author: BECK, Judge:

text:
    449 A.2d 670
    COMMONWEALTH of Pennsylvania, Appellant v. Paul Richard McCABE.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed Aug. 13, 1982.

      Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellant.
    Samuel K. Gates, York, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

The Commonwealth appeals an order of the Court of Common Pleas of Adams County which granted appellee’s motion to suppress the testimony of a Commonwealth witness. The sole issue on appeal is whether the trial court properly suppressed the witness’ testimony as to matters which came to the witness’ consciousness through hypnosis. We affirm.

JURISDICTION

Appellee asserts that this Court lacks jurisdiction over the instant case because the Commonwealth is attempting to appeal an interlocutory order, i.e., the order granting appellee’s motion to suppress.

On December 31, 1980, the Commonwealth filed a notice of appeal pursuant to Pa.R.A.P. 902 which governs appeals “as of right from a lower court to an appellate court.” Id. On January 6, 1981, under Pa.R.A.P. 1311, the Commonwealth also filed a petition for permission to appeal from an interlocutory order. Both the Commonwealth’s notice of appeal and its petition for permission to appeal concerned the trial court’s granting of appellee’s suppression motion. Finally, on June 8, 1981, appellee filed a motion to quash the Commonwealth’s appeal of the suppression order, arguing that the order was interlocutory and thus nonappealable.

Pursuant to Section 702(a)-(b) of the Judicial Code, 42 Pa.C.S. § 702(a)-(b), interlocutory orders are appealable only (a) as of right if enumerated in Pa.R.A.P. 311 or (b) by permission of the court in accordance with Pa.R.A.P. 312. However, Section 702(b) of the Judicial Code and Pa.R.A.P. 1311(b) provide that permission to appeal an interlocutory order may be sought only where the order states that “a controlling question of law [is involved] as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter . . . . ” 42 Pa.C.S. § 702(b). Because in the present case the lower court’s order did not include the required statement and because the Commonwealth filed a notice of appeal, this Court on June 16, 1981, denied the Commonwealth’s petition for permission to appeal. Butler Education Association v. Butler Area School District, 34 Pa.Commw.Ct. 143, 382 A.2d 1283 (1978). Additionally, on July 21, 1981, this Court denied appellee’s motion to quash, and the Commonwealth proceeded on its notice of appeal. “[I]t is settled that the Commonwealth may appeal from a pretrial suppression order if the question raised is a pure question of law and if the order effectively terminates or substantially handicaps the prosecution.” Commonwealth v. Pfender, 280 Pa.Super.Ct. 417, 421, 421 A.2d 791, 793 (1980).

From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence. In the first situation, the element of finality inherent in the order of suppression is apparent and sufficient to render the order appealable. In the second situation, although the element of finality in the order is not so apparent, it is nevertheless present .... In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth in both situations.

Commonwealth v. Bosurgi, 411 Pa. 56, 63-64, 190 A.2d 304, 308 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204,11 L.Ed.2d 149 (1963) (emphasis in original) (quoted approvingly in Commonwealth v. Nastari, 232 Pa.Super.Ct. 405, 408 n.l, 335 A.2d 468, 469-70 n.1 (1975), allocatur denied, May 22, 1975); Commonwealth v. Nazarovitch, 496 Pa. 97 n.1, 436 A.2d 170, 172 n.1 (1981).

To appeal a suppression order, “the Commonwealth must include in its brief, in support of its claim that this court has jurisdiction to hear the appeal, first, a statement that the suppression will terminate or substantially handicap the prosecution; and second, a brief explanation, not inconsistent with the record, why this is so.” Commonwealth v. Kunkel, 254 Pa.Super.Ct. 5, 10, 385 A.2d 496, 499 (1978). Here, the Commonwealth comported with Kunkel by including the following statement in its brief:

As the trial court noted in its opinion of January 27, 1981, the Order decided law novel to Pennsylvania and effectively terminated the Commonwealth’s ability to prosecute. The hypnotically induced testimony which was suppressed was the only evidence which implicated Paul Richard McCabe in the deaths of Nancy and Debbie Patterson or the related charges.

(Emphasis in Commonwealth’s brief.)

FACTS SURROUNDING THE WITNESS’ HYPNOTICALLY-INDUCED TESTIMONY

Being awakened by noise during the early hours of August 30, 1980, the witness, a sixteen-year-old girl, discovered that her home was afire and fled. During the next hour, the witness’ mother and older sister were fatally shot in the front yard of the witness’ home; Paul Sells, a member of the witness’ household, was injured, and only the witness and her nine-year-old brother escaped harm.

On August 30, 1980, Paul Sells was able to identify his assailant as Keith, the witness’ brother who lived in a residence with appellee. Consequently, the police arrested not only Keith but also appellee, Keith’s only known associate. However, appellee was released the same day for lack of evidence, and his release was reported in several news articles read by, or made known to, the witness.

The police attempted to question the witness the day after the fatal incident but found the witness too distraught. The witness’ statement was finally taken at a state police barracks on September 1,1980. The witness reported that upon being awakened early on August 30, 1980, by the sound of a smoke alarm and breaking glass, she found her home afire. She quickly exited her home through the kitchen door and saw that a man with a shot gun was standing on the back porch of her home. The witness did not identify the man with the gun but described him as having wavy brown hair parted on the side of his head. The witness stated that after leaving her home she ran to a shed and hid. While hidden, the witness heard gun shots and the sound of someone running whereupon she moved to the front yard of her home. At this point the witness discovered Paul Sells who was wounded and lying on the ground. Mr. Sells told the witness to seek a neighbor’s assistance, and the witness complied. The witness did not supply additional details of the crime or identify a possible perpetrator.

To obtain more information from the witness, the police requested the aid of a hypnotist, Father James Delaney, an assistant professor of psychology at Mount St. Mary’s College in Maryland. Through hypnosis Father Delaney had assisted law enforcement officials of various jurisdictions on eighteen previous occasions. In approximately 1966 Father Delaney had received some training in hypnosis at Duquesne University and in 1977 had taken a four-day training course in investigative hypnosis offered by the Los Angeles Police Department. Moreover, he regularly practiced hypnosis in diverse contexts and regularly read literature published by the Society for Investigative and Forensic Hypnotists, a group composed of individuals who attended the Los Angeles Police Department course.

When contacted by the police, Father Delaney knew nothing about the case and, by design, remained uninformed. Father Delaney agreed to the hypnotic interview, and on September 4, 1980, the witness was accompanied to Mount St. Mary’s College by two state troopers who explained to the witness that she would be hypnotized for the purpose of gaining additional information from her about the crime.

Before hypnotizing the witness, Father Delaney attempted to ease the witness’ apprehensions by demonstrating his hypnotic technique on another subject. This subject was subsequently dismissed, and only Father Delaney and the two state troopers remained with the witness. Then Father Delaney hypnotized the witness, told her to use her imagination, and stated that he would let a trooper question her. Although a trooper conducted the actual, taped interview, Father Delaney interpolated praise whenever the witness produced identifications and also repeated or rephrased several of the witness’ responses.

Under hypnosis the witness again stated that she had seen a man on the porch of her home. Pressed to name the man, the witness answered, “Keith.” Later asked again to identify the man on the porch, the witness responded, “[I]t’s my brother.” Thereafter, the trooper questioning the witness constantly referred to the man on the porch as Keith.

Additionally, while hypnotized, the witness indicated the presence of a second perpetrator, “another man.” Asked to describe the second man and his location during the incident, the witness faltered. Father Delaney then prompted the witness by saying, “[UJse your eyes now as if you were a camera .... [M]ove slowly in on the man’s face .... Now could you describe the man’s face . . . . ” After the witness had identified the other man as “McCabe,” the trooper and the witness had the following suggestive exchange:

Trooper: “You saw two shots from the back door at Paul [Sells] toward the front door?”
Witness: “Didn’t see—heard.”
Trooper: “You heard?”
Witness: “Me and Keith.”
Trooper: “You seen [sic] Keith and you seen [sic] Paul McCabe [appellee]?”
Witness: “Outside.”

In concluding the hypnotic session, Father Delaney said to the witness, “Now, everything that you remembered here, you will be able to remember when I take you back. You may be able to remember some more things.”

Subsequently, as a result of the witness’ hypnotically-induced testimony, appellee was arrested. At the preliminary hearing the witness testified that appellee participated in the crime.

