author: JAMIESON, Judge:

text:
    669 A.2d 385
    COMMONWEALTH of Pennsylvania, Appellee, v. Lori Jane FACER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 27, 1995.
    Filed Dec. 29, 1995.

      Deborah T. Lux, Bellefonte, for appellant.
    Mark S. Smith, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before POPOVICH, JAMIESON and HOFFMAN, JJ.
   JAMIESON, Judge:

Appellant, Lori Jane Facer, appeals from the judgment of sentence entered December 22,1994, by the Court of Common Pleas of Centre County (Brown, Jr., P.J., presiding). The judgment of sentence was entered in response to a contempt proceeding initiated by the Commonwealth. The basis of the Commonwealth’s petition was the failure of appellant to make restitution to a crime victim.

On this appeal appellant contends: 1) the trial court lacked jurisdiction to enter an order requiring her to make restitution after she had been discharged from her probation; 2) the trial court erred in finding her in indirect criminal contempt; and 3) the Commonwealth failed to prove a willful failure on behalf of appellant to make restitution.

This case began on February 20, 1990, when appellant was charged with forgery, theft by deception and receiving stolen property. Appellant had been employed as a bookkeeper at Ishler’s Plumbing, Heating and Electric. During the period of July, 1987, and December, 1988, appellant embezzled money by writing checks to herself, forging Mr. Kenneth Ishler’s signature, and altering duplicate checks to make them appear as if they were authorized payments. On February 28, 1990, a preliminary hearing was held and appellant was held over for trial on all charges.

On July 16, 1990, appellant entered a guilty plea to forgery, theft by deception, and receiving stolen property. Appellant was thereupon placed on probation for twelve months and ordered, inter alia, to make restitution in an amount to be determined by the Centre County Probation Office. The July 16, 1990, Order provided that all costs and restitution be paid pursuant to a payment plan in accordance with a contract established by the Centre County Probation Department and approved by the Court.

On or about February 1, 1991, the Commonwealth filed a petition to establish restitution. Appellant filed an answer and new matter and on May 20, 1991, a hearing was scheduled. An authorization to release confidential information was provided to appellant by Mr. Ishler. This authorization allowed appellant access to records located at Mid-State Bank and ■ at Johnson Brothers Accounting Service. Appellant’s counsel attempted to inspect the cancelled checks, check stubs and duplicates. Some of these items were missing and could not be provided to appellant.

On June 5, 1991, the trial court entered an order discharging appellant from probation stating that all probation conditions had been fulfilled. The trial court order was based upon the recommendation for early termination of appellant’s probation submitted by the probation office and filed with the trial court order on June 5, 1991. This order was entered despite the fact that no restitution amount had ever been fixed or paid.

In February, 1992, the Commonwealth contacted appellant’s counsel requesting resolution of the restitution matter. In January, 1993, the Commonwealth requested the trial court to schedule an “in chambers” conference to discuss the restitution matter.

On March 23, 1993, a restitution hearing was held. The court set the amount of restitution at $2,688.95. Appellant refused to sign a payment contract or to make any payment toward the amount of restitution. On June 2,1994, the Centre County Probations Office contacted appellant to set up a payment plan. Appellant refused to agree to any such plan.

On or about June 21, 1994, the Commonwealth filed a petition to find appellant in indirect criminal contempt. On July 22, 1994, a hearing was held on the Commonwealth’s petition. On August 30, 1994, the trial court entered an order which found appellant in indirect criminal contempt. A sanctions hearing was held on October 11, 1994. As a result thereof, on December 22, 1994, appellant was sentenced to a thirty day term of incarceration which could be purged upon payment of $2,688.95. This latter order was stayed by order of the trial court pending this timely appeal.

Appellant is now challenging the December 22, 1994, order and by extension the March 23, 1993, court order establishing the amount of restitution; the August 30, 1994, court order finding appellant in indirect criminal contempt. Essentially, appellant argues that the trial court, once it discharged appellant from probation on June 5, 1991, and once thirty days passed after the entry of that order, lacked the jurisdiction to enter any other order. We agree.

Appellant’s argument is grounded in Section 5505 of the Judicial Code. That section provides:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.C.S. § 5505. This statute states unequivocally that once a judgment has been entered in an adverse proceeding, that judgment becomes final if no appeal is taken therefrom within thirty days. The judgment can not normally be modified, vacated or rescinded. Similarly, it may not be opened. This doctrine of finality of judgments serves a very specific function: to establish a point at which litigants, counsel and courts can regard contested lawsuits as being at an end. Anderson v. Anderson, 375 Pa.Super. 341, 346-47, 544 A.2d 501, 504 (1988) quoting Simpson v. Allstate Insurance Company, 350 Pa.Super. 239, 504 A.2d 335 (1986) (en banc).

