text:
    513 A.2d 983
    Peter MONTRENES and Mary Montrenes, his wife, Appellants, v. Mary MONTRENES, a/k/a Mary Andrikanic v. Ann BELLOHUSEN.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed July 7, 1986.
    Reargument Denied Aug. 27, 1986.

      Thomas M. Castello, Pittsburgh, for appellants.
    Robert Palkovitz, McKeesport, for appellees.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

In this action involving rival claims by a brother and sister to a double house in Versailles Borough, Allegheny County, the issue is whether the trial court capriciously disregarded evidence of sufficient quantity and quality to establish a parol, inter vivos gift of real estate. We find no capricious disregard of evidence and affirm.

Peter and Mary Montrenes, husband and wife, contended in this action to quiet title that Peter’s mother, Mary Montrenes, a/k/a Mary Andrikanic, had made a parol gift to them of a double house situated at Nos. 5106-5108 Oard Street, Versailles Borough, Allegheny County. The action was commenced against Peter’s mother and was expanded to include, as a co-defendant, Peter’s sister, Ann Bellohu-sen, to whom the title to the property had been conveyed by deed of the mother. This deed, it was alleged, had been procured by undue influence and fraud and had also involved a forged signature. Mary, the mother, died in 1980, and the litigation continued between brother and sister to determine who had good title to the real estate.

The double home on Oard Street had been almost entirely destroyed by fire on December 26, 1945. The testimony of Peter and his wife, Mary, was that Peter’s mother thereafter gave them the home on the condition that they rebuild it. With the help of others, Peter and his wife restored the two dwellings and thereafter occupied 5108 Oard Street. The other half of the double was occupied by a tenant until the mid 1950s. For the remainder of the time it was vacant. The testimony was that the mother had collected the rents for the leased dwelling, but there was conflicting testimony as to whether she had kept the rents or had turned them over to her son. Three witnesses testified that Mary, the mother, had frequently referred to the fact that she had given the home to Peter and his wife. Ann, however, testified to the contrary, i.e., that her mother had never said that the real estate had been given to Peter. Nevertheless, the evidence was clear that Peter and his family had rebuilt the double dwelling and had occupied one-half of the double home continuously thereafter. Peter and his wife had paid municipal and school taxes on the property, but his mother had paid the county taxes.

The trial court found that Peter had failed to prove a parol, inter vivos gift and denied the request to set aside the sister’s deed. Exceptions were dismissed, and final judgment was entered.

The burden of proof in an action to quiet title is on the plaintiff. Cox’s, Inc. v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541-542 (1952); Grace Building Co., Inc. v. Parchinski, 78 Pa.Cmwlth. 187, 191, 467 A.2d 94, 96 (1983). In such an action, the plaintiff can recover only on the strength of his or her own title and not upon the weakness of the defendant’s title. Albert v. Lehigh Coal & Naviga tion Co., 431 Pa. 600, 607, 246 A.2d 840, 843 (1968); Carra-telli v. Castrodale, 185 Pa.Super. 426, 429, 137 A.2d 805, 806 (1958). Where, as here, the trial court has determined that the plaintiffs failed to meet their burden of proving title, that determination will not be reversed in the absence of an error of law or a capricious disregard of evidence. See: Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983); Eddystone Fire Co. No. 1 v. Continental Insurance Co., 284 Pa.Super. 260, 263, 425 A.2d 803, 804 (1981).

The requisites for the creation of a valid parol gift of land notwithstanding the Statute of Frauds are “(1) that the evidence of the gift be direct, positive, express and unambiguous; (2) that possession be taken in pursuance of the alleged gift at the time of or immediately after it is made, and that such possession be exclusive, open, notorious, adverse and continuous; (3) that the donee make valuable improvements on the property for which compensation in damages would be inadequate.” Rarry v. Shimek, 360 Pa. 315, 317-318, 62 A.2d 46, 47-48 (1948) (footnotes omitted). See also: Yarnall’s Estate, 376 Pa. 582, 590, 103 A.2d 753, 758 (1954); Annot., 83 A.L.R.3d 1294 (1978). As a general rule, these elements, together with the existence of a dona-tive intent on the part of the donor, must be established by evidence which is clear and convincing. See generally: Annot., 83 A.L.R.3d at 1298-1301. Clearer and weightier evidence, the courts have said, is necessary to prove a parol gift between parent and child then is required between persons who are not blood relatives. Yarnall’s Estate, supra 376 Pa. at 590, 103 A.2d at 758; Rarry v. Shimek, supra 360 Pa. at 318, 62 A.2d at 48; Ackerman v. Fisher, 57 Pa. 457, 459 (1868). To prove a parol gift between parent and child, “the witnesses depended upon for that purpose must have heard the bargain when made and their testimony must bring the parties face to face; the transaction may not be inferred merely from the declarations of one of the parties.” Rarry v. Shimek, supra 360 Pa. at 318, 62 A.2d at 48; Ackerman v. Fisher, supra, 57 Pa. at 459. See also: Glass v. Tremellen, 294 Pa. 436, 144 A. 413 (1928); Sorber v. Masters, 264 Pa. 582, 107 A. 892 (1919).

Where, as here, the trial court’s findings are based on its assessment of the weight and credibility of the evidence, its determination that appellants failed to sustain their burden of proof is relatively unassailable. There was no disinterested testimony which brought the parties face to face to establish in praesenti the making of an inter vivos gift. Although there was testimony that the alleged donor had made statements to the effect that she had given the real estate to her son, no disinterested witness was able to bring the alleged grantor and grantee face to face and show the making of an inter vivos gift. Moreover, the mother’s statements were ambiguous. It was not clear whether she was saying merely that she had given her son a place to live or whether she meant that she had given him ownership rights. Although appellants did play a significant role in rebuilding the dwelling and resided in one-half thereof, the evidence showed that the mother always collected the rents from the other half of the double and also paid some of the taxes on the property. Thus, any inference of an inter vivos gift was rebutted by evidence that the alleged donor had not fully divested herself of all indicia of ownership. We cannot say, therefore, that the trial court capriciously disregarded competent evidence in determining that appellants had failed to prove a parol, inter vivos gift.

Appellants also sought to set aside the deed delivered by the mother to Ann Bellohusen on grounds of forgery, undue influence and fraud. Peter Montrenes asserted that his mother had suffered a stroke in September, 1979 and that Ann thereafter was able to induce the execution and delivery of a deed conveying the real estate to her. The evidence showed that the mother did not speak English fluently and relied upon her children to translate English into her native Slovakian tongue. Other evidence showed, however, that she was and continued until her death to be the strongwilled head of the family. As Peter testified, “she was the law.” Although Ann had handled her mother’s financial affairs during the last three years of the mother’s life and had, on occasion, assisted her mother in signing her name, the trial court found that the deed to Ann had not been the product of forgery, undue influence or fraud. Even after her stroke, the mother did not suffer an impaired intellectual capacity.

The findings of a judge sitting without a jury must be accorded the same weight and effect as the verdict of a jury and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. Estate of Gilbert, 342 Pa.Super. 82, 87, 492 A.2d 401, 404 (1985); In re Estate of Cornell, 336 Pa.Super. 594, 597, 486 A.2d 424, 425 (1984). A confidential relationship exists when the parties do not deal on equal terms so that one party is dependent on the other or one party overmasteringly influences the other. Banko v. Malanecki, 499 Pa. 92, 96-97, 451 A.2d 1008, 1010 (1982). See also: Monongahela Trust Co. v. Kazimer, 161 Pa.Super. 380, 382, 54 A.2d 841, 842 (1947). The existence of a family relationship, although a factor to be considered, does not alone suffice to establish a confidential relationship. Estate of Gilbert, supra, 342 Pa.Super. at 88, 492 A.2d at 401; Estate of Keiper, 308 Pa.Super. 82, 87, 454 A.2d 31, 34 (1982). See also: Estate of Dzierski, 449 Pa. 285, 289, 296 A.2d 716, 718 (1972).

The evidence in this case did not demonstrate that Ann Bellohusen had exercised an overmastering influence over her mother. The mere fact that she had assisted her mother with her financial matters did not alone establish total dependence of this strongwilled woman upon the wishes of her daughter. Similarly, there was no evidence that the mother’s signature on the deed had been forged or that it had been obtained by fraud. In short, appellants failed to prove that the deed was not the product of the mother’s free will.

The order entering judgment in favor of appellee is affirmed.

      . Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    513 A.2d 986
    Betty WIKOSKI v. Chester WIKOSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1985.
    Filed July 31, 1986.
    Michael R. Lynn, Bloomsburg, for appellant.
    John J. Hovan, Tunkhannock, for appellee.
    Before BROSKY, POPOVICH and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from a divorce decree. Appellant contends that the Divorce Code provision allowing no-fault divorce violates his freedom of religion under the Pennsylvania Constitution. We disagree, and accordingly, affirm.

Appellant contends that the grant of a divorce infringes on his religious beliefs as a Roman Catholic, in that that faith opposes divorce. His devotion to his faith is quite apparent. Such an infringement, he argues, works a violation of his rights under Article I, Section 3 of the Pennsylvania Constitution. That Section states:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; No man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; No human authority can, in any case, whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

The provision at issue is that providing for freedom of “the rights of conscience.”