Through his counsel appellee then filed a motion to suppress the witness’ hypnotically-induced identification of him as a participant in the incident. At the suppression hearing the witness was questioned about her ability to identify appellee as the second man involved in the incident. Despite testifying that the incident occurred at night, that she was not wearing her eyeglasses during the incident, and that she was hiding some distance from her home during most of the incident, the myopic witness stated that she could clearly identify appellee because her vision seemed to improve while she was hypnotized so that she could “zoom in on” distant objects impossible for her to see when not hypnotized.

The witness also testified that she had recurrent dreams of the incident. Queried about her dreams, the witness explained that before the hypnotic interview with Father Delaney, she visualized as participants in the incident various persons including appellee, Keith, and other individuals not suspected of the actual crime. However, the witness further explained that after the hypnotic session her dreams focused on Keith and appellee as the sole perpetrators of the crime.

Finally, the witness admitted not only that she had disliked appellee for at least one and one-half years prior to the incident but also that appellee’s initial release from custody for lack of evidence had greatly distressed her and others with whom she had discussed the incident.

Appearing for the Commonwealth, Father Delaney detailed the circumstances surrounding the hypnotic interview and characterized the interview as a “good session” because the witness gave a “vivid” account. However, Father Delaney added, “Whether the [witness] were telling the truth under [hypnosis], I would have no way of ascertaining . . . from what I know of the relationship.” On cross-examination, agreeing with various authorities cited by counsel for appellee, Father Delaney asserted that in a hypnotic session “you’re just as likely to get confabulation as you are the truth.”

As his expert witness appellee offered Dr. Michael Potash, a practicing Maryland psychiatrist and a professor of psychiatry at Johns Hopkins University, who had been trained in hypnosis, was thoroughly familiar with literature concerning hypnosis, and had acted as a consultant to the Baltimore Police Department for fifteen years. In general, Dr. Potash asserted that investigative hypnosis was useful in locating real evidence but was completely unreliable in developing the testimony of a witness. He explained that a hypnotized witness was very likely to fantasy, to incorporate into an account information heard immediately before the hypnotic session, and to invent information to respond to the perceived demands of the questioner for specific data.

In particular, Dr. Potash analyzed the hypnotic interview of the instant witness and found that the following aspects of the interview would tend to elicit fantasy, rather than fact, from the witness:

(a) At the beginning of the hypnotic session Father Delaney told the witness to use her imagination.
(b) The hypnotic interview was actually conducted by a state trooper who, the witness knew, was seeking specific identification of the criminal perpetrator.
(c) The myopic witness was told to use her eyes as a camera with a telescopic lens that could be used to bring distant objects into focus. But the witness testified that when she was not hypnotized, she could not thus use her eyes.
(d) At the conclusion of the hypnotic session, Father Delaney told the witness that after she left the hypnotic state, she would remember what had transpired during the hypnotic interview.

Dr. Potash reported case histories in which witnesses given post-hypnotic suggestions to remember their hypnotic testimony could not be convinced that their post-hypnotic “memories” were inaccurate even when refuted by incontrovertible evidence. Dr. Potash further observed that during the suppression hearing, the instant witness appeared anxious to please questioners and thus would be likely under hypnosis to subconsciously produce answers which would satisfy her interviewers. Dr. Potash noted that the witness’ tendency toward complaisance would have been reinforced during the hypnotic session by Father Delaney’s expressions of approval whenever the witness produced an identification.

Therefore, Dr. Potash opined that the witness’ hypnotically-induced testimony, although “truthful” from the witness’ viewpoint, was totally unreliable because it was tainted by the aforementioned factors.

APPLICABLE LEGAL STANDARDS

In Nazarovitch [1981] the Supreme Court of Pennsylvania considered, as a case of first impression, the admissibility of hypnotically-induced testimony. The court’s decision not to admit such testimony under the circumstances of that case was predicated upon a careful consideration of the state of the art of hypnosis. Other jurisdictions which had already confronted the issue differed in result based largely on their evaluation of the quality of contemporary research and expertise on hypnosis.

In 1968 the intermediate appellate court of Maryland determined that, given indicia of reliability surrounding a hypnotic session and the testimony thereby elicited, hypnotically-induced testimony would be wholly admissible, the weight and credibility of such testimony being for the fact-finder to ascertain. Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968). For more than a decade, with little discussion, many courts followed Harding. See, e.g., Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir. 1975) (hypnotically-induced testimony analogized to testimony elicited by refreshing recollection with review of document); State v. Temoney, 45 Md.App. 569, 414 A.2d 240 (1980), vacated on other grounds, 290 Md. 251, 429 A.2d 1018 (1981); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974); State v. Brom, 8 Or.App. 598, 494 P.2d 434 (1972); State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312 (1971).

Then in 1979, prompted by increased scientific studies and expert literature on hypnosis, judicial opinions became more analytical and more critical of hypnotically-induced testimony. In Clark v. State, 379 So.2d 372 (Fla.Dist.Ct.App.1979), the statements of a witness who testified under hypnosis in the courtroom were held inadmissible. Nevertheless, a witness’ in-court statements about “recollections refreshed” by a hypnotic session terminated prior to the witness’ courtroom appearance were held admissible if uninfluenced by post-hypnotic suggestions. The credibility of such testimony was deemed the province of the fact-finder.

In People v. Smrekar, 68 Ill.App.3d 379, 24 Ill.Dec. 707, 385 N.E.2d 848 (1979), appeal denied, 68 Ill.App.3d 379, 24 Ill. Dec. 707, 385 N.E.2d 848, the court found admissible testimony based upon recollections refreshed by hypnosis where (a) the hypnotic session was not unduly suggestive and (b) the witness’ testimony was corroborated by other evidence unknown to the witness at the time of hypnosis. Again it was held that the fact-finder should determine the weight accorded to such testimony. In State v. Greer, 609 S.W.2d 423, 433-435 (Mo.App.1980), vacated on other grounds, 450 U.S. 1027, 101 S.Ct. 1037, 68 L.Ed.2d 222 (1981), the court determined that hypnotically-induced testimony would be inadmissible if the hypnotic session were impermissibly suggestive, but absent suggestiveness, the use of hypnosis to obtain testimony would affect the weight, but not the competence, of the evidence elicited.

In Polk v. State, 48 Md.App. 382, 427 A.2d 1041 (1981), cert, denied, July 14,1981, the Maryland intermediate appellate court gave substance to the framework provided in its 1968 opinion, Harding, by enumerating the indicia of reliability necessary for admissibility of hypnotically-elicited testimony. The court stated that if a trial court found hypnosis to be a generally accepted scientific technique, the court must ascertain whether the hypnotic session comported with the following criteria: (a) the hypnosis was conducted by a professionally qualified hypnotist; (b) no suggestive methods or materials were introduced during the hypnotic session, and (c) no post-hypnotic suggestions were given. If all three criteria were met, the trial court could admit the hypnotically-induced testimony and provide the jury with cautionary instructions regarding the manner in which the witness’ testimony was obtained.

Finally, in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), the court acknowledged that hypnotically-induced testimony often lacked reliability because (a) the hypnotized witness was as likely to produce fantasy as fact; (b) after hypnosis the witness was likely to remember as fact all testimony elicited through hypnosis, and (c) there were no means for detecting such mind imprints. Nevertheless, the court held that hypnotically-induced testimony could be admissible if the proponent of the testimony proved by clear and convincing evidence that “hypnosis was a reasonably reliable means of reviving [the witness’] memory comparable in its accuracy to normal recall.” Id. at 97.

In Nazarovitch the Pennsylvania Supreme Court rejected the reasoning of Hurd. Having reviewed the current case law of many jurisdictions and several recent law review articles concerning hypnosis, the court concluded:

While we do not want to establish a per se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory.

Commonwealth v. Nazarovitch, 496 Pa. at 111, 436 A.2d at 178. Thus, in Pennsylvania the court created a standard which will allow hypnotically-induced testimony to be admitted into evidence only upon proof of scientific developments eliminating the present unreliability of such testimony. Accord, Polk.

CONCLUSION

Applying the foregoing standards to the facts of this case, we hold that the testimony of the witness was properly suppressed. The Commonwealth did not prove, inter alia, that hypnosis was generally accepted as a technique for obtaining reliable information and that the particular hypnotic session was free from prior, contemporaneous, or posthypnotic suggestion. See Commonwealth v. Nazarovitch, 496 Pa. at 109, 436 A.2d at 177. On the contrary, both the hypnosis expert called by the Commonwealth and the hypnosis expert called by appellee testified that hypnotically-induced testimony was often unreliable. Id. Moreover, the instant hypnotic session was tainted by suggestions to the witness before, during, and after hypnosis.