In Commonwealth v. Sheppard, 372 Pa.Super. 550, 539 A.2d 1333 (1988), the defendant had been arrested and held for trial on charges arising from automobile theft. The trial court entered an order granting defendant’s motion to discharge. The Commonwealth failed to take an appeal. Thirty-one days later, however, the Commonwealth filed a petition to vacate the discharge order. The trial court granted the petition and the defendant’s case was listed for trial. On appeal, this Court reversed, holding that after thirty days the trial court lacked jurisdiction to vacate its order to discharge and that even if the motion to discharge was based upon misinformation, it did not rise to the level of fraud required for a court to retain jurisdiction after thirty days have passed. See 42 Pa.C.S. § 5505. See also Commonwealth v. Fiore, 341 Pa.Super. 305, 313, 491 A.2d 276, 280-81 (1985) (Court erred in vacating judgment of sentence more than thirty days after its entry where there was no proof that sentence was procured by perpetration of fraud upon court).

In the case at bar, the Commonwealth did not petition the trial court to reconsider its discharge order of June 5, 1991: nor did the Commonwealth take an appeal from the June 5, 1991, order. This had the effect discharging appellant from the jurisdiction of the criminal justice system. Once accomplished she was not amenable to the jurisdiction of the Court unless she committed an act which brought her back within the Court’s reach. There has been no allegation of fraud or any other circumstance which would be considered so grave or compelling as to constitute extraordinary cause justifying court’s intervention beyond the thirty day period as mandated by 42 Pa.C.S. § 5505. Accordingly, the case had reached its point of finality and any action taken thereafter by the trial

court was null and void.

Accordingly, the judgment of sentence is vacated.

      . 18 Pa.C.S. § 4101.

      . 18 Pa.C.S. § 3922.

      . 18 Pa.C.S. § 3925.

      . The Honorable Charles C. Brown, Jr., the presiding judge, apparently believed that the trial court lacked jurisdiction to continue in this case:
      My own order of June 3rd, 1991, I think throws that into a cocked hat and that is there’s no authority for this court to be holding a restitution hearing now. Forget what I said, forget what anybody said. The point of it is no one, in spite of what Mr. Kistler has said, no one, including myself, apparently before this very moment has really said what in the world are we doing? There is no authority to hold a restitution hearing.
      N.T. Hearing Transcript, March 23, 1993, p. 21.


source: Caselaw Access Project

author: JAMIESON, Judge.

license: Public Domain

text:
    669 A.2d 387
    George E. WILLIAMS, Appellant, v. GRUNTAL & COMPANY and Ronald Chackler, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed Dec. 29, 1995.

      Dexter R. Hamilton, Philadelphia, for appellant.
    Edward G. Donnelly, Jr., Philadelphia, for appellees.
    Before POPOVICH, JAMIESON and HOFFMAN, JJ.
   JAMIESON, Judge.

This appeal is from an order entered by the Court of Common Pleas of Philadelphia (Nigro, J., presiding) sustaining preliminary objections in the nature of a demurrer and dismissing appellant’s cause of action. On this appeal, appellant raises a single issue: whether the trial court erred in enforcing the arbitration clause contained in a broker’s agreement entered into by the parties. Finding no error, we affirm.

The general facts of this case are undisputed; indeed since the issue arises as a result of the grant of demurrer, the factual record is defined by the content of plaintiffs complaint. That record establishes that appellant, on or about January 12, 1990, opened a brokerage account with appellee, Gruntal & Company, and deposited one hundred eighty three thousand dollars ($183,000.00). The broker in-charge of appellant’s account was appellee Ronald Chackier. Mr. Chackier was an authorized agent of Gruntal and Company. During the time period from January, 1990, until the end of 1991, appellee Chackier engaged in a course of unauthorized and unethical conduct which resulted in appellant’s account being “nearly depleted.”

Appellant sued Gruntal & Company and Mr. Chackier for the return ol' the mishandled money. His complaint averred causes of action for breach of contract, and conversion, and asserted liability against Mr. Chackier, individually, and against the company under a theory of respondent superior.