There is no case on point in this Commonwealth. As a consequence, before turning to the cases interpreting our State Constitution, it will be useful to consider cases in other jurisdictions treating similar issues and the precise issue before us.

Three United States Supreme Court cases are worth noting. First, in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the high court held that marriage was a social relationship governed by the laws of the individual states under their police powers. Second, in Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963) the court reiterated the standard under which First Amendment infringements by state regulation are to be judged: “If, therefore, the decision ... is to withstand appellant’s constitutional challenge, it must be ... because any incidental burden on the free exercise of appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate____’ NAACP v. Button, 371 U.S. 415 [, 83 S.Ct. 328, 9 L.Ed.2d 405] ...”

The third, and final, United States Supreme Court case examined here is the earliest of them, from 1878. Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 25 L.Ed. 244 (1878), treated the question of whether freedom of religion made impermissible federal law prohibiting polygamy. A Mormon in the then territory of Utah was prosecuted under the federal law. Chief Justice Waite delivered the scholarly and eloquent opinion of the Court. Some brief exerpts from Reynolds are well worth quoting.

Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.
... Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Reynolds, supra 8 Otto 145, 98 U.S. at 165-6.

A few of our sister states have had the occasion to treat the issue before us. The principal case of these is Williams v. Williams, 543 P.2d 1401 (Oklahoma 1975).

Appellant’s complaint that her constitutional right for the free exercise of religion is being violated is unfounded. The action of the trial court only dissolved the civil contract of marriage between the parties. No attempt was made to dissolve it ecclesiastically. Therefore, there is no infringement upon her constitutional right of freedom of religion. She still has her constitutional prerogative to believe that in the eyes of God, she and her estranged husband are ecclesiastically wedded as one, and may continue to exercise that freedom of religion according to her belief and conscience. Any transgression by her husband of their ecclesiastical vows, is, in this instance, outside the jurisdiction of the court.

Williams, supra, at 1403. Williams develops the point made in Reynolds — and does so properly.

A case out of Kansas presents a rather interesting analysis.

In addition, the husband apparently does not share his wife’s religious beliefs about divorce, since he sought the decree. Under these circumstances, to compel him to remain married because of the wife’s religious beliefs would be to prefer her beliefs over his. Any such preference is prohibited by the Establishment Clause of the First Amendment. The government may not “aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947).

Sharma v. Sharma, 8 Kan.App.2d 726, 667 P.2d 395, 396 (1983).

Another point made in Reynolds is presented in a somewhat different manner in a Louisiana case treating an issue similar to the one before us. Appellant, the defendant in a divorce action, argued that the grant of a divorce violated the constitutional principle of separation of church and state.

Article VI of the Constitution of the United State provides, in pertinent part, that:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Emphasis ours.)
We believe this answers defendant’s argument that plaintiff’s action is governed by some higher (spiritual) authority.

Scheppf v. Scheppf 430 So.2d 370, 372, n. 2 (Crt. of Appeal of Louisiana, 1983).

Persuasive though all these authorities may be, they could be inconsistent with interpretations of this Commonwealth’s constitution. A review of those interpretations is, therefore, in order.

As would be expected, Section Three’s rights of conscience are not unlimited.

But broad as are these declarations of our constitution, and sacred as are the religious freedom and the rights of conscience they secure, yet it must be apparent to any person upon reflection, and has been repeatedly declared by the highest judicial authority, that they do not mean, unqualifiedly, that it is beyond the power of the legislature to enact any law which will restrain individuals from doing that which, if it were not for the law, their consciences would teach them to be their moral or religious duty. Indeed it is impossible to see how civil government could exist, if the dictates of the individual conscience were in every instance where they come in conflict with the law of the land the paramount rule of action.

Commonwealth v. Herr, 229 Pa. 132, 141, 78 A. 68, 71 (1910). More succinctly, it has been held that, “while the adoption of a belief is absolutely protected, there exists only a qualified right to act on that belief.” Morris v. Morris, 271 Pa.Super. 19, 26, 412 A.2d 139, 142 (1979).

The dimensions of this qualified right are given in Commonwealth v. Beiler, 168 Pa.Super. 462, 469, 79 A.2d 134, 137 (1951), quoting the dissenting opinion in Commonwealth v. Lesher, 17 Serg. & R. 155, 160 (1828).

It is declared in the constitution [of 1790] * * * that ‘no human authority can, in any case, control or interfere with the rights of conscience.’ But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which is not prejudicial to the public weal. But salus populi suprema lex, is a maxim of universal application; and where liberty of conscience would impinge on the paramount right of the public, it ought to be restrained. (Gibson’s italics.)

This language in Lesher presages language in Sherbert v. Verner, supra, 374 U.S. at 406, 83 S.Ct. at 1795, quoted in Bear v. Reformed Mennonite Church, 462 Pa. 330, 335, 341 A.2d 105, 107-08 (1975).

... It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, [, 322,] 89 L.Ed. 430.

This is a most substantial test. Under even this stringent analysis, appellant’s claim fails. The state’s interests in regulating marriage and divorce are clearly paramount. That regulation is inconsistent with the recognition of a unilateral right of a party to remove himself from its purview as a matter of conscience. The state has the power, properly exercised within constitutional limits guaranteeing freedom of religion, to grant divorces. Thus, whether granting appellee her divorce is viewed as not infringing upon appellant’s freedom of religion, as in Williams, supra, or as interfering with the practice of his religion, as in Reynolds, supra, the result reached here would be the same. To whatever extent the issuance of a divorce decree interferes with the practice of appellant’s religion, it does not violate an individual’s right to freedom of conscience.

Legal and academic scholars may nod with approval, either wholly or halfheartedly, the decisions of the Courts in the cases cited herein to resolve a matter involving the church and state. Hopefully, the appellant will do likewise.

If not, then we believe that the only authority best understood by appellant whose religious convictions are to be admired is to quote scripture. The appropriate passage appears in the New Testament in the Gospel of St. Matthew, Chapter 22, verse 15 to 22 which reads as follows:

Then the Pharisees went and took counsel how they might trap him in his talk. And they sent to him their disciples with the Herodians, saying, “Master, we know that thou art truthful, and that thou teachest the way of God in truth and that thou carest naught for any man; for thou dost not regard the person of men. Tell us, therefore, what dost thou think: Is it lawful to give tribute to Caesar, or not?” But Jesus, knowing their wickedness, said “Why do you test me, you hypocrites? Show me the coin of the tribute.” So they offered him a denarius. Then Jesus said to them, “Whose is this image and the inscription?” They said to him, “Caesar’s.” Then he said to them, “Render, therefore, to Caesar the things that are Caesar’s, and to God the things that are God’s.” And hearing this they marvelled, and leaving him went off.

That says it all in response to the age old conflict between civil and spiritual spheres of authority.

Order affirmed.

POPOVICH, J., concurs in the result.

      . 23 Pa.C.S. § 201(d)(l)(ii).

      . Appellant also contends that there was insufficient evidence of the irretrievable breakdown of the marriage. Upon review, we find this issue to be without merit.

      . While these non-Pennsylvania cases involve, for the most part, the First Amendment of our federal constitution, our holding herein is made only with respect to our state constitution. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

      . For other treatments of this issue by state courts see: Martian v. Martian, 328 N.W.2d 844 (N.D.1983); Trickey v. Trickey, 642 S.W.2d 47 (Tex.App.1982).

      . It is true that it was stated in Wiest v. Mt. Lebanon School District, 457 Pa. 166, 174, 320 A.2d 362, 366-61 cert. den. 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974) that: "The protection of rights and freedoms secured by this section of our Constitution, however, does not transcend the protection of the First Amendment of the United States Constitution.” Except as applicable to the facts of that case and very similar facts, that can be only dicta. State constitutional provisions have the option of expanding upon federal protections.

      . It could also be concluded, as in Sharma, supra, that acceding to appellant’s religious beliefs in this context would violate appellee’s religious beliefs and work a violation of that portion of Section 3 which states: "no preference shall be given by law to any religious establishments or modes of worship.”

      . It is not intended that the above quote from scripture be a legally binding precedent of this Court.


author: HESTER, Judge: BROSKY, Judge,

text:
    513 A.2d 990
    COMMONWEALTH of Pennsylvania, Appellant v. Matthew BULLICKI.
    Superior Court of Pennsylvania.
    Submitted Dee. 18, 1985.
    Filed Aug. 5, 1986.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Com., appellant.
    Nancy D. Wasser, Philadelphia, for appellee.
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

This is an appeal by the Commonwealth from judgment of sentence of eight months to twenty-three and one-half months imprisonment, to be followed by eight years probation, imposed following appellee’s non-jury conviction of attempted burglary. The Commonwealth argues that the sentencing judge unreasonably deviated from the sentencing guidelines, failing to consider the totality of the circumstances, in imposing a sentence which was seventeen months below the guideline range. We agree, vacate the judgment of sentence and remand for resentencing within the range of the guidelines.

