author: JOHNSON, Judge: WIEAND, Judge, SPAETH, Judge,

text:
    440 A.2d 1198
    COMMONWEALTH of Pennsylvania, v. Dale Raymond WHITE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1981.
    Filed Jan. 22, 1982.
    Petition for Allowance of Appeal Denied Aug. 10,1982.

      C. Roy Weidner, Jr., Lemoyne, for appellant.
    Edgar B. Bayley, Jr., District Attorney, Carlisle, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order dismissing Appellant’s petition to withdraw three guilty pleas. For the following reasons, we affirm.

Appellant pleaded guilty to a charge of Unauthorized Use of Automobiles and Other Vehicles. Subsequently, Appellant entered two additional guilty pleas to charges of Criminal Attempt and Escape. Appellant was sentenced on all three charges. Appellant filed neither post-sentence motions nor a direct appeal.

Nine months later, Appellant filed a petition under the Post Conviction Hearing Act (PCHA) to withdraw his guilty pleas alleging ineffective assistance of counsel. The court dismissed the PCHA petition, from which order an appeal was filed. We granted Appellant leave to file a petition to withdraw the guilty pleas nunc pro tunc. Appellant filed the aforesaid petition, and a hearing was conducted thereon. This is an appeal from the order of October 16, 1980, which dismissed Appellant’s petition.

Appellant raises two issues in this appeal. First, were the guilty pleas invalid because Appellant was not sufficiently apprised of the nature of the charges? Second, did the guilty pleas constitute valid waivers of Appellant’s right to a jury trial?

I.

We proceed to consider Appellant’s first issue. Preliminarily, we note that Appellant was represented by counsel at all three guilty plea colloquies. At the colloquy on February 16,1977, the prosecution agreed to accept a plea of guilty to unauthorized use of a stolen motorcycle, although Appellant had been charged with Receiving Stolen Property. Receiving Stolen Property is a felony of the third degree, for which the maximum sentence is seven (7) years imprisonment, while the maximum sentence for Unauthorized Use, a misdemeanor of the second degree, is two (2) years. By pleading guilty to Unauthorized Use, Appellant was assured that his maximum allowable sentence was reduced by five (5) years.

The court explained Unauthorized Use as follows: THE COURT: You understand by entering your plea you are admitting that you used this vehicle, this motorcycle, knowing that you did not have the permission or authority of the owner to use it? [Emphasis added.]
MR. WHITE: Yes, sir.

The offense is defined as follows:

Unauthorized use of automobiles and other vehicles
... A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner. [Emphasis added.]

Because the court explained the offense of Unauthorized Use as the use, rather than the operation, of the vehicle, Appellant contends that this colloquy was defective. Our review of the record persuades us that Appellant knowingly, intelligently, and voluntarily entered into this plea with a thorough understanding of the nature of the charge. Appellant’s brief does not present any arguments that would persuade us to reach a contrary conclusion, and we note that the cases cited therein are not applicable to the instant case.

Appellant also contends that the foregoing guilty plea was invalid because the trial judge did not inform Appellant of the following defense that is provided by statute:

It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he known of it.
As discussed above, if Appellant had not pleaded guilty to Unauthorized Use, he would have been tried for Receiving Stolen Property. Thus the defense to Unauthorized Use would have been immaterial. Also, we note that the court’s failure to advise Appellant of all possible defenses does not per se render the plea invalid. Commonwealth v. Johnson, 460 Pa. 169,177, 331 A.2d 473, 476-7 (1975); Commonwealth v. Stokes, 264 Pa.Super.Ct. 515, 519, 400 A.2d 204, 206 (1979). Here, there is no suggestion in the record that Appellant had any belief that the owner of the motorcycle would have consented to its operation had he known of it. We find this contention to be without merit.

Appellant next contends that the plea to attempt to commit robbery was invalid because he was not informed of the elements of the crime. The court described the offense as follows:

THE COURT: The offense of robbery, of course, is pretty evident I think. It constitutes the attempt to take property from another by putting them in fear and by use of force, and at the time of the attempt the person doing so is in full possession of his mental capabilities. Do you have any questions about any of the, about the nature or any of the elements of criminal attempt to commit robbery?
MR. WHITE: No, sir.

We find that the foregoing description adequately apprised Appellant of the elements of attempt to commit robbery.

The third prong of Appellant’s first issue is the claim that the description of escape was inadequate because the judge did not inform Appellant of the elements of this charge. The court stated:

THE COURT: You have heard the statements of the district attorney as to what occurred, namely that you were here in this court for a presentence investigation and on the way to prison, without permission of the guards that had you in custody you slipped a handcuff and disappeared for a while. Do you have any questions as to the nature and elements of the offense of escape?
MR. WHITE: No.

Section 5121(a) of 18 Pa.C.S.A. defines the elements of escape as follows:

(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

The court’s colloquy adequately informs Appellant of the nature of the crime of escape to which he pleaded guilty.

Appellant cites Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), for the proposition that each element of a crime must be explained in addition to the factual basis of the charge. Ingram must be distinguished from the instant case. In Ingram the defendant pleaded guilty to murder, but the colloquy merely related that defendant shot and killed the victim. Since the essential element of malice was completely omitted by the trial court in Ingram, the Supreme Court held that the aforesaid plea lacked the essential elements of the crime. In the instant case, the factual context related by the court clearly indicates the essential elements of the crime of escape. Thus this colloquy was not inadequate.

II.

We proceed to consider Appellant’s second issue—that the three pleas did not constitute valid waivers of Appellant’s right to a jury trial because the court did not inform Appellant, first, that the jurors were chosen from members of the community, and second, that there are twelve (12) jurors.

At the colloquy on February 16, 1977, the court stated:
THE COURT: Now, you are entitled to a jury trial in this case, and, of course, would be presumed innocent until the proofs in the case showed your guilt beyond a reasonable doubt. You would assist your counsel in selecting the jury. The jury would hear the evidence and you could not be convicted unless unanimously the jury reached a conelusion as to your guilt beyond a reasonable doubt. Do you understand that?
MR. WHITE: Yes, sir.

The judge informed Appellant that he would assist his counsel in selecting a jury. Although the judge did not specifically state that the jurors are members of the community, this fact is clearly implied from the idea of selection. If a defendant knows that he can assist his attorney in selecting the jury, he understands that he selects the jurors from a larger group of people. Whether or not this group is given the nomenclature of “members of the community,” “peers,” or “panel” is placing form before substance. If the defendant knows that he can select the jurors from a group, the title given to the group does not assist the defendant to understand more fully the essential elements of a jury trial.

The court in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), suggested the essential elements of a jury trial:

[B]asic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.

Id., 454 Pa. at 373, 312 A.2d at 600. Subsequent opinions have bestowed upon Williams an interpretation of the concept of a jury trial that, at times, has been too literalistic. See Commonwealth v. Fortune, 289 Pa.Super.Ct. 278, 433 A.2d 65 (1981), where Judge HESTER sets forth an excellent review of the prior case law in this area.

In Commonwealth v. Fortune, the colloquy—like that in the instant case—did not specifically inform the defendant that the jurors are chosen from members of the community —defendant’s peers. The Superior Court, sitting en banc, held, with one judge dissenting, that the lower court’s failure to use either “peers” or “members of the community” to inform the defendant of his right to a jury trial did not constitute error. Id., 289 Pa.Super. at 290, 433 A.2d at 71. Fortune is on point with the instant case.

Appellant next contends that his pleas did not constitute valid waivers of his right to trial by jury because the lower court did not expressly inform him that the jury would consist of twelve members. Both Appellant and the Dissenting Opinion in this case rely upon Williams and its predecessor, Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938), for the apparent proposition that a valid guilty plea colloquy must contain a specific reference to the fact that juries are composed of twelve persons. Our review of both Fugmann and Williams does not lead us to extend the holdings of those cases that far.

Justice MAXEY’s consideration of the essential elements of a trial by jury, in Fugmann, arose in the context of a claim that the seating of two alternate jurors in a capital case “constituted a violation of defendant’s constitutional right.” Justice MAXEY, writing for the court, with one of the then six justices concurring in the judgment, rejected this particular assignment of error on the basis that the fundamental law preserves the substance of the right, and that “details of administration” which leave the enjoyment of the right unaffected are “of no constitutional concern.” The court found that the seating of the alternate jurors left “the jewel of Anglo-Saxon jurisprudence” untouched and undimmed and affected only its “setting.” 330 Pa. at 29, 198 A. at 111. By way of dicta, the court set forth six essentials of a trial by jury:

The essentials of a trial by jury of a defendant in a criminal case as known at the common law were: (1) a jury composed of twelve eligible persons duly summoned, sworn and impanelled for the trial of the issue; (2) a plea entered; (3) an ample right of challenge both for cause and peremptorily, secured to defendant; (4) a full, fair and public trial ‘under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law of the evidence’; (5) proper and sworn testimony for the jury’s consideration; (6) unanimity of the vote supporting the verdict.
A departure from any of these essentials would be a deprivation of ‘the right to trial by jury.’

Id, 330 Pa. at 29, 198 A. at 111 (footnote and citations omitted) (emphasis added).