As indicated above, appellees filed preliminary objections in the nature of a demurrer. The demurrer was grounded upon an arbitration clause which was contained in the brokerage agreement entered into between appellant and the appellees. That agreement provided in relevant part:

ARBITRATION (THIS PARAGRAPH 14 IS AN AGREEMENT TO ARBITRATE CERTAIN DISPUTES).
* Arbitration is final and binding on its parties.
* The parties are waiving their right to seek remedies in court including the right to jury trial.
* Pre-arbitration discovery is generally more limited than and different from court proceedings.
* The arbitrators award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
* The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
Any dispute I now or hereafter may have with Gruntal or Regional or any of their respective current or former officers, directors, agents and or employees, arising out of or relating to any of my accounts with Gruntal or Regional or to transactions heretofore or hereafter made therein or to any agreement between myself and Gruntal or Regional, shall be settled by arbitration. Subject to the constitution and rules of any self-regulatory organization, any such arbitration shall be held in the City of New York before the facilities of The New York Stock Exchange, Inc. The National Association of Securities Dealers or any other self-regulatory organization having jurisdiction, as I may elect and shall be conducted pursuant to the Federal Arbitration Act, the laws of the State of New York and the rules of the selected arbitral facility. If I do not make such election by certified mail addressed to you in care of your Legal Department within five days after I receive notice from you requesting such election, then I authorize you to make such election on my behalf. The award of the arbitrators, or a majority of them, shall be final. Judgment upon the award rendered may be entered in any court in the City of New York having jurisdiction to which jurisdiction I hereby consent. This agreement to arbitrate does not apply to disputes arising under certain laws to the extent it has been determined as a matter of law by controlling authority that I cannot be compelled to arbitrate such claims.

Preliminary Objections of Defendants, Exhibit B, paragraph 14 [emphasis in original].

In Pennsylvania, agreements to conduct litigation in an alternative forum are enforceable. Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965). Moreover, when parties agree to arbitration in a clear and unmistakable manner, then every reasonable effort will be made to favor such agreements. Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 125, 204 A.2d 926, 927 (1964); Capecci v. Capecci, Inc., 11 Pa.D & C 2d 459 (1957) aff'd, per curiam, at 392 Pa. 32, 139 A.2d 563 (1958). However, if the agreement to proceed in the alternative forum has the effect of seriously impairing the plaintiffs ability to pursue a cause of action, the court will strike such an agreement as unreasonable. Central Contracting Co. v. C.E. Youngdahl, supra; Maleski by Taylor v. D.P. Realty Trust, 653 A.2d 54, 64 (Pa.Cmwlth.1994).

In the present case the arbitration clause is clear and unmistakable. Additionally, it is undisputed that appellant will have an opportunity to proceed in a regulated forum under published guidelines: specifically the New York Stock Exchange Rules published at CCH New York Stock Exchange Guide, Vol. 2 § 2600 et seq. The opportunity to proceed in this forum completely undercuts appellant’s position that his right to pursue his cause of action has been seriously impaired. Consequently, the decision of the trial court to enforce the arbitration clause is in conformance with the law of this Commonwealth.

The order of the Court of Common Pleas of Philadelphia is affirmed.

      . In filing a demurrer the demurring party admits all well pleaded material facts. Price v. Musselman, 343 Pa.Super. 90, 493 A.2d 1389 (1985).

      . Significantly, plaintiff did not allege that there was fraud or overreaching in the inducement to open the brokerage account or sign the brokerage agreement.

      . Plaintiff did not originally plead the existence of this brokerage agreement, but in response to appellees’ preliminary objections, he admitted that he executed such an agreement. See Plaintiff’s Answers to Preliminary Objections paragraph 8.


author: TAMILIA, Judge.

text:
    669 A.2d 389
    COMMONWEALTH of Pennsylvania, Appellant, v. Betty LEGG.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1995.
    Filed Dec. 29, 1995.
    Reargument Denied March 5, 1996.

      Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Caroline Roberto, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge.

The Commonwealth takes this appeal from the March 31, 1994 Order granting appellee’s collateral petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 et seq. Following a nonjury trial, appellee was found guilty of the first degree murder of her former husband and sentenced to life imprisonment.

At trial, it was established appellee drove to decedent’s place of employment, encountered him as he entered his car and joined him in the front seat of the car for a discussion of a situation involving the decedent and another woman. During the course of their conversation, appellee removed a handgun from her purse and shot the decedent once in the arm and once in the back. The record also reveals that immediately following the shooting Legg went to the police station and stated to the desk Sergeant, while handing him the gun, “I just shot my husband.” (N.T., 3/24/87, pp. 88-90.) She continued to claim the shooting was an accident five years after the incident when interviewed by Dr. Levit, appellee’s independent psychologist.

