author: PER CURIAM: BROSKY, Judge,

text:
    465 A.2d 660
    COMMONWEALTH of Pennsylvania v. Edgar L. CURRY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1982.
    Filed Sept. 2, 1983.

      William F. Scarpitti, Jr., Assistant Public Defender, Erie, submitted a brief on behalf of appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

This appeal arises from appellant’s conviction by a jury of aggravated assault and his subsequent sentence of one and one-half (l1^) to five (5) years imprisonment, a fine of three hundred dollars ($300.00) and restoration of property taken or payment of its value.

Appellant raises ten assignments of error: (1) The sentencing court erred in merely noting considerations for sentence imposed without further explaining the thought processes and evaluations it made; (2) The verdict was against the weight of all credible evidence; (3) The jury verdict was contrary to the law as guilt was not proven beyond a reasonable doubt; (4) Trial court erred in permitting the prosecutor to examine the victim as to prior criminal acts occurring between appellant and the victim approximately three years prior to the subject incident, from which testimony the finder of fact could make the erroneous inference that appellant was guilty of the subject criminal offense; (5) The trial court erred in not granting motion for mistrial due to prejudice caused by testimony regarding prior unrelated criminal activity; (6) Defense counsel was ineffective for failing to timely object to victim’s prejudicial .testimony as set forth in claim four (4) above; (7) Sentencing court erred in not considering character of appellant by not permitting him to allocute on his own behalf; (8) Defense counsel was ineffective for failing to protect appellant’s right to allocution; (9) Defense counsel was ineffective for failing to ensure that appellant received adequate colloquy of appellate rights, specifically the right to timely file a motion for reconsideration of sentence; and, (10) Defense counsel was ineffective for failing to timely file a motion for reconsideration. We affirm the conviction; and, we vacate the sentence and remand for further proceedings.

On November 21, 1979, the hydrocephalic victim was beaten by appellant and his codefendant Eugene Wright. As a result of his injuries, the victim was hospitalized until December 24, 1979. Following an interview with the victim conducted by investigating officers on December 28, 1979, warrants were issued for the arrest of appellant and his codefendant. Appellant was taken into custody on January 2, 1980, and after questioning was charged with aggravated assault.

Appellant alleges that the verdict was against the weight of all credible evidence, and contrary to the law as his guilt was not established beyond a reasonable doubt. In evaluating this claim, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to have enabled the jury to find every element of the offense beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). While making that determination, it is clear that the weight to be accorded the evidence and the credibility of the witnesses is the province of the factfinder. Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975).

Appellant argues that inconsistencies in the victim’s testimony rendered the evidence insufficient as he was the only witness who could connect him to the assault. The mere fact that there are some inconsistencies in a witness’ testimony is not alone sufficient to destroy the Commonwealth’s case. Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981). The trier of fact is to resolve any inconsistencies which may exist, Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), and can believe all, part or none of the testimony. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977).

The record herein evinces that there was sufficient evidence to sustain the jury’s verdict of guilty of aggravated assault.

Appellant also claims that the trial court erred in permitting the prosecution to elicit testimony from the victim of prior criminal acts of appellant and prior contacts between the two individuals. He asserts that his resulting motion for mistrial should have been granted; and, trial counsel was ineffective for failing to make a timely objection to that testimony.

During trial, the victim testified that he knew appellant and his codefendant prior to the subject criminal episode. Specifically, the victim testified that approximately two to three years prior to the assault he informed the police that appellant had stolen a parking meter for which theft he, the victim, had been charged. As a result, appellant subsequently fought with him and took his citizen’s band radio from his car. At that point in the testimony, defense counsel requested a mistrial which was denied by the trial court as no timely objection to the testimony was made, and the testimony was admissible as it involved motive and intent.

Under normal circumstances, appellant’s claim of error in admitting such testimony would be waived as no contemporaneous objection was made. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976); Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979). Since he also asserts that trial counsel was ineffective for failing to timely object, we will reach the merits of the underlying claims in order to determine whether trial counsel’s assistance was constitutionally effective.

The victim’s detailed account of the prior incident was given in response to the following:

“[Prosecutor]: Had they ever or had you ever had a fight with either one of them [appellant and codefendant] before?
[Victim]: No. I had a run-in with Edgar Curry [appellant] before.”

A further review of the record evinces that the testimony was relevant to establish a possible motive or reason for the attack, intent, and the relationship between the victim and appellant. Such evidence is admissible to show motive or intent, Commonwealth v. Marcocelli, 271 Pa.Super. 411, 413 A.2d 732 (1979), and to show malice or ill will between the parties. Commonwealth v. Chism, 480 Pa. 233, 389 A.2d 1041 (1978).

Any prejudice which may have inured to appellant as a result of this brief segment of the victim’s testimony was harmless at best. The jury could have also inferred malice on the part of the victim tending towards his identification of appellant as one of his attackers. Not only did trial counsel’s decision not to object immediately have some reasonable basis designed to effectuate appellant’s interests, the underlying claim is meritless. As a result, defense counsel’s assistance was constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); and, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

In view of the foregoing analysis of appellant’s claims, it is also evident that the trial court properly denied defense counsel’s motion for mistrial.

The five remaining assignments of error asserted by appellant concern sentencing. Specifically he alleges that: (1) the sentencing court erred in merely noting considerations for the sentence imposed without explaining its thought processes and evaluations; (2) the sentencing court erred in not considering the nature or character of appellant by not permitting him to allocute on his own behalf; (3) counsel was ineffective for failing to protect appellant’s right to allocution; (4) counsel was ineffective for failing to ensure that appellant was adequately advised of his appellate rights, particularly his right to timely file a motion for reconsideration of sentence; and, (5) counsel was ineffective for failing to timely file such a motion.

Regarding appellant’s allegation that the sentencing court failed to specifically state its reasons for the sentence imposed, the following statements were made by the Honorable Lindley R. McClelland:

“... It was a very violent crime. This victim ... didn’t ask to be beaten half to death, and [the jury found that] Wright and Curry did it.
... I’ve considered the guidelines of Pennsylvania; I’ve considered the presentencing report; I’ve considered your prior record, which is not extensive; I’ve considered the nature of the crime, which is vicious and violent, and I believe under all the circumstances I’m being lenient and giving the same sentence I gave your codefendant...”

Though a more detailed statement of reasons for the sentence imposed would have been preferable, we find the statement as given by the sentencing court to be sufficient. Cf., e.g., Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981), Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980); Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980); and, Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979).

In evaluating appellant’s remaining claims of error during the sentencing process, we conclude that the matter must be remanded for resentencing.

Our review of the record reveals that the sentencing court did not comply with the following provisions of Pa.R. Crim.P. 1405:

“At the time of sentencing, the judge shall:

(a) afford the defendant the opportunity to make a statement on his own behalf and afford counsel ... an opportunity to present arguments and information relative to sentencing; ...
(c) advise the defendant on the record:
(2) of the right to file motions challenging the propriety of the sentence...;
(3) of the ten (10) day time limit within which such motions must be filed; ...” (Emphasis Added).

Though appellant’s counsel eloquently allocuted on behalf of his client at the sentencing hearing, the court at no time invited appellant to do the same. Pa.R.Crim.P. 1405(a) mandates such an invitation, even absent a specific request from a defendant or his counsel. Commonwealth v. Johnson, 282 Pa.Super. 21, 422 A.2d 655 (1980).

Nor did the sentencing court advise appellant of his right to file a motion for reconsideration of sentence within ten (10) days of imposition of sentence. His failure to do so is not offset in any way by his thorough advice as to appellant’s right to appeal, and constitutes error. Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Super. 92, 421 A.2d 1163 (1980).

The proper recourse regarding the court’s failure to afford appellant the right to allocute on his own behalf is to vacate the sentence and remand for resentencing. Commonwealth v. Johnson, supra. The court’s failure to advise appellant of his reconsideration of sentence rights should result in an order from this court requiring the sentencing court to entertain appellant’s motion for reconsideration of sentence nunc pro tunc. Commonwealth v. Koziel, supra. For the sake of judicial economy, we will vacate the sentence and remand for resentencing, after which resentencing appellant shall have the right to file a motion for modification and reconsideration pursuant to Pa.R.Crim.P. 1410.

The conviction is affirmed; and, the sentence is vacated and the matter remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I join the majority opinion in its treatment of all issues except (2), whether the verdict was against the weight of all credible evidence. With regard to that issue I concur in the result.

I believe the majority incorrectly treats appellant’s claim that the verdict was against the weight of the evidence as a claim that evidence was insufficient to sustain the jury’s verdict. “[A] new trial may be granted if a verdict is against the weight of the evidence even if the evidence is legally sufficient to sustain a guilty verdict.” Commonwealth v. Bowermaster, 297 Pa.Super. 444, 453, 444 A.2d 115, 119 (1982).