On May 4, 1983, at approximately 3:00 A.M., Philadelphia Police Officer Frank Ruditis observed appellee standing on two cinder blocks, holding on to the window screen of an apartment, evidently attempting to gain entry. Appellee approached Officer Ruditis and explained that he was merely talking to his girlfriend. When Officer Ruditis checked with the resident of the apartment, the resident stated that she did not know appellee, and had not given him permission to enter her apartment. Appellee was thereupon arrested and charged with attempted burglary. Following appellee’s conviction in a non-jury trial, the trial judge retired and appellee was sentenced by a different judge. The Commonwealth filed a petition to reconsider sentence which was denied without a hearing and the Commonwealth filed this timely appeal.

When reviewing a sentence, we must consider 1) the nature and circumstance of the offense and the defendant’s history and characteristics; 2) the sentencing court’s observations of the defendant and the presentence report; 3) the sentencing court’s findings; and 4) the sentencing guidelines. 42 Pa.C.S. § 9781(d).

As to the first factor, the sentencing court considered and enumerated mitigating circumstances related to the offense and the defendant’s history; these factors were based on a psychiatric report and a presentence report. The court was advised of his family background, his military record which included service in Vietnam, his good behavior for three years while on parole, his present family situation with responsibility for two children, the fact that he had a job, the absence of any violence in his record, psychiatric treatment which he had received for a “peeping Tom” problem, and the fact that he would still be facing sentencing on his parole violation inasmuch as the instant offense constituted a violation of parole.

Countering those favorable considerations, however, is the fact that appellee had at least thirteen prior convictions including at least two for burglary. In reference to this wholesale record, the presentence investigator noted that prior short periods of incarceration had not deterred the defendant from engaging in criminal activity. The evaluative summary continued, “It should be noted that in his previous contacts with the Courts, attempts were made to provide the [defendant] with the resources to help himself. It is apparent that these attempts were fruitless.” N.T., March 6, 1984, at 29. The defendant’s prior record was characterized as lengthy, spanning several decades. The sentencing judge’s reaction thereto was to state that the “record, while numerically extensive, for the most part involved misdemeanor offenses.” Slip op., June 20, 1985, at 4.

The trial judge, due to his retirement, did not sentence the defendant. As a result, many of the factors justifying the deference normally accorded the sentencing court are not present in this case. See Commonwealth v. Scatena, 332 Pa.Super. 415, 443, 481 A.2d 855, 869 (1984), rev’d on other grounds, 508 Pa. 512, 498 A.2d 1314 (1985); Commonwealth v. McCall, 320 Pa.Super. 473, 482, 467 A.2d 631, 635 (1983) [“imposition of sentence is a matter more suitable for trial judges in light of their extensive exposure to the nature of the crime, the defendant’s character (whether he displays remorse, defiance or indifference), and both prosecution and defense witnesses”]; Commonwealth v. Long, 310 Pa.Super. 339, 348, 456 A.2d 641, 646 (1983); Commonwealth v. Kalson, 301 Pa.Super. 31, 35, 446 A.2d 1320, 1322 (1982). Although we did not observe the defendant at the sentencing hearing, we are otherwise in the same position as the sentencing judge: we were absent from the trial and must rely on the transcribed notes of testimony, the presentence report, and other documents which constitute the record in this case. Thus, we view this as a case in which a sentence outside the guidelines requires unusually strong support since it is not based on the extensive trial exposure normally possessed by the sentencing judge. See 42 Pa.C.S. § 9751.

In considering the findings upon which the sentence was based, 42 Pa.C.S. § 9781(d)(3), it appears that the defendant’s commission of this attempted burglary while on parole was deemed to be a factor justifying a sentence below the guidelines. We do not regard the fact that the defendant “was facing additional incarceration” as a consequence of the parole violation, slip op., June 20, 1985, at 5, to be a mitigating factor, particularly in view of the judge’s pronouncement at the sentencing hearing that “this Court does not take lightly to those who violate the terms of this Court’s probation and parole.” N.T., March 6, 1984, at 39.

After imposing sentence for the defendant’s fourteenth conviction, the judge stated, “this Court would take a dim view to any further criminal activity for any reason whatsoever.” Id. at 38. The eight-month sentence, well below the guidelines, is to be vacated for resentencing if it is unreasonable. 42 Pa.C.S. § 9781(c)(3). We deem it unreasonable to impose a sentence seventeen months less than the mitigated guideline range for the fourteenth offense while implying that a fifteenth offense would deserve harsh treatment.

Accordingly, we vacate judgment of sentence and remand for sentencing within the range of the guidelines. Jurisdiction is relinquished.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

42 Pa.C.S. § 9781(c) provides: “The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds ... (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.” It is clear that the sentencing court sentenced outside the guidelines (below the mitigated minimum range) in the case before us. The majority also finds, however, that the sentence is “unreasonable”. I cannot agree, and I therefore dissent.

42 Pa.C.S. § 9721 provides: “In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives ... (1) An order of probation, (2) A determination of guilt without further penalty, (3) Partial confinement, (4) Total confinement, (5) A fine---- In selecting from the alternatives set forth ... the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing____” (Emphasis added.)

In the case before us, the trial court stated its reasons for the sentence on the record. The circumstances surrounding appellee’s arrest, plus his prior history of being a “peeping tom”, indicate the possibility that he was not attempting to actually gain entry to the premises in question, but was engaging in a crime with considerably less impact on the community or on any one individual than the crime of burglary would have. The sentencing court noted that although the record was sufficient to support an attempted burglary conviction, the facts could also have led to the conclusion that appellant was being a “peeping tom” on the occasion in question. The court felt that the facts and circumstances of the offense “were not of such a serious nature as to warrant further incarceration.” The court obviously imposed a sentence which it believed was consistent with the protection of the public and the gravity of the offense as related to the impact on the victim and the community, after taking into account the sentencing guidelines.

42 Pa.C.S. § 9781(d) provides: “In reviewing the record the appellate court shall have regard for: (1) The nature and circumstances of the offense and the history and characteristics of the defendant, (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation, (3) The findings upon which the sentence was based, (4) The guidelines promulgated by the commission.” As noted previously, the circumstances of the offense along with appellee’s prior history do not indicate that a serious crime was about to take place. Certainly no great harm had been done at the time appellee was apprehended, as the victim was not even aware of appellee’s presence and had no opportunity to become alarmed. Although the sentencing judge did not preside at appellee’s trial, I cannot agree with the majority’s view that we are in practically the same position as the sentencing judge, who I believe was in a much better position than we are to evaluate appellee’s character and whether or not appellee displayed remorse, defiance, or indifference. See Commonwealth v. McCall, 320 Pa.Super. 473, 482, 467 A.2d 631, 635 (1983). Although the record contains various findings upon which the sentence was based, the majority focuses on the sentencing court’s unwillingness to impose additional prison time in the face of the additional incarceration appellee would be receiving for violation of parole.

“Where the statute under which a defendant is convicted carries no specified penalty, sentencing is a matter within the sound discretion of the trial judge, whose determination will not be disturbed absent an abuse of that discretion.” Commonwealth v. Bedleyoung, 319 Pa.Super. 323, 331, 466 A.2d 180, 184 (1983). I believe that the majority is giving insufficient consideration to the first three factors of 42 Pa.C.S. § 9781(d), undue weight to the guidelines, and no discretion to the lower court. I do not believe that the sentence imposed was “unreasonable”, and I would therefore affirm the judgment of sentence.


author: WICKERSHAM, Judge:

text:
    513 A.2d 993
    In re ESTATE OF Melba F. WOOD Alleged Incompetent. Appeal of William J. IRVIN.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Aug. 5, 1986.

      Carl N. Weiner, Lansdale, for appellant.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

William J. Irvin appeals from the order of the Court of Common Pleas of Montgomery County denying his petition for appointment of a guardian for the estate of Melba F. Wood.

Melba Wood is a widow in her mid-eighties who is institutionalized in a nursing home. On July 2, 1984, she revoked the power-of-attorney previously given to her niece by marriage, Bertha Irvin, the wife of appellant. She then entered into an intervivos trust agreement with the Union National Bank and Trust Company of Souderton, in which she agreed to turn over all her property to the Bank, and in return, the Bank would pay to her the income and as much of the principal as the Bank determined was necessary for her support for her remaining lifetime.

On July 24, 1984, appellant filed a petition under section 5511 of the Decedents, Estates and Fiduciaries Code, 20 Pa.C.S. § 101, et seq. to adjudge Mrs. Wood incompetent and to appoint Bertha Irvin as guardian for her estate. A hearing on the petition was held on September 28, 1984, at which time the petition was denied for insufficient evidence to support a finding of incompetency. Exceptions were filed by appellant on October 9, 1984. On October 30, 1984, before the exceptions were ruled upon by the court below, appellant filed this appeal.

On appeal, appellant raises the following three issues:

1. Is the affidavit of the treating physician at the alleged incompetent’s nursing home admissible into evidence?
2. Is testimony other than medical testimony relevant in determining legal incompetence?
3. Was there sufficient evidence to declare the appellee incompetent?

Brief for Appellant at 3.