Following conviction and the denial of appellee’s post-trial motions, she filed a direct appeal to this Court in which we affirmed the judgment of sentence. Commonwealth v. Legg, 387 Pa.Super. 649, 559 A.2d 963 (1989) (unpublished memorandum). Appellee’s petition for allowance of appeal was thereafter denied by the Pennsylvania Supreme Court by Per Curiam Order dated June 30,1989.

On February 27, 1991, appellee filed a PCRA petition requesting a new trial, which alleged ineffectiveness of counsel for failure to raise the issue of state of mind relating to a “battered wife syndrome.” It was supplemented by a second petition on October 2, 1991, alleging ineffectiveness for failure to raise the diminished capacity defense. Thereafter, a hearing was convened on December 17, 1992, at which time Legg abandoned the battered wife defense. At the hearing, appellee, her trial counsel and an expert psychologist testified as to diminished capacity, following which the PCRA court entered the Order granting appellee a new trial, finding:

[D]efendant’s trial counsel was ineffective by reason of failing to present available psychological and/or psychiatric evidence concerning defendant’s state of mind at the time of the shooting for which defendant was convicted of first degree murder after a non-jury trial. The Court further finds that defendant’s claim is of arguable merit, that trial counsel did not have a reasonable basis for not pursuing said evidence, and that defendant was prejudiced by trial counsel’s failure to present expert testimony at trial concerning defendant’s ability to formulate the specific intent to kill such as would tend to reduce the degree of homicide from first degree to third degree murder, deprived the trier of fact of mitigating evidence regarding defendant’s state of mind at the time of the shooting. The Court concludes that trial counsel’s ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilty or innocence of the crime of first degree murder could have taken place under the circumstances.

(Order of Court, Penkower, J., 3/31/94.)

The Commonwealth now appeals to this Court claiming the PCRA court’s limited analysis fails to account for the reasonable basis proffered by counsel for foregoing this type of defense, and because the record fails to support the court’s decision, that decision must be reversed. We agree.

Our scope of review, when examining a post-conviction court’s grant or denial of relief is limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. The findings of the post-conviction court will not be disturbed unless they have no support in the record.
To be eligible for relief under the Post Conviction Relief Act, an appellant must plead and disprove by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
In establishing a claim of ineffectiveness an appellant must initially demonstrate that the issue underlying the claim of ineffectiveness has arguable merit. Next, if appellant’s claim does have arguable merit, we must determine whether counsel’s failure to pursue the matter had some reasonable basis designed to serve the interests of his client. Finally, if the record reveals that counsel was ineffective, it must be determined whether appellant has demonstrated that counsel’s ineffectiveness so prejudiced the appellant’s case that it is likely that the result would have been different absent the errors.

Commonwealth v. Granberry, 434 Pa.Super. 524, 529, 644 A.2d 204, 207 (1994) (citations omitted).

Initially, the Commonwealth concedes appellee’s claim is of arguable merit since, had counsel been aware of the information, it may have been used in support of a defense of diminished capacity. However, the Commonwealth attacks the second prong of the ineffective test by contending trial counsel acted reasonably in foregoing use of psychiatric/psychological evidence to support a diminished capacity defense and in presenting the defense of accident or homicide by misadventure. Specifically, the Commonwealth contends the accident defense was the better course because of its potential for full acquittal, while a diminished capacity defense still would have resulted in a conviction of third degree murder. Additionally, the Commonwealth argues Legg continually stated the shooting was an accident, that she never admitted to shooting her husband, and thus, to present a diminished capacity defense would be contradictory to her own statements.

On June 11,1986, less than two months before the shooting, appellee was admitted to the psychiatric ward of St. John’s Hospital in Pittsburgh. She was a direct emergency referral from Northern Communities Mental Health/Mental Retardation Center in Pittsburgh and was diagnosed as suffering from major depression with anxiety (PCRA Hearing Transcript (H.T.), 12/17/92, p. 15). On June 16, 1986, appellee saw Dr. Dabney-Smith, Ph.D., for only one session, which she discontinued against medical advice as she continued to be extremely agitated and discontinued all medication (H.T. at 23-24). On August 11, 1986, following the shooting, records show an Allegheny County team psychiatrist saw appellee at which time she indicated she was in a psychiatric hospital two months earlier for fear she would hurt her husband (H.T. at 33). The records of a team psychologist at the jail also reflect she informed him regarding this hospitalization (H.T. at 34). Finally, on October 27, 1986, appellee was interviewed by an investigator with the County Public Defender’s Office, whose records also reflect she informed him regarding her hospitalization (H.T. at 102). Despite trial counsel’s poor recollection of any of this information, the court did address the issue of competence and psychiatric evaluations in its colloquy on waiver of jury trial.