Appellant does not suggest, nor could he, that all of the six essential elements of a jury trial as pronounced in Fugmann have been replicated in the present-day requirements for either a guilty plea colloquy or, for that matter, in the requirements for a valid waiver of jury trial where the defendant proceeds to trial, nonjury, as in Williams. Our Supreme Court, in Williams, made specific citation to Fugmann in setting forth its understanding of the essential ingredients of a jury trial which are necessary to understand the significance of the right that is being waived. There, Justice NIX said:

These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel. In Commonwealth v. Fugmann, 330 Pa. 4,198 A. 99 (1938) these rights were held to be a necessary and integral part of the Pennsylvania Constitutional provision requiring that the ‘trial by jury shall be as heretofore, and the right thereof remain inviolate . .. . ’

454 Pa. at 373, 312 A.2d at 600 (citation and footnote omitted).

We agree with the writer of the Dissenting Opinion that a knowing and intelligent waiver necessarily requires that a defendant be adequately informed of all those essential ingredients of a jury trial which are necessary to understand the importance of the right being relinquished. Commonwealth v. Washer, 253 Pa.Super.Ct. 209, 214, 384 A.2d 1305, 1308. We are unable to agree that either our Supreme Court, through Williams or this Court, through its opinions interpreting Williams, has elevated the element—that a jury is composed of twelve persons—to the level of a constitutional necessity in a guilty plea colloquy.

It is enough to observe that, in our view, a clear distinction must be maintained between the essential elements of a jury trial, on the one hand, and the essential elements of a guilty plea colloquy leading up to a knowing and intelligent waiver of the right to be tried by either judge or jury, on the other hand.

Appellant cites Commonwealth v. Coxson, 262 Pa.Super.Ct. 14, 396 A.2d 460 (1978), to support his contention that the court must specifically inform a defendant that a jury is composed of twelve members. In Coxson, Judge VAN der VOORT, in reversing a judgment of sentence upon a finding of an inadequate colloquy, said:

In Williams, the court held that the trial court, when accepting a guilty plea, must be assured that the criminal defendant knows that the 12 jurors would be chosen from members of the community, that the accused would be permitted to participate in the selection of the jury panel, and that the jury verdict would have to be unanimous. If these factors are not explained to the accused during the guilty plea colloquy, the court cannot be assured that the waiver of a right to jury trial was knowingly or intelligently made.

Id., 262 Pa.Super. at 16, 396 A.2d at 461.

For the reasons set forth above, we are not disposed to agree that the use of the quantifier, 12, before the word “jurors” in the quoted passage was intended to modify Williams by adding another element—that there are twelve jurors—to the concept of a valid colloquy as delineated in Williams. By referring with approval to the elements specified in Williams, this court, in Coxson, merely altered the language used by Williams from “the jury” to “the 12 jurors.”

We cannot perceive that any good reason exists to superimpose upon the guilty plea colloquy a requirement that the accused must be instructed concerning all attributes of a trial by jury, including the fact that a jury consists of twelve persons. In the instant case, Appellant was fully cognizant of the options available to him. He discussed them with his attorney and, because of favorable terms contained in plea bargains offered by the Commonwealth, decided to forego trials by jury and enter pleas of guilty. Even at the hearing on his application to withdraw his pleas, Appellant did not pretend that he was unaware that a criminal jury consisted of twelve persons; and his counsel has not suggested otherwise.

For the foregoing reasons, we conclude that the colloquy of February 16, 1977, was not defective.

We proceed to consider the two colloquies of May 16,1978. At the first colloquy, Appellant was informed both that he and his counsel would participate in the selection of the jury and that the jury would be selected from a panel:

THE COURT: And if you desire to have a jury trial we have a jury panel here, you and your counsel would participate in the selection of the jury. After the jury was selected they would hear the evidence against you and any evidence that you desired to offer, and because you are presumed innocent until proved guilty beyond a reasonable doubt that jury could not convict you unless unanimously they concurred as to your guilt beyond a reasonable doubt. Do you understand that?
MR. WHITE: Yes, sir.

N.T. 5/16/78, 4-5.

Under Commonwealth v. Bouie, 263 Pa.Super.Ct. 556, 398 A.2d 716 (1979), this language clearly satisfies the requirements of Williams. In Bouie, the trial judge instructed the defendant both that the jury would be selected from “a panel which has been empaneled” and “from a larger group.” Id., 263 Pa.Super.Ct. at 558, 398 A.2d at 717. On review, the Superior Court held that this instruction was adequate:

Nothing in the Williams decision indicates that the precise language used in Williams must be read to the accused as long as the “essential ingredients” of a jury trial are explained to an accused.

Id., 263 Pa.Super. at 558-559, 398 A.2d at 717. Although Commonwealth v. Friedman, 268 Pa.Super.Ct. 278, 407 A.2d 1355 (1979), held that a similar instruction was inadequate, Friedman was expressly disapproved by the Superior Court, sitting en banc, in Commonwealth v. Fortune, 289 Pa.Super.Ct. at 291, 433 A.2d at 71.

Since a second colloquy was conducted on May 16, 1978, Appellant already had been informed of the essential elements of a jury trial. It would surely place form before substance to demand that the court must reiterate every element of a colloquy that had been conducted only a few hours before the second colloquy. Thus the colloquies that were conducted on May 16, 1978, are not defective.

A careful review of the record in the instant case indicates that Appellant’s guilty pleas were entered voluntarily, intelligently, and knowingly, with an understanding of both the nature of the charges and the elements of the jury trial, which he waived. Appellant has failed to demonstrate the existence of any “prejudice on the order of manifest injustice” that would permit him to withdraw those pleas after sentences had been imposed. Commonwealth v. Stokes, 264 Pa.Super.Ct. 515, 517-518, 400 A.2d 204, 205 (1979).

To require, in the instant case, that the trial judge must adhere to a computer-like checklist of questions is to place form above substance and to make a mockery of justice by a blind insistence upon technicalities.

“The rule that a complete colloquy be given to each defendant, is not an end in itself; rather, it is intended to protect a defendant’s constitutional rights, so that each defendant understands his or her constitutional rights and knowingly and voluntarily waives those rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There is, however, no constitutionally prescribed form for how these rights are to be protected.” [Footnote omitted.]

Commonwealth v. Harris, 286 Pa.Super.Ct. 601, 607, 429 A.2d 685, 688 (1981).

For the foregoing reasons the order of October 16, 1980, which dismissed Appellant’s PCHA petition, is affirmed.

WIEAND, J., files a concurring opinion.

SPAETH, J., files a dissenting opinion.

WIEAND, Judge,

concurring:

I concur that the order dismissing appellant’s P.C.H.A. petition should be affirmed.

Dale Raymond White entered separate, negotiated pleas of guilty to attempted robbery, escape, and unauthorized use of a motor vehicle. The colloquies conducted by the trial judge were sufficient to demonstrate that appellant’s pleas of guilty were entered knowingly, intelligently and voluntarily. He has failed to prove in the instant P.C.H.A. proceedings any prejudice on the order of manifest injustice that would recommend permitting him to withdraw those pleas of guilty after sentences had been imposed. See: Commonwealth v. Stokes, 264 Pa.Superior Ct. 515, 400 A.2d 204 (1979). Therefore, the trial court properly refused to allow appellant to withdraw his pleas of guilty.

The decision in Commonwealth v. Fortune, 289 Pa.Superior Ct. 278, 433 A.2d 65 (1981) is dispositive, as Judge Johnson and Judge Spaeth agree, of appellant’s contention that his pleas were not intelligently entered because the trial judge allegedly failed to advise him that the right to be tried by jury meant trial by jurors chosen from members of the community. See also: Commonwealth v. Bouie, 263 Pa.Superior Ct. 556, 398 A.2d 716 (1979).

It is not essential to the entry of a knowing and intelligent guilty plea that the colloquy be further encumbered by requiring an instruction that a jury in a criminal case consists of “twelve” persons. The guilty plea colloquy, as most trial judges know, has already become “so extensive— so all-encompassing—so unrealistic—so dreamlike, as to have become an absurdity.” McClelland, “The Guilty Plea Absurdity,” Pennsylvania Law Journal, September 29, 1980, Vol. Ill, No. 37, p. 10. I perceive no value to a technical addition which elevates form over substance and which assumes that criminal defendants are idiots and their attorneys incompetent.

In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), the Supreme Court considered the adequacy of the colloquy preceding a waiver of jury trial and an agreement to be tried by a judge sitting without jury. The Court there concluded that “basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Several observations may be in order. First, the Supreme Court did not hold that the number “twelve” was basic to trial by jury. See and compare: Pa.R.Crim.P. 1103. Secondly, the Supreme Court has not superimposed upon a guilty plea colloquy—not by rule and not by decision—the requirement announced in Williams for the colloquy preceding a trial without jury.

The Superior Court, however, has held that Williams is equally applicable to a guilty plea colloquy. Commonwealth v. Washer, 253 Pa.Superior Ct. 209, 384 A.2d 1305 (1978). Despite the absence of a controlling Supreme Court decision, I am bound to apply the holding of the Superior Court, sitting en banc in Washer. However, I do not feel constrained to expand that holding and require that a guilty plea colloquy contain advice that a jury consists of twelve persons. There are many aspects of the right to be tried, with or without a jury, which need not be detailed by a court before an accused can enter a knowing and intelligent plea of guilty. To require that a guilty plea colloquy include all the procedural and evidentiary rights which will accrue to a defendant if he elects to go to trial will unnecessarily impose upon guilty pleas a burden that will most certainly become as impossible as it is absurd.

