, 1984.
    Petition for Allowance of Appeal Denied July 11, 1984.

      Peter T. Campana, Williamsport, for appellant.
    Ellen L. Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Regina Webster was tried by jury and found guilty of delivering 6.65 grams of cocaine to an undercover state policeman on November 5, 1981. On direct appeal from the judgment of sentence, she contends that she is entitled to an arrest of judgment because she was granted immunity by the courts of New York when she appeared in that state to give testimony concerning other drug transactions before a Steuben County Grand Jury. In separate appeals, she contends that the trial court erred when it refused to dismiss two additional informations charging her with (1) conspiracy and attempt to deliver six hundred pounds of marijuana on December 21, 1980 and (2) possession with intent to deliver a quantity of marijuana found in her home pursuant to a search conducted by police on December 22, 1980. She contends that a separate trial on these informations will violate Section 110 of the Crimes Code, 18 Pa.C.S. § 110, and principles of double jeopardy. Both appeals were consolidated for purposes of argument.

On November 5, 1980, the Pennsylvania State Police were informed by the New York State Police that information had been acquired as a result of an authorized wiretap on a New York telephone to the effect that a quantity of cocaine was to be delivered by a New York resident to Curtis Missien, 929 High Street, Williamsport, Pennsylvania. Trooper Donald K. Jury of the Pennsylvania State Police made an undercover visit to Missien’s home the same day. There he found Regina Webster, who was living with Missien, and discussed with her the possibility of making future drug purchases. On that occasion, according to the evidence produced at trial, Jury purchased 6.65 grams of cocaine from Regina Webster. Although Jury had additional discussions with Ms. Webster thereafter, and also with Missien, no additional purchases of cocaine were made. This may have been due in part to the arrest in New York of Robert Bavisotta, who was suspected of being the New York supplier of Missien and Webster.

On December 17, 1980, Trooper Jury was again in Regina Webster’s home, where he discussed with her the purchase of a large quantity of marijuana. On this occasion, he observed an estimated twenty-four pounds of marijuana and was present when Webster sold marijuana to an unidentified third person. Webster arranged for Jury to meet with one Alfred Rowe, whom Webster represented to be her source for marijuana, on December 21, 1980. After Jury had visited the site where a large quantity of marijuana was stored and had made arrangements to purchase the marijuana, an arrest was made of Webster, Rowe and Rowe’s wife. A search of the home shared by Webster and Missien, conducted pursuant to warrant on the morning of December 22, 1980, resulted in the finding and seizure of the twenty-four pounds of marijuana seen earlier by Trooper Jury.

Regina Webster was initially named as defendant in two criminal complaints. The first charged her with possession and delivery of cocaine on November 5, 1980. The second complaint alleged a conspiracy to deliver and an attempt to deliver six hundred pounds of marijuana to Trooper Jury on December 21, 1980. Later, on January 14, 1981, appellant was also charged with possession and possession with intent to deliver the marijuana found in her home on December 22.

On March 27, 1981, Regina Webster appeared in New York before a Steuben County Grand Jury and, pursuant to a grant of transactional immunity by the New York court, answered questions pertaining to the purchase of drugs from Robert Bavisotta on November 4 and November 9, 1980. She was not asked and did not give testimony concerning her sale of cocaine to Trooper Jury on November 5.

In Pennsylvania, the several charges against Regina Webster were returned to court and were included in three separate informations. Omnibus pre-trial motions were filed and included (1) a motion to dismiss because of immunity granted in New York and (2) a motion to consolidate all charges for trial. On July 31, 1981, the trial court denied the motion to dismiss. It also denied the application to consolidate in one trial all charges against Webster. Instead, the court granted a prosecution request to consolidate in separate trials the charges against all defendants involved in each transaction.

On September 23, 1981, Webster was tried for the sale of cocaine to Jury on November 5, 1980 on a case stated basis. She was found guilty. Post trial motions were denied, and a sentence of imprisonment was imposed for not less than one nor more than three years.

Appellant contends that the transactional immunity granted by the court in New York is a bar to prosecution for the possession and sale of cocaine in Pennsylvania. Alternatively, she argues that even if prosecution is not barred by the grant of immunity by the State of New York, the conviction must fall because the Commonwealth failed to meet its burden of proving that it made neither direct nor indirect use of the testimony which she was compelled to give before the Grand Jury in New York.

Witness immunity is characterized as either transactional immunity or use immunity. Transactional immunity provides a witness full immunity from prosecution for crimes arising from any transaction concerning which the witness was compelled to testify. See: Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), reh. denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972); United States v. Quatermain, 613 F.2d 38, 40 (3rd Cir.1980), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980); Riccobene Appeal, 439 Pa. 404, 411-412, 268 A.2d 104, 109 (1970). Use immunity, on the other hand, prohibits the use or derivative use of any testimony compelled over a claim of privilege. See: Zicarelli v. The New Jersey State Commission of Investigation, 406 U.S. 472, 475-476, 92 S.Ct. 1670, 1673, 32 L.Ed.2d 234 (1972); United States v. Quatermain, supra at 40; Riccobene Appeal, supra 439 Pa. at 412, 268 A.2d at 109. Use immunity does not prohibit prosecution for all crimes arising out of the transaction testified to so long as the prosecution’s evidence is obtained from a source wholly independent of the compelled testimony. United States v. Quatermain, supra at 40; Riccobene Appeal, supra 439 Pa. at 412, 268 A.2d at 109.

Transactional immunity is not required in order to compel testimony over a Fifth Amendment claim of privilege against self-incrimination. “[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader.” Kastigar v. United States, supra 406 U.S. at 453, 92 S.Ct. 1653, at 1661, 32 L.Ed.2d 212 (1972). See also: Zicarelli v. The New Jersey State Commission of Investigation, supra 406 U.S. at 475-476, 92 S.Ct. 1670, at 1673, 32 L.Ed.2d 234 (1972); United States v. Quatermain, supra at 40; Riccobene Appeal, supra 439 Pa. at 419, 268 A.2d at 109.