Trial counsel was being disingenuous by stating he had no knowledge of the comprehensive reports and the trial judge, having reviewed the Behavior Clinic reports, was fully aware of their implications. It appears both the trial court and trial counsel accepted the finding of competence and the weakness of a diminished capacity defense at the time of trial.

I would argue, Your Honor, certainly the first shot is an accidental shooting when he reaches for the gun. I can’t argue, Your Honor, accidental shooting or homicide by misadventure, because I understand the law is when you are involved in an unlawful act, i.e. possession of a firearm in close proximity of someone, with the purse, et cetera, and she has testified it was her intention to pull it out to scare him, that that unlawful act would bar Your Honor from rendering a verdict of not guilty of criminal homicide by virtue of that defense.
That does not preclude Your Honor from finding that verdict out of your mercy dispensing powers, so I’m not arguing that on the basis of the facts alone. At most, you have what I suggest is an unintentional killing based upon exactly the facts you heard here, and that woman’s testimony, Judge.
Based on her character, your mercy dispensing powers, and as I said, particularly the facts of the case and how the gun discharged two times.

(T.T., 3/24/87, pp. 216-217.) This statement establishes that trial counsel never abandoned the accidental, unintentional defense theory.

The trial testimony of March 24, 1987, as summarized, provides the following evidence. As a result of harassing calls and a telephone trace, Amy Stephenson filed harassment charges against Betty Legg for calls made around May, 1980 (T.T. at 110-111). Other harassment occurred consisting of appellee following decedent and Amy in her car and car-tailing them (T.T. at 112-113) until a week before decedent’s death. At trial, appellee called seven co-workers who testified to her stability, reliability and reputation for law-abidance. There was never a hint of mental disability, cognitive disorder or violent personality.

Appellee testified she was in decedent’s car discussing his relationship with Amy Stephenson and the fact she was summoned to a hearing on the harassment charge by Amy. It was after the conversation became somewhat heated that she pulled the gun. Before she could aim it, decedent grabbed the gun and it went off. As he turned away, she stated she heard the gun going off again as she was trying to remove her finger from the trigger. She does not recall pulling the trigger the second time, although she heard the second shot. She then left his car and drove to the Public Safety Building where she reported the shooting to police. She testified she never had used the gun, although it was kept under the front seat of her car for several years. She took the gun and went to decedent’s car when she saw him and thought she would frighten him into telling the truth about this relationship with Amy (T.T. at 167-196).

The evidence produced at trial, ending in appellee’s testimony she only wanted to frighten decedent and that the gun went off when he grabbed it before she aimed it, and it went off a second time as she extracted her finger from the trigger, conclusively established that she was claiming an accidental shooting with no specific intent to kill. The belated defense of diminished capacity now raised under the PCRA requires that appellee intended to kill but because of a cognitive mental disorder which deprived her of the ability to form the specific intent, she could not be convicted of first degree murder. Reliance on a prior mental history at this time, when a highly skilled and respected trial attorney, Kim Riester, intended to pursue acquittal on the defense of accident or homicide by misadventure (H.T. at 68), is not sustainable. In this respect, the second prong of the test that “counsel’s failure to pursue the matter had some reasonable basis designed to serve the interests of his client” is clearly indicated here. The fact that appellee was hospitalized briefly in June, 1986, two months before the shooting, for an anxiety state does not establish counsel was ineffective for not pursuing a diminished capacity defense in 1987. Counsel testified Legg maintained the shooting was an accident (H.T. at 68) throughout preparation of the case and “there were no surprises in any way.” Id. The Behavior Clinic reported that she was competent shortly after her arrest which would rule out a mental condition permitting a diminished capacity defense (H.T. at 71).

The difficulty with a diminished capacity defense is that it is very difficult to sustain. In Commonwealth v. Brown, 396 Pa.Super. 171, 578 A.2d 461 (1995), we held the existence of prior mental disorders was not relevant to appellant’s alleged diminished capacity at the time of the criminal act. Here, appellee’s testimony, that of arresting officers and trial counsel’s preparation of the case, as well as the trial court’s review of the Behavior Clinic report which deals with Legg’s condition at the time of arrest, establishes that a diminished capacity defense would have been unavailing. The psychologist for Legg admitted total disagreement with the psychiatrist, Dr. Bowman, of the Behavior Clinic (as expressed in the report soon after the shooting). This indicates the difficulty with appellee’s position at the time of trial. Testimony by Legg’s psychologist, Dr. Levit, is based on appellee’s recollections five years after the crime when admittedly her recollections were vague. “Her memory was not that good on both of the occasions that I saw her.” (H.T. at 14.) The entire testimony of Dr. Levit centered on how he believed Legg felt at the time she was admitted into St. John’s Hospital for depression and anxiety. His attempt to extrapolate from those records and her testimony how she felt at the time of the killing are speculative at best. Depression and anxiety are among the most common and treatable of mental disorders and it is fair to say that a majority of interrelational homicides have some component of this disorder present.