The absence from the guilty plea colloquy of the precise number of jurors who will hear evidence and determine a defendant’s guilt will not render an otherwise intelligent plea of guilty unintelligent. This is readily apparent from the circumstances of the instant case. Appellant was fully aware of the options available to him. He discussed them with his attorney and, because of the favorable terms of plea bargains offered by the Commonwealth, decided to forego trials, whether with or without jury, and enter pleas of guilty. Even appellant did not pretend during the hearing on his P.C.H.A. petition that he was unaware that a jury consisted of twelve persons or that the failure of the trial judge to use that magic number made a difference in his several decisions to plead guilty. On appeal, his counsel has not contended otherwise. Indeed, he has conceded that appellant proved no prejudice from the trial court’s failure to use the word “twelve.” Therefore, I agree with Judge Johnson that there was here no manifest injustice that needs to be corrected by allowing appellant to withdraw his pleas of guilty. To do so under the circumstances of this case would make a mockery of justice and would further erode public confidence in a system perceived as allowing technical rules to interfere with the ascertainment of truth.

SPAETH, Judge,

dissenting:

As the majority notes, appellant challenges the validity of his guilty plea on two grounds: first, that the trial court did not inform him that the jurors would be chosen from the community and would be his peers; and second, that the trial court did not inform him that a jury consists of twelve persons. I agree that Commonwealth v. Fortune, 289 Pa.Superior Ct. 278, 433 A.2d 65 (1981), supports the majority’s rejection of the first ground. However, I am unable to agree with the majority’s rejection of the second ground.

In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), the Supreme Court held that a defendant in a criminal case should not be permitted to waive a jury unless the record demonstrated that

he knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was waiving. These essential ingredients of a jury, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.
Id, 454 Pa. at 373, 312 A.2d at 600.

The majority reasons that because this statement does not specifically refer to the requirement that a jury must consist of twelve persons, that requirement is not an “essential ingredient” of a jury trial of which the defendant must be informed. In other words, the majority reads Williams’s silence on the requirement that a jury must consist of twelve persons as an affirmative statement that there is no need to inform the defendant of the requirement. This reasoning, I submit, reads into Williams something that the Court could not have intended.

Although the Court in Williams did not state that the defendant must be told that a jury consists of twelve persons, it did not have to, for the defendant had been told that “he could have a jury trial in which twelve men would decide his guilt or innoeense.” Id., 454 Pa. at 373, 312 A.2d at 600. Moreover, the Court cited as its authority Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938), and in Fugmann the Court said:

The essentials of a trial by jury of a defendant in a criminal case as known at the common law were: (1) a jury composed of twelve eligible persons duly summoned, sworn and impanelled for the trial of the issue .... Id., 330 Pa. at 29, 198 A. at 111.

Until today, the essentials of a trial by jury as established by Williams and Fugmann have been observed by the Pennsylvania courts. In Commonwealth v. Coxson, 262 Pa.Superior Ct. 14, 396 A.2d 460 (1978), for example, this court said:

In Williams the court held that the trial court, when accepting a guilty plea, must be assured that the criminal defendant knows that the 12 jurors would be chosen from members of the community .... If these factors are not explained to the accused during the guilty plea colloquy, the court cannot be assured that the waiver of a right to jury trial was knowingly or intelligently made.
Id., 262 Pa.Super. at 16, 396 A.2d at 461.

See also Commonwealth v. Harris, 488 Pa. 141, 411 A.2d 494 (1979); Commonwealth v. Fortune, 289 Pa.Superior Ct. 278, 433 A.2d 65 (1981); Commonwealth v. Tami, 264 Pa.Superior Ct. 535, 400 A.2d 214 (1979); Commonwealth v. Bouie, 263 Pa.Superior Ct. 556, 398 A.2d 716 (1979); Commonwealth v. Friedman, 268 Pa. Superior Ct. 278, 407 A.2d 1355 (1979); Commonwealth v. Guenzer, 255 Pa.Superior Ct. 587, 389 A.2d 133 (1978).

In holding, for the first time, that a defendant may waive a jury even though he does not know how many persons a jury consists of, the majority seems to assume, either that a jury always consists of the same number of persons, or that what the number is is not important. Neither assumption is warranted.

The United States Supreme Court has examined the number of jurors required by the Constitution, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973); Ballew v. Georgia, 435 U.S. 223, 99 S.Ct. 1029, 55 L.Ed.2d 234 (1978), and has concluded that while “the 12 man requirement cannot be regarded as an indispensable component of the Sixth Amendment,” Williams v. Florida, supra 399 U.S. at 100, 90 S.Ct. at 1905, any reduction below six would violate the Sixth and Fourteenth Amendments, Ballew v. Georgia, supra. In reaching this conclusion the Court recognized that one function of a jury is to prevent oppression by the government:

Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, supra [391 U.S. 145], at 156 [88 S.Ct. 1444 at 1451], 20 L.Ed.2d at [491] 500. Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community.
Williams v. Florida, supra at 100, 90 S.Ct. at 1905.

On the basis of these decisions, several States have elected to reduce the size of their juries to six. Pennsylvania, however, has continued to require that in a criminal case the jury must consist of twelve persons. Only with the consent of his attorney, and the approval of the judge, may a defendant agree to a jury of less than twelve but not less than six persons. See Pa.R.C.P. 1103. Therefore, while the twelve person jury is not unique to Pennsylvania, it is a distinctive aspect of Pennsylvania jurisprudence, of which the defendant should be informed. Unless he is so informed, he cannot “understand the significance of the right he [is] waiving.” Commonwealth v. Williams, supra 454 Pa. at 373, 312 A.2d at 600.

The order of the lower court should be reversed.

      . 18 Pa.C.S.A. § 3928.

      . id., § 901.

      . Id., § 5121.

      . 19 P.S. § 1180-1 et seq. (Supp. Pamphlet 1965-1980 [1981-82]).

      . Commonwealth v. White, 277 Pa.Super.Ct. 109, 419 A.2d 685 (1980).

      . 18 Pa.C.S.A. § 3925.

      . Commonwealth v. Belcher, 233 Pa.Super.Ct. 212, 335 A.2d 505 (1975). See 18 Pa.C.S.A. §§ 3903(a), 3925.

      . 18 Pa.C.S.A. § 1103(3).

      . Id., § 3928(a).

      . Id., § 1104(2).

      . 18 Pa.C.S.A. § 3928(a).

      . 18 Pa.C.S.A. § 3928(b).

      . As provided by the Act of May 1, 1935, P.L. 127, § 1, 17 P.S. § 1153, repealed by the Act of April 28, 1978, P.L. 202, No. 53 § 2(a) [1156], effective June 27, 1980. Provisions for alternate jurors are currently to be found in the Pennsylvania Rules of Criminal Procedure, Rule 1108, 42 Pa.C.S.A. (Pamp.1981).

      . The Commonwealth, in its Brief, seeks to distinguish Williams on the basis that it presented a question of waiving a jury trial in favor of a nonjury trial, whereas the instant case involves the entry of a guilty plea after extensive advice by the judge and defense counsel following plea bargaining. We have already decided that the requirements articulated in Williams are equally applicable to a guilty plea colloquy. Commonwealth v. Washer, 253 Pa.Super.Ct. 209, 214, 384 A.2d 1305, 1308 (1978).

      . 18 Pa.C.S. §§ 901, 3701.

      . 18 Pa.C.S. § 5121.

      . 18 Pa.C.S. § 3928. An initial charge of receiving stolen property was reduced to unauthorized use of a vehicle pursuant to plea bargain.

      . Among these States are: Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana and Massachusetts. See: Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Ballew v. Georgia, 435 U.S. 223 (1978) at n. 43, 99 S.Ct. 1029 at n. 43, 55 L.Ed.2d 234; Edelstein, Jury Size Question in Pennsylvania, 53 Temple Law Quarterly 89 (1980).

      . In Pennsylvania the jury has consisted of twelve persons since 1682, when William Penn and a panel of free men adopted a document known as the “Laws Agreed Upon in England.” See, Edelstein, supra n. 1.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    440 A.2d 1208
    Leslie ANMUTH, Appellant, v. Mr. and Mrs. Dean CHAGAN and Franklin A. Chagan. Leslie ANMUTH, Appellant, v. Mr. and Mrs. Dean CHAGAN and Joyce Chagan, Executrix of the Estate of Franklin Chagan, Deceased.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Jan. 29, 1982.

      Allen L. Peingold, Philadelphia, for appellant.
    David L. Shenkle, Doylestown, for appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This appeal is from an order quashing an appeal from arbitration as untimely. Appellant argues that the appeal was timely because the appeal period had been tolled by a stay of proceedings granted incident to a rule to show cause why the case should not be remanded to the arbitrators. The lower court found, however, that while a stay had initially been granted by one judge, another judge had crossed it out and that therefore the appeal period had not been tolled. The record is insufficient for us to determine the correctness of the lower court’s order. We therefore remand for an evidentiary hearing, findings of fact, and a new order.

On November 30, 1976, appellant brought an action in trespass in Montgomery County against Mr. and Mrs. Dean Chagan and Franklin A. Chagan. The complaint alleged that Franklin Chagan owned a certain property in Bala Cynwyd; that Mr. and Mrs. Dean Chagan were in possession of the property; and that on July 24, 1975, while at or near the property, appellant was bitten by the Chagans’ dog. This action was docketed under number 76-19319.

On January 17, 1977, Mr. and Mrs. Dean Chagan filed an answer to the complaint alleging, among other things, that Franklin A. Chagan had died. Appellant then filed an action in Philadelphia against the Chagans and Joyce Chagan, executrix of the estate of Franklin Chagan, alleging the same injury as alleged in the Montgomery County action. On preliminary objections to venue, the action was transferred from Philadelphia to Montgomery County, where it was docketed under number 77-13517.

Appellant petitioned to have both actions consolidated under the earlier docket number, 76-19319. This petition was granted, and was properly docketed at 76-19319, but was never docketed at 77-13517. Despite the consolidation, everything appellant filed in the next fourteen months, with just one exception, was filed only at 77-13517.