In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); the Supreme Court of the United States held that the Fifth Amendment to the United States Constitution requires a second sovereign to afford a person only use immunity for testimony originally compelled under a grant of transactional immunity by another sovereign. The basis for the recognition of use immunity where another sovereign has compelled testimony by immunizing the witness is the Fifth Amendment privilege against self-incrimination, which is “fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.” Murphy v. Waterfront Commission, supra 378 U.S. at 53, 84 S.Ct. 1594, at 1595, 12 L.Ed.2d 678. A grant of use immunity affords protection which is co-extensive with the scope of the Fifth Amendment privilege, and is, therefore, all that is required to protect the privilege. See: Riccobene Appeal, supra 439 Pa. at 412, 268 A.2d at 109. Recognition of use immunity by the prosecuting sovereign “leaves the witness and the [prosecuting sovereign] in substantially the same position as if the witness had claimed his privilege in the absence of a [prior] state grant of immunity.” Murphy v. Waterfront Commission, supra 378 U.S. at 79, 84 S.Ct. 1594, at 1609, 12 L.Ed.2d 678. See also: Kastigar v. United States, supra 406 U.S. at 458-459, 92 S.Ct. 1653, at 1663-1664, 32 L.Ed.2d 212; United States v. DeDiego, 511 F.2d 818, 822 (D.C.Cir.1975). “A grant of immunity broader than the Fifth Amendment privilege against self-incrimination might [well] infringe upon the right of another sovereignty, whether the Federal Government or another State, to enforce its laws.” United States v. DeDiego, supra at 822.

As noted by the court in United States v. Meyers, 339 F.Supp. 1154 (E.D.Pa.1972), “serious considerations of federalism arise when and to the extent that immunity granted a witness by one state impinges upon the independent power of another state to prosecute him____ '[N]o state other than the grantor of immunity has had an opportunity to elect whether it will forego prosecuting the witness as a price worth paying for his testimony. And states may well differ in judgment as to the importance and desirability of prosecuting a particular participant in wrongdoing. Thus, to deprive a state of the right to prosecute a violation of its criminal law on the basis of another state’s grant of immunity would be gravely in derogation of its sovereignty and obstructive of its administration of justice.’ ” Id. at 1159 (footnote omitted) quoting United States ex rel. Catena v. Elias, 449 F.2d 40 (3rd Cir.1971), reversed on other grounds, 406 U.S. 952, 92 S.Ct. 2056, 32 L.Ed.2d 341 (1972).

Appellant’s argument that use immunity fails to afford immunity co-extensive with the protection conferred upon an accused by Article 1, § 9, of the Pennsylvania Constitution is meritless. The privilege against self-incrimination guaranteed by the Pennsylvania Constitution is not broader than the guarantee contained in the Constitution of the United States. Rather, the privileges are identical. See and compare: Commonwealth v. Sklar, 497 Pa. 404, 413-414, 441 A.2d 1201, 1206 (1982); In re Martorano, 464 Pa. 66, 74-75, 346 A.2d 22, 24 (1975); In re Falone, 464 Pa. 42, 47-48, 346 A.2d 9, 11 (1975); Commonwealth v. McCloskey, 443 Pa. 117, 147, 277 A.2d 764, 779 (1971), cert. denied, 404 U.S. 1000, 92 S.Ct. 563, 30 L.Ed.2d 552 (1971); Commonwealth v. Kilgallen, 379 Pa. 315, 324-328, 108 A.2d 780, 784-786 (1954); Commonwealth v. Field, 231 Pa.Super. 53, 64 n. 9, 331 A.2d 744, 749 n. 9 (1974). Cf. State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980). To protect the guarantee against self-incrimination to a witness who has been compelled to testify in the courts of a sister state, a grant of use immunity will suffice.

Appellant contends that the full faith and credit clause of the United States Constitution requires that Pennsylvania apply transactional immunity. This argument is specious. The order of the New York court did not purport to protect appellant from prosecution in the Commonwealth of Pennsylvania; it granted only immunity from prosecution by New York authorities.

Having determined that Pennsylvania was required to grant only use immunity to appellant’s testimony before the New York grand jury, we examine appellant’s contention that the Commonwealth failed to meet its burden of establishing that it made no use, either direct or derivative, of appellant’s compelled testimony in New York.

The Commonwealth was required to establish that its evidence was not tainted in any way as a result of appellant’s compelled testimony in New York. “This burden of proof ... is not limited to a negation of taint; rather it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. United States, supra 406 U.S. at 460, 92 S.Ct. 1653, at 1664, 32 L.Ed.2d 212. See also: Murphy v. Waterfront Commission, supra 378 U.S. at 79 n. 18, 84 S.Ct. 1594, at 1609 n. 18, 12 L.Ed.2d 678; United States v. DeDiego, supra at 822. It seems clear that the Commonwealth has met its burden in this case.

Appellant was charged in a complaint filed December 22, 1980 with the possession and sale of 6.65 grams of cocaine to Trooper»Jury on November 5, 1980. Appellant did not testify before the Steuben County grand jury until March 27, 1981. Appellant’s grand jury testimony concerned her purchase of drugs from Robert Bavisotta on November 4, 1980 and November 9, 1980. Although appellant did testify in New York that she had sold the cocaine and marijuana purchased from Bavisotta to others, she did not testify and was not asked about any transactions or conversations between herself and Trooper Jury.

The charges against appellant in Pennsylvania were initiated and given evidentiary support by Trooper Jury, who made a direct purchase of cocaine from her on November 5, 1980. The evidence to support the charge and prove the sale was not obtained, directly or indirectly, from the immune testimony given by appellant in New York. Rather, the evidence was elicited from Jury, who had direct knowledge of the offense committed. Indeed, although the prosecution had in its possession a copy of the Webster testimony before the Steuben County grand jury, the assistant district attorney who represented the Commonwealth at trial had not previously read it.

We conclude, therefore, that appellant is not entitled to be discharged on the grounds that she was granted immunity in New York. The conviction for making a sale of cocaine in Pennsylvania was based entirely upon evidence derived independently of the testimony given by appellant in New York. The conviction, therefore, was proper.

Appellant also contends that the trial court failed to articulate sufficient reasons for the sentence. We have examined the five pages of reasons given by the sentencing court and find them more than adequate. Because of their length we do not quote them here. Suffice it to say that the court considered appellant’s background, her heavy drug involvement, her refusal to participate voluntarily in drug therapy, the nature of the offense, appellant’s motive for committing it, and also the fact that she was the mother of two children and had cooperated with law enforcement agencies in the State of New York.

Webster’s appeal from the order refusing to dismiss the remaining informations involves two discrete inquiries. The first is whether a separate trial on charges arising from the events of December 21 and 22 will violate Section 110 of the Crimes Code, 18 Pa.C.S. § 110. The other is whether a second trial will violate principles of double jeopardy contained in the Fifth Amendment of the United States Constitution and Article I, Section 10, of the Pennsylvania Constitution.