Wé cannot reach the above issues, however, because we find appellant’s appeal to be untimely. It is well-settled that an appeal properly lies only from a final order unless otherwise permitted by statute. Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985). The record and docket entries in the instant case, as relevant herein, reflect the following:

1984 Sept. 28 Order entered dismissing Petition for Appointment of guardian of the estate.

1984 Oct. 9 Exceptions to adjudication entered.

1984 Oct. 10 Transcript of Notes of Testimony filed. Hearing held Sept. 28, 1984.

1984 Oct. 30 Notice of appeal filed.

1984 Nov. 8 Order entered deferring argument until resolution of the appeal.

It is apparent that this appeal is interlocutory. Before argument could be scheduled on the exceptions, appellant perfected an appeal to our court. As the lower court notes in its opinion of February 4, 1985, it “considered that the appeal had the effect of rendering this court ‘no longer (able) to proceed further in the matter,’ ” citing Pa.R.A.P. 1701(a). Lower ct. op. at 1. The lower court goes on to recognize the interlocutory nature of this appeal, as should we. From the state of the record, the appeal should have been stayed pending argument on the exceptions. See Pa.R.A.P. 1701(b)(6). However, it was not, and at this stage, we must quash and remand for argument on the outstanding exceptions.

The opportunity to resolve disputes under Pa.R.C.P. 227 and 227.1 is an essential aspect of the appellate process designed to effect the resolution of controversies, if possible, before they reach this court, and to clarify the issues on appeal. Since this appeal was taken before the exceptions were decided by the trial court, the order, on its face, is interlocutory. Kaiser v. 191 Presidential Corp., 308 Pa.Super. 301, 454 A.2d 141 (1982). Where an appeal has been filed from an interlocutory and nonappealable order, we are required to quash that appeal, having no jurisdiction to entertain it. Commonwealth ex rel. Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976 (1983). See also Board of School Directors v. Kassab, 69 Pa.Commw. 65, 450 A.2d 282 (1982) (no appeal will lie from decision of trial judge sitting without jury unless exceptions to decision are filed and disposed of by court below); Pennsylvania Orphans’ Court Rule 7.1; Montgomery County Orphans’ Court Rule 7.1 B.

Appeal quashed. Case remanded to the lower court for proceedings not inconsistent with the opinion. Jurisdiction is relinquished.


author: OLSZEWSKI, Judge:

text:
    513 A.2d 995
    COMMONWEALTH of Pennsylvania v. Michael UPCHURCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 8, 1986.
    Filed Aug. 7, 1986.

      Martin W. Bashoff, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

The appellant, the first of three, appeals the result of sentencing from the crimes of criminal conspiracy, possessing an instrument of crime, robbery and murder, second degree, for which he was found guilty by a jury. This appeal raises numerous issues, which, after a careful review, we reject. All appellant’s allegations, however, will be addressed seriatim.

The facts, as taken from the trial court, reveal the following. On Saturday, July 9, 1983, at approximately 2:00 a.m., seventeen-year-old Thomas Murphy was shot while riding his ten-speed bicycle in the 7200 block of Woodland Avenue in West Philadelphia. In an effort to avoid his attackers, Murphy continued to pedal his bike crossing the city line into Darby, Delaware County. At a distance of approximately 900 feet from the point of attack, Murphy crashed into a parked car and collapsed to the ground. Cynthia Leonard observed the victim as he rode past her apartment building on Main Street in Darby. Leonard ran over to Murphy when he crashed into the car and observed two bullet holes in his body. Leonard also heard Murphy state, “A Nigger shot me.” (N.T. 306, 1-10-84).

Murphy was rushed to Fitzgerald Mercy Hospital where he was pronounced dead approximately three hours after the attack. An autopsy performed by the Delaware County Medical Examiner, Dr. Dimitri Contostavlos, on July 9, 1983, revealed the cause of death to be loss of blood due to two gunshot wounds to the trunk. The manner of death was ruled a homicide.

At trial, the Commonwealth’s evidence established that at approximately 2:00 a.m. on July 9, 1983, Thomas Murphy left the house of his girlfriend, Colleen Doogan, located in the 6100 block of Wheeler Street, and began to pedal home on his bicycle. (N.T. 302-303, 1-10-84). At approximately the same time, the defendants Joseph Council, Michael Upchurch and Michael Johnson, along with one Mary Alice Smith, were exiting the Birthday Bar located at 7250 Woodland Avenue. (N.T. 231-233, 1-10-84). Upon observing Murphy on the bicycle, defendant Council stated, “Here comes a white boy. Let’s get him.” (N.T. 205, 337, 1-10-84). Shortly after these words were uttered, defendant Upchurch pulled out a revolver and fired two shots at Murphy, striking him in the chest and in the back. (N.T. 425, 1-11-84). As the victim continued to ride away, all three defendants, as well as Mary Alice Smith, fled the scene.

Acting on information supplied by Smith, the police obtained arrest warrants for the defendants. Michael Johnson and Joseph Council were arrested on July 22, 1983. Michael Upchurch was apprehended on the following day, July 23, 1983.

Defendant Upchurch was charged under September Term, 1983: no. 634 criminal conspiracy; no. 635 possession of an instrument of crime, generally; no. 636 robbery; no. 637 involuntary manslaughter; and no. 638 murder, voluntary manslaughter. The bills charging involuntary manslaughter were subsequently nolle pressed as to all three defendants.

On January 4, 1984, the defendants’ motion to suppress an arrest and oral and written statements were heard with the Hon. Albert F. Sabo presiding. On that same date, the defendants’ motions were denied.

On January 9, 1984, upon being arraigned, defendants pleaded not guilty as to all bills. The jury, having been duly impanelled, was sworn and/or affirmed and the trial proceeded before the Hon. Albert F. Sabo. As to defendant Upchurch, the jury returned a verdict of guilty, murder in the second degree; guilty, robbery; guilty, criminal conspiracy; and guilty, possession of an instrument of crime. Sentencing was deferred pending the disposition of post-trial motions. Presentence investigations and psychiatric evaluations were ordered. Defendant Upchurch was sentenced on bill no. 638 to life imprisonment at the State Correctional Institution at Graterford; on bill no. 634 to not less than five nor more than ten years to run consecutive to bill no. 638; on bill no. 635 to not less than two and one-half nor more than five years to run consecutive to bill no. 634; and bill no. 636 merged with bill no. 638 for sentencing purposes. Upchurch was also assessed $15.00 towards the Victim’s Compensation Fund.

I.

Appellant’s first issue deals with the court’s denial of his motion to suppress his confession. He alleges that during questioning, he was interviewed by two different police personnel, Detective Dougherty at first and then Officer Riley. He was advised of his Miranda rights by Detective Dougherty (N.T. 198-199). Appellant contends now that he should also have been mirandized before speaking with Officer Riley, to whom he gave the statement he wants suppressed. We disagree.

The appellant correctly sets out the criteria to be evaluated in reviewing this issue as: (1) the time lapse between the last Miranda warnings and the appellant’s statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the appellant’s statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the appellant’s statement; and (5) whether the statement elicited during the complained-of interrogation differed significantly from other statements which had been preceded by Miranda warnings. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971).

The time difference here was four and one-half hours and the move was between rooms of the same building. The detective was initially present when Officer Riley took over so there was a minimal break of continuity. In addition, the second statement did not differ significantly from other statements but rather differed in degree of culpability. We therefore decline to find reversible error.

II.

Next, appellant argues that a mistrial should have been declared after a Commonwealth witness testified about a polygraph test.

In Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), the Pennsylvania Supreme Court held that any reference to a polygraph examination which raises an inference concerning either guilt or innocence of an accused is inadmissible. As such, our Courts have been reluctant to permit any reference to the polygraph to be made before the finder of fact, Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977), and will not allow a conviction to stand. See Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971).

The comment by Officer Riley cannot be found prejudicial. It was not prompted by the question and was elicited in testimony regarding appellant’s interview and not testimony concerning guilt or innocence. No results were indicated and it is not even clear that the test was given, merely that Officer Riley used a form also used by the Polygraph Unit. Given the form of the question and the attempt by the officer to rephrase her answer along with having it stricken by the court, we find no prejudice.

III.

The third issue alleges trial court error in not permitting defense counsel to question a Commonwealth witness as to his past juvenile record. The objective of this cross-examination was to impeach the witness’ credibility..

Our Courts have consistently held that a witness in a criminal trial may not be impeached by use of a prior adjudication of delinquency. Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973); Commonwealth v. Dom-brauskas, 274 Pa.Super. 452, 418 A.2d 493 (1980); Commonwealth v. Pilosky, 239 Pa.Super. 233, 362 A.2d 253 (1976). We will not deviate from this rule now.

IV.

Appellant’s next issue dealing with the competency of Commonwealth witness Stanley Hackney is in two parts; first, the court’s determination that appellant was competent to testify and second, whether the Commonwealth was properly allowed to lead the witness.

The Court in Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) sets out the law in the area of competency:

A determination of testimonial competency rests in the sound discretion of the lower court. Commonwealth v. Ware, 459 Pa. 334, 356, 329 A.2d 258, 269 (1974). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will as shown by the evidence or the record, discretion is abused.” Commonwealth v. Moyer, 497 Pa. 643, at 647, 444 A.2d 101, at 103 (1982). The burden of proving incompetency rests on the party opposing the witness, Commonwealth v. Ware, supra.
In order to be testimonially competent, a witness must have the ability to (1) perceive the event with a substantial degree of accuracy, (2) remember it, (3) communicate about it intelligibly, and (4) be mindful of his duty to tell the truth under oath.