      . In its brief the Commonwealth incorrectly states that the Superior Court has jurisdiction of this case under Section 722 of the Judicial Code, 42 Pa.C.S. § 722, a provision which addresses the exclusive jurisdiction of the Supreme Court. In fact this Court has jurisdiction of this case pursuant to Section 742 of the Judicial Code, 42 Pa.C.S. § 742, which provides that the “Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the court of common pleas .... ” Id.

      . Confabulation is defined as the substitution of free fabrication for actual memory. It is a completely unconscious substitution which occurs during hypnosis with even the most honest subjects. To illustrate, in the present case it is possible that the witness (a) being unable to describe the individual whom she actually saw engaged in the real events heretofore related and (b) being pressed under hypnotic questioning for the identity of the individual, might fill the gap in her memory by drawing an identity from her general life experience or from her imagination. Later, the witness would remember this “fill-in” as fact.

      . For example, Dr. Potash explained:
      No one has figured out a way to tell whether somebody who has been hypnotized and produces a bunch of information—what part of it is accurate and what part isn’t. Only in the last few years have doctors taken the trouble to put people in a trance, get all this information and then go out like detectives and check all the information. Go back and check everything that the patient said under hypnosis. When they do that what they find is there is as much information inaccurate as there is accurate.

      . Following the decision in Nazarovitch, this Court had the opportunity to examine hypnotically-induced testimony in Commonwealth v. Taylor, 294 Pa.Super.Ct. 171, 439 A.2d 805 (1982). In Taylor the issue was “whether the victim’s identification of the two appellants at trial was rendered inadmissible as a result of [a] ... hypnotic session [prior to trial].” Id., 294 Pa.Superior Ct. at 174, 439 A.2d at 807. However, in Taylor, unlike the case sub judice, the victim “was able to positively identify both of her assailants prior to the hypnotic session. Therefore, ... the hypnotic session did not ... refresh her memory and the dangers of unreliable suggestion, fantasy and confabulation [were] not at issue.” Id., 294 Pa.Superior Ct. at 177, 439 A.2d at 808. Furthermore, this Court’s review of the record in Taylor showed “that the prosecution deliberately did not attempt to utilize any testimony ... which conceivably surfaced for the first time as a result of the hypnotic session .... Therefore, the victim’s testimony was not rendered incompetent by the hypnotic session .... ” Id., 294 Pa.Superior Ct. at 178, 439 A.2d at 808.

      . As early as 1897 California held that the statements of a hypnotized criminal defendant could not be admitted as exculpatory evidence. People v. Ebanks, 117 Cal. 652, 49 P. 1049 (1897).

      . Finding the issue either waived or not yet ripe for discussion under the facts of the cases sub judice, two other courts have declined to decide the issue but have indicated some reluctance to admit hypnotically-induced testimony. Commonwealth v. Juvenile, 381 Mass. 727, 412 N.E.2d 339 (1980); Merrifield v. State, 400 N.E.2d 146 (Ind.1980).

      . In Frye v. United States, 293 F. 1013 (D.C.Cir.1923), where testimony was acquired by using a pioneer polygraph device, the court reasoned that the results of a scientific technique were admissible as evidence only if the technique itself were generally accepted in the field where it was employed. Accord, Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977); State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981); People v. Tait, 99 Mich.App. 19, 297 N.W.2d 853 (1980); State v. Mack, 292 N.W.2d 764 (Minn. 1980).

      . See Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. of Clinical and Experimental Hypnosis 311 (1979), for a discussion of safeguards that would eliminate some suggestiveness surrounding hypnotic sessions.

      . See Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal.L.Rev. 313 (1980); Spector & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Suspectible?, 38 Ohio L.J. 567 (1977).

      . In Nazarovitch

      the Supreme Court did not approve any procedural safeguards which would insure the reliability and neutrality of memory refreshed by hypnosis .... The Supreme Court has, in effect, adopted a pro se rule of inadmissibility concerning hypnotically-refreshed testimony until the court is presented with more scientifically conclusive evidence that such testimony is reliable, to the same extent as testimony which is refreshed by reviewing a written document.

        Commonwealth v. Taylor, 294 Pa.Super.Ct. 171, 174 n.1, 439 A.2d 805, 807 n.1 (1982).


source: Caselaw Access Project

license: Public Domain

text:
    449 A.2d 677
    COMMONWEALTH of Pennsylvania v. Richard D. SHAFFER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1981.
    Filed Aug. 13, 1982.

      James R. Protasio, Assistant Public Defender, Williams-port, for appellant.
    Kenneth Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   BECK, Judge:

This appeal arises from the denial of appellant’s application for relief under the Post Conviction Hearing Act (“PCHA”). Appellant pleaded guilty to murder generally and after a hearing, he was found guilty of murder in the second degree. He was sentenced to incarceration of four to twenty years. No post-verdict motions or direct appeal were filed.

Appellant raises as his first contention that he was denied effective assistance of counsel in that his trial counsel failed to attempt to suppress inculpatory statements, specifically two confessions to the fatal beating of his seventeen month old niece. We initially state our oft cited standard of review where ineffective assistance of counsel is alleged:

In considering appellant’s claim of ineffective counsel, we are governed by Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel’s stewardship in light of available alternatives. The inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s actions had a reasonable basis designed to effectuate the client’s interests. The test is not whether it appears on hindsight that another course of action would have been more reasonable. Further, counsel is not ineffective in failing to assert a baseless claim.

Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981).

In order to weigh this “ineffectiveness” claim, we must independently evaluate the record. It is clear that appellant’s counsel did not move to suppress the inculpatory statements. The inquiry facing us is whether he had a “reasonable basis” for inaction. “[W]e will find a ‘reasonable basis’ for inaction if the thing not done had no likelihood of success.” Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980).

The record reveals the following set of facts. Agent John Bower of the Williamsburg Police Department was directed to go to the home of Larry and Linda Shaffer to investigate the death of their daughter. When he arrived, appellant, who was then seventeen years old, was alone inside the house. Notes of Testimony (“N.T.”) (PCHA) at 85. The agent had been informed that “there was an incident that happened on High Street where there was a child injured . .. . ” (N.T.) (PCHA) at 87. Appellant knew the agent from previous contacts with the Juvenile Division, and after being asked what happened, appellant told the agent that he had something he wanted to tell him. (N.T.) (PCHA) at 87. The agent drove appellant to the Juvenile Division and advised him of his Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966) ] rights. (N.T.) (PCHA) at 91. The agent testified that he appeared alert. (N.T.) (PCHA) at 93. Appellant then signed a statement, confessing that he fatally beat his niece. (N.T.) (Guilty Plea Hearing hereinafter “G.P.”) at 124. Approximately one hour later he provided a statement to the District Attorney with the Public Defender present. Prior to the taking of that statement, the Public Defender and appellant were left alone. (N.T.) (PCHA) at 97.

The Public Defender testified that he suggested to appellant that speaking to the police at that time might not be in his best interest, but that he was not precluded from doing so. He further testified that appellant decided to provide a second statement to the police, and that he was present when that statement was recorded. (N.T.) (PCHA) at 119-121.

We find the instant case to be factually very similar to Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977). In that case William Cunningham, a seventeen year old special education student, was convicted of first degree murder and burglary. He gave two statements prior to confessing his guilt. In the first statement, appellant said that he observed another individual stabbing the victim, and that he acted merely as a lookout. At a subsequent interview in the office of the District Attorney, appellant admitted that the other individual had not been involved and that he had acted alone. At that time, his parents were called and they hired an attorney. After consulting with that attorney, appellant confessed and this confession was transcribed, and subsequently introduced at trial. The Cunningham court held:

[S]ince counsel was present and appellant was provided a full opportunity to confer with him, it is obvious that the Sixth Amendment right to counsel has been satisfied. The record also establishes that prior to the commencement of the counseled interview appellant had been apprised of his Fifth Amendment rights by police officials and his privately retained attorney. The facts of this case do not provide the slightest justification for a challenge to the waiver of the Fifth Amendment right as being a knowing one.