Section 110 of the Crimes Code requires the Commonwealth to consolidate in a single proceeding all known charges based on the same conduct or arising from the same criminal episode unless the court orders separate trials. Commonwealth v. Hude II, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Beatty, 500 Pa. 284, 286, 455 A.2d 1194, 1196 (1983); Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981); Commonwealth v. Stewart, 493 Pa. 24, 28, 425 A.2d 346, 348 (1981); Commonwealth v. Holmes, 480 Pa. 536, 540, 391 A.2d 1015, 1017 (1978); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); Commonwealth v. Beckman, 304 Pa.Super. 239, 244, 450 A.2d 660, 663 (1982); Commonwealth v. Carelli, 291 Pa.Super. 502, 505-506, 436 A.2d 228, 230 (1981). Under this section, however, a subsequent prosecution for an offense arising out of the same criminal episode will not be barred if separate trials have been ordered by the court. See: Commonwealth v. Hude II, supra 500 Pa. at 493, 458 A.2d at 183; Commonwealth v. Stewart, supra 493 Pa. at 30, 425 A.2d at 349; Commonwealth v. Saunders, 483 Pa. 29, 34 n. 5, 394 A.2d 522, 525 n. 5 (1978); Commonwealth v. Holmes, supra 480 Pa. at 540 n. 3, 391 A.2d at 1017 n. 3; Commonwealth v. Beckman, supra 304 Pa.Super. at 246, 450 A.2d at 664. “The compulsory joinder rules set forth in Campana I and II and the provisions of section 110 were designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.” Commonwealth v. Hude II, supra 500 Pa. at 489, 458 A.2d at 180. The rule is intended to allow for separate trials whenever the trial court is satisfied that justice so requires. Model Penal Code § 1.08, Comment at p. 39 (Tent.Draft # 5). See also: Commonwealth v. Tarver, 467 Pa. 401, 408, 357 A.2d 539, 542-543 (1976); Commonwealth v. Green, 232 Pa.Super. 134, 142, 335 A.2d 493, 497 (1975).

In the instant case, the defense moved to consolidate the several charges, relying upon Section 110. The Commonwealth requested consolidation of defendants for trial purposes according to alleged offenses; it opposed consolidation of all charges against each defendant, which would have required repeated trials of each alleged incident. The court denied appellant’s request that all charges against her be consolidated into one trial. Because of the multiple defendants, who were variously involved in the different events giving rise to the several charges, the trial court ordered separate trials for each incident and joined in a consolidated trial all defendants allegedly involved in each offense. “It is well established that the propriety of consolidating separate indictments for trial is a matter of discretion with the trial judge, and the exercise of this discretion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Moore, 463 Pa. 317, 320, 344 A.2d 850, 852 (1975); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480, 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799, 801, cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950).” Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981). Accord: Commonwealth v. Hill, 479 Pa. 346, 350, 388 A.2d 689, 691 (1978). See and compare: Commonwealth v. Carroll, 275 Pa.Super. 241, 418 A.2d 702 (1980). There was no abuse of discretion or clear injustice in the instant case.

The decision of the Supreme Court in Commonwealth v. Hude II, supra, does not require a finding that the trial court abused its discretion. In the first place, Hude II did not involve a court order directing separate trials and did not purport to limit the exercise of the trial court’s discretion in awarding separate trials under Section 110 of the Crimes Code. In fact, the Court in Hude II observed that “Section 110(l)(ii) provides that the Commonwealth may request the court to grant separate trials.... [And that such a] procedure will insure that the interests of law enforcement, the judiciary and the accused will be satisfied.” Commonwealth v. Hude II, supra 500 Pa. at 494, 458 A.2d at 183 (citations omitted). Secondly, the facts in Hude II were unique, and the holding thereof must be limited to those facts. There, the defendant had been charged in twenty counts with possession of the same drug and repeated deliveries of that drug to the same person over a two month period. All charges pitted the credibility of the alleged purchaser against that of the accused seller. Therefore, the Court held that the alleged offenses were so similar and so logically interrelated that for practical purposes they involved the same issues of fact and law and were, therefore, a part of the same criminal transaction or episode. An acquittal in a trial on three counts, therefore, barred a second trial on the remaining counts.

In the instant case, the alleged offenses were neither similar nor logically related. They not only involved different people and different transactions, but evidence of appellant’s guilt on the two remaining charges will undoubtedly be different than that on which the cocaine conviction was based. In contrast to Hude II, the different charges filed against appellant in the instant case must depend upon the credibility of different witnesses and different evidence to prove each alleged offense. Thus, Hude II, which involved peculiarly unique facts, does not require that we reverse the order refusing to dismiss the remaining charges on grounds that they should have been consolidated with the earlier, separate offense for trial.

Similarly, principles of double jeopardy do not bar prosecution for the offenses allegedly committed on December 21 and 22. “ ‘The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial. The judiciary views these rules as expressions of self-evident moral precepts: It is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harass him with vexatious prosecution, and wrong to punish him twice for the same offense.’ ” Commonwealth v. Grazier, 481 Pa. 622, 630-631, 393 A.2d 335, 339 (1978) quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis omitted). Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Commonwealth v. Henderson, 482 Pa. 359, 368, 393 A.2d 1146, 1151 (1978); In Interest of R.R., 317 Pa.Super. 334, 343-44, 464 A.2d 348, 353 (1983); Commonwealth v. Maddox, 307 Pa.Super. 524, 531, 453 A.2d 1010, 1014 (1982).

Appellant does not contend that the offenses charged in the remaining informations are the same as the offense for which she has been tried and convicted. Rather, she argues that the double jeopardy clause requires that all offenses arising from a single criminal episode or transaction be prosecuted in a single proceeding. This is the argument espoused by Justice Brennan: “In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U.S. 436, 453-454, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring) (footnote omitted). However, Justice Harlan, concurring in Ashe v. Swenson, noted “[i]n [joining the Court’s opinion] I wish to make explicit my understanding that the Court’s opinion in no way intimates that the Double Jeopardy Clause embraces to any degree the ‘same transaction’ concept reflected in the concurring opinion of my Brother Brennan.” Id. at 448, 90 S.Ct. at 1196. The “same transaction” concept was not adopted by a majority of the Court in Ashe v. Swenson and has not been adopted by the Supreme Court in later decisions. See: Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (Brennan, J., concurring); Grubb v. Oklahoma, 409 U.S. 1017, 93 S.Ct. 450, 34 L.Ed.2d 309 (1972) (Brennan, J., dissenting); Miller v. Oregon, 405 U.S. 1047, 92 S.Ct. 1321, 31 L.Ed.2d 590 (1972) (Brennan, J., dissenting); Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972) (Brennan, J., dissenting). See also: Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974) , cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); State v. Gosselin, 117 N.H. 115, 370 A.2d 264 (1977).