A review reveals that the court examined Hackney’s preliminary hearing testimony and medical reports. In addition, the court conducted an in camera colloquy in which it was determined that the witness knew the difference between right and wrong and the importance of telling the truth. (N.T. 316-324, 329). There was no abuse of discretion in allowing Hackney to testify.

With respect to the second part, the use of leading questions lies within the sound discretion of the trial court and a court’s tolerance or intolerance of the leading questions will not be reversed absent an abuse of discretion. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984); Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 422 A.2d 1126 (1980).

In the present situation, the use of leading questions was discussed at side bar after a defense counsel objection. The court stated its reasons for allowing the questions and warned the prosecutor to stay within proper bounds and not to suggest an answer. (N.T. 355). Again, we cannot find an abuse of discretion to warrant appellant’s desired relief.

Y.

Appellant’s nwxt issue also concerns testimony of Hackney. This issue contends that the lower court erred in allowing testimony that Hackney had never before testified in proceedings concerning this matter to stand uncorrected.

The record discloses that two police officers testified that Hackney appeared at the preliminary hearing. (N.T. 480, 716-718). In addition, defense counsel had the opportunity to impeach Hackney on this point by cross-examination and through the use of the preliminary hearing transcript. The jury, therefore, was aware of Hackney’s previous court appearance. As such, appellant’s argument must be deemed meritless.

VI.

Our discussion now turns to pre-trial discovery. Appellant asserts that he should have received criminal extracts of all witnesses, ballistics reports, medical examiners’ reports, statements made by the Hackney brothers and the information that the victim’s shirt had been destroyed.

It is undisputed that the purpose of discovery is to insure a fair trial to all parties. The United States Supreme Court case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), set the gears in motion for defense rights to state information. Brady mandated that certain evidence in the hands of prosecutors be given to the accused. Specifically, a prosecutor must not suppress evidence favorable to the accused when the evidence is material to guilt or punishment. Brady 373 U.S. at 87, 83 S.Ct. at 1197. Since this decision, courts have struggled to comply with and interpret Brady. In our review, we must keep in mind that questions involving pre-trial discovery in criminal cases lie generally within the discretion of the trial judge and his actions will not be reversed unless such discretion was abused. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963).

We quickly dispose of the controversy surrounding the destroyed shirt. The Commonwealth states, and the trial court agreed, that the first time anyone knew anything about the shirt being destroyed was at trial. Since this information was not in the hands of the prosecutor, it could not be turned over to the defense.

A review of the record reveals that defense counsel was given a copy of the ballistics report during trial but in advance of the expert testimony. (N.T. 183-189). We do not know of any prejudice as a result of this late filing and none is alleged by appellant. Appellant’s claim, therefore, must be denied.

With regard to the discovery of statements by the Hackney brothers, the lower court determined that some of the interviews were not reduced to writing and therefore were not discoverable. Those statements that were put in writing were in reference to another crime and not to their testimony; hence, they were not discoverable.

It is the decision of this Court that there were no pre-trial discovery violations and all of appellant’s arguments are meritless.

VII.

We now address appellant’s contentions relating to prose-cutorial misconduct. This issue can be broken down into four subparts, each to be disposed of independently.

A.

First, it is argued that the prosecutor’s closing argument was improper by using terms such as “executioner” and making reference to “unsafe streets.”

Initially, we note that the Commonwealth is allowed reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). The court in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873, further clarified this area in declaring:

But even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa.Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also Commonwealth v. Myers [Meyers], 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra.

While we agree with the lower court that the comments made by the prosecutor were borderline improper, we do not agree with the appellant that they were so prejudicial as to make it impossible for the jury to render a true verdict.

B.

Second, it is argued that the prosecutor should not have elicited testimony concerning alleged threats against Hackney and should not have misled the court to believe no deal had been struck with Hackney. We fail to see how appellant was harmed or prejudiced in any way. The only promise made to Hackney was a statement by the prosecutor at Hackney’s sentencing that he did testify in the present case. This is not sufficient to infer that his testimony was forced or induced. See Commonwealth v. Bulovas, 301 Pa.Super. 55, 446 A.2d 1332 (1982).

C.

Third, appellant contends the prosecutor introduced evidence concerning an unrelated weapon. Again, appellant does not allege any prejudice and harm. The jury was immediately told to disregard this testimony and all other references to a weapon were limited to the murder weapon — a .22 caliber.

D.

Lastly, the appellant advances the argument that the prosecutor misled the court regarding the granting of immunity for Mary Alice Smith, an eyewitness. At the preliminary hearing of August 10, 1983, Smith appeared. Shortly after she admitted her presence at the Birthday Bar at the time of the crime, the court stopped the hearing to appoint counsel for her. With the aid of counsel, Smith invoked the fifth amendment. The prosecutor then announced that he would “seek immunity” for her (N.T. 8-10-83, 33, 34, 38). The prosecutor drew up an immunity petition, which was signed by the Honorable Edwin S. Maimed. On August 30, the second listing of the preliminary hearing, the prosecutor, carrying the petition, met Smith and her attorney. He told them that if Smith testified according to her pre-trial statement, she would enjoy full immunity. Conversely, if she gave false testimony, he would withdraw the immunity offer. Smith would not agree to testify “in conformity with the statement.” Accordingly, to prevent extending a judicial sanction to testimony which he believed would be perjury, the prosecutor withdrew the immunity. (N.T. 679-681).

Appellant argues this coerced Smith into silence. We do not agree. As stated in Commonwealth v. Sklar, 497 Pa. 404, 441 A.2d 1201 (1982):

When an attempted abuse of the immunity grant becomes apparent, it is only proper that the granting official revoke the immunity. Therefore, the United States Attorney acted properly in this case when he declared that he would not be bound by the original offer of immunity....

The prosecutor’s actions, therefore, were within bounds.

VIII.

Our next inquiry is whether the appellant voluntarily signed his confession. This was not delved into at trial because the lower court ruled that it was a matter which should have been raised during the suppression hearing. Appellant’s sole argument is that since appellant suffered from hardening of the arteries, his will to resist may have been impaired. We affirm the lower court’s decision that this issue was waived. See, Commonwealth v. DeLeon, 276 Pa.Super. 76, 419 A.2d 82 (1980).

IX.

Appellant avers that the lower court improperly removed from the jury’s consideration the possibility of returning a voluntary manslaughter verdict by stating: “(I)n my opinion, under the facts and circumstances of this case, voluntary manslaughter would not be an appropriate verdict.” (N.T. 875). Most importantly, however, was the judge’s instructions that voluntary manslaughter was an allowable verdict (N.T. 859) and that the jury was free to ignore the court’s opinion (N.T. 875). This conforms to our criteria in Commonwealth v. Cole, 274 Pa.Super. 106, 417 A.2d 1276 (1979):

When a defendant charged with murder requests a charge on voluntary manslaughter, the trial court may give its opinion on whether the facts show that the defendant committed voluntary manslaughter if the evidence supports the court’s opinion, the court fully informs the jury of its power to return a verdict of guilty of voluntary manslaughter, regardless of whether the facts support that verdict, and if the court instructs that the jury is the finder of facts and is not bound to follow the court’s opinion. Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979) (plurality opinion) (citing cases).

X.

The appellant’s dispute with the voir dire is two-fold. First, he asks us to find error in the court’s denial of a defense challenge for cause of Juror 77, Leonard Kaminski, and second, the denial of defense counsel’s right to examine Juror 67, Dorothy Heebner, before granting the prosecutor’s challenge for cause.

In a voir dire determination, it is important to consider the answers as well as the demeanor of potential jurors as observed by the trial judge. As such, reversal is appropriate only in circumstances of apparent error. See Commonwealth v. Johnson, 299 Pa.Super. 172, 445 A.2d 509 (1982). The Johnson Court also stated when a potential juror should be excused for cause:

A prospective juror should be excused for cause in two situations:

The first is where the prospective juror indicates by his answers that he will not be an impartial juror---- The second is where, irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the juror has such a close relationship, be it familial, financial, or situational, with any of the parties, counsel, victims or witnesses. Commonwealth v. Stamm, 286 Pa.Superior Ct. 409, 429 A.2d 4, 7 (1981), quoting Commonwealth v. Colon, 223 Pa.Superior Ct. 202, 299 A.2d 326 (1972).

Juror No. 77, Leonard Kaminski, was extensively questioned on voir dire (N.T. 3.43-3.51). During that time he stated that although he had read about the crime, he could not remember all the facts and knew he could be fair and impartial. (N.T. 3.47). Furthermore, he positively stated that he could presume the three men innocent. Mr. Kaminski, therefore, does not fall with the first situation in which a juror should be excused for cause. The court, then, did not abuse its discretion.

Similarly, we find no palpable abuse of discretion with respect to Juror 67, Dorothy Heebner. It is within the discretion of the trial court what questions will be asked, Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984) or if any questions will be asked by counsel. See Pa.R.Crim.P. 1106(d). Since the trial court had already made up its mind as to prejudice and the challenge for cause, we would not require him to allow additional questions.

XL

The final issue challenges the sufficiency of the evidence of the conviction on the robbery charge. The test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all reasonable inferences therefrom upon which the jury could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which the appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979).