Among the papers thus filed only at the “wrong” docket number was appellant’s praecipe for arbitration. On November 10, 1978, an arbitration hearing was held, and the arbitrators filed an award of $250 for appellant against Dean Chagan only. Apparently, when appellant went to appeal this award, she found that only the file in 77-13517 had gone to the arbitrators. She therefore filed a petition with a rule to show cause why the case should not be remanded to the arbitrators so that they could consider both actions, that docketed at 76-19319 and that at 77-13517. A rule issued, and it is the circumstances surrounding this rule that give rise to the appeals now before us.

We have found it impossible to reconstruct from the record what were the circumstances surrounding the issuance of the rule. In the narrative that follows we shall therefore refer to affidavits that have been presented to us but are not properly of record, and to the lower court’s opinion, which also appears to go beyond the record. We have done this because otherwise we could not state the case and define the issues. As will appear, we have not accepted as fact anything not supported of record.

It is convenient to begin with appellant’s version of the circumstances surrounding the issuance of the rule, as recited in an affidavit sworn to on January 22,1980, by Louis E. Slawe, one of appellant’s attorneys below. The affidavit is Exhibit A of appellant’s brief to us; it was not presented to the lower court and is not properly of record. Its substance, however, was alleged in appellant’s petition for reconsideration which was filed with the lower court. The court was thus made aware of appellant’s version of the facts, and in its opinion, the court discusses and rejects appellant’s version. According to the Slawe affidavit: On November 24, 1978, Mr. Slawe went to the Montgomery County Courthouse with the original and a photostatic copy of the petition and rule to show cause why the case should not be remanded to the arbitrators. The rule included the line, “ALL PROCEEDINGS TO STAY MEANWHILE.” Judge AVRIGIAN signed both the original and the copy of the rule, and filled in the date of issuance (November 24) and the return date (January 5). Mr. Slawe left the original with the judge and returned to his office with the copy, from which other copies were made and sent to opposing counsel.

Appellees filed answers to appellant’s petition for remand, and on February 20, 1979, Judge DAVENPORT denied the petition. On February 22, appellant filed an appeal from the arbitration award of November 10,1978. Appellees filed a motion to quash the appeal as untimely. Appellant’s answer to the motion to quash alleged that the appeal was timely because of the stay of all proceedings granted by Judge AVRIGIAN in issuing the rule to show cause why the case should not be remanded to the arbitrators. It was appellant’s position that the stay of proceedings had tolled the period for appealing from the arbitration award, and that when the period started to run again—in her view, when the stay was dissolved by the order denying the petition for remand—she had within two days appealed from the arbitration award.

The motion to quash came before Judge DAVENPORT. He entered the following order, which was docketed on July 6, 1979:

AND NOW, this 28 day of June, 1979, after a review of defendant’s [now appellee’s] brief and Argument before the Court on June 20, 1979, it appearing to the court that the phrase “all proceedings to stay meanwhile”, having been strickened and initialed by Robert W. Honeyman, Judge, the proceedings were not stayed, and the appeal was not timely filed. The court therefore Orders the appeals be quashed.

In his opinion in support of this order Judge DAVENPORT states that he compared the original rule to show cause, on which the stay of proceedings is crossed out and initialed by Judge HONEYMAN, with the copy of the rule on which appellant claimed she relied, on which the stay of proceedings is not crossed out. On the basis of this comparison, Judge DAVENPORT found that the copy of the rule to show cause with the stay of proceedings not crossed out had been prepared as “a deliberate attempt at deception,” and that Judge AVRIGIAN’s signature on it was “forged.” Slip op at 5, 6. Judge DAVENPORT concluded that while he could not “address an unraised issue as to the person or persons perpetrating this offense,” he could “refuse to grant relief to plaintiff [appellant] whose ‘proof’ rests upon an obvious forgery of court documents.” Id. at 6.

Appellant has in a “Supplemental Record” presented us with a copy of an affidavit sworn to by Judge AVRIGIAN and a copy of a letter from the Disciplinary Board of the Supreme Court of Pennsylvania. Judge AVRIGIAN’s affidavit is dated December 1, 1980, and states:

4. Several weeks ago, Mr. Feingold [appellant’s chief counsel], his counsel and a representative of the Disciplinary Board of the Supreme Court of Pennsylvania appeared in my chanbers [sic] and at that time, I unequivocally identified the signature on the copy of the Rule retained by Mr. Feingold as my own and I additionally noted that the Rule was also dated by myself.

The letter from the Disciplinary Board is dated November 24, 1980, and is addressed to Mr. Feingold. It states that “[a] final recommendation has been made to dismiss the complaint as lacking substance . . . . ”

Appellee Joyce Chagan’s response to these items is to argue that they are not properly part of the record before us; that in any event, it is not clear from Judge AVRIGIAN’s affidavit which version of the rule he was referring to; and that Judge DAVENPORT’s description of the copy of the rule on which the stay of proceedings is not crossed out as a forgery is correct. It is true that the items in appellant’s “Supplemental Record” are not properly before us. Pa.R.A.P. 1921. It is, however, within our power to remand a case with instructions for further proceedings in which affidavits and other documents not properly before us can be considered by the lower court. 42 Pa.C.S.A. § 706. Here, we believe, such a remand is appropriate, for even without reference to Judge AVRIGIAN’s affidavit and the letter from the Disciplinary Board, it is not obvious to us that the copy of the rule with the stay of proceedings not crossed out, on which appellant claimed she relied, is a forgery.

In his opinion, Judge DAVENPORT emphasizes that certain typed portions of the original of the rule are identical with the corresponding typed portions of the copy. This identity, however, does not demonstrate a forgery and is consistent with Mr. Slawe’s affidavit that he took the original and a photostatic copy to Judge AVRIGIAN. Judge DAVENPORT also emphasizes that on the original of the rule the letter D (the designation of the courtroom to which the rule was made returnable) is set off in quotation marks, whereas on the copy it is not. Again, however, this variation does not demonstrate forgery and is consistent with Mr. Slawe’s affidavit that Judge AVRIGIAN filled in and signed the original of the rule and the copy separately.

We do not mean to imply that we accept appellant’s version of the circumstances surrounding the issuance of the rule. While we are unable to say on the basis of the record that Judge DAVENPORT’S finding of forgery is correct, we are equally unable to say that appellant relied on a copy of the rule signed by Judge AVRIGIAN and with the stay of proceedings not crossed out.

The original rule is of record in the papers transmitted to us under Docket No. 76-19319. It appears to be signed by Judge AVRIGIAN, and the line reading “ALL PROCEEDINGS TO STAY MEANWHILE” is crossed out and initialed, with initials that we cannot read but that Judge DAVENPORT’S order and opinion say are Judge HONEYMAN’s. Exhibit C of appellant’s brief to us appears to be a copy of the original rule; the typewritten portions are identical, and the handwritten portions, including the initialed crossing out of the stay of proceedings, appear identical. There is, however, one difference between the original rule and appellant’s Exhibit C that puzzles us and may be significant. The original rule has on it a Prothonotary’s time stamp (“Nov. 29 9:19 AM ’78”) and an initialed stamp indicating that the rule was docketed by “J.M.S.” Neither of these stamps appears on appellant’s Exhibit C. The question therefore arises: How did appellant get a copy of the original rule, with the stay of proceedings crossed out, apparently before the original rule itself was docketed? Mr. Slawe says in his affidavit that he never received or saw a copy of the rule with the stay of proceedings crossed out; and Mr. Feingold in appellant’s “additional reply” to appellees’ answer to her petition for reconsideration says that appellant was never notified that Judge HONEYMAN had modified Judge AVRIGIAN’s order. These statements may well be true, but we nevertheless believe that there should be an explanation of how counsel got a copy of Exhibit C of appellant’s brief.

On remand the lower court should hold an evidentiary hearing and determine what did happen. We expect that this determination will require the court to inquire into the following:

First, whether the copy of the rule with the stay of proceedings not crossed out was signed by Judge AVRIGIAN and immediately returned to appellant’s counsel;

Second, under what circumstances and by whom the stay of proceedings was crossed out (although Judge DAVENPORT’S order dated June 29, 1979, finds that the stay was crossed out by Judge HONEYMAN, there is no explanation, of record or otherwise, of when, or why, or by what authority Judge HONEYMAN altered the provisions of a rule issued by another judge of the same court); and

Third, when appellant first had notice that the stay of proceedings had been crossed out.

If the lower court finds that the copy of the rule with the stay of proceedings not crossed out was signed by Judge AVRIGIAN and was returned to appellant, and that appellant had no notice that the stay of proceedings had been crossed out in the original rule, it should reinstate appellant’s appeal from the arbitration award.

If the lower court finds either that Judge AVRIGIAN did not sign the copy of the rule with the stay of proceedings not crossed out, or that he did sign it but appellant had notice that the stay of proceedings had been crossed out on the original rule and did not delay filing an appeal from the arbitration award in reliance on a stay of proceedings having been granted by Judge AVRIGIAN, the court should re-enter its order quashing appellant’s appeal from the arbitration award.

The order of the lower court is reversed and the case is remanded for further proceedings consistent with this opinion.

      . The lower court’s order was entered under two docket numbers, 76-19319 and 77-13517, and two appeals were taken, one under each docket number. However, as we shall see, there was really only one case in the lower court, and the two appeals have been consolidated.