Of course, if appellant’s claim is in substance actually one of insufficiency of the evidence, it should be treated as such. However, the majority does not state that to be the case and, while appellant’s argument on this issue could, indeed, create some ambiguity, I believe the issue truly is one of the weight of the evidence.

Before a new trial can be awarded on the ground that the verdict is against the weight of the evidence, it must appear from the record that the verdict was so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Hennemuth, 294 Pa.Super. 360, 439 A.2d 1241 (1982). I do not find such to be the case from my review of the record and would, accordingly, grant appellant no relief on the issue.

      . 18 Pa.C.S.A. § 2702.

      . The appeal of Eugene Wright is before this court at No. 105 Pittsburgh, 1981.

      . During the interview, the victim identified his assailants by name as they were known to him.

      . As we can find no reasonable basis for trial counsel’s failure to ensure that appellant was afforded an opportunity to speak on his own behalf, his assistance is deemed ineffective.

      . No reasonable basis exists for counsel’s failure to ensure that appellant was advised of his modification of sentence rights, or his failure to timely file such a motion. His assistance was therefore ineffective.

      . "Rule 1410. Motion to Modify Sentence.
      A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence."

      . Much of appellant’s argument concerns the credibility of the victim’s testimony. It is well established that the credibility of a witness is a matter for determination by the fact-finder; only where the Commonwealth's evidence is “so unreliable or contradictory as to make any verdict based thereon pure conjecture," will an appellate court reverse. Commonwealth v. Farquaharason, 467 Pa. 50, 60-61, 354 A.2d 545, 550 (1976).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    465 A.2d 665
    Rita Theresa Barone SOHMER, Appellant, v. Robert SOHMER.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1983.
    Filed Sept. 9, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Francis Recchuiti, Norristown, for appellant.
    Jeanne Cook, Norristown, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal involves a claim for alimony under the Divorce Code, Act of April 2, 1980, P.L. 63, 23 P.S. § 101, et seq. (hereinafter, “Divorce Code”). The relevant facts are as follows.

Mrs. Sohmer and her husband were married in 1951, lived their marital lives and currently own property in Montgomery County, Pennsylvania. Mrs. Sohmer, who continues to reside in Pennsylvania, filed a complaint in divorce in Montgomery County in April of 1980. Thereafter, in July of 1980, Mr. Sohmer filed a complaint in divorce in Fairfax County, Virginia, where he had established a separate residence. Notwithstanding the pendency of her Pennsylvania divorce action, Mrs. Sohmer appeared through counsel in the Virginia action, and in October of 1980 the Virginia court granted Mr. Sohmer a divorce a.v.m., leaving open, however, the question of alimony.

In June of 1981, ancillary to her Pennsylvania divorce action, Mrs. Sohmer petitioned the Montgomery County Court for alimony, to which Mr. Sohmer filed preliminary objections challenging subject matter jurisdiction. The lower court granted the preliminary objections, and ordered dismissal of the petition, from which order Mrs. Sohmer now appeals.

We are called upon to decide whether a defendant who appears in a foreign divorce proceeding, resulting in a divorce a.v.m. but reserving the question of alimony, may thereafter seek alimony in Pennsylvania. We conclude that such a defendant may not, and affirm.

With respect to the marital status of the parties in this case, the Virginia decree must be given full faith and credit. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Commonwealth v. Lorusso, 189 Pa.Super. 403, 150 A.2d 370 (1959). This is particularly so since the appellant appeared in the Virginia proceeding. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Whitmer v. Whitmer, 243 Pa.Super. 462, 365 A.2d 1316 (1976), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977). However, even though a foreign divorce decree, such as this, is accorded full faith and credit with respect to the marital status of the parties, it is not necessarily dispositive of the economic aspects of the divorce. Accordingly, it has been held that where a foreign decree of divorce has failed to address the economic questions, the divorce is “divisible,” leaving those questions open for determination in other jurisdictions. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957).

Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), involved a divorce where the husband had established a Florida residence and, during the pendency of his wife’s Pennsylvania divorce action, had obtained an ex parte Florida divorce. Our Supreme Court held that full faith and credit was to be accorded the Florida decree vis-a-vis the marital status of the parties, but the question of alimony following a divorce a.v.m. could still be raised in Pennsylvania.

In Stambaugh, however, the court went on to say that:

[t]he Pennsylvania divorce law does not provide for alimony following any divorce from the bond of matrimony, except in cases of insanity. The Divorce Law, Act of May 2, 1929, P.L. 1237, § 45 as amended 23 P.S. § 45. If any changes are to be made in Pennsylvania’s divorce law, such change must be made by the legislature.

Stambaugh v. Stambaugh, supra, 458 Pa. at 157-158, 329 A.2d at 489 (emphasis in original).

Since Stambaugh, the legislature has made substantial changes in the divorce laws as they relate, among other things, to alimony. Therefore, we must examine the relevant statutory changes to determine whether this court, unlike the Stambaugh court, now has the power to make such an award. We are aware that the Virginia decree recognized the right of other jurisdictions to adjudicate spousal support but, of course, this decree cannot confer jurisdiction on Pennsylvania which does not otherwise exist.

The appellant identifies three separate sections of the Divorce Code relating to alimony, in support of her position. The first is Section 401, which reads in relevant part as follows:

§ 401. Decree of court.

(b) Any decree granting a divorce shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, ... alimony and any related matters...

The object of statutory construction is to determine the intent of the legislature. 1 Pa.C.S. § 1921(a). In ascertaining this intent, a statute is presumed to be capable of execution and must be construed accordingly. 1 Pa.C.S. § 1922(1). Since it would clearly be beyond the practical ability of a Pennsylvania court to amend a foreign decree so as to “include” an order determining alimony therein, we must construe this section to apply only to domestic decrees.

The second section relied upon by appellant is Section 301 of the Divorce Code, which reads as follows:

§ 301. Jurisdiction.
(a) The courts of this Commonwealth shall have original jurisdiction in cases of divorce and where they have jurisdiction, shall determine in conjunction with any decree granting a divorce ...
(1) ... the order of any alimony ... authorized by law.

A broad reading of this section, in abstraction from the Divorce Code would appear to allow appellant’s claim of alimony, since it requires that our courts determine and order alimony in conjunction with “any” decree granting a divorce. However, individual provisions in a comprehensive legislative scheme, such as the Divorce Code, should not be read abstractly, but rather with a view to their place in the entire structure. Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975). Consequently, we now turn to Section 505 of the Divorce Code, which reads as follows:

§ 505. Alimony where a foreign ex parte divorce or annulment
Whenever a person who was a resident of this Commonwealth at the time such person was a defendant or respondent in a foreign ex parte action for annulment or divorce petitions a court of this Commonwealth for alimony and establishes the need therefor, such court, if it has jurisdiction over the person or property of the other party, may order that such alimony be paid in the same manner and under the same conditions and limitations which pertain when alimony is sought as provided in this chapter. In the event that the other party from whom such alimony is sought cannot be located within this Commonwealth, the court may attach such of the tangible or intangible property of said party as is within the jurisdiction of the court in the manner provided by the Rules of Civil Procedure, except that no exemption shall apply. Such property shall thereupon be subject to the payment of alimony in the same manner as provided by law in actions for nonsupport.

This section is a specific authorization for our courts to order alimony where there has been a foreign divorce, but it limits itself to cases involving ex parte actions. To read Section 301 of the Divorce Code as authority to order alimony in conjunction with any divorce decree, including, as appellant urges, any foreign decree, would be to render § 505 mere surplusage. We are required to construe statutes so as to give effect to the entire statute. 1 Pa.C.S. § 1922(2). We conclude, therefore, that Section 301 should be read in a limited way, so as to give Section 505 effect as a specific authority to award domestic alimony in conjunction with foreign ex parte divorces. Further, since no other provisions are found which might allow domestic alimony in this case, the possibility must be considered excluded under the principle expressio unius est exclusio alterius. Young v. Workmen’s Compensation Appeal Board, 39 Pa. Cmwlth. 265, 395 A.2d 317 (1978). See also, Duda v. Commonwealth Bd. of Pharmacy, 38 Pa.Cmwlth. 378, 393 A.2d 57 (1978).

We, therefore, hold that although the doctrine of “divisible divorce,” as set forth in Stambaugh v. Stambaugh, supra, was codified in Section 505 of the Divorce Code, it is limited to cases of foreign, ex parte divorces and does not apply where, as here, the defendant has appeared in the foreign proceeding.

The order of the lower court is affirmed.

ROWLEY, J., concurs in result.