We find that this allows the conviction for robbery to stand. Appellant satisfied the elements of robbery as set out in 18 Pa.C.S.A. Sec. 3701(a)(1), (2) when he shot the victim in an attempt to take his bike. Therefore, appellant’s argument is meritless. Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . We take interest in the fact that appellant signed a consent form before speaking with Officer Riley informing him of his rights.

      . The complained about referenced was in a response by Office Diane Riley by Commonwealth attorney King:
      Q. Before interviewing Mr. Upchurch, what if anything did you do to assure yourself that he had been given his constitutional warnings?
      A. I have a—
      The Polygraph Unit has a form that has to be filled out by the sub — Excuse me, the Unit has to have a form that’s been — (N.T. 418-419, 1-11-84).

        . Appellant argues that he has a right to cross-examine and impeach Commonwealth witnesses. Our decision does not hamper that objective. The witness here had an adult record and charges pending that were brought out and open for impeachment.

      . See e.g., Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); United States v. Ahmad, 53 F.R.D. 186 (M.D.Pa.1971); Commonwealth v. Barnes, 463 Pa. 259, 344 A.2d 821 (1975); Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977).

      . There was some mention by the prosecutor at the time of disclosure that he had received the report that morning. Whether it was the copies he received or whether he had access to the report previously is unclear.

      . Neither does he fall within the second situation. There is no allegation of a prejudice because of a close relationship of any kind.


author:
OLSZEWSKI, Judge:
      WIEAND, Judge,

text:
    513 A.2d 1003
    COMMONWEALTH of Pennsylvania v. Joseph COUNCIL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 8, 1986.
    Filed Aug. 7, 1986.

      Anita M. Cohen, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

Before us today is the appeal of Joseph Council following his conviction by a jury for the crimes of murder in the third degree, robbery, and criminal conspiracy. This is the second case in a trilogy, all involving the same facts. The first case, Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995, also decided today, satisfactorily sets forth all pertinent facts. In addition, with respect to appellant, we note:

Defendant Council was charged under September Term, 1983: no. 629 criminal conspiracy; no. 630 possession of an instrument of crime, generally; no. 631 robbery; no. 632 involuntary manslaughter; and no. 633 murder, voluntary manslaughter. Council was sentenced on bill no. 633 to not less than ten nor more than twenty years at the State Correctional Institution at Graterford; on bill no. 631 Council was sentenced to not less than ten nor more than twenty years to run consecutive to bill no. 633; and on bill no. 629 Council received not less than five nor more than ten years to run consecutive to bill no. 631. The defendant was assessed $15.00 towards the Victim’s Compensation Fund.

Many of the allegations of error raised by appellant Council have been addressed adequately in the companion case, Commonwealth v. Upchurch. Pursuant to that, we deem it unnecessary to once again discuss the same issues. Those issues affirmed in Upchurch and affirmed with respect to Council through the adoption of our reasoning in Upchurch are as follows: (a) that the Commonwealth acted improperly in: withholding discovery, allowing uncorrected false testimony to go to the jury, introducing testimony of an unrelated weapon, introducing testimony regarding a polygraph, presenting its closing argument; (b) that the trial court acted improperly in: ruling Andre Hackney competent to testify, the procedure followed in making the above ruling, allowing the Commonwealth to lead Andre Hackney, allowing to go uncorrected false testimony, not enforcing pre-trial discovery, allowing the prosecutor to give an improper closing, charging the jury about its opinion as to the evidence of manslaughter, refusing to excuse Leonard Kaminski for cause, not allowing the appellant’s counsel to cross-examine prospective juror Dorothy Heeb-ner for cause, limiting cross-examination of Andre Hackney; and (c) that there was sufficient evidence to sustain a conviction for robbery.

Our inquiry, then, deals only with those arguments raised solely by appellant Council and not otherwise addressed.

I.

First, we consider appellant’s contention that the prosecutor engaged in a pattern of rude and abusive conduct towards the defense. With this, we also consider appellant’s argument that the court erred in allowing the prosecutor to be abusive to counsel throughout the trial.

A review discloses that some of the statements were not made as a result of good judgment, but not every unwise statement warrants reversal. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). The effect of such remarks depends upon the atmosphere of the trial and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Stoltzfus, supra. In the heat of the fray, it is unfortunate that extraneous comments are made. Commonwealth v. Hernandez, supra.

In the case sub judice, many of the comments were made outside the jury’s province. Comments made during objections were admonished by the judge if necessary. Neither side was entirely professional, but we fail to see how the occasional outbursts unduly inflamed the jury’s objectivity. We do suggest, however, that all parties involved refrain from creating an atmosphere that would elicit such statements.

II.

The next issue for review concerns testimony of appellant’s possible involvement with drugs. Appellant argues that the court and prosecutor impermissibly educed testimony that appellant called the victim over to buy some joints. The purpose for this information, it was revealed at side bar, was motive, that the drugs were a “gimmick” to lure the victim. (N.T.340).

Pennsylvania Courts have said on this issue that:

... where the evidence is most relevant, the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1973). Thus, evidence of other crimes has been admitted where that evidence tends to prove motive or intent, Commonwealth v. Terry, 462 Pa. 595, 600, 342 A.2d 92 (1975).

(Quoted in Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982)). This is the situation presently before us and we do not find any error.

III.

An alleged threat made to witness Andre Hackney is the next issue raised by appellant. The record shows that the trial judge allowed the prosecutor to question the witness as to a threat made to Hackney. An objection, however, kept the witness from answering. (N.T. 557). A side bar followed (N.T. 557-565) and any further testimony concerning threats was made in camera. (N.T. 566-613). The jury was then instructed to disregard the last question (N.T. 613). Since this testimony was outside the jury, we cannot find error on either the prosecutor’s or judge’s part.

IV.

We next discuss the decision by the trial court not to sever appellant’s trial from that of his co-defendants. Appellant argues that a joint trial of three defendants resulted in prejudice: first, because lengthy in-chambers conferences before many of the Commonwealth witnesses testified led to boredom and frustration on the part of the jury; second, a commitment to a joint trial, no matter how unfair, had to be carried out or risk a mistrial that would bar a retrial of the defendants; and third, appellant contends that the prosecutor improperly used the statement of a co-defendant to incriminate him. This occurred when the prosecutor, during his opening argument, used a statement by Michael Upchurch to the effect that he (Upchurch) admitted being at the scene and hearing another co-defendant say, “Here comes a white boy, let’s get him.” Since the prosecutor later excluded co-defendant Johnson as the speaker, this left appellant as the incriminated utterer.

Initially, we must review this issue taking into consideration that whether or not defendants will have separate trials lies within the sound discretion of the trial court, whose judgment will not be disturbed absent a manifest abuse of that discretion. Commonwealth v. Tolassi, 258 Pa.Super. 194, 392 A.2d 750 (1978). In addition, a joint trial is especially permissible, and even advisable, when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to all defendants. Commonwealth v. Norman, 272 Pa.Super. 300, 415 A.2d 898 (1979). So, too, is a joint trial appropriate where there is a conspiracy alleged. Commonwealth v. Tolassi, supra.

With the case presently before us, we find no abuse of discretion. Clearly, the charges were the result of the same incident. Many of the same witnesses would testify and much of the evidence would apply to all three. Severance would have resulted in unnecessary repetition. The propriety of a joint trial gains further support since the defendants were also charged with a conspiracy.

Despite the above rationale affirming the decision to deny the motion for severance, we are obligated to take a closer look at the argument concerning redaction.

Our Court, in Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979) stated:

In Johnson, our supreme court quoted with approval the court of appeals in United States v. Brown, 160 U.S.App.D.C. 190, 210, 490 F.2d 758, 778 (1974):
“It has been recognized that an efficient method of avoiding unnecessary prejudice where the declarant’s state of mind is otherwise relevant is to delete the offensive portions of the statement ... Presumably if the statement could not be so altered without completely losing its sense it must be excluded ...
“As with most evidentiary questions, especially those involving ‘balancing,’ substantial deference to the trial judge’s discretion must necessarily be afforded.” Commonwealth v. Johnson, supra, 474 Pa. 410 at 412, 378 A.2d at 859, 860. (emphasis added).

This Court has also stated that redaction is not always effective in relieving prejudice to the accused and that other remedies are required. Commonwealth v. Norman, supra. As in Norman, appellant avers this is such a case. We do not agree. In so deciding, we follow our reasoning in Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980). Appellant was not mentioned specifically by name. While one defendant was excluded by name, that still left two participants — appellant and Mary Alice Smith — who could have been the speaker. This statement alone does not incriminate appellant. We, therefore, find no abuse by the trial court in handling this situation either in the prosecutor’s opening, during examination, or in the motion to sever.

y.

Finally, we turn to the issue in which appellant charges that the court reflected a settled prejudice against the defense thereby resulting in an unfair trial to appellant. The instances cited as support are: failure to act on or rule on pre-trial motions, refusal to allow counsel to observe the Sabbath, and calling counsel a liar.