Id., 471 Pa. at 584, 370 A.2d at 1175 (footnote deleted). The Cunningham court rejected appellant’s “voluntariness” claim because “counsel was present and available to detect and describe even the most subtle coercive or suggestive influences if they in fact had existed. No such testimony was offered.” Id., 471 Pa. at 584, 370 A.2d at 1176. That court posed the issue as follows: “whether a counseled interrogation, preceded by an adequate opportunity to confer with counsel, is the kind of attenuating circumstances which would dissipate any prior illegality and ‘purge the primary taint.’ ” Id., 471 Pa. at 586, 370 A.2d at 1177 (footnote deleted). That court, citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), held that “the concept of attenuation and dissipation of prior taint ... if it has any application at all, must certainly be satisfied when a confession is made in the presence of, and under the direction of counsel.” Id., 471 Pa. at 587-588, 370 A.2d at 1177. See e.g., Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. Leveille, 289 Pa.Super. 248, 433 A.2d 50 (1981).

In the instant appeal, allegations of coercion on the part of law enforcement personnel or representatives of the District Attorney are conspicuously absent. The primary taint that is alleged is the absence of an interested adult at appellant’s first confession. Appellant acknowledges, as he must, that “at the time of his confession there was no per se rule that a Juvenile’s incriminating statements given without an opportunity to consult with an interested adult is [sic] inadmissible. . .. ” (Appellant’s Brief at 6.) The Pennsylvania Supreme Court in Commonwealth v. Smith, 472 Pa. 492, 498—499, 372 A.2d 797, 800 (1977) (footnotes deleted) discussed the above rule and enunciated its origins.

In a series of our decisions beginning with Commonwealth v. Roane, [459 Pa. 389, 329 A.2d 286 (1974)], we announced that the administering of Miranda warnings to a juvenile, without providing an opportunity to that juvenile to consult with a mature, informed individual concerned primarily with the interest of the juvenile, was inadequate to offset the disadvantage occasioned by his youth. The new rule appreciates that the inexperience of the minor affects not only his or her ability to understand the full implication and consequences of the predicament but also renders the judgment inadequate to assess the spectrum of considerations encompassed in the waiver decision. It was therefore reasoned that the impediment of immaturity can only be overcome where the record establishes that the youth had access to the advice of an attorney, parent, or other interested adult and that the consulted adult was informed as to the constitutional rights available to the minor and aware of the consequences that might follow the election to be made.

Because the instant case antedated the Roane decision, we find that it was not error for the trial judge to admit the first statement as well as the second and that a motion to suppress under the law as it then existed bore no likelihood of success. Assuming arguendo, however, that the same facts presented themselves after Roane, we would find the taint sufficiently attenuated by the presence of counsel before and during the second confession and find no error in the admission of that confession. Of course, the first statement would not be admissible.

Appellant further argues that his guilty plea was not knowing and voluntary because it was not based on a voluntary confession. That confession could not have been voluntary, he argues, because he had an IQ of 71 and had only completed the ninth grade in a special education class. Our Supreme Court confronted a very similar situation in Commonwealth v. Melton, 465 Pa. 529, 351 A.2d 221 (1976) where appellant claimed that because he had an IQ of approximately 69, his guilty plea must be found to have been involuntary. The Melton court quoted Commonwealth v. Harris, 431 Pa. 114, 116-117, 243 A.2d 408, 409 (1968), in enunciating the test to be followed in evaluating the sufficiency of appellant’s mental capacity to enter a guilty plea:

We did not there establish a per se rule invalidating every guilty plea made by a defendant who was in some way mentally deficient. Instead, we reiterated that “ ‘(t)he test to be applied in determining the legal sufficiency of (a defendant’s) mental capacity to stand trial, or enter a plea at the time involved, is not the M’Naghten “right or wrong” test, but rather his ability to comprehend his position as one accused of murder and to cooperate with his counsel in making a rational defense.’ ”

Id., 465 Pa. at 534, 351 A.2d at 224 (emphasis in original). At his PCHA hearing, trial counsel “testified that none of the doctors who had examined Melton had concluded that he was incompetent to stand trial or discuss the case with his attorneys.” Id., 465 Pa. at 534-535, 351 A.2d at 224. The Supreme Court concluded that appellant was able to enter a voluntary plea. That court concluded that “[a] low I.Q. alone is insufficient to establish involuntariness in either [his confession or guilty plea].” Id., 465 Pa. at 536, 351 A.2d at 225.

We note that prior to the acceptance of appellant’s guilty plea, in the instant case, the trial judge was in possession of the October 11, 1972 report of the medical staff of the Danville State Hospital where appellant had been committed for psychiatric evaluation. That report read in relevant part:

In summary, we have a young man who tests out on the Wechsler Adult Intelligence Scale with a Full Scale I.Q. of 71 and in whom we are unable to find any evidence of mental illness. The full scale I.Q. of 71 places this patient in the borderline level of retardation. However, it does not prevent him from functioning adequately in society. There are many persons functioning outside of the hospital and carrying on relatively responsible jobs with this level of intelligence quotient. In fact, the patient would not be eligible for admission to one of the state schools for mentally retarded persons.
We find no reason for psychiatric treatment either within or outside of the confines of a psychiatric institution. We believe that this young man is fully able to participate in his own defense. We further believe that he was perfectly competent and able to form and act on an intent to commit a felonious homicide.

We find nothing in the record to refute the fact that appellant was able to understand his position and to participate in his defense. Accordingly, we conclude that appellant’s guilty plea was voluntary. The record would seem to indicate that appellant entered his guilty plea of his own volition. When asked by the. judge presiding at his guilty plea hearing why he wished to so plead, appellant quite simply answered: “The detectives got evidence against me, and I know I did it, I beat her.” (N.T.) (G.P.) at 20.

We do believe that when a juvenile seeks to confess guilt to a crime, close scrutiny must be paid to the surrounding circumstances. The United States Supreme Court in Re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527 (1967) underscored the problems that attach to the waiver by juveniles of their constitutional rights:

If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.

(Footnote deleted.)

We find that the presence of conscientious counsel before and during appellant’s taped confession and at his guilty plea hearing enabled him to exercise his free will.

Appellant alleges finally that counsel was ineffective and that the trial court erred “in that both . . . failed to inform the appellant of his rights concerning appeal.” The record reflects that appellant was advised of his appeal rights and that he understood that he had a right to an appeal and to the representation of court appointed counsel. We find therefore that his final claim is meritless.

Order affirmed.

      . Act of January 25, 1966, P.L. 1580, 19 P.S. § 1180-1, et seq.

      . The agent described the first statement as follows:
      [A]bout 10:00 or 10:30 the children started to get up, and they came downstairs and he fed them, I believe it was cereal, and then a little later after that Michelle got awake and Richard went up to get her and he said that he had to change her diaper, and he said after he changed the diaper he came back downstairs and Michelle was carrying on again, or crying, so he went back up and here he had noticed or found she had done another job in her diaper and he tried to change her and while he was changing her he said she was just sort of fighting him or resisting him, and he got a little mad at her and smacked her in the face, and he said this didn’t seem to help, so she kept it up, and he said he got mad then and he punched her, I think he said in the chest, and she continued to cry and carry on like this, and Richard said at this time he became very angry and he closed his eyes and just began hitting her. He said he didn’t know how many times.
      (N.T.) (G.P.) at 123-124.

      . The second statement was tape recorded. In that confession, appellant stated that he repeatedly struck his niece in the chest and the face and kicked her in the ribs. He also stated that he twisted her legs and heard cracking noises (presumably the sound of fracturing bones). He stated that she subsequently collapsed on the floor and did not move. (N.T.) (G.P.) at 1A-6A.


author: JOHNSON, Judge:

text:
    449 A.2d 681
    COMMONWEALTH of Pennsylvania v. Irving BUNDRIDGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 15, 1982.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Denied Nov. 9, 1982.

      John H. Corbett, Public Defender, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Appellant was charged with two violations of The Controlled Substance, Drug, Device and Cosmetic Act—possession and possession with intent to deliver—and a violation of the Uniform Firearms Act—firearms not be carried without a license. After a nonjury trial, Appellant was convicted and sentenced to a five- to ten-year term for possession with intent to deliver and a concurrent two- to five-year term for violation of the Uniform Firearms Act. Sentence was suspended on the conviction for possession of controlled substance. No appeal was filed.

Approximately fourteen (14) months after sentencing, Appellant filed a PCHA petition which alleged ineffective assistance of counsel. After a hearing on the petition, Appellant’s right to appeal was reinstated. The court-appointed counsel failed to file an appeal, so Appellant filed a second PCHA petition on September 4, 1980. The court granted Appellant the right to appeal nunc pro tunc. The instant appeal was filed nunc pro tunc from the judgment of sentence. For the following reasons, we affirm in part and reverse in part.