      . Appellees have also argued that the lower court had no power to grant a stay, and that therefore even if a stay issued, the appeal was properly quashed. However, this argument has been waived. Appellees’ answers to appellant’s petition for remand, filed on December 11 and December 14, 1978, argued only that a stay would be unwarranted, not that it was not within the court’s power to grant. Also, the lower court’s order and opinion are based on the finding that the stay had been crossed out, not that the court lacked the power to grant it.


author: BROSKY, Judge:

text:
    440 A.2d 1212
    Edwin J. and Vivian D. MEISSNER, as Co-Administrators of the Estate of Edwin S. Meissner, Deceased, Appellants, v. Gregory A. HACKENBURG.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Jan. 29, 1982.

      Andre Delgalvis, Williamsport, for appellants.
    Ambrose Campana, Williamsport, for appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellants filed a complaint containing wrongful death and survival counts following the death of their son which resulted from a motor vehicle accident. Appellee filed preliminary objections to the complaint alleging, in effect, that appellants’ recovery is limited to that provided by the No-Fault Motor Vehicle Insurance Act and that appellants had not averred facts sufficient to show that they were entitled to recovery. The preliminary objections were sustained in part and appellants were directed to file an amended complaint. Following an amendment, appellees filed a motion for partial summary judgment. The motion was granted resulting in a judgment in favor of appellees as to the wrongful death count.

Because the appeal is interlocutory, we must quash.

In the recent case of Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981), this Court held that an order dismissing some, but not all, counts of a complaint does not end the litigation. Such an order is therefore not final. We wrote:

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (emphasis added). “In determining what constitutes a final order we ... look to ‘a practical rather than technical construction’ of an order.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). “A final order is one which . .. ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974).” Pugar v. Greco, 483 Pa. at 73, 394 A.2d at 545. “[A]n order is interlocutory and not final [, however,] unless it effectively puts the litigant ‘out of court.’ ” Giannini v. Foy, 279 Pa.Super. [553] at 556, 421 A.2d [338] at 339 (citations omitted).

Id., 287 Pa.Super. at 353, 430 A.2d at 322.

Appeal quashed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq.


text:
    440 A.2d 1213
    COMMONWEALTH of Pennsylvania, Appellant, v. Albert Anthony CORBO. COMMONWEALTH of Pennsylvania, Appellant, v. Phillip TENDLER. COMMONWEALTH of Pennsylvania, Appellant, v. John F. HARTUNG.
    Superior Court of Pennsylvania.
    Submitted March 12, 1980.
    Filed Jan. 29, 1982.
    Petition for Allowance of Appeal Denied April 19, 1982.

      Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellant.
    James P. McHugh, Chester, for appellees.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

The Commonwealth appeals the decision of the trial court in which it suppressed evidence resulting from a search of appellees’ place of business. The Commonwealth procured search warrants through affidavits presented by Pennsylvania State Police supported by information received from the New Jersey State Police. This information resulted from an electronic surveillance of New Jersey Telephones, approved by the New Jersey Superior Court, in response to activities initiated by the New Jersey State Police. The Pennsylvania State Police became involved only upon receipt of the surveillance material.

The trial court suppressed all evidence obtained as a result of the search claiming the warrants were deficient on their face and therefore legally defective. The trial court reasoned any evidence resulting from an electronic surveillance which would have been illegal in Pennsylvania and which was obtained in a foreign jurisdiction cannot be admitted as evidence of probable cause to support a valid search warrant. We reverse and remand.

In Commonwealth v. Bennet, 245 Pa.Super. 457, 369 A.2d 493 (1977), we decided that a search warrant can be supported by probable cause based upon information obtained through an electronic surveillance ordered in a foreign jurisdiction. Our decision in Commonwealth v. Bennet, supra, was reached pursuant to the then existing statute authorizing wiretaps in Pennsylvania, 18 Pa.C.S.A. § 5701 et seq., which prohibited the use in court of all evidence obtained by wiretap or electronic surveillance excepting where the parties had consented to the wiretap or electronic surveillance. By the Act of October 4, 1978, P.L. 831, No. 164 found at 18 Pa.C.S.A. § 5701 et seq., the General Assembly authorized the use of information obtained by wiretap or electronic surveillance when the parties have consented to the wiretap or electronic surveillance and where the attorney general, his designee, or a district attorney or his designee, obtains an order signed by a Superior Court Judge authorizing the wiretap or electronic surveillance. 18 Pa.C.S.A. § 5708. Thus, our General Assembly has lessened the restrictions placed upon the use of such evidence. Nevertheless, in Commonwealth v. Bennet, supra, the parties argued extensively about the legality of the New Jersey wiretap. In this case, neither party argues that the wiretap was illegal. Accordingly, we need not decide whether the use of information obtained by wiretap provided grounds, in and of itself, to suppress the evidence, rather, we must determine if the evidence so obtained provided the police with sufficient facts upon which to establish probable cause for the issuance of a search warrant.

The trial court discussed the facts concerning the procurement of the search warrant as follows:

On February 9, 1979, Corporal Theodore J. Zamorski of the Pennsylvania State Police obtained Search Warrants for 319 Liberty Lane, Wayne, Delaware County, Pennsylvania, and 914 South Avenue, Spring Hill Apartments, Apartment H-26, Secane, Delaware County, Pennsylvania. The Search Warrants were obtained for the purpose of searching the aforesaid premises wherein the authorities believed that poolselling and bookmaking activities were occurring. The information contained in the Search Warrants obtained by the Pennsylvania State Police was based on information obtained by the use of electronic surveillance of a telephone facility in New Jersey.
The electronic surveillance equipment used to obtain the aforesaid information was authorized by a Judge of the Superior Court of New Jersey in Trenton. The aforesaid Search Warrants were issued and approved by District Justice Joseph Y. Gessler.
The Search Warrants were executed on February 10, 1979, and as a result thereof, Defendant Corbo was arrested and charged with poolselling and bookmaking.
The information contained within the Search Warrants was obtained from New Jersey authorities who had used electronic surveillance in the gathering of the aforesaid information used to obtain the search warrants and for the arrest of the Defendant. The Affidavit accompanying the Search Warrants does not indicate whether the electronic surveillance Order was obtained as a result of information supplied by the Pennsylvania State Police. Furthermore, the Affidavit does not show on its face whether the remaining information contained therein was obtained independently from the information gained from the electronic surveillance Order. In fact, the Affidavit on its face indicates that the electronic surveillance information was not within the personal knowledge of the affiant but was obtained from information supplied by another person. The Affidavit does not indicate whether the alleged information as to probable cause was within the personal knowledge of the affiant but rather the other information was given by one person to another person and finally reported to the affiant, thereby in fact being hearsay on hearsay evidence.

(Lower Court’s Opinion Pages 1 and 2.)

The Commonwealth asserts that the information received by the Pennsylvania Police from the New Jersey Police presented in affidavits to the District Court was sufficient to establish probable cause to justify the issuance of a search warrant in Pennsylvania. We find the search was lawful, being based upon a search warrant obtained by probable cause. The New Jersey Police had recorded statements of persons electronically. That information was given to the Pennsylvania Police who in turn gave it to the District Justice who issued the search warrant. The information received by the New Jersey Police was from a person involved in poolselling and bookmaking in Pennsylvania. This information was clearly reliable. The New Jersey Police merely conveyed that information to the Pennsylvania Police.

In Commonwealth v. Musi, 486 Pa. 102, 113, 404 A.2d 378, 383 (1979), our Supreme Court said:

The concept of evaluating the police operation as a collective function as opposed to an individual one is not new. For instance, we have held that it is unnecessary for an arresting officer to have knowledge of the information which supported the probable cause of a warrantless arrest, provided that the officer issuing the order to arrest had sufficient information to act. Commonwealth v. Kenney, 449 Pa. 562, 566-567, 297 A.2d 794, 796 (1972). See also Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). Here, the officer supplying the information for the affidavit possessed the requisite information to satisfy the probable cause requirements. The fact that he delegated the responsibility of placing this information in affidavit form and the securing of the warrant from the issuing authority is of no consequence, where the affidavit accurately reflects the information possessed by the officer and that information satisfies the probable cause requirement.

Thus, the above stated facts, as given to the District Justice, were reliable and, as such, justified the issuance of the search warrant. See Commonwealth v. Evans, 488 Pa. 38, 410 A.2d 1213 (1980).

Order reversed. Case remanded for proceedings consistent with this opinion.

      . The trial court bases its decision upon our memorandum opinion in Commonwealth v. Walkowski, 263 Pa.Super. 578, 400 A.2d 613 (1979). This decision was a per curiam affirmance which is not of any precedential value.

      . Exceptions to the prohibition on interception and disclosure of communications are found at 18 Pa.C.S.A. § 5704. None of the exceptions found therein are relevant to the instant appeal.


author: MONTEMURO, Judge:

text:
    440 A.2d 1215
    COMMONWEALTH of Pennsylvania, v. Michael S. HENRY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 20, 1981.
    Filed Feb. 5, 1982.
    Petition for Allowance of Appeal Denied May 28, 1982.

      Clifford B. Cohn, Philadelphia, for appellant.
    Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

Appellant, Michael S. Henry, was found guilty by a jury of robbery, criminal conspiracy, simple assault, involuntary deviate sexual intercourse, kidnapping, and possessing an instrument of crime. Post-trial motions were denied and appellant was sentenced to a term of imprisonment totalling five (5) to ten (10) years. This direct appeal followed.

On January 1, 1979, the victim parked her car near the Albert Einstein Medical Center in Philadelphia where she worked as a nurse. At about 6:40 A.M., as she proceeded to walk to the hospital, she was approached by a man whom she later identified as appellant. Appellant pulled a knife on the victim and ordered her back into her car. Appellant attempted to drive the victim’s car but failed to get it started. He then told the victim to drive.