      . The Virginia decree reads, in pertinent part: "This Order shall not affect the power of this or any other Court to award spousal support or adjudicate the property rights of the parties in this or any other jurisdiction.”

      . We note that under the language of the Virginia decree, supra note 1, appellant may seek alimony there.


author: BROSKY, Judge:

text:
    465 A.2d 669
    COMMONWEALTH of Pennsylvania v. Hiram DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1983.
    Filed Sept. 9, 1983.
    Petition for Allowance of Appeal Denied Feb. 2, 1984.

      Robert B. Mozenter, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   BROSKY, Judge:

This is a direct appeal from judgment of sentence imposed subsequent to convictions for knowing and intentional possession and delivery of a controlled substance. Appellant raises two issues for our review. First, he argues that the evidence was insufficient. Second, he contends that he was denied his Sixth Amendment right to effective assistance of counsel due to the lack of a pre-trial motion for the discovery of the identity and testimony of an informant. We find no merit in either of these arguments and, accordingly, affirm.

Sufficiency of Evidence

The opinion of the trial court accurately summarizes the evidence in this case.

Paul S. James, narcotic agent for the Department of Justice, Bureau of Drug Control, testified that on March 10, 1980, he and his partner, Officer Steven Richardson met with an informant with the code name, “211-80” at Valley Forge, Pennsylvania. After the meeting, the informant made a telephone call in his presence. That as a result of that phone conversation they proceeded to South Philadelphia to the 2700 block of Federal Street with the informant, “211-80,” in an unmarked car. That once at the 2700 block of Federal Street he parked his car and a green Camaro pulled directly behind him and parked. Agent James testified he informed the informant that he wanted to purchase five bundles of heroin. The informant spoke with the defendant Hiram Davis, known to him as “Pete,” and he paid him One Hundred Eighty Dollars ($180.00) in unmarked bills to make the purchase. He stated that he did not mark the bills because the investigation was ongoing and they did not plan to make an arrest at that time. He then instructed “211-80” to purchase three bundles instead of five bundles of heroin. That after the informant handed the defendant the money he observed the defendant put something in his right hand. The informant returned with three bundles of suspected heroin. That the suspected heroin (three bundles consisting of twelve glassine packets) was turned over to Agent Richardson as evidence. On April 3, 1980, he again met the informant, “211-80,” at Valley Forge, Pennsylvania and they drove to Philadelphia. He and the informant met with defendant Hiram Davis again to make a second purchase of heroin. That the informant purchased five, bundles of heroin, but the five bundles contained only eighteen packets instead of twenty. That he observed the defendant’s vehicle coming down the street and he proceeded to “flag him down.” Agent James testified that he told the defendant he had only eighteen packets instead of twenty (20), and the defendant explained that the informant had “shortchanged” him. He testified that the defendant then stated, “from now on, you can deal directly with me.” (N/T Vol. 1 p. 45). He then handed the agent a piece of paper with “Pete” and the telephone number “755-5622” on it. That after his discussion with the defendant, he and Agent Richardson met for a debriefing session. At that time he extracted three more packets from the informant and place [sic] them with the other evidence. These items were placed in an evidence envelope and given to agent Richardson. He testified that on May 22, 1980, at approximately 9:30 A.M. he placed a call to the phone number he received from the defendant. That as a result of the phone call he had a meeting with the defendant at 10:30 A.M. and purchased four bundles of heroin containing sixteen packets. That the bundles were given to agent Steven Richardson.
The Commonwealth’s next witness was agent Steven Richardson who acted as a back-up for agent James. He testified that on the dates of March 10, April 3rd, and May 22, 1980, he received the drug purchase from agent James. That the evidence was marked, placed on a property receipt and transported to the Philadelphia Crime Lab. That he placed the purchases in a small white envelope and placed it in a larger envelope with the time, date and amount of the purchase on it with his signature, and he identified the same in Court.
The Commonwealth’s next witness was Chemist Michael Brister of the Philadelphia Police Department. After being qualified as an expert he testified that his duty is to perform analysis of alleged controlled substances. That on March 12, 1980, he picked six out of the twelve packets at random for his analysis of the March 10th, alleged drug transaction. That he found the six glazed packets contained heroin, quinine and nonreducing sugar, with a white powder ranging from 112 milligrams to 170 milligrams. That after the analysis he sealed them with red evidence tape.
The Commonwealth then called Chemist Charles Bracken of the Philadelphia Police Department. After being qualified as an expert, he testified that he analyzed Exhibit C-5, which contained the bundles from the alleged drug transaction of April 3, 1980, submitted to him by Agent Richardson on April 16, 1980. He testified that he received five bundles containing twenty packets and one isolated packet all of which contained a white powder. That he took a packet from each bundle, weighed the contents of each packet, and performed a series of tests involving chromogenic agents. That he analyzed six packets; one from each bundle and the isolated packet. As a result of the test performed Mr. Bracken concluded that the packets contained heroin, quinine and reducing sugar.
The Commonwealth’s final witness was Joseph Szarka, a Chemist with the Philadelphia Police Department. ... Mr. Szarka testified that on May 22, 1980 an envelope (Exhibit C-9) was brought to the Lab and it was taken in as evidence. It was marked as Lab Number 50158 and deposited in bin # 10 which only he had a key. That on May 27, 1980, he took the envelope out of his bin and analyzed it. That he took one packet from each of the four bundles and performed various tests, among them a gas chromatography analysis. He concluded that the packets contained heroin, quinine and a reducing sugar____
The Commonwealth’s evidence showed that the defendant made three sales to Agent James and/or his paid informant “211-80” on three different dates. A chemical analysis of these substances was ‘proof positive’ that the packets contained heroin laced with other additives. The chain of custody was sufficient to show that the same bundles sold by the defendant were the same bundles introduced into evidence at trial.

The trial court also stated correctly the standard to be applied to insufficiency of evidence issues.

In determining whether sufficient evidence exists to sustain a conviction, this court must accept as true all the evidence and reasonable inferences therefrom upon which, if believed, the trier of fact could have based its verdict. Commonwealth v. Coccioletti [493 Pa. 103 at 107], 425 A.2d 387, 389 (1980); Commonwealth v. Stockard, 489 Pa. 209, 212-213 [413 A.2d 1088 at 1090] (1980). Commonwealth v. Marcocelli [271 Pa.Super. 411], 413 A.2d 732 (1980). The court must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Davis [491 Pa. 363 at 369], 421 [A.2d] 179, 182 (1980).

In light of the above, we have no hesitation in agreeing with the trial court that, “Here, the evidence produced at trial was sufficient to establish that defendant violated the Controlled Substance, Drug, Device and Cosmetic Act by possessing and delivering heroin.”

Informant Disclosure

Appellant argues that his trial counsel afforded him ineffective assistance of counsel by not making a pre-trial motion for the discovery of the identity and testimony of the informant. In Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967), the Supreme Court of this Commonwealth chose to approve of certain language appearing in the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

Writing for the Pennsylvania Supreme Court, Justice Roberts first adopted the general proposition that, under certain circumstances, the informant’s identity must be disclosed.

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.

Justice Roberts also adopted the general standard by which these matters were to be decided.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Commonwealth v. Carter, supra, 427 Pa. at 59, 233 A.2d at 287, quoting Roviaro v. U.S., supra, 353 U.S. at 60-2, 77 S.Ct. at 628-9.

We find that weighing the facts of this case results in nondisclosure. This conclusion is reached because no convincing argument is presented as to what defenses might have been aided by the informant’s availability.

In appellant’s brief “the possible significance of the informer’s testimony” is detailed.

The informant’s value would have rested upon his ability to testify as to his, the informant’s, use of heroin, his ability to testify as to who were the other individuals present at the March 10th meeting, and trial counsel’s ability to examine the informant on his character for truth and veracity.
Furthermore, the informant would have been the only witness to the transaction which allegedly occurred on March 10, 1980....
Finally, to have had a pre-trial motion for disclosure would have likely resulted in at least an in-camera hearing and cross-examination of said informant, allowing Appellant the ability to confront this witness and to refute this informant’s incriminating testimony.

We fail to see how any of the elements could have been “helpful to the defense.” The informant’s use of heroin and the identity of the other individuals present at the meeting are not tied to any theory of defense. Also, since the informant did not testify at trial, there was no point in examining him on “his character for truth and veracity.” Similarly, there was no “incriminating testimony” by informant to “refute.”

Finally, as the facts outlined in the first section make clear, the informant was not “the only witness” to the March 10 transaction.