It seems clear, therefore, that appellant’s conviction for selling cocaine on November 5 is not a bar to á separate prosecution for the marijuana offenses committed on December 21 and 22. Appellant’s conduct on November 5, December 21 and December 22 gave rise to separate and distinct offenses which require the presentation of different evidence in order to obtain convictions. Appellant was convicted of selling cocaine directly to Trooper Jury on November 5. This offense was complete on that date. The charges of conspiracy and attempt to deliver 600 pounds of marijuana occurred on another occasion, at a different place and involved an alleged conspiracy with and assistance from additional persons. Finally, the charge pertaining to the twenty-four pounds of marijuana resulted from the execution of a search warrant for appellant’s home on December 22. The mere fact that Trooper Jury’s undercover work was instrumental in allowing the Commonwealth to discover and prove several drug violations did not render the separate violations a part of the same offense for double jeopardy purposes.

The judgment of sentence for selling cocaine is affirmed. The order refusing to dismiss informations containing separate marijuana charges is also affirmed.

McEWEN, J., filed a concurring opinion.

McEWEN, Judge,

concurring:

While the majority opinion is a fine and careful expression of view, I do not agree with the interpretation of the majority that the decision of our Supreme Court in Commonwealth v. Hude II, 500 Pa. 482, 458 A.2d 177 (1983) must be narrowly construed. I perceive Hude II not as a mere dalliance with a proposition but as a declaration of commitment to the principle that our courts must guard against prosecutorial harassment — whether effected by oversight or by design. The legislature certainly so pronounced when it enacted sections 109 through 112 of the Crimes Code, 18 Pa.C.S.A. §§ 109-112, and this court has itself assumed such a duty. See Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983); Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978). Nor does this stance of broad interpretation either offend principles of fairness or ignore demands of the pragmatic, since, under section 110, the prosecution need only make application to the court for permission to conduct successive prosecutions. In any event, subject solely to this exception, I join in the opinion of the majority and affirm the judgment of sentence as well as the order refusing the dismissal of certain informations.

      . Pennsylvania courts are empowered by statute to grant only use immunity. See: 42 Pa.C.S. § 5947.

      . Denial of a pre-trial application seeking discharge on double jeopardy grounds is considered a "final order” and is immediately appealable. See: Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Accord: Commonwealth v. Muffley, 493 Pa. 32, 33 n. 1, 425 A.2d 350, 357 n. 1 (1981); Commonwealth v. Beckman, 304 Pa.Super. 239, 241, 450 A.2d 660, 661 (1982).

      . We observe, however, that the reasons for the court’s ruling no longer exist and, therefore, do not require that the two remaining charges against Regina Webster be tried separately. All other defendants charged in the same incidents have entered pleas of guilty.

      . Compare: Commonwealth v. Lee, 291 Pa.Super. 164, 435 A.2d 620 (1981), where stabbings of two different persons forty minutes apart were held not to be part of the same episode.


author: CIRILLO, Judge:

text:
    470 A.2d 540
    COMMONWEALTH of Pennsylvania v. Edward Leroy KLINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Dec. 16, 1983.
    Petition for Allowance of Appeal Denied April 3, 1984.

      John Francis Lyons, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

      Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Dauphin County denying relief under the Post Conviction Hearing Act (PCHA). Appellant pled guilty in 1978 to one count of involuntary deviate sexual intercourse and two counts of indecent assault, all arising from a single incident in the city of Harrisburg. Appellant is now before this Court for the second time challenging on numerous grounds the validity of his guilty plea.

FIRST APPEAL

On the evening of June 12, 1977, the victim of these crimes was home alone in her Harrisburg apartment. She answered her doorbell to find a stranger, who asked for a person unknown to her. The stranger asked to consult her telephone directory to. look up his friend. After first refusing she said she would get the directory and turned to climb the steps to her apartment. The stranger followed her upstairs. After thumbing fruitlessly through the directory, the stranger engaged the victim in conversation. He began to ask about her personal life, and when she rebuffed his attempts to ask her out, became hostile. He ordered her into the bathroom of her apartment and forced her to undress by telling her he had a knife and making her touch what felt like a knife handle under his shirt. The stranger threatened to rape the victim if she did not cooperate. He fondled her breasts, then ordered her into the bedroom where he performed cunnilingus on her. He then made her fondle his penis, masturbated, and left.

In January of 1978, appellant Edward Klinger was arrested in Cumberland County and charged with robbery and indecent assault in connection with a sexual attack on a girl in a Cumberland County store. A lineup was arranged at the Cumberland County jail, with the victims of both the Dauphin County and Cumberland County assaults in attendance. Each picked Klinger out of. the lineup as her assailant. Dauphin County authorities consequently charged Klinger with the June 12 crimes.

Arthur Dils, Esquire, was present at the lineup and represented Klinger on both sets of charges. At the preliminary hearings, Klinger entered pleas of not guilty.

The Cumberland County case went to trial by jury on May 22, 1978, and Klinger was convicted of robbery and indecent assault. These convictions are not directly involved in the present appeal, but the facts surrounding them relate to certain issues appellant raises.

On May 31, 1978, Klinger was brought to Dauphin County to stand trial on the charges that are the subject of this appeal. However, on June 1, 1978, Klinger appeared with counsel before Judge William Lipsitt and pled guilty to the charges. On September 18, 1978, Judge Lipsitt sentenced Klinger to concurrent state penitentiary terms of eight to twenty years for involuntary deviate sexual intercourse and one to two years on each indecent assault count.

Nine days later, now represented by court-appointed counsel Spero Lappas, Klinger filed motions to modify the most severe sentence and to challenge the validity of his guilty plea. Judge Lipsitt denied the motion to modify sentence but scheduled a hearing for November 30, 1978, on the motion challenging the plea.

At the hearing the defendant tried to establish that Dils’s ineffective representation had prompted him to plead guilty involuntarily. Klinger’s three basic complaints were that Dils had not adequately investigated a possible alibi defense, had not sought to suppress the victim’s identifications of Klinger at the lineup and the preliminary hearing, and had pressured Klinger to plead guilty against his will. After listening to the testimony of five witnesses and the arguments of counsel, Judge Lipsitt denied Klinger’s motion to withdraw the plea..