Meanwhile, another man walked toward the car and got into the back seat. Appellant directed the victim to drive for several minutes and then ordered her to stop. The man in the back seat grabbed her purse, emptied the contents and took approximately fourteen ($14.00) dollars from her wallet. After a short discussion with appellant, the man left.

While still parked, appellant then forced the victim to fellate him. The victim periodically pleaded with the appellant to stop. Appellant refused and during the entire twenty (20) minute episode, continuously threatened the victim with a knife. As daylight began to break across the area, appellant again directed the victim to drive. Subsequently, while stopped at a traffic light, appellant jumped out of the car and fled. The victim returned to the hospital and reported the incident. On the basis of the description given by the victim, appellant was arrested nearby at 6:30 p. m. that same evening.

The appellant raises six issues for review in this appeal: (1) whether the suppression court erred in finding the victim’s in-court identification admissible; (2) whether trial counsel was ineffective for failing to raise issues in post-trial motions which have been raised in this appeal and by not properly locating alibi witnesses; (3) whether the trial court properly denied appellant’s motion for a continuance; (4) whether there was prosecutorial misconduct in closing remarks made by the district attorney; (5) whether the prosecutor discriminatorily used peremptory challenges to exclude blacks from appellant’s jury; and (6) whether the Commonwealth’s failure to perform a scientific test to compare the victim’s saliva with the saliva found on the pants taken from appellant constituted a withholding of exculpatory evidence.

The appellant’s trial counsel, in a post-verdict motion for a new trial, raised only the identification issue. Issues not raised in post-verdict motions are deemed waived and are not properly preserved for appellate review. See Pa.R. Crim.P. 1123(b); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975). However, since appellant has raised an ineffective assistance claim in that post-trial counsel failed to include the issues in the post-verdict motion now raised in this appeal, we will decide those questions solely for the purpose of resolving the contentions of ineffective representation. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). For the reasons set forth below, we remand the case to the trial court for an evidentiary hearing on the ineffectiveness of counsel claim concerning appellant’s alleged alibi witnesses and find the remaining issues raised in this appeal to be without merit.

Appellant’s first contention is that the suppression court improperly ruled the victim’s in-court identification admissible at trial in light of the fact that such identification had been tainted by an unlawful lineup. The claimed illegality stemmed from the fact that appellant was not represented by counsel at the lineup. We agree. U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). However, this primary illegality does not render the victim’s in-court identification inadmissible if, considering the totality of the circumstances, it is determined that the in-court identification had an independent origin sufficiently distinguishable from the illegal encounter so as to be purged of the primary taint. U. S. v. Wade, supra; Wong Sun v. U. S, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978). This independent basis need only be established by the Commonwealth by clear and convincing evidence. Commonwealth v. Davis, 264 Pa.Super. 505, 400 A.2d 199 (1979); Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Taylor, 472 Pa. 1, 370 A.2d 1197 (1977).

The factors to be considered in determining whether an in-court identification is independent and thus reliable are:

“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Commonwealth v. Fowler, 466 Pa. 198, 206, 352 A.2d 17, 21 (1976) quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).

The victim’s testimony at the suppression hearing established that she had more than an ample opportunity to form an accurate perception of what, in fact, her attacker looked like. The one (1) hour timeframe during which the victim had been abducted and sexually assaulted in her car created a situation where she was never more than two and one-half (2V2) feet from her attacker. Although the degree of lighting varied at different times during the course of the incident, there was no question that the victim was assisted in her identification by street lamps, traffic lights and by the sunlight which emerged approximately twenty (20) minutes before appellant’s departure. Also, for the twenty (20) minutes in which the victim was sexually assaulted, she persistently pulled away from appellant and looked at his face. Because of the length of time involved in the incident and the close proximity of the victim to the appellant, we find that the victim had a substantial opportunity to properly identify the appellant.

Most of appellant’s argument directs itself to the fact that the victim, in giving her description to the police, failed to note a one-half (Vfc) inch burn mark on the right side of appellant’s face. However, the victim testified that for most of the time appellant sat in the passenger seat of her car which did not permit a full view of appellant’s right side. This argument does not detract from the significance of the victim’s opportunity to view appellant and we find that failing to notice the small, dark scar does not cast a doubt on the accuracy of the victim’s otherwise complete description.

Furthermore, in considering the other important factors, the victim gave a very detailed description of appellant, the knife he was carrying, and the clothes he was wearing. Her description, in fact, closely matched that of appellant, his knife, and the clothes. Also, before the lineup, the victim was shown between 200 and 300 photographs, none of which were of the appellant. The victim did not identify anyone in those photos. This is another indication that the victim’s perception of appellant was quite accurate.

Therefore, we conclude that, under the totality of circumstances presented here, there was a sufficient independent basis upon which the victim could render an in-court identification purged from the primary taint of the illegal lineup. The in-court identification was properly admitted by the lower court.

Appellant’s next two contentions concern the ineffective assistance of post-trial counsel for failure to raise issues in post-trial motions.

Generally, the standard for determining the effectiveness of counsel is a two-step analysis as set forth in Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980):

We (the Court) must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is proved to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

Furthermore, counsel is not deemed ineffective for failing to file a baseless claim. Commonwealth v. Hubbard, supra.

Appellant’s first contention here is that his motion for a continuance, made during the suppression hearing, to obtain notes of testimony of that hearing for use at trial was improperly denied and should have been asserted in appellant’s post-trial motion.

It has been held that the granting of a continuance rests within the discretion of the trial court and the decision to deny a continuance will not be reversed absent a clear abuse of discretion. Commonwealth v. Waters, 276 Pa.Super. 584, 587, 419 A.2d 612, 613 (1980). Also, an appellate court cannot find an abuse of discretion if the denial of the continuance did not prejudice appellant. Commonwealth v. Waters, supra.

Appellant generally argues that the suppression hearing testimony could have been used to impeach the Commonwealth’s witness at trial. However, appellant has failed to allege any specific instances of contradiction or inconsistency between the witnesses’ trial testimony and suppression hearing testimony. Without such allegations, there would have been no basis for the court to rule in appellant’s favor on this particular issue. Since there is no obligation to pursue a meritless claim, counsel was not ineffective for failing to do so here.

Appellant next contends that the prosecutor, at his trial, engaged in misconduct in his closing argument to the jury and that his trial counsel was ineffective for failing to include this issue in post-trial motions.

Appellant’s contention is based on the following remarks:

Then the odyssey continues, down, down. Is this a haphazard ride? Is this a random ride, in a city with two million people in it, is this random? Down, down, down until they get to Wyoming Avenue, over, down, up to the Boulevard, to a spot—the young woman doesn’t know where she was. All the while, “what is going to happen to me?” What is going to happen to me? What are you doing? Why don’t you let me go? What is going to happen to me? Not even an answer. What kind of person does that to another human being, ladies and gentlemen?
It’s an hour and 15 minutes worth of slavery. “What are you going to do with me?” What kind of person would do that to anybody else, ladies and gentlemen?
This man did it to her. This is the kind of man who would do that, ladies and gentlemen.

Upon defense counsel’s objection that the prosecutor was expressing his personal opinion, the court gave the following cautionary instruction:

... to the extent that counsel expresses his personal opinion of the evidence or of any inferences to be drawn therefrom, you will disregard them, whether he gives an opinion or you think he gives an opinion. Opinions are not evidence. Statements are not evidence. Counsel is not permitted to give his own opinion. It’s your opinion that counts, not counsel’s . . .

Generally, it is entirely proper for a prosecutor to argue the reasonable inferences supported by the record. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Gunderman, 268 Pa.Super. 142, 407 A.2d 870 (1979). It is not proper, however, for a prosecutor to express his personal opinions on the guilt or innocence of the accused, nor may he argue facts which are not of record or make derogatory comments about accused. Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978); Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Eckert, 244 Pa.Super. 424, 368 A.2d 794 (1976). Although personal opinions of a prosecutor concerning a defendant’s guilt or innocence are impermissible, it is always permissible for the prosecutor to argue that the evidence proves the defendant guilty as charged. Commonwealth v. Gunderman, supra; Commonwealth v. Capaila, 322 Pa. 200, 185 A. 203 (1936). Finally, the prosecutor’s remarks must be evaluated in the context in which they occurred and “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 verdict.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975), quoting Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). “When prejudicial remarks are made by the prosecution, however, the trial judge may, under certain circumstances and if the impropriety is timely brought to the court’s attention, correct the error.” Commonwealth v. Stasko, 471 Pa. 373, 386, 370 A.2d 350, 357 (1977); Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978),

The prosecutor, in his closing argument, did improperly express his personal opinion that the appellant “did it to her” (victim) and that the appellant was the “kind of man who would do that.” However, even assuming that the remarks quoted above had a prejudicial effect upon the jury, we believe that the trial judge’s immediate cautionary instruction dispelled any harm from the expression of personal opinion by the prosecutor. The remarks were quite limited in scope and if arguably prejudicial, the effect of such prejudice was clearly cured by the trial judge’s instruction that an attorney’s opinion is not evidence and to disregard all such expressions. Therefore, we conclude that counsel was not ineffective for failing to include this argument in post-verdict motions.

Finally, appellant contends that he could have produced alibi witnesses at his trial who would have placed him at a scene other than the site of the incident at the time it occurred. However, appellant asserts that trial counsel, for no apparent reason, failed to engage in a proper investigation to locate his witnesses, and was, therefore, ineffective.