Behavior Clinic psychiatrist Dr. Bowman interviewed Legg on August 11, 1986, three days after the shooting, and noted “[t]he defendant [Legg] tells me approximately two months ago she admitted herself into St. John’s Hospital out of anger at this woman and a feeling she might do harm to her husband.” (H.T. at 35.) Dr. Bowman noted anger against Legg’s husband (H.T. at 34) which would contradict the lack of passion that Dr. Levit attempts to portray as consistent with depression. Finally, Dr. Levit, on cross-examination, stated “[w]hat Mrs. Legg told me when I examined her was that it was an accident. Now, whether in fact this was an accident or an essentially irrational moment, this happened wrong, none of us will ever know.” (H.T. at 45.)

Hopeful of an acquittal, trial counsel relied primarily on the accident by misadventure theory. It cannot be said he provided her no defense. The defense of accident or unintentional killing derived from passion and unrequited love well could have resulted in a lesser finding of guilt than first degree murder. The trial judge was' within his discretion to do precisely as trial counsel requested. It cannot be argued at this time that counsel did not have a rational reason to produce the defense he did and to avoid a course that admitted guilt and required a sentence for criminal homicide. Thus, the second prong of a successful claim of ineffectiveness of counsel has not been met pursuant to Granberry, supra.

We vacate the Order granting a new trial and remand for reimposition of the judgment of sentence.

Jurisdiction relinquished.

      . 18 Pa.C.S. § 2501.

      . Appellee also was convicted of violating the Uniform Firearms Act, 18 Pa.C.S. § 6106, for which no further penalty was imposed.


author: DEL SOLE, Judge: JOHNSON, Judge,

text:
    669 A.2d 394
    COMMONWEALTH of Pennsylvania v. Andrew D. CRAFT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 28, 1995.
    Filed Dec. 29, 1995.

      Mark T. Aaron, Clarion, for appellant.
    Gregory M. Bazylak, Assistant District Attorney, Brook-ville, for Commonwealth, appellee.
    Before DEL SOLE, BECK and JOHNSON, JJ.
   DEL SOLE, Judge:

The issue presented is whether Article I, Section 9 of the Constitution of the Commonwealth of Pennsylvania requires that confessions obtained while the defendant is in a custodial setting be memorialized, in their entirety, by a writing signed by the defendant or by audio recording. We hold that the due process requirements of our constitution does not require the recording of custodial confessions.

To facilitate a thorough analysis of a provision under the Pennsylvania Constitution, our supreme court strongly encourages litigants to address the following factors:

1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991). Appellant complied with the four-pronged method of analysis set forth in Edmunds. Accordingly, we shall begin our review.

Article I, Section 9 of the Pennsylvania Constitution provides as follows:

§ 9. Rights of accused in criminal prosecutions
In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

Even though the “law of the land” provision is the equivalent of the “due process” clause of the Fourteenth Amendment to the United States Constitution, Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990), appeal denied, 527 Pa. 615, 590 A.2d 756 (1991), we are not bound by the conclusions of the United States Supreme Court. Edmunds, supra. We may provide broader protections as long as we abide by the minimum guarantees established by the federal constitution.

Appellant relies upon the caselaw of two of our sister states to support the proposition that Pennsylvania should impose a mandatory rule of audio recording or writing confessions. The Alaska Supreme Court in Mallott v. State, 608 P.2d 737 (Alaska 1980), announced that law enforcement officials must tape record, where feasible, any interrogation of persons accused of criminal offenses especially where it occurs in a custodial setting. In two subsequent 1980 cases, the Alaska Supreme Court noted the “Mallott rule” specifying that tape recording interrogations will greatly assist the courts when determining the circumstances of a confession or the waiver of a suspect’s rights, S.B. v. State, 614 P.2d 786 (Alaska 1980), and that if Miranda warnings are read to a defendant, this should be recorded as well. McMahan v. State, 617 P.2d 494 (Alaska 1980), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981).