As presented to us on appeal this case is distinguishable from those cases in which the information to be obtained from the defendant was linked to a specific defense theory. In Carter the defense sought to present a defense of mistaken identity. Also, in Commonwealth v. Pritchett, 225 Pa.Super. 401, 312 A.2d 434 (1973), the informant had potential relevance to an entrapment defense. Similarly, in Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A.2d 702 (1975) (Spaeth, J., dissenting) the informant might have been helpful to a specific denial defense.

In the case before us, no such utility of the informant to a theory of defense is put forth. “A mere allegation that the informant’s testimony might be helpful does not suffice.” Commonwealth v. Pritchett, supra, 225 Pa.Super. at 407, 312 A.2d at 438.

In this connection, it should be made clear what it is that we find absent here. In coming to a resolution of this issue we have kept in mind the following language in Pritchett.

However, the defendant cannot be expected to predict exactly what the informant would say on the stand. Rather, in keeping with Roviaro and Carter, “all the defendant must show is a reasonable possibility that the anonymous informer could give evidence that would exonerate him.” Price v. Superior Court, 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721 (1970).

Commonwealth v. Pritchett, Id. There is a point between “a mere allegation that the informant’s testimony might be helpful” and predicting “exactly what the informant would say on the stand.” The former asks too little of defendant and the latter too much. That point between the two—constituting what defendant can be asked to reasonably suggest is a nexus between a defense theory and the informant’s potential helpfulness in establishing that defense. That is the essential element that is totally lacking in appellant’s argument.

Thus, had counsel sought pre-trial discovery relating to the informant, he would have had to present a defense theory which might plausibly be aided by the informant.

Requiring a defendant who seeks disclosure before trial to indicate in some detail his possible defenses does not violate his constitutional right to remain silent as guaranteed by the Fifth and Fourteenth Amendments.

Commonwealth v. Pritchett, supra, 225 Pa.Super. at 410-11, 312 A.2d at 439.

Had trial counsel presented no more convincing an argument as to the usefulness of the informant to the defense than has been presented on appeal, we have no doubt that the discovery motion would not have been granted.

The discovery motion having no arguable merit, counsel will not be found ineffective for not making it. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Judgment of sentence is affirmed.

      . Roviaro had been decided on federal law, rather than on constitutional grounds. As such, it was not binding on state courts.

      . It is not the proper function of this court to devise defense theories for appellant that would have made informant's identity and testimony "helpful." We are bound to decide this case on the arguments presented by appellant. These arguments, as we have noted, are unpersuasive.


text:
    465 A.2d 673
    Patricia SHOVLIN, Appellant v. Dennis SHOVLIN.
    Superior Court of Pennsylvania.
    Submitted May 20, 1983.
    Filed Sept. 9, 1983.

      Joseph P. Giovannini, Jr., Wilkes-Barre, for appellant.
    Nancy A. Shupnik, Wilkes-Barre, for appellee.
    Before HESTER, BROSKY and BECK, JJ.
   BROSKY, Judge:

This appeal is from an order increasing the amount of support to be paid to appellant by appellee. Appellant raises three properly preserved issues. First, she states that the increase should have been made retroactive to the date of the filing of the complaint seeking an increase. Second, she contends that appellee should not have been given credit, to be applied to the new support obligation, for payments made in excess of the old support order. Third, appellant argues that the amount of the increase was insufficient. We agree with appellant’s first point and reverse as to it. The order is affirmed, however, as to its amount, and is remanded for computation as to the net amount of credit in view of the retroactive effective date to be given to the increase and for a fair distribution over time of such credit (or deficit).

The procedural history of this case can be briefly summarized. A support order in the amount of $40.80 per week was entered in 1975. On January 30, 1980, appellant filed a complaint seeking an increase in the amount of the support order to $150 bi-weekly for their children aged 7 and 6. After a Master’s Hearing and Report, to which Exceptions were filed, on August 11, 1981, the court entered an order directing that the support be increased to $135 bi-weekly; that the order be effective as of March 16, 1981; and that appellant was given $4,318 credit for payments made by him, through the Probation Office, in excess of the initial support order.

The first issue which we will consider is whether there was error in making the support order effective on March 16, 1981, four days after the Master’s Hearing, and in not making it retroactive to the filing of the request for an increase, some 14 months earlier.

The applicable statutory law at the time the order was entered was 42 Pa.C.S.A. § 6706(a).

An order of support may be made effective from the date of the filing of the complaint.

Also in effect at the time the order was entered is Pa.R.Civ.P. 1910.17(a).

An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.

It is apparent that neither the statute nor the rule require that the support order be retroactive. Nor, on the other hand, do they offer any guidance in deciding when an order should be retroactive. The case law on the subject does, however, provide some help in this regard.

Referring to the pre-codification version of the statute quoted above, Judge Hoffman of this court wrote:

The section alleviates hardship on a party who is entitled to support but who is required to proceed through the often slow-moving judicial process. Further, it creates disincentive for the party liable for support to use dilatory tactics.

Commonwealth ex rel. Bishop v. Bishop, 234 Pa.Super. 600 at 603, 341 A.2d 153 at 155 (1975).

The opinion states that access to jointly held property would not be a proper reason for not making the order retroactive. It then concludes its treatment of this issue with the following sentence.

We find no other evidence of record that would justify a denial of the wife’s request.

Id., 234 Pa.Superior Ct. at 606, 341 A.2d at 156 (emphasis supplied).

The phrasing used certainly suggests that the presumption is that the order should be made retroactive and that specific and appropriate reasons must be supplied to justify non-retroactivity. An earlier case by Judge Hoffman supports this interpretation. “A review of the evidence discloses no reason why the order should not be made retroactive.” McGavic v. McGavic, 222 Pa.Super. 246 at 251, 294 A.2d 795 at 798 (1972).

The Master’s Report recommended that the support order be made effective on March 16, 1981. No reasons were given for that recommendation, however. That recommendation was incorporated in the Order issued by the court below. The opinion of that court also provides no insight into the reasons the order was not made fully retroactive.

Given the absence of any Master’s Report or lower court rationale for the non-retroactivity; given the absence of any reason for it which we can independently discover in the record; and given the sound policy reasons in favor of retroactivity, quoted above—we find that the court below erred in not making the increase in the support order retroactive to the date of the filing of the complaint. Therefore, we reverse that portion of the support order and amend it to be effective as of January 30, 1980.

Appellant’s second issue challenges the appellee being given credit, to be applied to his increased support obligation, for payments made in excess of the initial support order. On this issue we affirm.

While excess payments are normally considered gratuitous and do not form the basis for credit, the court below found otherwise. This finding will not be disturbed absent an abuse of discretion—and we do not think that, under the facts of this case, that an abuse of discretion exists.

If the increased support order is to be given full retroactive effect, as it will be here, and, at the same time, appellee were not given credit for the amount he has already contributed voluntarily toward the increased support amount—appellant would then receive a windfall amount of total payments in excess of the amount mandated by the modified support order. We can apprehend no basis for the receipt of such an excess amount of support.

Appellant’s last issue concerns the amount of the increased order. She argues that it is insufficient. We note that she requested an increase from $81.60 bi-weekly to $150 bi-weekly and received an increase to $135 bi-weekly-

Our scope of appellate review is quite limited here. We can reverse only if we find that the order cannot be sustained on any valid ground. Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 407 A.2d 389 (1979). Viewing the somewhat limited record before us, we do not conclude that the court below abused its discretion in setting the amount of the support order. Id., 267 Pa.Superior Ct. at 575, 407 A.2d at 390.

As to the amount of the support order we affirm. With regard to the retroactive effect of the increased support order we reverse and give the order retroactive effect dating from January 20, 1980. As to whether credit should be given for voluntary payments in excess of the initial support order, we find that credit should be given and affirm the order. Finally, we remand for computation of and appropriate apportionment over time of any net credit or deficit vis-a-vis appellee. Jurisdiction relinquished.

      . This portion was deleted in a later amendment to the statute.

      . 62 P.S. § 2043.37.

      . A later opinion out of this court, Commonwealth ex rel. Kinsey v. Kinsey, 277 Pa.Super. 156, 419 A.2d 708 (1980), does not contradict this bias in favor of retroactivity. While the decision of the court below denying retroactivity was affirmed, it was explained at length that "the record presented an insufficient basis upon which to enter a retroactive order..Id., 277 Pa.Superior Ct. at 161, 419 A.2d at 711. The record did not disclose "when the actual separation occurred” or to what degree support had been provided informally. These factors are not present in the case sub judice.

      . The opinion of the trial court is quoted below in its entirety: “The reasons for the Court Decision in the above captioned matter are contained in the Master’s Report which was approved and accepted by the court.”