We cannot, however, conclude from the record the reasons for counsel’s inaction. In Commonwealth v. Price, 278 Pa. Super. 255, 261, 420 A.2d 527, 530 (1980), we stated:

We cannot decide appellant’s second claim of ineffective counsel on the present record because we do not have either why the uncle was not called to testify or whether his testimony would have been helpful to appellant’s claim of alibi. Faced with such an incomplete record, we must remand the case to the lower court for a hearing limited to the claim that counsel was ineffective in not calling the uncle. See Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1976); Commonwealth v. Rhodes, 272 Pa.Super. 546, 554-55, 416 A.2d 1031, 1035 (1979).

In the instant case, as in Price, supra, we do not know why appellant’s alibi witnesses were not called to testify or if their testimony would have supported an alibi defense, although appellant alleges that such testimony would have been helpful. Since the ineffectiveness claim does have potential merit, “the appropriate remedy is to remand to the trial court for an evidentiary hearing to determine the grounds for counsel’s conduct.” (citations omitted) Commonwealth v. Jennings, 489 Pa. 578, 580, 414 A.2d 1042, 1043 (1980).

We, therefore, vacate the judgment of sentence and remand the case to the lower court to conduct an evidentiary hearing concerning counsel’s ineffectiveness in failing to call the alibi witness.

If, upon remand, the lower court determines that counsel was ineffective, then the appellant shall be awarded a new trial. If the lower court finds that counsel was not ineffective, the judgment of sentence shall be reinstated without prejudice to appellant’s right to appeal that decision.

Case remanded.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 2901.

      . 18 Pa.C.S.A. § 907.

      . We have examined the record thoroughly and have found this issue to be without merit. Post-trial counsel cannot be deemed ineffective for failure to raise a baseless claim. Therefore, further discussion will be unnecessary.

      . As in footnote 7, the same rationale applies to this claim.

      . In the lower court judge’s opinion, the lineup itself was not unduly suggestive.


author: PER CURIAM:

text:
    440 A.2d 1221
    COMMONWEALTH of Pennsylvania v. Richard B. LATHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued Dee. 5, 1980.
    Filed Feb. 5, 1982.
    Allen L. Feingold, Philadephia, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, did not file a brief on behalf of Commonwealth, appellee.

      Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

Appellant was charged with a summary violation of the Motor Vehicle Code. At a non-jury hearing the charge was dismissed, but the court assessed the costs of prosecution against appellant. He has appealed from that order. After the appeal was filed, appellant filed with the lower court a statement of issues pursuant to Pa. Rules of Appellate Procedure, Rule 1925(b). Judge Mueller entered an “Order” dated April 25, 1980, directing that the costs paid by appellant be refunded to him. Appellant claims that, nevertheless, the costs have not been refunded to him.

As Judge Mueller’s Order dated April 25, 1980 states costs may not be imposed upon appellant under the Motor Vehicle Code, 75 Pa.C.S. §§ 6501, 6502 and 6504, unless he has been convicted of a violation. See Commonwealth v. Coder, 252 Pa.Superior Ct. 508, 382 A.2d 131 (1977); Commonwealth v. Houck, 233 Pa.Superior Ct. 512, 335 A.2d 389 (1975).

That part of the Order of the court below which imposes costs upon the defendant is reversed and the costs are placed on the County of Lancaster. The case is remanded with instructions to the court below to require the refund of costs to the defendant which have been paid by him.


text:
    440 A.2d 1222
    COMMONWEALTH of Pennsylvania, v. Michael FORTUNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 4, 1981.
    Filed Jan. 29, 1982.

      William J. Purcell, Scranton, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   BROSKY, Judge:

Appellant was found guilty by a justice of the peace of operating a junkyard without a permit, in violation of a city ordinance. The court below affirmed his conviction. This appeal followed.

We are unable to reach the merits of this appeal. A review of the record reveals that appellant did not file post-verdict motions in accordance with Pa.R.Crim.P. 1123. In Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), we held that Rule 1123 is applicable to summary cases, such as the case at bar. However, due to the confusion surrounding the applicability of Rule 1123 to summary cases, to which Koch, supra, is addressed, we find it appropriate to engage in a sua sponte review of the record here, to determine whether the court below advised appellant of the need to file post-verdict motions. Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981). As we stated in Williams:

The record in this case does not indicate that the lower court informed appellant of his right to file post-verdict motions, of the time within which he must file such motions, of the consequences of his failure to do so, and of his right to counsel in the filing of those motions and on appeal as required by Rule 1123(c).

Id., 290 Pa.Super. at 161-62, 434 A.2d at 180.

Similarly, in the instant case, the lower court failed to so advise appellant. Under these circumstances, we hold, as we did in Williams, that appellant did not knowingly and intelligently waive his right to file post-verdict motions, and that accordingly, we must remand to the court below for the filing of post-verdict motions nunc pro tunc. Commonwealth v. Williams, supra, Commonwealth v. Koch, supra.

Order vacated and the cause remanded for proceedings consistent with this opinion.


author: WIEAND, Judge:

text:
    440 A.2d 1223
    COMMONWEALTH of Pennsylvania, Appellant, v. Robin Jay LEWIS.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1981.
    Filed Jan. 29, 1982.

      Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellant.

      David J. Foster, Lemoyne, for appellee.
    Before CERCONE, P.J., and HESTER, CAVANAUGH, WICKERSHAM, MeEWEN, WIEAND, BECK, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

The issue presented by this Commonwealth appeal is whether the entry of a guilty plea can be equated with commencement of trial for Rule 1100 purposes. We hold that the tendering of a guilty plea by an accused signifies the commencement of trial regardless of whether that plea is accepted immediately by the trial court or is taken under advisement. In so holding, we expressly overrule the earlier ruling of a panel of this Court in Commonwealth v. Cox, 276 Pa.Superior Ct. 29, 419 A.2d 78 (1980) (Watkins, J., dissenting).

The facts pertinent to the instant case are as follows. On March 8 and 10, 1979, complaints were filed charging Robin Jay Lewis with two counts of conspiracy and several counts of possession with intent to deliver various controlled substances. The run dates, in accordance with Pa.R.Crim.P. 1100, were September 4 and 6, 1979. On July 16, 1979, which was the scheduled date for trial, Lewis tendered a plea of guilty to the drug charges. The plea was entered as part of a plea bargain, under the terms of which the Commonwealth was to nol pros the criminal conspiracy charges and Lewis’ sentence was not to exceed three years incarceration. The trial judge conducted a colloquy, took the plea under advisement and ordered a presentence investigation. On September 5, 1979, the date set for sentencing, the court rejected the plea bargain. Lewis was thereupon permitted to withdraw his plea of guilty. On September 7, the Commonwealth filed a petition for extension of time, and Lewis filed an application to dismiss. These applications were heard by the court on September 10, 1979, and on November 5, 1979, an order was entered granting Lewis’ application and dismissing the criminal action. The Commonwealth appealed.

Pa.R.Crim.P. 1100(a)(2) mandates the commencement of trial within 180 days from the filing of a criminal complaint. The rule is an administrative measure adopted by the Supreme Court pursuant to its rulemaking power and is designed to give substance to the constitutional guarantee of a speedy trial for criminal defendants. Commonwealth v. Juliano, 282 Pa.Superior Ct. 226, 229, 422 A.2d 1088, 1090 (1980), petition for allowance of appeal denied (1981). See also: Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). Section (b) of the rule provides that trial shall be deemed to commence on the date the trial judge calls the case to trial. The Comment to the Rule contains a discussion pertaining to the commencement of trial, and cases construing the Rule have, on occasion, considered the point in the proceedings when trial commences.

The Comment provides: “A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.” (Emphasis added.) The meaning of “some other such first step in the trial” was discussed by then Chief Justice Eagen in his concurring opinion in Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) where he wrote: “[T]he principal concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than pro forma, event .... [E]ach of the events specifically referred to in the foregoing portion of the comment represents a degree of commitment of the court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt-determining process is a ‘first step in the trial’ for purposes of Rule 1100.” This Court accepted Chief Justice Eagen’s comments in Commonwealth v. Taylor, 254 Pa.Superior Ct. 211, 214-15, 385 A.2d 984, 986 (1978), where it was held that “an event will not mark the commencement of trial under Rule 1100 unless it reflects a commitment of time and resources by the court below and leads directly into the guilt-determining process.” See also: Commonwealth v. Griffin, 257 Pa.Superior Ct, 153, 158-59, 390 A.2d 758, 761 (1978).

The speedy trial guarantee of Rule 1100 was designed to limit the period of anxiety and concern following a public accusation of criminal conduct which has not resulted in either an acquittal or a determination of guilt. After a plea of guilty has been entered, a defendant is no longer subject to the anxiety and concern which accompanies an untried accusation of criminal conduct. See: Commonwealth v. Juliano, supra, 282 Pa.Super. at 229, 422 A.2d at 1090. Similarly, the public’s interest in disposing of pending criminal charges is fully served by the entry of a plea of guilty by the accused.

The entry of a plea of guilty is not only the commencement of the guilt-determining process, but is, if accepted, a final determination of guilt. See: Commonwealth ex rel West v. Myers, 423 Pa. 1, 6, 222 A.2d 918, 921-22 (1966) quoting from Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927). For this reason, the Supreme Court has required that guilty pleas be taken in open court and has directed trial judges to determine, on the record, that a plea has been tendered “voluntarily and understanding^.” Pa.R.Crim.P. 319(a). The entry of a plea of guilty, therefore, can clearly be equated with the commencement of trial which must occur within the time constraints of Rule 1100.