Klinger appealed to this Court, which affirmed in an opinion by Watkins, J. Commonwealth v. Klinger, 279 Pa.Super. 565, 421 A.2d 343 (1980) (allocatur refused).

THIS APPEAL

On December 17, 1980, Klinger mounted a second challenge to his guilty plea by filing a pro se petition under the Post Conviction Hearing Act. Judge Lipsitt granted leave to proceed in forma pauperis and appointed counsel to assist Klinger in post-conviction proceedings. On April 16 and 24, 1981, Klinger filed motions seeking new counsel on the ground that appointed counsel had done nothing beyond prepare a petition restating the original. The court refused the first request, but granted the second and appointed Peter Foster, Esquire.

Klinger filed pro se amendments to his PCHA petition on July 13 and September 14, 1981. On September 22, he filed a supplemental petition prepared by Foster.

On November 13, 1981, Klinger filed a pro se petition for writ of habeas corpus essentially restating the issue raised in his September 14 amendment to the PCHA petition. Judge Lipsitt dismissed the habeas corpus petition on jurisdictional grounds, and Klinger responded with a motion to vacate and reconsider order. Judge Lipsitt reconsidered, vacated his order, and entered another order dismissing the habeas corpus petition on the ground that the issues raised in it should have been, and had been, raised under the PCHA.

Meanwhile, on November 27, 1981, Klinger filed a pro se “motion for default judgment.” The Commonwealth answered, and Judge Lipsitt dismissed the motion in an order dated December 3, 1981. The Commonwealth then filed an answer to Klinger’s PCHA petition.

On December 8, 1981, Judge Lipsitt dismissed Klinger’s PCHA petition on the basis of the Commonwealth’s answer. The next day Klinger filed a pro se motion for reconsideration of the order of December 3, and Judge Lipsitt denied.

Klinger appealed the order of December 8 to this Court. On February 1, 1982, Klinger requested Judge Lipsitt to replace Attorney Foster with new counsel to prosecute the appeal, and the judge appointed John Lyons, Esquire.

Appellate counsel’s brief spans fifty-two pages (in violation of Pennsylvania Rule of Appellate Procedure 2135(1)) to present for our review eleven issues whose statement alone requires nearly two pages (in violation of Pa.R.A.P. 2116(a)). Counsel thus continues Mr. Klinger’s tradition of circumlocution in the courts, and we do not approv.e. For lack of a more appropriate sanction we choose to call attention to the remarks of Aldisert, J., quoted in the case of United States v. Hart, 693 F.2d 286, 287 n. 1 (3rd Cir.1982):

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

I

The first substantive issue raised on appeal is that Attorney Foster provided ineffective representation in the proceedings below.

Mr. Foster’s supplemental PCHA petition alleged, among other things, the invalidity of Klinger’s guilty plea because of three alleged defects in the guilty plea colloquy. There were prior proceedings in this case at which Klinger had the opportunity but failed to raise the issue of defects in the colloquy. The PCHA provides, at 19 P.S. § 1180-4(b), (c):

(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

Since Klinger’s petition did not offer to rebut the presumption that he knowingly and understanding^ failed to raise earlier the defects in the colloquy, or to prove that his failure was justified by extraordinary circumstances, he was precluded from obtaining relief on this issue in the PCHA court. Id. § 1180-3(d).

On appeal Klinger asserts that Foster was ineffective for failing to allege the ineffectiveness of Mr. Dils and Mr. Lappas as extraordinary circumstances justifying Klinger’s failure to raise the defective colloquy earlier.

Our task in cases of alleged ineffectiveness of counsel encompasses both an independent review of the record and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. However, our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

We apply the Maroney test in two steps. We first determine whether the claim which counsel is charged with not pursuing had some reasonable basis. If the claim was baseless, counsel cannot be found ineffective. Only if the foregone claim is of arguable merit do we proceed to the second step of the Maroney standard: whether counsel’s decision not to pursue the claim had some reasonable basis designed to protect his client’s interests. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

We must remember that on this first issue it is the effectiveness of PCHA counsel that is being challenged. The underlying claim is that extraordinary circumstances, to wit the ineffectiveness of Attorneys Dils and Lappas in prior proceedings, justify Klinger’s failure earlier to raise defects in his guilty plea colloquy.

Since our first task is to examine the merit of Klinger’s claim of extraordinary circumstances, we are not here concerned with directly deciding the validity of the guilty plea colloquy. However, in order to analyze the extraordinary circumstances claim, it is necessary to consider the three alleged defects in the colloquy: that Klinger was not informed of this state’s requirement that a jury verdict be unanimous; that he was not told of his right to petition the court to withdraw his plea before sentencing; and that he was misled to believe he was pleading guilty only to one charge of indecent assault.

A. Jury unanimity requirement.

One of the important rights a defendant waives by pleading guilty is the right to a trial by jury; therefore it must appear in an on-the-record colloquy that the defendant knew of this right and voluntarily waived it. Pa.R.Crim.P. 319 Comment; Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979).

At the guilty plea hearing on June 1 Klinger participated with the district attorney in a jury trial waiver colloquy. Klinger affirmatively responded that he understood everything explained to him, and expressed no uncertainty about the right to jury trial. Klinger was told he would be able, if he chose, to help his attorney select twelve jurors from among members of the community. He was also told that to convict him “they” (the jurors) would have to be convinced by the Commonwealth of his guilt beyond a reasonable doubt, although it was not explicitly stated that “they” would have to be convinced “unanimously."

Our courts have invalidated pleas where the colloquies contained no statement of the jury unanimity requirement. See Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978); Commonwealth v. Troop, 295 Pa.Super. 485, 441 A.2d 1336 (1982); Commonwealth v. Dello Buono, 271 Pa.Super. 572, 414 A.2d 631 (1979). We have also applied a per se rule to find ineffective assistance on the part of counsel who takes no objection to a guilty plea colloquy that does not mention the requirement of a unanimous jury. Commonwealth v. Smith, 267 Pa.Super. 63, 443 A.2d 299 (1982).

However, in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the Supreme Court signalled a significant departure from the position that a mere formal defect in a guilty plea colloquy invalidates the plea even where the defendant is not prejudiced. Instead, the Court held that our appellate courts must review a guilty plea in the totality of the circumstances surrounding it to determine whether it was knowingly and voluntarily entered. Accord, Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982).

In Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982), we followed the totality-of-the-circumstances approach to hold that the absence of the jury unanimity requirement in a guilty plea colloquy did not require us to remand the case for trial where there was no allegation or evidence that the omission caused Anthony to plead guilty or that his waiver of trial by jury was unknowing or involuntary. Judge Stephen J. McEwen, Jr., writing for the Court, said, “Appellant does not — indeed could not — argue that he would not have pleaded guilty had he known a jury verdict was required to be unanimous. There is not even a suggestion or a hint of prejudice and we cannot, therefore, rule the colloquy defective.” Id., 307 Pa.Superior Ct. at 322, 453 A.2d at 605. We further held that Anthony’s counsel could not be found ineffective for failing to object to the omission, since an objection might have invalidated the favorable plea agreement obtained by counsel and subjected Anthony to heightened charges and a greater sentence. See also Commonwealth v. Harris, 311 Pa.Super. 216, 457 A.2d 572 (1983); Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d 126 (1983); Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982).

Mr. Klinger’s attempt on this appeal to show prejudice is even more meager than was Mr. Anthony’s. Not only does Klinger fail to argue that he would not have pled guilty had he known jury verdicts must be unanimous; he fails even to allege unawareness at the time of his plea of the jury unanimity requirement.

The record supports the opposite conclusions, that Klinger in fact had been made aware by the time of his guilty plea that jury verdicts are unanimous, and that this consideration in fact had nothing to do with his decision to plead guilty.

It is quite notable that just days before pleading guilty Klinger had witnessed his right to trial by jury in living color. Presumably he sat in the Cumberland County courtroom with Mr. Dils to assist in the selection of each of twelve jurors and their alternates, to hear the court instruct the jury that they would have to return a unanimous verdict, and possibly even to hear the jurors polled as to their unanimity. Attorney Dils, an experienced criminal trial practitioner of thirteen years, represented Klinger not only in the Cumberland County and Dauphin County cases, but also in criminal matters in years past. Transcript, Validity of Guilty Plea at 5-7, 10-11. We would be credulous to construct a scenario that Klinger came through his immediate past experience with the criminal justice system and with Dils to arrive on the day of his guilty plea hearing ignorant that a jury would have to agree unanimously to convict him. Cf. Commonwealth v. Campbell, supra (appellant’s prior criminal convictions relevant to whether he was ignorant of nature and extent of right to jury trial); Commonwealth v. Shaffer, supra (absent claim appellant did not understand nature of crimes, court may presume counsel explained to him nature of offense in sufficient detail to give him notice of that which he admitted by pleading guilty).

In addition, Judge Lipsitt, who both took the plea and heard the evidence marshalled in support of the motion to withdraw, stated firmly on the record his belief that the plea was knowing and voluntary:

The question is whether or not he entered the guilty plea voluntarily and intelligently and knowingly and there is just no doubt in my mind____ I am ready to enter an order in this case. There’s just no question in my mind of the guilt of Mr. Klinger. There’s no question in my mind that he knew what he was doing when he entered the guilty plea.

Transcript, Validity of Guilty Plea at 74-75.

We return to the question we began with, whether the failures of Attorneys Dils and Lappas to object to a lack of a statement of the jury unanimity requirement in the colloquy constitute extraordinary circumstances in this case.

It is true that, in certain situations, ineffectiveness of counsel has been held to be an extraordinary circumstance precluding a finding of waiver. Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981). However, equally valid is the proposition that attacks on the effectiveness of counsel may not be used to circumvent the consequences of waiving an issue. Commonwealth v. Silvis, 307 Pa.Super. 75, 452 A.2d 1045 (1982).

We are asked to hold that the actions of Dils and Lappas were extraordinary circumstances precluding waiver even assuming Klinger knew during all proceedings of the jury unanimity requirement yet failed to raise this issue until nearly two and one-half years after entering his plea. We think not. It is elementary that ineffectiveness of counsel in connection with entry of a guilty plea will serve as a basis for relief only where the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983). Appellant has not offered to prove facts overcoming a waiver in this case, and accordingly we hold that he has waived the lack of a statement of the jury unanimity requirement in his guilty plea colloquy.

B. Right to seek withdrawal of plea before sentencing.

Klinger was not informed on the record that he could petition the court to withdraw his plea before sentencing. Klinger did, of course, exercise his right to seek withdrawal of the plea within ten days after sentencing. See Pa.R. Crim.P. 1405(c)(2), (3); Commonwealth v. Green, 312 Pa.Super. 265, 458 A.2d 951 (1983).

Once again Klinger does not allege that he did not know he could file a pre-sentence petition. In fact, he alleges that before sentencing he did ask counsel to seek a plea withdrawal. Brief for Appellant at 22. Strangely enough, this alleged pre-sentence request to Mr. Dils, and Dils’s failure to act on it, did not come up in Klinger’s extensive testimony at the post-sentence hearing. Since the effectiveness of Dils’s representation was the focus of the hearing, his failure to respond to Klinger’s request should have been raised there. But Klinger does not show how extraordinary circumstances prevented him from raising this issue at the hearing. Instead, he appears to believe that the failure of both prior attorneys to examine the colloquy and discover an asserted defect in it constitutes ineffectiveness per se. And again, this view is plainly wrong.

It would be absurd to hold that a guilty plea is involuntary or unknowing if the defendant is not told beforehand that after entering the plea he will be allowed to petition to withdraw it. Equally absurd would be to find counsel ineffective for failing to insist on such a statement in a guilty plea colloquy. The Supreme Court has ruled that knowledge of the procedural aspects of the right to withdraw a plea has no relation to whether the plea was voluntary in the first instance. Commonwealth v. Chumley, supra. However, finding this issue waived, we need discuss it no further.

C. Defendant misled as to charges.

This claim derives solely from the following exchange in the guilty plea colloquy:

MR. LEWIS: Now, if you enter a plea of guilty to these charges you are admitting committing the facts outlined in these three informations that I have gone over, do you understand that?
MR. KLINGER: Yes.
MR. LEWIS: Is it your desire to enter a plea of guilty to this charge?
MR. KLINGER: Yes, sir.

Transcript, Guilty Plea at 12 (emphasis added). Klinger maintains that because the record shows him assenting only to the district attorney’s mention of a singular charge, the plea pertained only to the last described charge of one count of indecent assault.