The first claim is a bare allegation with no supporting facts. No prejudice or harm is shown. With respect to the second claim, the record reveals that it occurred at the end of trial while the jury was deliberating. The trial court was attempting to force two defense attorneys to be available on their Sabbath should the jury reach a verdict on that day. We do not decide the propriety of that action as to the attorneys. We find, however, no harm or prejudice to the appellant. The actions of the court in no way affected his trial. So, then, this claim must fail. A review of the record further reveals that the last claim is also meritless. A heated discussion took place concerning the availability and absolute necessity of a defense witness but the ensuing conversation did not rise to the level of animosity and partiality alleged by appellant.

Conclusion

As with the companion case of Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1984), we find that appellant received a fair trial. Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur in the result reached by the majority. However, I write separately to express a different analysis of Issue II. At trial, Stanley Hackney testified that appellant had told him that when appellant and his friends exited the bar and saw the victim coming down the street, appellant called to the victim and asked if he wanted to purchase some marijuana. When the victim did not respond, one of the defendants shot him. The majority holds that the question about the purchase of drugs was properly received because it was relevant to prove motive. I am unable to agree with this reasoning. The killing in this case was not related to a drug sale. The offer of a drug sale was merely a pretext to have the victim stop so that he could be assaulted by appellant and his friends. I would hold that this evidence was admissible, not as evidence of motive, but as part of the same criminal transaction or episode for which appellant was being tried. It was, in my judgment, “ ‘one of a sequence of acts, or ... part of the history of the event on trial, or ... part of the natural development of the facts.’ ” Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975), quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932).

I concur in the result.

      . Redaction has been defined as any revision or editing. In a legal sense, however, it indicates the alteration of a confession to excise any reference by one joint defendant to any co-defendant. Commonwealth v. Johnson, 474 Pa. 410, 411 N. 1, 378 A.2d 859, 860, N. 1 (1977).


author: KELLY, Judge:

text:
    513 A.2d 1008
    COMMONWEALTH of Pennsylvania v. Derek GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed Aug. 7, 1986.

      See also 469 A.2d 552.

      Martha Aleo, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before KELLY, MONTGOMERY, and HESTER, JJ.
   KELLY, Judge:

Court-appointed counsel for the appellant has filed a brief containing a request that she be permitted to withdraw from the case. Because we find that counsel has failed to comply with the minimum requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and their progeny, we deny the request.

The instant case has travelled a long and twisted path through the courts of our Commonwealth for the past twelve years. The appellant was arrested on January 5, 1974, and charged with a variety of offenses in connection with a failed attempt by the appellant and a cohort to commit an armed robbery of Flynn’s Bar in Philadelphia. On August 14, 1974, the defendant waived the provisions of Pa.R.Crim.P. 1100(a)(1) in order that pending murder charges could be disposed of prior to proceeding to trial on the charges in the instant case.

On November 8, 1976, the appellant was arraigned, pleaded not guilty, and was brought to trial. On November 12, 1976, the jury convicted the appellant of Robbery, Conspiracy, and Possession of an Instrument of Crime. Post-trial motions were filed and denied. On June 6, 1977, the appellant was sentenced to an aggregate term of imprisonment of ten(10) to twenty(20) years which was to be served consecutively to the sentence he was then serving. A timely notice of appeal was filed.

This Court affirmed the judgment of sentence in an opinion filed on March 23, 1979. See Commonwealth v. Green, 264 Pa.Super. 472, 400 A.2d 182 (1979). Petition for allowance of appeal to the Pennsylvania Supreme Court was filed on April 11, 1979 and denied on October 2, 1979.

On May 1, 1980, the appellant filed his first PCHA petition. Counsel was appointed, and filed an amended petition on June 1, 1981. A hearing was scheduled on the petition for November 30, 1981. However, prior to the start of the hearing, the Assistant District Attorney informed the PCHA judge that:

... an opinion [had] been handed down by the Superior Court in a companion case. Both these cases involved a Rule 1100 waiver made on the same day, same colloquy, same reason for the continuance and in that [opinion] the Superior Court said the issue had been finally litigated.

(N.T. 11/30/81 at 2). Counsellor the appellant acknowledged that “[t]he case is on point and it does discuss the issues I was going to raise____” (N.T. 11/30/81 at 2-3). Counsel then spoke with the appellant and decided to file a motion to withdraw the petition, without prejudice to refile, in order that the Superior Court opinion alluded to could be appealed to the Pennsylvania Supreme Court. The motion was granted, as was counsel’s request to withdraw as counsel. (N.T. 11/30/81 at 3-4).

On March 2, 1984, the appellant filed a second PCHA petition. On March 30, 1984 counsel was appointed to represent the appellant. On January 30, 1985 counsel for the appellant filed a one page memorandum which stated:

On March 30, 1984, I was appointed to represent the above named Defendant in his effort to obtain relief under the Post Conviction Hearing Act.
After having reviewed the file, reading the notes of testimony, and conferring with Mr. Green, I have determined that every issue of arguable merit has been waived or finally litigated.
Therefore, no Amended Petition will be filed in this matter.

On February 6, 1985 the PCHA petition was denied. Notice of appeal was filed on February 11, 1985, and PCHA counsel was permitted to withdraw from the case on February 20, 1985.

On November 20, 1985, appellant’s current counsel made her initial appearance. On December 16, 1985, the appellant filed a brief containing a request that she be permitted to withdraw from the case. On February 14, 1986 the Commonwealth filed an informal response brief in accordance with Commonwealth v. Oliver, 479 Pa. 147, 150, 387 A.2d 1266, 1267 (1978), which stated that “for the reasons set forth in defense counsel’s brief and in the opinion of the lower court, the Commonwealth is of the view that the defendant’s appeal should be dismissed.” (Appellee’s Brief at 2). The motion is now properly before us for disposition.

Regrettably, the twelve year odyssey of this case through the courts of this Commonwealth has not yet reached its end. Succinctly, counsel for appellant has failed to meet the requirements of Anders, McClendon, and their progeny. Consequently, we must deny the motion to withdraw.

Initially we note that counsel’s motion to withdraw is properly before this Court for disposition even though “an Anders brief is not a petition.” See Commonwealth v. Thomas, 354 Pa.Super. 87, 89, 511 A.2d 200, 201 (1986). Our Supreme Court has previously stated:

Although we believe the more desirable practice would be to submit a separate withdrawal request to the court, we may still, in the present case, treat counsel's “memorandum” in the brief itself as such a request.

Commonwealth v. Baker, 429 Pa. 209, 214, 239 A.2d 201, 203 (1968). Consequently, we find that the counsel’s motion is properly before this Court for review on its merits. Accord Commonwealth v. Bradley, 311 Pa.Super. 160, 457 A.2d 544 (1983); but see Commonwealth v. Murray, 320 Pa.Super. 77, 79, 466 A.2d 1070, 1071 (1983) (Concurrence by Beck, J.) (request to withdraw in brief improper).

Pennsylvania law concerning procedures to be followed when a court appointed attorney sees no basis for an appeal is derived from the seminal case of Anders v. California, supra. Anders was adopted in Pennsylvania in Commonwealth v. Baker, supra, wherein Anders was read as offering two choices to the court-appointed advocate: 1) counsel may file briefs and argue the case on behalf of the client as an advocate; or 2) counsel may choose to withdraw his services, in which case he must adhere to the Anders procedure. See Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984), petition for allowance of appeal granted January 7, 1985.

“As the courts of this Commonwealth have stated in the past, before appointed counsel may withdraw from an appeal, he must, after a thorough examination of the record make a determination that the appeal is wholly frivolous and then, 1) request permission of the court to withdraw; 2) accompany his request with a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of such brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel.” Commonwealth v. Worthy, 301 Pa.Super. 46, 48, 446 A.2d 1327, 1328-29 (1983) (emphasis deleted); Commonwealth v. Martinez, 319 Pa. Super. 346, 466 A.2d 192 (1983).

The Anders procedures apply to post-conviction proceedings as well as appeals therefrom. See Finley, supra; accord Commonwealth v. Coley, 350 Pa.Super. 549, 504 A.2d 1286 (1986); Commonwealth v. McGeth, 347 Pa.Super. 333, 500 A.2d 860 (1985); cf. Thomas, supra (Anders applied to appeals following sentence upon parole revocation); Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050, 101 S.Ct. 1771, 68 L.Ed.2d 247 (1981) (Anders applied to appeals from administrative orders revoking parole).

Counsel for the appellant has filed a brief in the instant case which states:

Conclusion
Based on a careful review of the record and the applicable law, counsel is not able to support argument for the requested relief. Counsel requests permission to withdraw her representation. Counsel requests that the appellant be allowed additional time to retain private counsel and/or submit a pro se brief. A copy of this brief has been forwarded to the appellant with instructions that if he wishes to retain private counsel or raise additional arguments or points, he must promptly communicate with the court.

(Brief for Appellant at 7). Counsel went on to certify that a copy of the brief was served upon the appellant by U.S. Mail at his prison address. (Brief for Appellant at 8).

This motion provides no basis for this Court to grant counsel’s request, as it falls short of the requisite standards in several respects. We shall consider each of the separate requirements of the Anders procedures, seriatim.

I.

The first requirement under the Anders procedures is that counsel, after conducting an exhaustive review of the record and finding the appeal to be wholly frivolous, request permission of the court to withdraw. Our Supreme Court underscored the importance of counsel’s responsibility in this regard when it stated that:

The major thrust of Anders was to assure careful assessment of any available claims that an indigent appellant might have.