This Court has held on prior occasions that, for purposes of Pennsylvania’s speedy trial rule, trial commences when a guilty plea is entered by a defendant and has been accepted by the trial court. Commonwealth v. Bytheway, 290 Pa.Superior Ct. 148, 154, 434 A.2d 173, 176 (1981); Commonwealth v. Juliano, supra, 282 Pa. Super, at 229, 422 A.2d at 1089-90. In Juliano, the defendant’s guilty plea had been accepted by the trial judge who then deferred sentencing in order to allow for the receipt of a presentence investigation. Subsequently, the court refused to impose a sentence consistent with the plea bargain, and the defendant was permitted to withdraw his plea. Writing for a unanimous panel of this Court, Judge Montgomery said: “The record makes it clear that the Appellant’s trial commenced .. . when the Appellant entered a guilty plea .... The period between the entry of the plea and the .... sentencing date cannot be measured in terms of Rule 1100, since it can only be viewed as time needed by the Court to prepare for appropriate sentencing.” Id., 282 Pa.Super. at 228, 422 A.2d at 1089. And in Bytheway, another panel of this Court held that a withdrawal of a previously accepted plea of guilty was equivalent to the granting of a new trial, after which the Commonwealth was charged to commence a new trial within 120 days. See: Pa.R.Crim.P. 1100(e)(1).

However, in Commonwealth v. Cox, supra, a majority of a panel of this Court held that the “action of the court of common pleas in taking [defendant’s] guilty plea under advisement and in ordering a presentence report did not constitute commencement of trial.” Id., 276 Pa.Super. at 35, 419 A.2d at 81.

The decision in Cox is inconsistent with the other decisions of this Court and also with the objectives of Rule 1100. When determining the commencement of trial under Rule 1100, there is no substantive difference between accepting a negotiated plea of guilty and deferring sentence for a presentence investigation and taking the plea under advisement and deferring sentence for the same type of investigation. In either event, that stage of the proceedings has been reached which points directly and immediately to a final adjudication of guilt. By tendering a plea of guilty, the defendant has formally admitted guilt and has made it unnecessary that guilt or innocence be determined by an adversary trial proceeding. In both instances, the defendant’s formal admission of guilt has made it unnecessary and impractical for the Commonwealth to attempt other proceedings to achieve a substantive determination of guilt. In both instances, the Commonwealth has brought the defendant before the court, where a final judgment of sentence can be imposed. Regardless of whether the guilty plea is accepted or taken under advisement, appellant must be allowed to withdraw his plea if the trial court is unable to accept the terms of a negotiated plea bargain.

In short, the tendering of a guilty plea triggers immediately the guilt-determining process, and trial thereupon commences for purposes of determining compliance with Rule 1100. It matters not whether the trial court accepts the guilty plea immediately or takes it under advisement in order to study further the terms of the plea bargain and prepare for sentencing.

Our decision is consistent with the amendment to Rule 1100 which has now been adopted by the Supreme Court. The Criminal Rules Committee, deeming Cox inconsistent with the intent of Rule 1100, has suggested and the Supreme Court agreed, that Rule 1100 be amended to read as follows:

“(b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.” (Emphasis added to reflect material added.)

The Comment has also been amended to provide: “Withdrawal, rejection of, or a successful challenge to a guilty plea should be considered the granting of a new trial for purposes of this rule.” See: Volume 11, Pennsylvania Bulletin, pages 3947, 3950-52.

In the instant case, trial was commenced when appellee tendered a plea of guilty. When he subsequently withdrew that plea with the permission of the trial court, the Commonwealth had a period of 120 days within which to commenee a new trial. The order of the trial court granting appellee’s motion to dismiss, therefore, must be reversed.

Reversed and remanded.

      . 18 Pa.C.S. § 903.

      . 35 P.S. § 780-113(a)(30).

      . Although the comments to procedural rules are advisory only, they “often serve as effective aids in the interpretation of those rules.” Commonwealth v. Byrd, 250 Pa.Superior Ct. 250, 253, 378 A.2d 921, 922 (1977). See also: Commonwealth v. Lamonna, 473 Pa. 248, 259, 373 A.2d 1355, 1360 (1977), concurring opinion by Eagen, C.J.


text:
    440 A.2d 1226
    COMMONWEALTH of Pennsylvania, v. Michael PULLANO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed Jan. 29, 1982.

      Lawrence J. Hracho, Reading, for appellant.
    George Yatron, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal from a judgment of sentence imposed for possession of controlled substances, appellant contends that the contraband was seized as a result of an unlawful search and that his motion to suppress, therefore, should have been granted. We disagree and, consequently, affirm the judgment of sentence.

At 9:45 p. m. on April 18, 1979, Reading City Police were present at 927 North Ninth Street, Reading, for the purpose of executing a valid search warrant for an apartment consisting of the second and third floors of the building. One of the officers, Francis Drexler, smelled a strong odor of marijuana which he determined to be emanating from the first floor apartment. He also heard raucous noises which led him to believe that a party was in progress in the apartment. He advised his superior, Detective Sergeant McGuire, of the odor. After the search of the upstairs apartment, which took approximately one hour, Officer Drexler, together with Sergeant McGuire and Officer Melvin Rosenberg, went down the stairs to the first floor apartment to ascertain the names of the occupants. Drexler knocked on the door, and moments later the door was opened, revealing a group of persons surrounded by drug paraphernalia, marijuana cigarettes and butts. Officer Drexler announced his identity, entered the apartment, and approached one of the group who was holding several clear plastic bags of marijuana. The other two officers entered and observed Michael Pullano, the appellant, seated in a chair beside the door, holding a plastic vial which contained a pill and a small plastic bag. When he saw the police, appellant attempted to drop the vial but was prevented from doing so by Officer Rosenberg. Appellant was placed under arrest, and a search of his person revealed a pipe containing marijuana residue.

Appellant was charged with possession of marijuana and cocaine. He filed a motion to suppress, which was denied following hearing. At the subsequent trial a jury found him guilty on both counts. Post trial motions were dismissed, and sentence was imposed. Appellant argues that an illegal, warrantless search took place and that this required a suppression of the physical evidence found in his possession.

The officers at the scene had smelled a strong odor of burning marijuana and had heard noises suggesting that a party was then in progress. These were circumstances suggesting that criminal activity was underway within their presence. They were not required to ignore that activity. To “ignore the obvious aroma of an illegal drug which [they were] trained to identify” would have been a “dereliction of duty.” Commonwealth v. Stoner, 236 Pa.Superior Ct. 161, 166, 344 A.2d 633, 635 (1975). By knocking on the door to make inquiry they were not acting unreasonably. They could properly and in the exercise of their duties investigate what was obviously a “pot” party. See: Commonwealth v. Merbah, 270 Pa.Superior Ct. 190, 411 A.2d 244 (1979). Indeed, at this point they already had probable cause to make an arrest.

Once the door was opened in response to a knock, the police officers in the hallway could readily observe numerous items of contraband. Where an officer who has not intruded into a constitutionally protected area sees contraband in plain view, such evidence may be seized without a warrant. Commonwealth v. Weimer, 262 Pa.Superior Ct. 69, 896 A.2d 649 (1978). See also: Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978); Commonwealth v. Bentley, 276 Pa.Superior Ct. 41, 419 A.2d 85 (1980); Commonwealth v. Gabrielle, 269 Pa.Superior Ct. 338, 409 A.2d 1173 (1979).

The reasonableness of the conduct of the police is supported by the decided cases. Thus, in Commonwealth v. Cohen, 359 Mass. 140, 268 N.E.2d 357 (1971), the police had been summoned by the occupants of an apartment building to quell a disturbance in the nature of a loud party. As they approached the door, they detected the odor of marijuana and heard statements suggestive of marijuana use. The Supreme Court of Massachusetts held that the police had probable cause to believe that a crime was being committed and could knock on the door and, without a warrant, seize the drugs and drug paraphernalia which were in plain view when the door was opened.

In State v. McGuire, 13 Ariz.App. 539, 479 P.2d 187 (1971), a police officer had been informed that the smell of burning marijuana was coming from an apartment. As he approached and knocked on the door, the officer was also able to detect the odor of marijuana and noted a commotion in the apartment. After the door had been opened and the officer admitted, he heard the flushing of a toilet and ran to the bathroom where he found a marijuana cigarette floating in the toilet. In holding that the officer had probable cause to enter and arrest without a warrant, the Court said: “The weight of authority, and we believe the better rule, holds that the offense is committed in the presence of an officer when the officer receives knowledge of the commission of an offense in his presence through any of his senses.” 479 P.2d at 189.

Similarly, in Vaillancourt v. Superior Court for County of Placer, 273 Cal.App.2d 791, 78 Cal.Rptr. 615 (1969), the Court held that police officers had probable cause to enter a hotel room and effect an arrest when, while walking down a hotel hallway, they detected the smell of burning marijuana. See also: State v. Means, 177 Mont. 193, 581 P.2d 406 (1978).

Finally, this Court, in Commonwealth v. Stoner, supra, held that where a vehicle had been stopped for a traffic violation and the arresting officer smelled marijuana and observed marijuana seeds and leaves in the car’s interior, the police had probable cause to believe that contraband was in the car and could make a warrantless search.

We conclude, therefore, that the police had probable cause to believe that a crime was being committed, and when the door of the apartment was opened to them, they could arrest without warrant and could seize that contraband which was in plain view.

The judgment of sentence is affirmed.

HOFFMAN, J., concurs in result.

PRICE, J., did not participate in the consideration or decision of this case.