It is obvious that Klinger knew all along that he was pleading guilty to all three crimes with which he was charged. The district attorney described the elements of each of Klinger’s offenses (the indecent assault of fondling the victim’s breasts, the involuntary deviate sexual intercourse of the act cunnilingus, and the indecent assault of having the victim fondle the defendant’s penis, each accomplished by force or the threat of force), and the victim reiterated in lucid detail the facts supporting these charges. Cf. Commonwealth v. Martinez, supra (graphic illustration on record of nature of injuries to robbery victim made it implausible that defendant believed he was pleading guilty to mere theft without violence). Klinger also listened while Judge Lipsitt imposed three discrete sentences for three distinct crimes. Yet not until almost two years after the minimum sentences for each of the indecent assault charges had expired, and Klinger was left serving the eight-to-twehty year term for involuntary deviate sexual intercourse, did this claim about being misled arise. This claim has no arguable merit.

For the foregoing reasons, Klinger’s attempt to litigate the validity of his guilty plea colloquy by labelling three prior attorneys ineffective must be rejected.

II

Klinger’s next claim is that he was induced to plead guilty by threats and intimidation from his attorney, Mr. Dils.

Klinger raised this identical claim at the hearing on his motion to withdraw the guilty plea. The court disbelieved Klinger’s testimony in support of his claim and ruled against him. There is therefore a rebuttable presumption under the PCHA that this claim has been finally litigated. 19 P.S. § 1180-4(a)(l), (c). A petitioner is precluded from obtaining PCHA relief on a finally litigated claim. Id. § 1180-3(d).

Klinger attempts to rebut the presumption of final litigation by alleging that his counsel on the motion to withdraw the plea, Mr. Lappas, was ineffective. Of course, an issue cannot be finally litigated in a proceeding at which the defendant is represented by ineffective counsel. Commonwealth v. Musser, 463 Pa. 85, 343 A.2d 354 (1975).

Mr. Lappas’s purported ineffectiveness was in failing to discover the names of inmate witnesses in the courthouse lockup who heard Dils pressuring Klinger to plead guilty. However, in the same breath Klinger makes the inconsistent allegation that he gave the names of those witnesses to Lappas, who failed to interview or subpoena them. Brief for Appellant at 25.

Flying in the face of Klinger’s present allegations is his denial at the guilty plea hearing that any threats or promises had been made to him to induce his plea. Judge Lipsitt believed the denial then, he believed it after the hearing on the motion to withdraw the plea, and he was fully entitled to continue believing it in disregard of Klinger’s new allegations that there were inmate witnesses to pressure from counsel. See Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973) (Court would not hear new factual allegation in support of previously litigated claim that counsel’s ineffectiveness had induced' guilty plea); Commonwealth v. Edrington, supra 317 Pa.Super. at 552, 464 A.2d at 459-60 & n. 3 (court could rely on truthfulness of defendant’s responses at guilty plea hearing that plea was not induced by promises of counsel). .

Ill

Klinger next attacks the effectiveness of Mr. Lappas in prosecuting the prior appeal to this Court.

The underlying claim upon which appellant here predicates Lappas’s ineffectiveness is another already-litigated issue, namely whether Attorney Dils was ineffective for not challenging the fairness of the lineup in the Cumberland County jail. At the guilty plea withdrawal hearing and on appeal our courts determined that Dils was effective in that a challenge to the lineup identification would have been meritless. The same challenge to the lineup that Klinger proposed had been made and rejected in the Cumberland County case.

Now, armed with the theory that Lappas was ineffective for failing to bring two additional facts to our attention, Klinger is back to relitigate this issue.

The first new fact alleged is that at a June, 1980 PCHA hearing on Klinger’s Cumberland County conviction, Attorney Dils testified that he “wasn’t satisfied” with the fairness of the lineup because of age disparities in the lineup participants. Klinger argues that Lappas should be found ineffective for not discovering Dils’s testimony and bringing it before the Superior Court.

Dils’s new testimony adds nothing to the claim we rejected the first time around. Under questioning from Lappas at the guilty plea withdrawal hearing, Dils gave his objective assessment that the lineup was “basically” fair, but explained his effort to suppress the lineup identification pretrial in the Cumberland County case as based on a desire to leave no stone unturned. Dils admitted that “Ed [appellant] raised the question about the age too. I thought it was valid.”

The position taken by Mr. Dils on the lineup identification procedure was made quite plain to us on the prior appeal, and it is therefore with great temerity that appellant suggests that we can now ratify our holding only “through a great leap in logic” and in abuse of our discretion.

Appellant next points to Dils’s testimony at the guilty plea withdrawal hearing that his decision not to pursue a suppression motion in Dauphin County rested partly on the failure of the Cumberland County motion. Appellant argues that Dils’s decision could not have been motivated by the outcome of Cumberland County proceedings, since trial in Cumberland County did not commence until seventeen days after pretrial motions in the Dauphin County case were due. Appellant concludes that Mr. Lappas was ineffective for not bringing this discrepancy to our attention on direct appeal.

Two observations dispose of this argument. First, to say that trial in Cumberland County commenced after the time for filing pretrial motions in Dauphin County had expired does not tell us when the Cumberland County court denied Klinger’s pretrial suppression motion, thus alerting Dils that such a motion was likely to fail in Dauphin County as well. Secondly, appellant’s argument does nothing to bolster the merit of the underlying suppression claim, and therefore cannot support a finding that counsel were ineffective.

For these reasons we hold that appellant’s allegations of Lappas’s ineffectiveness are insufficient in law to reopen the finally litigated claim of Dils’s effectiveness vis-a-vis the lineup identification. 19 P.S. § 1180-4(a), (c).

IY

Klinger’s next double-barreled ineffectiveness of counsel claim involves the right of allocution at sentencing. Klinger argues that Dils and Lappas were ineffective for not protecting and preserving his right to address the court. See Pa.R.Crim.P. 1405(a).

Our Court has held that collateral relief is not available for a mere formal failure to afford the defendant an opportunity to speak before sentence is imposed. Commonwealth v. Barton, 312 Pa.Super. 176, 458 A.2d 571 (1983). To be eligible for relief a PCHA petitioner must be able to show what statement he would have made and how his statement would have benefitted him-at sentencing. Id.; Commonwealth v. Rivera, 309 Pa.Super. 33, 454 A.2d 1067 (1982).

In this case, despite being represented on both his PCHA petition and the present appeal by separate, new counsel, Klinger has at no point indicated what, if anything, he would have said to the sentencing court in mitigation of punishment. His claim therefore is one of ineffectiveness of counsel in the abstract, upon which he can obtain no relief. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

V

We are next asked to find prior counsel ineffective on the basis of an affidavit dated December 11, 1980, from Mr. Gordon McLain of Colorado. Mr. McLain swears that he told Attorney Dils over the telephone of his willingness to testify to an alibi for Klinger. Appellant urges us to find Mr. Lappas ineffective for not investigating the potential alibi witness and presenting his testimony at the hearing on Dils’s effectiveness.