On November 23, 1974, an informant approached two police officers and told them that Appellant, carrying heroin, money, and a gun, was about to leave his residence to distribute heroin. Previously the informant had supplied one of the officers with accurate information that had resulted in other heroin convictions.

Relying on the informant’s statements, the police proceeded to Appellant’s residence and found him in his auto. The officers frisked Appellant and found a loaded revolver. A subsequent search pursuant to his arrest disclosed 12.6 grams of heroin in Appellant’s sock and $1,012.00 on his person.

Appellant raises three issues. First, did the lower court err in finding that the police had probable cause to arrest Appellant without a warrant? Second, was the evidence sufficient to sustain Appellant’s conviction for violation of the Uniform Firearms Act? Third, was the evidence suffi- . cient to sustain Appellant’s conviction for possession with intent to deliver?

In considering Appellant’s first issue, we begin with the principle stated by our supreme court in In re Betrand, 451 Pa. 381, 303 A.2d 486 (1973):

When, as here, probable cause for a warrantless arrest3 is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional information before probable cause is established. First, in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the robbery. Second, in order to reduce the possibility that a tip meeting the first standard is merely a well constructed fabrication, the officer must have some reasonable basis for concluding that the source of the tip was reliable. [Footnotes and citations omitted.]

Id., 451 Pa. at 386, 303 A.2d at 488; quoted in Commonwealth v. Hughes, 268 Pa.Super.Ct. 536, 542, 408 A.2d 1132, 1135 (1980).

Although Appellant argues that the foregoing criteria were not present in the instant case, Appellant’s brief quotes the detective’s testimony that the informant had obtained his information from his contact with Appellant within the previous 15-20 minutes. Thus the officer knew the underlying circumstances from which the informant obtained his knowledge. This satisfies the first criterion of Betrand.

The second criterion was also established in the instant case since the officer testified that this informant had supplied him in the past with reliable information that led to other narcotics convictions. Thus, under Betrand, the officer in the instant case had probable cause to arrest Appellant without a warrant.

In his second issue, Appellant asserts that the evidence was not sufficient to sustain Appellant’s conviction for violation of the Uniform Firearms Act because the Commonwealth failed to prove that Appellant did not have a license for the revolver. Appellant cites Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), to support this assertion.

In McNeil our supreme court held, first, that the absence of a license was an essential element of the crime of carrying a firearm without a license, and, second, that the Commonwealth has the burden of proving this essential element. Because the record in McNeil did not contain any testimony regarding the defendant’s lack of a license for the weapon, the supreme court reversed the defendant’s conviction for that charge.

McNeil is on point with the instant case. The trial transcript in the instant case does not contain any testimony regarding Appellant’s lack of a license for the revolver. Under McNeil we are compelled to reverse Appellant’s conviction for a violation of section 6106 of the Uniform Firearms Act.

Appellant’s third issue challenges the sufficiency of the evidence for his conviction for possession with intent to deliver.

To evaluate the sufficiency of evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).

Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981).

The intent to deliver may be inferred from the circumstantial evidence presented. Commonwealth v. Santiago, 462 Pa. 216, 224, 340 A.2d 440, 445 (1975). In the instant case, Appellant had hidden 12.6 grams of heroin in his sock, and he carried $1,012.00 on his person. Testimony at trial established that the 12.6 grams of heroin could have been sold for approximately $3,000.00 at the time of Appellant’s arrest (N.T. 29, 4/28/75). A search of Appellant’s residence revealed measuring spoons, cups, a strainer, plastic baggies, rubber bands and other paraphernalia utilized in the sale of heroin. We hold that sufficient evidence was presented to sustain Appellant’s conviction for possession with intent to deliver.

For the foregoing reasons, the judgment of sentence for possession with intent to deliver is affirmed. Reluctantly we must reverse the judgment of sentence for carrying a firearm without a license and discharge Appellant from that judgment.

      . 35 Pa.C.S.A. § 780-113 et seq.

      . Id § 780-113(a)(16).

      . Id § 780-113(a)(30).

      . 18 Pa.C.S.A. § 6101 et seq.

      . Id § 6106(a).

      . Formerly 18 P.S. § 4628(e), now codified at 18 Pa.C.S.A. § 6106(a).


author: MONTEMURO, Judge: WICKERSHAM, Judge,

text:
    449 A.2d 684
    COMMONWEALTH of Pennsylvania v. Gregory Scott LEIB, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed Aug. 13, 1982.

      John Thompson, York, for appellant.
    William H. Poole, Jr., Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant was found guilty by a jury of driving while under the influence of alcohol. Post-trial motions were denied and appellant was sentenced to a term of one (1) to twelve (12) months imprisonment. Additionally, appellant was fined two-hundred and fifty ($250.00) dollars plus costs. This direct appeal followed.

Appellant raises several contentions for our review, including inter alia, that he was denied his right to a speedy trial pursuant to Pa.R.Crim.P. 1100. We agree and accordingly reverse.

The procedural disposition of the case below involved the following facts:

On June 13, 1979, a written complaint was filed charging appellant with driving while under the influence of alcohol. Appellant appeared before a district magistrate on June 25, 1979 where he, without benefit of counsel, waived his right to a preliminary hearing. On June 26, 1979, appellant’s counsel sent a letter to the district attorney’s office requesting the case to either be remanded for a preliminary hearing or reconsideration be given concerning appellant’s eligibility for ARD. There was no further development until July 20, 1979, when the case was returned to the magistrate for a preliminary hearing. The preliminary hearing was originally scheduled for August 29, 1979, but was continued to September 11, 1979, at defense counsel’s request. Subsequently, at the preliminary hearing, the Commonwealth established a prima facie case and the matter was returned to the district attorney’s office on September 14, 1979. In light of the fact that appellant had not been arraigned at this point in time, and would not be arraigned until December 3, 1979, the Commonwealth, on November 26, 1979, filed a petition to extend under Pa.R.Crim.P. 1100(c). After a hearing on the matter, the lower court granted the Commonwealth’s petition, and extended the trial run date to the January Term of court, beginning on January 14, 1980. Appellant was eventually tried and convicted on January 14, 1980.

The original run date under Rule 1100 in this case would have been December 10, 1979. The Commonwealth in its petition to extend, stated that it could not bring appellant to trial as required by Rule 1100, specifically alleging that:

. .. the following periods of delay are properly excludable because of the unavailability of the defendant or his attorney or because of any continuances in excess of thirty (30) days granted at the request of the defendant or his attorney: this case was listed for arraignment on July 20, 1979, at which time a request was made by defense counsel to remand the case for a preliminary hearing. This request was granted and the preliminary hearing was held on September 11,1979, following a continuance of the hearing scheduled for August 29,1979, by defense counsel. This case was then mistakenly listed for trial during the September, 1979, and November, 1979, Sessions of Criminal Court, when, in fact, the defendant has not yet been arraigned. This case will be listed for arraignment and the case will be rescheduled for the January, 1980, Session of the Criminal Court.

The Commonwealth further alleged that it had exercised due diligence in attempting to bring the case to trial within the appropriate time period but failed to do so because of the facts set forth above.

The lower court granted the Commonwealth’s petition to extend on the basis that the appellant’s request of June 26, 1979 to return the case for a preliminary hearing constituted a request for a continuance and that all time in excess of thirty (30) days necessary to schedule the hearing had to be excluded. The lower court also believed that since appellant wanted to be placed on the ARD program, the time the district attorney’s office spent considering his eligibility (June 26, 1979 to July 20, 1979) was also excludable. In general terms, without the computation of specific time periods or dates, the lower court, none the less, found there was sufficient excludable time present in this case to schedule the trial sometime in the January Term of 1980. We disagree.

Rule 1100(c) provides that:

At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date as period within which trial shall be commenced. (Emphasis added).

Time is properly excluded under Rule 1100(d) if either of the following can be shown:

(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

It is a well settled proposition that the Commonwealth had the burden of proving, by a preponderance of the evidence, that any delays beyond December 10,1979, were to be excluded in computing the mandatory period. E.g., Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Garrison, 277 Pa.Super. 18, 419 A.2d 638 (1980). Further, “in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence as presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Mitchell, supra, 472 Pa. at 564, 372 A.2d 831.