Five years later, the Alaska Supreme Court commented in Stephan v. State, 711 P.2d 1156 (Alaska 1985) that law enforcement agencies and lower courts had failed to implement the Mallott rule possibly because it was not clearly stated that it was a requirement of state due process. To remove any ambiguity with respect to the Mallott rule, the court in Stephan v. State held that “an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process, under the Alaska Constitution, and that any statement thus obtained is generally inadmissible” Id. 711 P.2d at 1158. The court reasoned that today a recording is a reasonable and necessary safeguard, essential to the adequate protection of the suspect’s right to counsel, right against self incrimination, and right to a fair trial. Furthermore, a recording provides an objective means for evaluating the circumstances of a confession, and it will provide an accurate record especially for determining the voluntariness of the confession. A recording of an interrogation not only protects the accused, but it also protects law officers from false allegations of improper tactics or claims by the defendant of a violation of constitutional rights.

Similarly, the Supreme Court of Minnesota was also concerned about the failure of law officers to record custodial interrogations. The Minnesota Supreme Court in State v. Robinson, 427 N.W.2d 217 (Minn.1988) and State v. Pilcher, 472 N.W.2d 327 (Minn.1991) explained that if the police recorded the conversations between police and their suspects and the events preceding those interrogations, many factual disputes regarding the denial of the defendant’s constitutional rights would be eliminated, and the court commented that it would not look favorably upon any refusal to observe the court’s admonitions. In a subsequent case, State v. Scales, 518 N.W.2d 587 (Minn.1994), the defendant claimed that by failing to preserve the entire interrogation, the police intentionally ignored the court’s prior warnings, thereby denying his due process rights under the Minnesota Constitution. Although the Minnesota Supreme Court in Scales found the reasoning in Stephan, supra, to be noteworthy, the Court did not follow it and declined to determine whether under the Due Process Clause of the Minnesota Constitution a suspect has a right to have the interrogation recorded. Rather, the Court, exercising its supervisory power to ensure the fair administration of justice, held that “all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.” Scales, 518 N.W.2d at 592. Failure to comply with the recording requirement would result in the exclusion at trial of any statements a defendant made in response to police questioning. Id.

With the exception of Alaska and Minnesota, Appellant acknowledges that the majority of states who have considered the issue of requiring police to record interrogations decided not to adopt such a rule. See Commonwealth v. Fryar, 414 Mass. 732, 610 N.E.2d 903 (1993); State v. James, 858 P.2d 1012 (Utah App.1993); People v. Raibon, 843 P.2d 46 (Colo. App.1992); State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960 (1991); State v. Rhoades, 119 Idaho 594, 809 P.2d 455 (1991); Gale v. State, 792 P.2d 570 (Wyo.1990); Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989); People v. Everette, 187 Ill. App.3d 1063, 135 Ill.Dec. 472, 543 N.E.2d 1040 (1989); State v. Gorton, 149 Vt. 602, 548 A.2d 419 (1988); Williams v. State, 522 So.2d 201 (Miss.1988); Coleman v. State, 189 Ga.App. 366, 375 S.E.2d 663 (1988). Alaska is the only Supreme Court to interpret its constitution as requiring the preservation of custodial interrogations.

Appellant asserts that we should give life to the Pennsylvania Constitution and not allow “it to be chained to the procedures and technology of the past.” (Appellant’s brief at 18). Appellant proposes that since audio recording devices are inexpensive, municipalities should be required to purchase this equipment to unburden the judicial system from having to resolve the problems which arise from unrecorded interrogations. Additionally, he argues that the police only took excerpts from his statements during the interrogation, and, if this practice is permitted to continue, a defendant would be forced to take the stand to explain such “excerpted” confessions which is a violation of his Fifth Amendment right to remain silent and due process.

The United States Supreme Court has not been asked to determine whether the United States Constitution requires the recording of custodial interrogations as matter of due process. However, guidance is provided by the U.S. Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), where it considered the question of whether the Due Process Clause of the Fourteenth Amendment requires law enforcement agencies to preserve breath samples of. persons charged with drunken driving in order for the results of the breath analysis tests to be admissible in criminal prosecutions. The Court found that the failure to preserve the breath samples for the defendants did not constitute a violation of the Federal Constitution.

This court in Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986) and Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986) was asked to determine whether it was a violation of defendants’ due process rights under the Pennsylvania Constitution to destroy the breath sample used in the administration of a breathalyzer test. We applied the following criterion enunciated in Trombetta:

[T]he United States Supreme Court set forth the standard for determining when evidence is constitutionally material so as to require its preservation for disclosure under Brady . “[E]vidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. [Trombetta, 467 U.S.] at 489, 104 S.Ct. at 2534, 81 L.Ed.2d at 422.