It does not appear on the record whether Lappas did or did not investigate McLain, but it is fairly certain what Lappas would have found had he done so. The evidence at the hearing strongly showed that no one, including McLain, could or would produce an alibi for Klinger. Dils testified that McLain expressed a decided unwillingness to come into a court of law and an inability to place Klinger on the day of the crimes. Judge Lipsitt believed Dils, and there is ample other evidence in the record besides the attorney’s word to support Judge Lipsitt’s finding that there was no alibi to pursue. For example, in response to the judge’s question at the hearing, “Did you discuss alibi with him [Dils] or not?” Klinger himself responded, “There wasn’t an alibi, not an alibi, not to where I was. Now, the only thing that was brought up, what kind of defense to use, I was fighting identification. That’s what I wanted to fight it on.” Transcript, Validity of Guilty Plea at 57. Pressed further on the claim of an alibi defense, Klinger then insisted that he had one but refused to divulge the names of his witnesses as “privileged information.” Id. at 73.

Against this backdrop we have McLain’s contradictory and unspecific affidavit of December 11, 1980. Judge Lipsitt was entitled in the circumstances to find the affidavit inherently incredible. We must conclude that Attorney Lappas was not ineffective for failing to pursue this fruitless issue.

VI

Appellant next offers the affidavits of two inmate witnesses each of whom claims that at various lineups conducted in Harrisburg in 1977 the victim of these crimes identified him as the perpetrator. Appellant argues that counsel were ineffective for failing to discover these prior misidentifications, or, in the alternative, that the affidavits are after-discovered evidence entitling him to relief. See 19 P.S. § 1180-3(c)(13).

The Commonwealth argues that the lineups referred to never existed and that the alleged misidentifications never occurred.

We are constrained to find with the Commonwealth.

Among Klinger’s various petitions under the PCHA was a request for police reports containing the victim’s initial statements. Judge Lipsitt granted this request and further ordered the Harrisburg City Police to provide Klinger with all statements given by the victim after the day of the assault. Prior identifications by the victim certainly would have been covered by this order, yet none turned up. Appellant’s claim is baseless.

VII

Appellant next argues that the entire proceeding against him is void because the informations filed against him contained rubber-stamped facsimiles of the district attorney’s signature. This argument holds no water. Our Supreme Court recently held that a rubber-stamped information has the same presumption of validity as a manually signed information. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983).

In a related claim, appellant argues that his prior attorneys were ineffective for not challenging the rubber-stamped informations in prior proceedings. Appellant relies on Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981), rev’d in Emanuel, supra; in which the Superior Court held that a rubber-stamped information may be voided when objected to pretrial. Appellant reasons that Attorney Dils should have objected pretrial to the informations, and that Attorney Lappas should have raised his failure to do so as ineffectiveness of counsel. However, even apart from the problem of granting relief on a now-discredited holding, it must be remembered that both attorneys acted in this case before our decision in Emanuel came down. We have firmly rejected the argument that counsel acting before Emanuel can be found ineffective for not anticipating its holding. Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982); Commonwealth v. Brinton, 303 Pa.Super. 14, 449 A.2d 54 (1982).

VIII

Klinger’s next argument is that direct appeal counsel was ineffective for failing to correct a misstatement of the evidence in the trial court’s memorandum pursuant to Pa.R.A.P. 1925(a). A review of our opinion in the first appeal reveals that notwithstanding a minor misstatement in the trial court’s memorandum, our Court took full cognizance of the evidence actually presented in the post-plea hearing. This issue is meritless.

IX

Appellant next assails the effectiveness of PCHA, post-sentencing, and guilty plea counsel for not raising and preserving his right to petition the court to withdraw his plea before sentencing.

Presentencing attempts to withdraw a guilty plea may be granted in the discretion of the trial court for any fair and just reason, whereas post-sentencing attempts are allowed only on a showing of manifest injustice. Commonwealth v. Shaffer, supra. Through two appeals to this Court, Klinger has failed to show any plausible reason, let alone any fair and just reason, why he should be allowed to withdraw his plea. Klinger’s triple-tiered claim of ineffective assistance of counsel adds nothing to his empty claim.

Moreover, we held earlier that Klinger waived the claim that his first attorney was ineffective on this issue. I.B., supra.

X

Finally, we must decide whether Judge Lipsitt erred in denying Klinger a hearing on his PCHA claims. A hearing should be granted when a petition alleges facts that if proven would entitle the petitioner to relief, unless the claims made are patently frivolous and without a trace of support in the record or from other evidence submitted by the petitioner. 19 P.S. § 1180-9. A Supreme Court gloss on this rule holds that in deciding whether to grant a hearing, the PCHA court need accept as true only factual allegations which are non-frivolous, specific, and not controverted by the record. Commonwealth v. Savage, 433 Pa. 96, 249 A.2d 304 (1969); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967). Judge Lipsitt was well acquainted with this case, having taken Klinger’s guilty plea and heard the evidence on his motion to withdraw the plea. Klinger’s PCHA petition confronted Judge Lipsitt with many of the same basic issues that he had already decided adversely to Klinger. The supporting factual allegations were either frivolous or contradicted in the record. We hold that Judge Lipsitt acted properly in dismissing the petition without a hearing.

Order affirmed.

JOHNSON, J., concurred in the result.

      . Act of January 25, 1966, P.L. 1580, §§ 1-14, 19 P.S. §§ 1180-1 to 1180-14 (Supp. 1965-1981), repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1397], effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981, as further amended by Act of June 26, 1981, P.L. 123, No. 41, § 1, which delayed repeal until June 26, 1982, replaced by 42 Pa.C.S. §§ 9541-9551.

      . In his amended pro se petition of July 14, 1981, Klinger states baldly that he would not have pled guilty had he known that a jury’s verdict must be unanimous. We should not consider this allegation, since all allegations offered to support requested relief must be stated in either the original or the final supplemental PCHA petition. Commonwealth v. Ashley, 277 Pa.Super. 287, 419 A.2d 775 (1980). The rationale of Ashley well suits this case. The number and sheer volume of petitions appellant cascaded upon Judge Lipsitt, of which our opinion gives only a partial listing, produced a torrent of thirteen orders from his desk between the filing of the original petition and our taking cognizance of this appeal.
      Furthermore, we are convinced that the July 14 claim of ignorance, which apparently did not occur to Klinger to make in drafting his original PCHA petition or any other of its quite lengthy sequels, is no more than a makeweight. See infra.