      . Those reasons are particularly apropos where, as here, there was a 14 month delay in the courts between the filing of the complaint and the holding of a hearing on the matter, and a 19 month period before the order was entered.


author: WIEAND, Judge:

text:
    465 A.2d 676
    COMMONWEALTH of Pennsylvania, Appellant, v. William Edward MOLAN.
    Superior Court of Pennsylvania.
    Argued June 1, 1983.
    Filed Sept. 9, 1983.

      Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellant.
    Nancy Larkin, Assistant Public Defender, Doylestown, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The trial court dismissed burglary, theft and conspiracy charges against William Edward Molan because an assistant district attorney had recommended that an accomplice, who was also a Commonwealth witness, not discuss his testimony privately with Molan’s counsel without first con-suiting his own counsel. The Commonwealth appealed. We reverse.

Molan and Thomas H. Stuart had been arrested and charged with burglary, theft and conspiracy in connection with the taking of Hummel figurines, valued at Ten Thousand Dollars ($10,000.00), from the Carriage Stop in Richboro, Bucks County. Stuart, while represented by private counsel, confessed his role in committing the crime, agreed to testify against Molan, and entered a negotiated plea of guilty. Immediately prior to commencement of trial on the instant charges, Molan’s counsel, in the presence of the assistant district attorney, asked if Stuart would meet with counsel to discuss the facts of the case. Stuart was told by the prosecuting attorney that he was not required to submit to an interview by defense counsel but agreed nevertheless to do so. When it became apparent that defense counsel intended to confer privately with Stuart, the assistant district attorney told Stuart that he should speak with his attorney before submitting to interrogation by defense counsel. He said that although he could not tell Stuart what to do, defense counsel was not Stuart’s friend and suggested a second time that Stuart call his attorney and speak with him. Thereafter, Stuart declined to be interviewed by defense counsel. These facts were shown in an evidentiary hearing held in response to a defense motion to dismiss because of alleged prosecutorial misconduct.

Molan’s motion to dismiss relied upon the decision of the Supreme Court in Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184 (1969). This reliance was misplaced. In Lewis, the defense had attempted to conduct a pre-trial interview with an F.B.I. agent who was a key prosecution witness. F.B.I. policy prohibited such an interview without the consent of the district attorney. The trial court, over the district attorney’s objection, granted a defense application requesting that such an interview be ordered. The district attorney, although conceding that he did not have the power to prevent such an interview, continued to express an opinion that the F.B.I. should not permit the interview. Finally, the court advised the prosecutor that if the agent did not meet with defense counsel, the agent would be barred from giving testimony during trial. The Commonwealth then petitioned the Supreme Court for a writ of prohibition to prevent enforcement of the court’s order. The Supreme Court refused a writ of prohibition, holding that “in the absence of an affirmative and convincing showing of exceptional circumstances or compelling reasons, a district attorney may not interfere with the pretrial interrogation by a defense counsel of persons who may be called upon as witnesses in the case.” Id., 436 Pa. at 303, 260 A.2d at 188-189 (emphasis omitted).

Subsequent decisions have refined and limited the Court’s language in Lewis and are determinative of the instant appeal. In Commonwealth v. Sistrunk, 460 Pa. 655, 334 A.2d 280 (1975), a potential witness told defense counsel that “the district attorney did not want him to discuss the case with anyone unless the district attorney was present.” The Supreme Court observed, inter alia, that a pre-trial application for relief had never been made and that a subpoena for the witness had not been issued. Moreover, the potential witness had not been called by either party. Id., 460 Pa. at 658, 334 A.2d at 281. A judgment of sentence following a jury verdict of guilty, therefore, was affirmed.

In Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983), the Supreme Court held that there was no prosecutorial misconduct where the prosecutor had informed the trial court of a witness’ suspected complicity in the crime for which the defendant was to be tried and suggested that counsel be appointed to advise the witness before he testified. Similarly, in Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), it was held that it was not improper for a prosecutor to advise an eyewitness of the Fifth Amendment right not to testify where the evidence known to the prosecutor suggested possible complicity of the witness in the commission of the crime. See also: Commonwealth v. Culbreath, 270 Pa.Super. 458, 411 A.2d 809 (1979).

In Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979), the Court held that it had not been improper for the trial court to allow the presence of the district attorney during defense counsel’s interview of an eyewitness who feared for her safety, particularly where it had been the witness and not the district attorney who objected to the interview.

In Commonwealth v. Gray, 270 Pa.Super. 20, 410 A.2d 876 (1979), the defendant complained that the prosecutor had informed an eyewitness that he need not talk to defense counsel if he did not wish to do so. This Court held that the prosecuting attorney had simply advised the witness of his rights and had not been guilty of the conduct proscribed in Lewis. Finally, in Commonwealth v. Gibson, 271 Pa.Super. 499, 414 A.2d 364 (1979), aff'd, 500 Pa. 231, 455 A.2d 634 (1983), the prosecutor, who had briefly prevented defense counsel from interviewing a witness, was ordered by the trial court to make the witness available for an interview with defense counsel, and an interview was thereafter held. Under these circumstances, the Superior Court held, the defendant had not been deprived of a fair trial by the prosecutor’s temporary obstruction of defense counsel’s right to interview the witness. See also: Annot., 90 A.L. R.3d 1231 (1979).

In the instant case, the assistant district attorney was not guilty of the same type of obstruction condemned in Lewis. Defense counsel had delayed her attempt to interview the co-defendant until immediately prior to trial. The assistant district attorney did not prevent the interview but merely advised the accomplice that he could not be compelled to speak with defense counsel and that, in any event, he should consult his own attorney before speaking privately with counsel for the defendant. In so doing, the prosecuting attorney was merely advising the accomplice of the rights available to him. He was not guilty of prosecutorial misconduct.

Moreover, even where a district attorney has obstructed defense counsel’s access to a witness, the remedy is not dismissal of the criminal charges. Rather, a defendant should, at least in the first instance, seek from the court an order which will enable him to achieve the desired access. If this had been done in the instant case the court could have fashioned an order calculated to insure that the witness would have been made available for the interview defense counsel wished to conduct. See: Commonwealth v. Sistrunk, supra; Lewis v. Court of Common Pleas of Lebanon County, supra. Dismissal of the charges, however, was an extreme and unwarranted remedy.

Reversed and remanded for trial. Jurisdiction is not retained.

      . The trial judge, with commendable candor, has conceded in his Memorandum Opinion that dismissal of the charges was an inappropriate sanction.


text:
    465 A.2d 678
    COMMONWEALTH of Pennsylvania v. Frederick SCOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1983.
    Filed Sept. 9, 1983.

      Mitchell S. Strutin, Philadelphia, for appellant.

      Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Frederick Scott entered a counselled plea of guilty to robbery and criminal conspiracy as a result of his participation in the robbery of a member of . the Philadelphia Police Department’s “Grandpop Squad” on. June 14, 1978. He was sentenced on January 9, 1979 to a term of imprisonment for not less than four (4) nor more than eight (8) years. Scott did not file a motion to withdraw his guilty plea or to modify his sentence and did not take a direct appeal. Subsequently, Scott filed a pro se P.C.H.A. petition in which he alleged that his guilty plea had been induced by trial counsel’s promise of a less severe sentence and that his counsel had been ineffective because he failed to object when the sentencing court erroneously cited and relied upon an inapplicable sentencing guideline to impose a minimum sentence of four (4) years. Counsel was appointed, and an amended petition was filed. Following an evidentiary hearing before the Honorable Edward J. Blake, the P.C.H.A. petition was dismissed. This appeal followed, in which Scott is represented by new counsel. Because there is merit in appellant’s second contention, we remand for resentencing.

Ordinarily, the failure to file a petition to withdraw a guilty plea, combined with the failure to pursue a direct appeal, will bar consideration of the validity of the plea in a subsequent collateral proceeding. Commonwealth v. Knox, 304 Pa.Super. 368, 372, 450 A.2d 725, 727 (1982); Commonwealth v. McGarry, 280 Pa.Super. 527, 529-530 n. 2, 421 A.2d 847, 848 n. 2 (1980); Commonwealth v. Campbell, 269 Pa.Super. 467, 469, 410 A.2d 350, 352 (1979). In this case, however, the record discloses that appellant was not advised of his right to file such motions or of the consequences of a failure to do so. Therefore, appellant is not barred from challenging the validity of his plea in these proceedings. Commonwealth v. Frankhouser, 491 Pa. 171, 176, 420 A.2d 396, 398-399 (1980); Commonwealth v. Brandon, 485 Pa. 215, 217, 401 A.2d 735, 737 (1979); Commonwealth v. Crawford, 285 Pa.Super. 169, 185, 427 A.2d 166, 174 (1981); Commonwealth v. McGarry, supra.