McClendon, supra, 495 Pa. at 473, 434 A.2d at 1188. In the instant case, appellant’s counsel avers that, “[bjased upon a careful review of the record and the applicable law, counsel is not able to support argument for the requested relief.” This averment is inadequate to warrant the granting of a petition to withdraw.

In Commonwealth v. Worthy, supra, this Court recognized that “[pjrogeny of Anders have provided us with a continuum of degrees of meritlessness.” Hence, a difference in word choice may signify a difference in substance rather than merely a change in semantics. In Commonwealth v. McClendon, our Supreme Court explained:

... lack of merit in an appeal is not the legal equivalent of frivolity. Anders ‘appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, or the granting of such a request by the Court.’

495 Pa. 472-473, 434 A.2d at 1187 (citations omitted); see Commonwealth v. Greer, 455 Pa. 106, 108-109, 314 A.2d 513, 514 (1974).

Counsel avers only that she is “unable to support argument for the requested relief.” We find this averment to be too ambiguous to be considered the legal equivalent of a finding that the appeal is “wholly frivolous” or “without arguable merit.” Consequently, we cannot grant counsel’s petition to withdraw. We emphasize that Anders requires a clear and unambiguous averment in this regard. Accord Commonwealth v. Thomas, supra, 354 Pa.Superior Ct. at 89, 511 A.2d at 201 (counsel has not filed a petition alleging that he has found the appeal to be frivolous); Commonwealth v. Bradley, supra, 311 Pa.Superior Ct. at 162, 457 A.2d at 545 (counsel does not allege that the appeal is totally frivolous).

Moreover, counsel appears to have restricted her review of the record to the “requested relief”. However, McClendon requires that counsel review the record for “any available claims an indigent appellant might have.” 495 Pa. at 473, 434 A.2d at 1188. (Emphasis added). Indigent appellants are not generally equipped with the knowledge of the law required to discern what constitutes error and what does not. Consequently, it is incumbent upon court-appointed counsel to review the record generally and not solely with respect to those issues which an unlearned, indigent appellant has set forth in his pro se petition. In Commonwealth v. Finley, supra, this Court stated: “Counsel must certify to an exhausting reading and endeavor to uncover all possible issues for review...." 330 Pa.Superior Ct. at 322, 479 A.2d at 572. (Emphasis added). Counsel has not done so in the instant case. Moreover, we note with disapproval the failure of counsel to indicate whether or not the appellant was consulted regarding this appeal. See Thomas, supra, 354 Pa.Superior Ct. at 90, 511 A.2d at 201.

II.

The second requirement under the Anders procedures is that the request to withdraw be accompanied by a brief referring to anything which might arguably support an appeal. We find that the brief in the instant case fails to meet this requirement.

In McClendon, our Supreme Court stated:

We reject the view that [counsel’s] explanation why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned as a reason for concluding that the client did not receive this constitutionally protected right of representation.

495 Pa. at 474, 434 A.2d at 1188. McClendon did not, however, obviate counsel’s responsibility to file a withdrawal brief. See Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983) (McClendon requires counsel to petition the court and file an Anders brief); see also Thomas, supra, 354 Pa.Superior Ct. at 90, 511 A.2d at 202.

Under McClendon, we are compelled to ignore the fact that, by arguing against her client, counsel appears to have appropriated the prosecution’s function. See Commonwealth v. Brockington, 268 Pa.Super. 54, 58, 407 A.2d 433, 435 (1979). Likewise, we are constrained from preventing counsel from “sandbagging” their clients by researching the Commonwealth’s case. See Commonwealth v. Jones, 451 Pa. 69, 75, 301 A.2d 811, 815 (1973).

Although counsel’s argument against the merits of the appellant’s appeal may not be assigned as error, we may still register our disapproval with this approach. The far better approach would be for counsel to draft a neutral brief and let the Commonwealth explain in the brief it files, pursuant to Commonwealth v. Oliver, supra, why the appeal is without merit. See Commonwealth v. Thomas, supra, 354 Pa.Superior Ct. at 90-95, 511 A.2d at 202-204. Moreover, if the appeal is in fact wholly without merit it is not unreasonable for counsel to assume that the Court will be able to discern this fact without the benefit of counsel’s arguments. Nevertheless, we may not deny the motion to withdraw on this basis.

However, McClendon, does not require this Court to ignore counsel’s failure to set forth in her withdrawal brief those facts upon which the appellant’s pro se claims are based. In the instant case, the appellant claims a violation of his state and federal speedy trial rights. Yet nowhere in counsel’s purported Anders brief does counsel set forth the date of arrest, the date of trial, the number of continuances, or the reasons for the continuances. Nor does counsel make any attempt to sketch for the Court the appellant’s reasoning with respect to the pro se petition. Even in the wake of McClendon, this brief is inadequate. See Thomas, supra, 354 Pa.Superior Ct. at 89-92, 511 A.2d at 201-202.

III.

The third requirement under the Anders procedures, is that counsel furnish a copy of the Anders brief to the indigent client in time to allow him to present the appeal in propria persona or request new counsel. Appellant’s counsel has failed to fulfill this requirement as well.

Counsel for the appellant states in her withdrawal brief that “[a] copy of this brief has been forwarded to appellant with instructions that if he wishes to retain private counsel or raise additional arguments or points, he must promptly communicate with the court.” (Appellant’s Brief at 7). On the next page counsel certifies that a copy of the brief was sent to the appellant by the U.S. Mail.

The transmittal letter containing the “instructions” regarding the appellant’s right to file a pro se brief or request new counsel does not appear in the record; nor does counsel indicate on what date the notice was given. Consequently, we do not know what instructions were given or when they were given. Because they were sent by regular mail we have no proof they were received or understood. The absence of this information casts doubt as to the adequacy of the notice given to the appellant. Such doubt precludes the granting of a petition to withdraw.

In Baker, supra, our Supreme Court stated:

However, it is the third requirement for an Anders withdrawal, indeed the most important requirement, that has not been followed. Anders clearly demands not only that the indigent be advised of his lawyers decision to abandon the appeal, but also that the client be given a copy of counsel’s brief in time to present the appeal in propria persona. Surely, were it not for this last requirement, all the Anders requirements would result in mere fodder for a file drawer.

429 Pa. 214, 239 A.2d at 203. (Emphasis supplied). The importance which our Supreme Court place upon this requirement has been echoed in the opinions of this Court. See Bradley, supra; Worthy, supra; Commonwealth v. Walker, 259 Pa.Super. 260, 393 A.2d 817 (1978).

IV.

For these reasons we must deny counsel’s motion to withdraw. We emphasize that our denial of counsel’s motion to withdraw in no way reflects upon the presence or absence of merit in this appeal. To this point, we have had no occasion to address the merits. We will do so only after the filing of proper advocate’s briefs or a conforming petition to withdraw and withdrawal brief.

Therefore, counsel for the appellant is directed to either proceed with the appeal by filing an advocate’s brief on the merits, or if she concludes an appeal would be wholly frivolous, she may file a petition and Anders brief in accordance with the requirments of the Anders procedures as they have been adopted in this Commonwealth. In either case, counsel shall comply with this order within thirty(30) days or risk sanctions. The Commonwealth shall have twenty(20) days thereafter to respond appropriately.

Counsel’s motion to withdraw is denied, without prejudice. Jurisdiction of the panel is relinquished, jurisdiction of the Court is retained. Case to be assigned by the Prothonotary’s Office to another panel.

      . For a brief summary of the facts giving rise to the charges in the instant case see Commonwealth v. Green, 264 Pa.Super. 472, 474, 400 A.2d 182, 183 (1979).

      . On October 4, 1974, the appellant was convicted of first degree murder. The judgment of sentence imposed was affirmed by the Pennsylvania Supreme Court on March 23, 1978. Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978).

      . The record does not disclose the name of the case alluded to by counsel.

      . This petition makes no mention of the above referenced opinion or its final disposition.

      . Because counsel herein so ably argued the case against her client, the Commonwealth felt no need to set forth additional argument but instead relied upon the appellant’s counsel's arguments. We strongly disapproved of this practice in Thomas, supra.

      . Part of the rationale behind having a separate withdrawal petition is that such a petition provides a vehicle through which information pertinent to the motion to withdraw, but not the merits of the appeal, may be presented to the Court.

      . Additionally, we note that appellant’s PCHA counsel made no attempt to file an amended petition, there was no brief filed, nor argument made, and the petition was denied without an evidentiary hearing. In Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975), similar PCHA proceedings were held to be uncounseled and contrary to the mandate of the Post-Conviction Hearing Act. See also Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980) (Nothing in PCHA practice is more settled than the rule that a person seeking post-conviction relief is entitled to assistance of counsel). However, in Coley, supra, and McGeth, supra, this Court held that Anders must be read in conjunction with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when reviewing whether prior counsel’s failure to comply with Anders resulted in ineffective assistance of counsel. Appellate counsel must establish that prior "counsel failed to brief an issue of arguable merit.” Coley, 504 A.2d at 1289; McGeth, 500 A.2d at 864.
      Consequently, petitions for withdrawal by appellate counsel in such cases must be carefully scrutinized to ensure that the appellant receives the assistance of counsel which Pennsylvania law requires.