At the extension hearing, the assistant district attorney merely reiterated the allegations presented in the Commonwealth’s petition to extend, specifically contending that despite due diligence by the Commonwealth, appellant could not be brought to trial within 180 days. However, there was not a scintilla of evidence produced at this hearing to support a finding by the lower court that the Commonwealth had exercised due diligence in bringing appellant’s case to trial within that original run date. There was no explanation as to why it took approximately three (3) months to reschedule appellant’s preliminary hearing and why a period of about six (6) months passed before appellant’s arraignment. This period of delay cannot be attributed to appellant or his attorney. Even if the time the district attorney’s office spent considering appellant’s request for ARD were excludable, such a period (June 25,1979 to July 20,1979 or 25 days) would not be sufficient to justify appellant’s trial beginning on January 25, 1980. The Commonwealth admitted in this case that the reason appellant could not be tried during September or November was due to the fact that he had not as yet been arraigned. The Commonwealth offered no justification for the development of these particular set of circumstances and unequivocally failed to establish due diligence. Clearly, “mere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c).” Commonwealth v. Antonuccio, 257 Pa.Super. 535, 537, 390 A.2d 1366, 1367 (1978); See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979).

We hold, therefore, in the absence of any evidence to substantiate a finding of due diligence on the part of the Commonwealth, the lower court abused its discretion in excluding any time under Rule 1100(c) and (d), and appellant is accordingly discharged.

Judgment of sentence reversed and appellant is discharged.

WICKERSHAM,. J., files dissenting opinion.

WICKERSHAM, Judge,

dissenting:

Following a jury conviction of drunken driving upon overwhelming evidence, the majority reverses and discharges the defendant by resort to a too rigid application of Pennsylvania Rule of Criminal Procedure 1100.

I DISSENT.

The facts of this case were set forth by the Honorable Emanuel A. Cassimatis in his opinion denying post-verdict motions:

The record fully supports the verdict, as the defendant apparently concedes because the sufficiency of the evidence was not raised as a ground in the post verdict motions. The evidence shows that the defendant violated a section of the motor vehicle code while operating his car, when stopped by the police he had difficulty finding his cards when requested to show them, his eyes were dilated and bloodshot, he swayed and walked unsteadily, he did not reply properly to the police questions, his speech was slurred, he had an odor of alcohol on his breath, he admitted to drinking some beer just before driving and his breathalyzer test showed a .20. From this evidence the conclusion is overwhelming that he was under the influence of intoxicants at the time he operated his motor vehicle.

Lower ct. op. at 1-2.

In Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981), this court set forth the test for determining whether the Commonwealth’s motion for extension of time for trial beyond the prescribed period of 180 days, see Pa.R.Crim.P. 1100(a)(2), should be granted.

“ ‘A court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.’ Pa.R.Crim.P. 1100(c).” Commonwealth v. Miller, 270 Pa.Super. 178, 182, 411 A.2d 238, 240 (1979). ‘The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c).’ Commonwealth v. Ehredt, 485 Pa. 191, 193, 401 A.2d 358, 360 (1979). (citations omitted). In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. Sec Commonwealth v. Ehredt, supra, 485 Pa. at 193, 401 A.2d at 360.

Id., 287 Pa.Superior Ct. at 317, 430 A.2d at 304.

Justice Kauffman, speaking for the supreme court, recently stated that:

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, [153-54], 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n.4, 409 A.2d 308 n.4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Commonwealth v. Genovese, 493 Pa. 65, 69, 72, 425 A.2d 367, 369-70, 371 (1981).

This case must have been one of the type that Chief Justice Warren E. Burger had in mind when he addressed the American Bar Association at its winter convention in Houston, Texas on February 8, 1981. Chief Justice Burger said, inter alia:

Our search for justice must not be twisted into an endless quest for technical errors, unrelated to guilt or innocence.
I put to you this question: is a society redeemed if it provides massive safeguards for accused persons including pretrial freedom for most crimes, defense lawyers at public expense, trials, and appeals, retrials and more appeals—almost without end—and yet fails to provide elementary protection for its law-abiding citizens?
What people want is that crime and criminals be brought under control so that we can be safe on the streets and in our homes and for our children to be safe in schools and at play, today that safety is very, very fragile.
. . . and even this will be for naught if we do not re-examine our judicial process and philosophy with respect to finality of judgments. The idealistic search for perfect justice has led us on a course found nowhere else in the world. A true miscarriage of justice, whether 20, 30 or 40 years old, should always been open to judicial review, but the judicial process becomes a mockery of justice if it is forever open to appeals and retrials for errors in the arrest, the search or the trial.

N.Y. Times, Feb. 9, 1981, § D at 10.

      . Pa.R.Crim.P. 175, et seq.

      . The preliminary hearing was originally scheduled for August 29, 1979. Pursuant to defense counsel’s request for a continuance, the preliminary hearing was not held until September 11, 1979. Since this was a period of less than thirty (30) days, the time was not excludable under Rule 1100(d)(2).

      . We share the sentiments expressed in the dissenting opinion; however, they are not applicable to the facts of this case. Regardless of how we may personally feel about the final outcome of a given case, we are obligated nonetheless to abide by the law as enunciated by the Supreme Court of Pennsylvania.


author: MONTEMURO, Judge:

text:
    449 A.2d 688
    PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY v. James A. BARKSDALE and Cynthia Barksdale. Appeal of Cynthia BARKSDALE.
    Superior Court of Pennsylvania.
    Submitted April 22, 1981.
    Filed Aug. 13, 1982.

      Stephen R. Krone, Harrisburg, for appellant.
    Betty Perry, Harrisburg, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

The underlying factual pattern presented by this case is the all-too-familiar situation in which the recipient of a student loan decides to default upon her promise to repay that loan.

Complaint was filed on August 22, 1977. Appellant, the defaulting student, filed Preliminary Objections to the complaint alleging that venue was improper. The matter was listed for argument on August 18, 1980 and the preliminary objections to venue were dismissed by order of the court below on October 31, 1980. Appellants appealed to the Superior Court from this issue on November 12, 1980. On November 18, 1980, appellee filed Application for Transfer of Appeal to the Commonwealth Court.

We agree with appellee that jurisdiction is proper in the Commonwealth Court, and such a transfer is hereby ordered pursuant to Pa.R.A.P. 751 and 752.

Section 102 of the Judiciary and Judicial Procedure, found at 42 Pa.C.S.A., defines “Commonwealth government” in pertinent part as follows:

The government of the Commonwealth, including . . . the departments, boards, commissions, authorities and offices and agencies of the Commonwealth. . .

Section 762 sets forth the jurisdiction of the Commonwealth Court on appeals:

§ 762. Appeals from courts of common pleas
(a) General rule.—Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following cases:
(1) Commonwealth civil cases.—All civil actions or proceedings to which the Commonwealth or any officer or employee thereof, acting in his official capacity or within the scope of his duties, is a party, including actions or claims in which sovereign immunity has been waived pursuant to Section 5110 (relating to limited waiver of sovereign immunity), except actions or proceedings in the nature of application for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the court. (Emphasis supplied.)

The Pennsylvania Higher Education Assistance Agency (PHEAA) is undeniably an agency of the Commonwealth. Richmond v. Pennsylvania Higher Education Assistance Agency, 6 Pa.Cmwlth. 612, 297 A.2d 544 (1972).

Appellants argue, however, that PHEAA does not fit the designation of “Commonwealth” as used in the statute, making a distinction between agencies that are synonymous with “Commonwealth” and agencies which are independent enough to be disqualified. This is a dead argument, settled by case law:

We recognize that other agencies have been found by this Court not to be the “Commonwealth” despite apparently contrary language in their enabling statutes. Southeastern Pennsylvania Transportation Authority v. Kohn, 18 Pa.Cmwlth. 546, 336 A.2d 904 (1975). This not not such a case. Defendant’s status may be compared to the Pennsylvania Higher Education Assistance Agency (PHEAA) in Richmond v. Pennsylvania Higher Education Assistance Agency, 6 Pa.Cmwlth. 612, 297 A.2d 544 (1972), where we found PHEAA to be the “Commonwealth” as defined in the ACJA. PHEAA was created as a public corporation and instrumentality of the Commonwealth and, like the defendant, lacks power to pledge the credit of the Commonwealth but does receive appropriations from the legislature to partially fund its operations. Kennedy v. Delaware River Joint Toll Bridge Commission, 23 Pa.Cmwlth. 662, 354 A.2d 52 (1976).

PHEAA is an agency of the Commonwealth which qualifies under the designation “Commonwealth” in § 762 set forth supra.