Appellant contends that his guilty plea was involuntary because unlawfully induced by counsel’s promise of a two (2) to five (5) year sentence to run concurrently with another sentence to be imposed by a different judge in a separate proceeding. The record of the guilty plea colloquy belies this claim. When asked whether he had been “promised ... anything in terms of sentence that has influenced your decision to plead guilty[,]” appellant responded that he had not. He agreed with his counsel at that time that the plea being entered was an open plea of guilty and that there had been no agreement concerning the sentence to be imposed. Faced with his own unequivocal denial of the existence of a promise as to sentencing, appellant now suggests that he lied throughout the colloquy in order to insure the acceptance of his plea. However, “[a] criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.” Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976). Moreover, at the P.C.H.A. hearing the testimony of appellant’s trial counsel confirmed that he had made no promise to appellant regarding the length of the sentence. It was also demonstrated, contrary to appellant’s assertions, that the Public Defender’s file failed to support a promise of a sentence of two (2) to five (5) years. The P.C.H.A. court resolved the credibility issue against appellant and found that no promises had been made by counsel or by anyone else. This finding is fully supported by the record; we will not disturb it on appeal. Commonwealth v. Williams, 310 Pa.Super. 501, 514, 456 A.2d 1047, 1054 (1983). It is by now well established that disappointed expectations will not alone vitiate a guilty plea. Commonwealth v. Waddy, 463 Pa. 426, 429 n. *, 345 A.2d 179, 180 n. * (1975); Commonwealth v. Sanutti, 454 Pa. 344, 347, 312 A.2d 42, 44 (1973); Commonwealth v. Brown, supra 242 Pa.Super. at 247, 363 A.2d at 1253.

Appellant also contends that his trial counsel was ineffective for failing to object when the sentencing court relied upon Section 5 of the Act of November 26, 1978, P.L. 1316, No. 319 (reported in the note following 42 Pa.C.S. § 9721 and entitled “Interim Sentencing Guidelines”), to impose a sentence of imprisonment for not less than four nor more than eight years. This statutory provision became effective January 1, 1979 but had application only to offenses occurring subsequent thereto. Commonwealth v. Garris, 280 Pa.Super. 287, 290, 421 A.2d 726, 727 (1980). It provided an interim sentencing guideline for certain repeat offenders as follows:

(a) Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. Sec. 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S. Sec. 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.

Because appellant’s offense occurred on June 14, 1978, this . section had no application; and the sentencing court was in error when it relied on Act 319 to impose a four to eight year sentence of imprisonment.

The Commonwealth argues that the sentencing court observed merely the prospective nature of the statutory guideline in an effort to bring home to appellant the seriousness of the crime of robbery to which he had entered a plea of guilty and that the sentence was based on other factors. We are unable to accept this contention. That the court relied upon and followed the inapplicable statutory guideline is readily apparent from the record. Not only did the sentencing court recite the applicability of the statutory guidelines after January 1, 1979, but it specifically cited the statute as a reason for its sentence. Thus, the court said:

I also took into account Senate Bill 195, which as to certain target offenses has set a minimum of four years incarceration if there has been a repeated offense. In this case you have been convicted of robbery, as you have been before.

Despite the court’s express consideration of an inapplicable statutory provision, appellant’s trial counsel did not object or suggest to the court that the statute was inapplicable to the offense for which appellant was being sentenced. There was no reasonable basis for counsel’s failure to object to the court’s impermissible consideration of the inapplicable sentencing guideline. Compare: Commonwealth v. Garris, supra. It is necessary, therefore, that we vacate the sentence based on improper considerations and remand for resentencing. See: Commonwealth v. Gaito, 277 Pa.Super. 404, 412, 419 A.2d 1208, 1212-1213 (1980).

That portion of the trial court’s order denying appellant’s P.C.H.A. request to withdraw his plea of guilty is affirmed. The portion of the order denying the request for reconsideration of the sentence, however, is reversed; the judgment of sentence is vacated; and the case is remanded for resentencing. Jurisdiction relinquished.


author: MONTEMURO, Judge:

text:
    465 A.2d 681
    COMMONWEALTH of Pennsylvania v. Luciano SPENNATO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1983.
    Filed Sept. 9, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.
    Robert N. Speare, Media, for appellant.
    David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Delaware County entered against the appellant, Luciano Spennato. The appellant was convicted of perjury and false swearing in official matters. After denial of his post-verdict motions, appellant was sentenced to two (2) to twenty-three (23) months imprisonment.

The charges against the appellant arose out of a sworn statement given by the appellant to an investigatory panel of the Pennsylvania Crime Commission. The Crime Commission was conducting an investigation of the possible involvement of organized crime in the pizza and cheese industry in Southeastern Pennsylvania.

In his statement before the Crime Commission, the appellant related that he had immigrated from Italy to the United States in 1971. Soon thereafter, he began to work at various jobs in pizza shops, and he eventually became associated with a Mr. John Scotto at a pizza shop in New Jersey.

The shop in New Jersey ceased operations and the appellant began to work at another pizza shop owned by John Scotto. The shop was called Scotto Pizza and was located in the Granite Run Shopping Mall, in Delaware County. In 1976, the appellant became manager of Scotto Pizza, and in 1977, he became the proprieter by virtue of a sub-leasing agreement with Scotto. It was the operation of this shop which brought the appellant to the attention of the Crime Commission.

The appellant was questioned extensively concerning the finances and operation of the pizza shop. He stated that he sublet the shop at a cost of two hundred ($200.00) dollars per week between May, 1977 and January, 1978, and five hundred ($500.00) dollars per week thereafter. This sum was paid by check directly to Scotto, who would pick it up weekly or bi-weekly. The check was drawn from a business checking account in the name of Scotto Pizza at the Southeast National Bank. The appellant stated that all cash register receipts were deposited weekly into this account and that all expenses were paid out of this account.

In the course of the interrogation, the following exchange took place between Agent Brown and the appellant:

Q. Do you ever make deposits into any other accounts other than your own?
A. Never.
(N.T. July 7, 1978, p. 46)

Investigators of the Crime Commission, acting on information received, later discovered that between May 11, 1977 and September 26, 1978, the appellant had made numerous deposits into the savings account of John and Jennie Scotto. The deposits were always in the amount of two hundred ($200.00) dollars; always in cash; and usually made weekly, although in some weeks no deposit was made and in other weeks as many as three deposits were made. When the account was closed in September of 1978, it contained almost fourteen thousand ($14,000) dollars, including interest.

The appellant was arrested and charged with perjury and false swearing based upon the above-quoted question and answer. At trial, the Commonwealth produced the testimony of three bank tellers, each of whom testified that they remembered the appellant making the deposits. John Scot-to also testified that the appellant had made the deposits. Finally, Joan Weiner and Carl Brown of the Crime Commission testified that the appellant had been administered an oath, and that he made the statement in question.

In his defense the appellant asserted he misinterpreted the question posed to him. He interpreted it as an inquiry into whether he had ever deposited money from the business into any other account. He testified that the cash payments were from his personal funds and were in payment for the equipment in the pizza shop, pursuant to an agreement with John Scotto to pay him five thousand ($5,000.00) dollars for the equipment. He testified that the payments were structured in this manner because of the inconvenience of transferring the money to Scotto’s residence in Cherry Hill, New Jersey, and to establish a line of credit for Scotto at the Southeast National Bank.

On appeal, three issues are raised for our consideration. One, that the evidence was insufficient to support the convictions. Two, that the oath was administered by a person who was not authorized by law to do so. And finally, that the appellant was prejudiced by the repeated references to the Crime Commission and to organized crime. We need not reach the latter arguments in as much as we find the evidence to be insufficient to sustain the convictions.

The standard which we are required to apply in reviewing the appellants’ insufficiency claim was set forth by this court in Commonwealth v. Volk, 298 Pa.Super. 294, 300, 444 A.2d 1182, 1184 (1982), in which the court said:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence along with all reasonable inferences to be drawn therefrom was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Super. 25, 386 A.2d 117 (1978); Commonwealth v. Luther, 266 Pa.Super. 240, 403 A.2d 1329 (1979).

The parties do not dispute that the appellant made the deposits into the Scottos’ account at Southeast National Bank; nor do they dispute that the appellant made the statement before the Crime Commission. Rather the appellant contends that, under his interpretation of the question asked, he gave an answer which he believed to be true. Alternatively, he contends that the statement was not material to the Crime Commission proceeding.

The crime of perjury is defined in 18 Pa.C.S.A. § 4902(a), which states:

A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true.

See also Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980); Commonwealth v. Lafferty, 276 Pa.Super. 400, 419 A.2d 518 (1980); Commonwealth v. Yanni, 208 Pa.Super. 191, 222 A.2d 617 (1966).