The Commonwealth Court therefore has exclusive jurisdiction over this matter upon appeal, and we hereby transfer this appeal to the Commonwealth Court. Pa.R.A.P. 752. So ordered.


author: POPOVICH, Judge:

text:
    449 A.2d 690
    COMMONWEALTH of Pennsylvania v. Richard WALLS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1982.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Denied Jan. 31, 1983.

      Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Richard Walls, from the judgments of sentence entered by the Court of Common Pleas of Montgomery County. We affirm in part and vacate in part.

On appeal, appellant raises issues concerning: 1) violation of his right to a speedy trial under Pa.R.Crim.P. 1100; and 2) the propriety of the sentences imposed by the court below.

In reviewing the legitimacy of the Rule 1100 claim, a recounting of the facts is necessary. On March 13, 1980, as a result of an incident at the Girard Bank in Bala-Cynwyd, Pa., a complaint was filed against the appellant charging him with Robbery, Criminal Conspiracy, Theft, Receiving Stolen Property, Possessing Instruments of Crime, Prohibited Offensive Weapons, Firearms not to be Carried Without a License, Convict not to Carry Firearm, Recklessly Endangering Another Person, Terroristic Threats and Simple Assault. Appellant was arrested the same day, along with his cohort (Richard Hardy), for the commission of the aforementioned crimes. Given the date the complaint was issued, appellant was to be tried by September 9, 1980. However, the record indicates that appellant’s trial did not commence until September 18, 1980, nine (9) days after the run date. Such delay in prosecuting the accused is not per se fatal, provided, of course, the Commonwealth establishes that it exercised due diligence in bringing the appellant to trial. Proof of compliance with the due diligence standard must appear on the record, and failure to adhere to such requirement will justify the dismissal of the case with prejudice. This procedural requirement was enunciated by our Supreme Court in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), wherein the Court stated in unequivocal terms:

“Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the ‘due diligence’ of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” Id., 469 Pa. at 222, 364 A.2d at 1349-50.

Our review of the record indicates that appellant was arraigned on May 5, 1980, and that the case was listed for trial on June 5, 1980. However, on June 6th, the Commonwealth filed a Petition to Consolidate appellant’s case with that of his codefendant Hardy. In the record appears a form petition, captioned “Motion For Trial Postponement,” which reads in relevant part:

“I. Motion is hereby made to postpone the above captioned case for the following reason(s): Pending Judge Vogel’s decision on Commonwealth’s motion to consolidate with Com v. Hardy
/s/ Henry Schireson 7-22-80 Com.
Sign, of Applying Counsel Date Representing
ANSWER
II. The above motion is (opposed/not opposed) for the following reason(s):
/s/ Abraham H. Hobson 7-22-80 Defendant
Sign, of Opposing Counsel Date Representing
IV. AND NOW, this 28 day of July 1980, the Motion is granted and the Court Administrator is directed to reactivate this case for trial on the 18th day of August 1980, this case must be tried within 120 days from the date of this order.
By The Court:
/s/ Lawrence A Brown
Judge”

Based on the lower court’s grant of the aforecited Motion, which was unopposed by the appellant’s counsel, the accused did not have to be brought to trial until November 20, 1980. See generally Commonwealth v. Hadovanic, 294 Pa.Super. 185, 439 A.2d 812 (1982). From such conduct, “we can infer . . . that he [counsel] ‘gave the appearance of approval to the court’s scheduling of . . . the trial[ ] . . . [as late as November 20,1980, which would have been] beyond the time limits set forth in Pa.R.Crim.P. 1100(e). Accordingly, we hold that appellant may not now complain that Rule 1100(e) was violated.’ ” (Citation omitted) Commonwealth v. Lee, 297 Pa.Super. 216, 234, 443 A.2d 804, 812 (1982). Moreover, the record indicates that the Commonwealth filed a Petition for Extension on September 9, 1980, the 180th day after the filing of the complaint, which, after a hearing, was granted by the court on September 18, 1980.

At said proceeding, court personnel testified to the backlog of cases that precluded the scheduling of appellant’s trial sooner than September 18, 1980. Additionally, the assistant district attorney in charge of assigning the criminal cases testified that during the month of August, 1980, “there was a backlog of three hundred and some cases” in the office. (N.T. 9/18/80, at 12) Furthermore, the first assistant district attorney of Montgomery County took the stand and recounted that due to the number of cases being handled by his staff, coupled with the fact that only one judge was available to hear cases in the month of August, 1980, id. at 42, as well as the number of cases preceding the appellant’s in order of priority (30), it would have made no difference to whom he had assigned prosecution of the case at bar, litigation would not have commenced sooner than September 15, 1980.

Also, a court employee for the prothonotary of Montgomery County, responsible for the listing of criminal trials and assigning them to the available judges, testified that appellant’s case was first listed for trial on June 5, 1980 and was placed on standby on July 21, 1980—a courtroom would have been available within the next day or two. However, the Commonwealth filed a motion for a continuance on July 22, 1980, reproduced supra, which was not opposed by appellant’s counsel at a hearing held thereon. The case was continued to August 18, 1980, with the possibility that the case did not have to be tried until 120 days from the date the order granting the continuance was entered, i.e., July 23, 1980. This same employee stated the number of judges available to hear criminal cases between August 18th and September 15, 1980, and that the backlog during this period prevented appellant’s case from being heard prior to September 15th. Based on our review of the record, we find that the Commonwealth established, by a preponderance of the evidence, that it exercised due diligence in bringing the appellant to trial. Commonwealth v. Mayfield, supra.

We now direct our attention to the last averment, which is stated by the appellant as follows: “[(1)] The Court erred in imposing suspended sentence[s] on theft, recklessly endangering another person, and 'terroristic threats because these offenses merge with the robbery conviction[; and (2) ] The Court erred in imposing suspended sentence[s] on possessing instruments of crime and prohibited offensive weapons because these convictions are barred by 18 Pa.C.S.A. § 906.” (Appellant’s Brief at 6)

Initially, we point out that after the trial by jury, the appellant was found guilty of all charges, save for simple assault. After a pre-sentence report was filed, the trial court sentenced the accused on January 9, 1981, to two concurrent terms of ten (10) to twenty (20) years imprisonment for robbery and criminal conspiracy. As for the other convictions, the court suspended sentence. Thereafter, on February 5,1981, an appeal from the judgments of sentence was filed by the appellant with this Court.

Procedurally, we observe that subsequent to the taking of the instant appeal, appellant filed a petition for reconsideration of sentence with the court below. A hearing was held on said petition on April 10,1981, but no action was taken by the court at that time. Nonetheless, we find it necessary to mention that in the absence of the lower court vacating the judgments of sentence, either in connection with granting the petition for modification or in order to have additional time within which to consider the petition, it lacked jurisdiction to convene a hearing to review the merits of appellant’s modification of sentence petition over three (3) months after the appeal in question was filed. Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); accord Commonwealth v. Thomas, 301 Pa.Super. 333, 447 A.2d 994.

Before addressing appellant’s sentencing arguments, we need to recount the facts prompting the filing of the charges at issue here. On the morning of March 13, 1980, the Girard Bank, located in Bala-Cynwyd, Pa., was robbed of $7,429.00. At trial, some of the bank’s employees who witnessed the incident testified that three black males, all of whom were wearing ski masks, entered the establishment and announced that a robbery was taking place. In particular, Barbara Clapper, the head teller, remarked how the second man out of the trio, whom she positively identified as the appellant, told her that if she did not get away from the phone he would blow her head off. Because the appellant had a sawed-off shotgun pointed at her face, the witness did as she was told. Only three other employees testified to the incident in question (Janet Bennett—customer service representative; Denise Matthews—a teller; and Gary Townsend—security guard), and, out of that group, only the security guard stated he was threatened with physical harm by one of the culprits, other than the appellant, if he did not relinquish his weapon and lie on the floor. The remaining portion of the Commonwealth’s case dealt with the manner in which the robbers were apprehended and how the evidence was secured to incriminate the appellant.

Having reconstructed the facts relevant to examining appellant’s sentencing arguments, we can now proceed to the first prong of such averment, i.e., whether certain of the offenses charged—theft, recklessly endangering another person and terroristic threats—merge with the robbery conviction.

The Commonwealth urges that because the offenses alleged to have merged with the robbery conviction resulted in the entry of “suspended sentences,” “vacating the suspended sentences would serve no useful purpose, nor would any benefit inure to appellant.” (Commonwealth’s Brief at 4) We disagree.

To begin with, the courts of this Commonwealth have recognized that the conviction for which a judgment of sentence has been suspended is appealable. See Commonwealth v. Elias, 394 Pa. 639, 642, 149 A.2d 53, 55 (1959) (citing cases); Commonwealth v. Meszaros, 194 Pa.Super. 462, 466, 168 A.2d 781, 783 (1961); Commonwealth v. Tluchak, 166 Pa.Super. 16, 21, 70 A.2d 657, 660 (1950). Next, we examine the test for merger of offenses, as stated in Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-105, 21 A.2d 920, 921 (1941):

“The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are ‘successive steps in the same transaction’ but it is whether one crime necessarily involves another, as for example, rape involves fornication, and robbery involves both assault and larceny. The ‘same transaction’ test is valid only when ‘transaction’ means a single act. When the ‘transaction’ consists of two or more criminal acts, the fact that the two acts are ‘successive’ does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, as, é.g, larceny is merged in robbery, and assault and battery is merged in murder, or they may be two distinct crimes which do not merge.” (Emphasis in original)

Thus, if one crime necessarily involves another the two offenses merge. Id. Moreover, it is well settled that for one crime necessarily to involve another, the essential elements of one must be the essential elements of the other. Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). “That is, if no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes. Only one sentence may therefore be imposed.” (Citations omitted) Commonwealth v. Eberts, 282 Pa.Super. 354, 358, 422 A.2d 1154, 1155-56 (1980).

In applying the aforesaid precepts instantly, we start with the proposition- that in order to obtain a conviction for robbery, the Commonwealth must prove that a person, in the course of committing a theft,

“(a)(1) . . .
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;” 18 Pa.C.S.A. § 3701(a)(l)(ii) (Supp.1982-83).

Next, we see that the crime of recklessly endangering another person is committed if a person “recklessly engages in conduct which places or may place another person in fear of death or serious bodily injury.” 18 Pa.C.S.A. § 2705.

Also, in the process of perpetrating-a theft, herein stealing money from the Girard Bank, the appellant threatened Barbara Clapper with immediate serious bodily harm, specifically by the use of a sawed-off shotgun. The aforecited facts establish the necessary elements for the offense of robbery as stated supra. In order to prove that appellant engaged in conduct which recklessly placed another in danger of death or serious bodily injury, these exact facts must be considered. That is, no additional facts need exist, or are necessary, to prove that appellant recklessly endangered another’s life. Commonwealth v. Eberts, supra; Commonwealth v. Jackson, 271 Pa.Super. 131, 412 A.2d 610 (1979).

Here, inasmuch as the facts presented to establish the offense of recklessly endangering another person were the same as those necessary to prove the commission of a robbery, and since theft is a lesser included offense under the robbery indictment, see 18 Pa.C.SA. § 3701(a)(1) (Supp. 1982-83); Commonwealth v. Stevens, 237 Pa.Super. 457, 352 A.2d 509 (1975), we find that appellant’s convictions for robbery, recklessly endangering another person and theft resulted from the same unlawful acts.

As for the offense of terroristic threats, with which the appellant was also charged and convicted, we likewise conclude that this offense merges with robbery. A person commits the crime of terroristic threats “if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.” 18 Pa.C.S.A. § 2706. In the case at bar, from the evidence presented, appellant’s threats were aimed at Ms. Clapper in directing her to release the phone in her hand or she would suffer the consequences of being injured with the weapon appellant had pointed at her face. Thus, from our review of the record, there are no additional facts with which to support the terroristic threat charge other than those facts which substantiated, and were part and parcel of, the robbery charge as to this victim, i.e., threatening her with a gun in the course of committing a theft. See Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980).

While one unlawful act may constitute more than one crime, appellant cannot be punished twice, or as in this instance four times, for the same act. Commonwealth v. Bryant, supra. Although we can sustain appellant’s convictions on robbery, theft, recklessly endangering another person and terroristic threats, we can only sentence appellant, based on the particular facts here, on one count.

As we have stated in the past, where a case requires a correction of a sentence, this court has the option of either remanding for resentencing, or amending the sentence directly. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1982); Commonwealth v. Eberts, supra. In the case at bar, since appellant’s sentence for robbery was ten to twenty years, with sentence on the remaining charges being suspended, we find no need to remand to the lower court for resentencing. Rather, we will affirm the judgment of sentence for robbery and vacate the suspended sentences as to theft, recklessly endangering another person and terroristic threats. See Commonwealth v. Bryant, supra.

The second prong of appellant’s attack on the sentences imposed concerns the claim that issuance of suspended sentences on the offenses of possessing instruments of crime and prohibited offensive weapons were illegal, as in direct violation of 18 Pa.C.S.A. § 906, which provides:

“A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.”

On this point, it is to be remembered that Ms. Clapper testified that when she first saw the appellant he had a sawed-off shotgun aimed at her face and that he threatened her with serious bodily injury. (N.T. 9/18/80, at 25 & 32) Then, appellant and his partners emptied out the cash drawers of their content and left the bank. Thus, under Ms. Clapper’s version of the robbery, the weapon possessed and used by the appellant to place her in fear of serious bodily injury, as well as to facilitate the commission of the robbery, was a sawed-off shotgun. It is clear from the evidence adduced at trial, that appellant “possesse[d] an[ ] instrument of crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a) & (c)(1). As a result, the evidence was sufficient in law to support the verdict of guilty on that count. See generally Commonwealth v. Sample, 270 Pa.Super. 47, 410 A.2d 889 (1979). However, the same result does not obtain for the conviction on the charge of possession of a prohibited offensive weapon. To elucidate, to be found guilty of such offense, the Commonwealth need only establish: 1) that the accused was found in “possession] of any offensive weapon;” and 2) that a sawed-off shotgun is an “offensive weapon,” which it is under 18 Pa.C.S.A. § 908(c). These same two elements make up a violation of Section 907, requiring the Commonwealth only to prove the additional element that the accused possessed the item in question “with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). Therefore, when the Commonwealth established the elements constituting a violation of Section 907(a), it had also proven a violation of Section 908. Consequently, under the unique facts of this case, both offenses were perpetrated with one objective in mind—robbery of the Girard Bank— and therefore merge for sentencing purposes under the mandate of 18 Pa.C.S.A. § 906.

Given the error committed by the sentencing court, we, as stated supra, have the authority to amend the sentence on appeal and we opt to do so. Commonwealth v. Von Aczel, supra. Since suspended sentences were entered for both offenses and the two are also misdemeanors of the first degree, each carrying a possible term of imprisonment of up to five (5) years, 18 Pa.C.S.A. § 1104(1), we shall vacate the prohibited offensive weapon’s sentence.

Judgments of sentence for robbery and possessing an instrument of crime affirmed. Judgments of sentence entered for theft, recklessly endangering another person, terroristic threats and prohibited offensive weapon are vacated.

WIEAND, J., concurs in the result.

      . 18 Pa.C.S.A. § 3701.

      . Id. at § 903.

      . Id. at § 3921.

      . Id. at § 3925.

      . Id. at § 907.

      . Id. at § 908.

      . Id. at § 6106.

      . Id. at § 6105.

      . Id. at § 2705.

      . Id. at § 2706.

      . Id. at § 2701.

      . Our calculation is made in accordance with 1 Pa.C.S.A. § 1908 (Supp.1964-81) which mandates exclusion of the first day and inclusion of the last. See Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977).

      . We note, although not dispositive of the case here, that the Commonwealth filed its petition for extension within the 180-day period, but that the court did not hold a hearing on it until after the period had run. We again must disapprove of this practice. As we stated in the past: “ ‘The risk is obvious: if the court denied the extension after the period has run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period.’ ” (Citation omitted) Commonwealth v. Metzgar, 249 Pa.Super. 107, 110 n. 2, 375 A.2d 781, 783 n. 2 (1977). Also, “[w]hile the record in the instant case does not disclose why the Commonwealth’s petition was scheduled to be heard [nine (9) days] after the run date, appellant does not allege, nor does the record reveal that he was prejudiced by the court’s action. Therefore, under these circumstances, this Court need not inquire further[, than it already has,] into the reasons for the delay.” Commonwealth v. Fairley, 298 Pa.Super. 236, 242, 444 A.2d 748, 751 (1982).

      . For edification purposes, we note that, “[a]s to the propriety of inquiring into the validity of the sentence, ... the legality of the sentence is never waived, despite the fact that it was not raised in the court below.” (Citations omitted) Commonwealth v. Von Aczel, 295 Pa.Super. 242, 246, 441 A.2d 750, 752 (1982).