The crime of false swearing in official matters is defined by 18 Pa.C.S.A. § 4903(a), which states:

A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemean- or of the second degree if:
(1) the falsification occurs in an proceeding;
(2) the falsification is intended to mislead a public servant in performing his official function.

As in any criminal prosecution, the Commonwealth has the burden of proving each element beyond a reasonable doubt. Nevertheless, the Commonwealth is able to prove the charge by circumstantial evidence as long as it is legally competent and sufficient in volume and quality to meet the burden of proof. Id.

With regard to the appellant’s contention that he believed his statement to be true, given his interpretation of the question and the context of the question, this is an especially difficult determination in that it deals with the appellant’s subjective intent. As such, it is a determination which of necessity relies to a great extent on the circumstantial evidence presented by the Commonwealth. Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978); Commonwealth v. Karafin, 224 Pa.Super. 449, 307 A.2d 327 (1973).

The appellant’s contention is well taken. The questions posed by the agents of the Crime Commission dealt extensively with the appellant’s handling of the cash register receipts of Scotto Pizza, both as manager and as proprieter. Agent Brown testified at trial that one aspect of the Crime Commission’s investigation was to uncover any “under the table” payments or deposits; however, this aspect of the investigation was never raised openly and honestly. Instead, one question was asked concerning any other deposits made by the appellant, and immediately the interrogation swept off on another tack.

The interrogation was extremely lengthy encompassing as it did some 96 pages of transcribed testimony. Despite the fact that the deposits in question were the prime objective of the investigation, the investigators left the matter suspended in mid-air without any attempt to specify or clarify the underlying facts. Agent Brown testified at trial that he knew deposits were being made into the account of John and Jennie Scotto because their bank records had been subpoenaed in May, 1978. Furthermore, he testified that sometime in 1977 he had received information from a confidential source that the appellant was making the deposits; yet he did not confront the appellant with any specific questions other than the one vague and isolated inquiry.

Under the circumstances it cannot be said that the Commonwealth has sustained its burden of proving beyond a reasonable doubt that the appellant knew his answer to be false. The interrogation tactic of the Crime Commission investigator reeks of unfairness in that it deprived the appellant of any opportunity to be apprised of the impact of the question; a question so patently ambiguous that to allow it to serve as the basis for a perjury prosecution is contrary to all notions of fairness and justice. The hit and run nature of the interrogation raises the question of the purpose of the Crime Commission’s investigation. Did it truly seek to discover the source of the deposits into the Scotts’ account or was it only an attempt to trap the appellant? If the former was the purpose, then logically Agent Brown should have confronted the appellant with the information in his possession, however he did not. In any event, this court will not condone the kind of interrogation used in this case.

We conclude that there is insufficient evidence, circumstantial or otherwise, of the appellant’s subjective knowledge of the falsity of his answer. The Commonwealth’s failure to sustain its burden of proof in this regard necessitates that we vacate the judgments of sentence and discharge the appellant.

Judgments of Sentence vacated. The appellant is discharged.

JOHNSON, J. did not participate in the deliberation or decision of this case.

      . 18 Pa.C.S.A. § 4902.

      . 18 Pa.C.S.A. § 4903(a).

      . The appellant appeared, pursuant to a subpoena, at the offices of the Crime Commission in St. Davids, Delaware County, on July 7, 1978. Presiding over the proceeding was Joan Weiner, the Acting Executive Director of the Crime Commission. The appellant was questioned by Special Agent-in-Charge Frank Booth, and by Special Agent Carl Brown. The appellant was represented by counsel.


author: POPOVICH, Judge:

text:
    465 A.2d 684
    COMMONWEALTH of Pennsylvania v. John K. YOUNG, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed Sept. 9, 1983.

      James F. Metka, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, John K. Young, from the Order of the Court of Common Pleas of Philadelphia (per Judge Blake) denying his request for relief under the Post-Conviction Hearing Act (PCHA). 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We affirm.

On August 20, 1975, a jury found the appellant guilty of the stabbing death of 25-year-old Marlene Mapp (murder in the second degree), possession of an instrument of crime (butcher knife), robbery and burglary. Post-trial motions were denied and appellant was sentenced to concurrent terms of life imprisonment for murder and ten (10) to twenty (20) years for burglary; sentence was suspended on the other charges.

Young appealed directly from the judgment of sentence imposed on the murder conviction to the Pennsylvania Supreme Court. An appeal from the judgment of sentence imposed on the burglary conviction was filed in the Pennsylvania Superior Court and later certified to the Supreme Court. In an Opinion authored by Chief Justice Eagen, appellant’s judgments of sentence were affirmed. Commonwealth v. Young, 477 Pa. 212, 383 A.2d 899 (1978).

On September 24, 1979, appellant filed a pro se PCHA petition and was appointed counsel, who, in turn, filed an amended PCHA petition and brief in support of appellant’s contentions. Thereafter, by order and accompanying Opinion dated April 13, 1982, appellant’s petition for relief under the PCHA was denied. This appeal followed.

Appellate counsel, who also represented appellant at the PCHA level but not at trial, raises the same questions, save for Number 4 infra, on appeal as presented to the PCHA court. They are framed in the “Statement of Questions Involved” section of appellant’s brief as follows:

1. Did the questioning of the Appellant who was a juvenile, without first affording him the opportunity to consult with a parent or adult, violate his Miranda Rights?
2. At the trial, was evidence introduced which had been obtained pursuant to an unlawful arrest?
3. Was evidence, obtained pursuant to an unconstitutional search and seizure, introduced at trial?
4. Was Appellant’s trial counsel ineffective in that he failed to move to suppress evidence obtained pursuant to an unconstitutional search and unconstitutional coerced confession? In addition, was counsel ineffective in only stating prosecutorial misconduct in his Appeal Brief?

Initially, it needs to be mentioned that because appellate counsel is other than counsel whose stewardship is being assailed, this is the appropriate stage at which to question the ineffectiveness issue. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Cooke, 288 Pa.Super. 205, 431 A.2d 360 (1981).

Appellant’s first issue, concerning the waiver of his Miranda rights, is not couched in terms of ineffectiveness but does assert that “[his] statement should have been suppressed at the hearing on this matter and a new trial granted.” (Appellant’s Brief at 10) However, the nexus between the two (stewardship and Miranda rights) is specifically discussed in that portion of appellant’s brief dealing with the fourth issue and is posed in terms of a rhetorical question: “Did trial counsel have a reasonable basis in only appealing to the Supreme Court on the issue of prosecutorial misconduct rather than including the important issue [of] whether a juvenile’s waiver of his constitutional rights was a knowing and intelligent one[?]” (Appellant’s Brief at 15)

At the suppression hearing held on June 10, 1975, the court heard testimony from Detectives Miller, Dougherty and the appellant.

Detective Miller recounted how, because of information received from the victim’s neighbor and 6-year-old boy, the appellant, who resided no more than 50 feet from the victim’s home, was asked to accompany the police to the station house to answer some questions concerning the killing. At this time, appellant was 17 years and 8 months old.

On the 11th of March, 1975, appellant, at 3:10 p.m., was placed in an interrogation room and advised of his Miranda rights. Appellant initially denied involvement in Marlene Mapp’s killing. However, at 7:00 p.m. appellant admitted to the homicide. Prior thereto, appellant had rest periods, interspersed with questioning sessions and the taking of a polygraph, the results of which were not admitted into evidence. The confession consisted of five (5) pages of testimony written down by Detective Miller, as told to him by the appellant. The appellant was permitted to read over the document and affixed his name to each page.

Detective Dougherty’s accounting supplemented Detective Miller’s version as to what occurred between 4:50 p.m. and 5:45 p.m. on the evening in question, that is, Detective Dougherty testified that he also questioned the appellant concerning the events surrounding the killing. At no period during this interrogation, according to Detective Dougherty, did appellant admit to the commission of the murder.

Appellant’s version of what transpired was totally inconsistent with that reported to by the police.

The waiver of rights issue need not detain us any longer, for our review of the trial transcript reveals that the inculpatory statement attributed to the appellant was not introduced into evidence, even though the prosecuting attorney did insinuate at one stage in the trial proceedings that he might “recall Detective Miller to put in the confession.” (N.T. 8/22/75 at 254) The record indicates that the attorney for the Commonwealth did not do so, and we can see why from the overwhelming amount of evidence presented establishing appellant as the perpetrator of this heinous act. Therefore, absent the introduction of such evidence at trial, counsel cannot be deemed ineffective for failing to have raised this issue (invalidity of the inculpatory statement) before the Supreme Court of Pennsylvania in the context of a waiver of rights issue. In other words, albeit trial counsel neglected to raise on appeal “the important issue [of] whether a juvenile’s [appellant’s] waiver of his constitutional rights was a knowing and intelligent one[,] (Appellant’s Brief at 15), this averment is rendered nugatory by the simple fact that the confession elicited from the appellant-juvenile, in contravention of Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974), was not introduced into evidence for the jury’s consideration in reaching its verdict. Thus, counsel will not, and cannot, be labelled inept for failing to do a useless act. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

The second and third issues will be dealt with jointly, since their disposition is premised upon the same legal theory, i.e., waiver.

In the second issue, appellant claims that he “was brought into the police station at 3:07 P.M. on March 11, 1975, and he was not arraigned until 3:55 A.M. on March 12, 1975. Therefore, it is submitted that this length of delay was unnecessary and is clearly violative of [Commonwealth v.] Futch [, 447 Pa. 389, 290 A.2d 417 (1972)] and Rule 130[, Pa.R.Crim.P.] (Formerly Rule 118).” (Appellant’s Brief at 13)

Appellant’s third issue is bifurcated. Initially, he asserts that “but for” the improperly obtained confession and his illegal arrest, which served as the basis for the issuance of the warrant that led to the securement of various pieces of evidence (i.e., three knives, pair of pants and a wash-rag) from his residence and were ultimately submitted at trial, the taint of illegality was not purged. As a result, the evidence seized was suppressible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In the second portion of appellant’s third issue, he contends that because the search warrant did not specifically “identify the property to be seized,” the requirements of Pa.R. Crim.P. 2005(c) (“Each search warrant shall: ... (c) name or describe the property with particularity the person or place to be searched;”) were violated. Therefore, the items seized should not have been admitted into evidence.

Preliminarily, we wish to point out that nowhere in the applicable section of appellant’s brief, concerning the second issue, does appellant assert how he was prejudiced by the alleged delay. Since the accused must show how he was prejudiced as a result of the delay, Commonwealth v. Futch, supra, his failure to do so prevents this Court from considering the matter. See Commonwealth v. Mitchell, 489 Pa. 174, 445 A.2d 721 (1982).

Moreover, we find that what was said in Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983), in regard to the appeal of the denial of a PCHA petition requesting the withdrawal of a guilty plea, apropos to the case at bar; viz.:

At appellant’s request, (private) counsel was appointed and an amended PCHA petition was submitted. Allegations and factual accountings were made therein that are almost identical to those appearing in appellant’s brief. However, conspicuously missing from all of the appellant’s supportive evidence respecting the withdrawal of his plea is the claim linking the entry of the alleged defective plea with an ineffectiveness of counsel assertion. See Commonwealth v. Miller, 495 Pa. 177, 433 A.2d 1 (1981); Commonwealth v. Dimitris, 484 Pa. 153, 398 A.2d 990 (1979); Commonwealth v. Maute, 263 Pa. Super. 220, 397 A.2d 826 (1979). (Emphasis in original)

Id., 315 Pa.Superior Ct. at 447, 462 A.2d at 279. This Court went on to hold in Bolding that appellant’s right to assault the validity of his guilty plea had been waived. We did so on the basis that, “[a]ppellant, represented by counsel other than guilty plea counsel throughout the post-guilty plea process, ... failed to rebut the presumption of a knowing and intelligent waiver of his right to appeal on any basis, let alone on an allegation of ‘extraordinary circumstances.’ ” (Citations omitted) Id., 315 at 449, 462 A.2d at 280.

Instantly, as in Bolding, appellant has failed to establish a nexus between the alleged improprieties (Futch violation and invalidity of a search warrant) and the stewardship of his trial attorney. We find this omission (especially in the absence of an assertion of “extraordinary circumstances,” i.e., the incompetency of prior counsel, to redeem the claim) fatal to appellant’s entitlement to have his second and third claims reviewed by this Court. Commonwealth v. Bolding, supra (citing cases).

The fourth, and last, claim averred by appellant fares no better than his previous contentions, for, again, he has failed to preserve it for our review by not presenting it at the PCHA hearing. Before examining the reasons why this Court has concluded that “waiver” is the proper response to appellant’s contention, we wish to set forth the matter at issue. Appellant protests that trial counsel was ineffective for failing to object to the closing argument of the assistant district attorney, when he (the ADA) “grossly misstated the testimony of Larry Mapp [—the victim’s 6-year-old son—] by saying that the witness saw Appellant slit his mother’s throat when he was in another room as the stabbing occurred according to his testimony.” Appellate counsel avers that this “was a crucial error on the part of [trial] counsel.” He views such conduct as “patent, ineffectiveness which materially went to the core of the charges leveled against Appellant and which pierced the armour of proper defense which every defendant is constitutionally protected against.” (Appellant’s Brief at 16-17)

To recap what transpired prior to the instant appeal, appointed counsel, who is also appellate counsel, filed an amended PCHA petition and a brief in support of appellant’s request for a new trial. However, in neither the amended PCHA petition nor in the accompanying brief did appointed counsel focus on trial counsel’s failure to object to an alleged misstatement of the evidence by the prosecuting attorney during closing argument. In fact, at the PCHA hearing held on April 21, 1981, appellant was the only person to testify. His testimony was restricted to the circumstances leading up to his arrest and confession, as well as the time frame within which all of these events occurred. With respect to the other issues raised by appointed counsel, the PCHA court noted that counsel was “standing on the Record.” (N.T. 4/21/81 at 12) Nonetheless, our review of the “record” does not substantiate a conclusion that appointed counsel, either in the form of an amended PCHA petition or brief, raised the issue concerning the prosecution’s summation to the jury. It was not until appointed counsel filed a brief with this Court that the specific reference to the inaccurate summation was first brought to light. As a result, we conclude that appellant has not preserved the issue for our review.

In Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978) our Supreme Court was confronted with the identical problem and handled it in the following manner:

In his amended PCHA petition, appellant made a general allegation that trial counsel was ineffective for failing “to raise and preserve on appeal issues of inflammatory summation and other prosecution misconduct.” At the hearing, appellant’s counsel made no specific argument on this claim. When counsel filed a brief in support of the PCHA petition eleven days after the hearing, specific instances of alleged inflammatory summation were alluded to for the first time. Under these circumstances, we believe appellant has waived this claim.
In Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. [599] at 608, 235 A.2d [349] at 354, we stated:
“As with other assertions of a denial of constitutional rights in post conviction proceedings, the burden remains throughout with the prisoner to demonstrate any constitutional deprivation.”
Once a prisoner has made such a showing, the Commonwealth can, of course, call witnesses to rebut his allegations. More specifically, in this case, once appellant would have shown instances where it seemed that trial counsel should have objected, the Commonwealth could then have called trial counsel to the stand to explain his failure to object, thus showing either his effectiveness or lack of effectiveness.
Because of appellant’s failure to allude to specific instances of inflammatory summation before the PCHA hearing, the Commonwealth never had the opportunity to call trial counsel to explain his actions. For reasons similar to this, Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), and its progeny require a certain degree of specificity to preserve issues for appellate review, and we do not believe that such specificity was present in this case until the brief was filed. For reasons previously stated, we believe such specificity must be met before the evidentiary hearing and not after. As we stated in Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978):
“We believe these claims are waived, because appellant, by waiting until after the hearing, denied the Commonwealth the opportunity to defend against assertions raised at such a late date.” (Footnotes omitted)

Id., 482 Pa. at 353-54, 393 A.2d at 1143-1144.

Since appellant’s argument concerning the prosecution’s summation was specifically raised for the first time in his brief to this Court, we hold that, in compliance with Wilson, the claim is waived. See also Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977) (although ground for relief was alleged in the amended PCHA petition, because it was not pursued at the time of the hearing nor was it discussed in the brief to the hearing court, the Supreme Court would not consider the question on appeal).

Order affirmed.

ROWLEY and WIEAND, JJ., concur in the result.

      . See also Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982).

      . As an aside, we find it unusual that in a case in which counsel’s effectiveness is called into question, as is the situation here, no effort was made to have trial counsel present to testify and give his reasons for pursuing the course he did in defending the appellant. Absent the doctrine of waiver, we might find it difficult to resolve all of appellant’s complaints on the meager record created at the PCHA hearing by the appellant. See Commonwealth v. Johnson, 273 Pa.Super. 488, 491, 417 A.2d 753, 755 (1979) (“Appellant contends that the trial court should not have denied his petition without hearing testimony from trial counsel. The obligation to present this testimony, however, was upon appellant. He does not allege that he attempted to present trial counsel and that, despite due diligence, he was unable to do so, or even that counsel’s testimony would support his contentions. Accordingly, there is no basis for finding [in favor of the] appellant[.]” [Emphasis added]).