Gamber, 352 Pa.Super. at 42, 506 A.2d at 1327-1328. We found that the results of the breathalyzer were inculpatory, not exculpatory, and that even without the test sample, defendant was still able to attack the reliability of the breathalyzer machine and the testing procedure. We also noted in Gamber that the Pennsylvania Constitution did not provide greater due process protection beyond that afforded by the Federal Constitution, and we concluded that the Commonwealth’s failure to preserve the breath samples used in the breathalyzer tests did not violate the defendant’s due process rights under the Pennsylvania Constitution.

Appellant’s reliance upon Stephan v. State, supra, for the proposition that custodial interrogations should be recorded as a matter of constitutional due process is misplaced. Appellant recognizes that the Alaska Supreme Court in Stephan refused to apply the holding of the United States Supreme Court in Trombetta; however, the Alaska Supreme Court, citing Trombetta, acknowledged that recording custodial interrogations is not required by federal due process and it chose to interpret the due process clause of the Alaska Constitution, in that instance, as affording rights beyond those guaranteed by the United States Constitution. It is clear from a reading of Gamber and Tillia that our rule regarding the preservation of breath samples is consistent with the federal rule in Trombetta. The rule regarding breathalyzers controls the issue of recorded interrogations. We are unconvinced that a custodial interrogation must be recorded to adequately protect the accused’s rights. We hold that custodial interrogations do not need to be recorded to satisfy the due process requirements of the Pennsylvania Constitution since a recording does not meet the standard of constitutional materiality set forth in Trombetta and which was followed by this court in Tillia and Gamber.

Appellant also claims that allowing the procedure of excerpted confessions to be culled from interrogations can impinge upon a defendant’s Fifth Amendment right to remain silent. Appellant believes that a defendant would be forced to take the stand and be subjected to cross-examination to explain the fragments of his statements taken by police. For example, Appellant posits that a defendant should not be forced to explain the officer’s quote of “... I did it ...” which was actually “I was out of town, I would tell you if I did it, and I have witnesses who can prove my alibi.” This contention is unavailing. If a defendant waives the right to remain silent during a custodial interrogation, the defendant is informed that anything said may be used as evidence in a court of law. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is the defendant’s responsibility to inform defense counsel if a statement, inculpatory or exculpatory, was made to police during questioning. Defense counsel could then follow pretrial discovery procedures and request the Commonwealth to disclose the officer’s testimony regarding the defendant’s statement. 42 Pa.R.Crim.P. 305. The defendant then has the option to file a motion to suppress the statement. Failure by the Commonwealth to disclose an exculpatory statement would violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (suppression by prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of prosecution) and the Pennsylvania Rules of Criminal Procedure, warranting a new trial. See also Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994).

Further, the adoption of a rule requiring contemporaneous recording of custodial interrogation, for the reasons advanced by the Alaska and Minnesota Courts, to insure the proper administration of justice is one that either the Supreme Court or General Assembly should pronounce, not an intermediate appellate court. Having concluded that the Constitution of the Commonwealth of Pennsylvania does not require contemporaneous recording of statements, we affirm.

Judgment of sentence affirmed.

BECK, J., concurs in the result.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I concur that the judgment of sentence on this appeal must be affirmed, albeit for a different reason than that advanced by my distinguished colleague.

This case was submitted to a three-judge panel without benefit of oral argument. Often, in such a situation, questions pertaining to the proper resolution of the appeal have not undergone adequate examination or exposition at the time of submission. This is just such a case.

The sole issue presented in the Brief of the Appellant at 3; is as follows:

Whether the due process provisions of the Constitution of the Commonwealth of Pennsylvania require that confessions obtained while the defendant is present in a police station or place of detention be memorialized, in their entirety, by audio recording or a written document signed by the defendant?

While this may be an interesting question for contemplation by students of the law, it has not been properly raised, or preserved, in the case now before us. As an error-correcting court, we are generally limited to determining whether the trial judge has committed either an abuse of discretion or an error of law in the handling and disposition of a case. In this case, counsel for Andrew Craft did not file an omnibus pretrial motion for relief pursuant to Pa.R.Crim.P. 306. There was also no pretrial request for suppression of any evidence. In a Motion to Amend Post Verdict Motions filed October 5, 1994, Craft alleged in paragraph 4(d) thereof:

that the defendant was denied due process of law because the police did not tape record his alleged confession, or have him write out the alleged confession (T. p. 90 et seq.).

However, during trial, there was no objection posed to any of the testimony of Pennsylvania State Police Corporal Steven Marshall relating to Craft’s admissions. Transcript of Proceedings, December 22, 1993, at 60-81. There was no objection raised to the testimony of State Police Trooper Steven J. Szabo- on the same subject matter. Id. at 97-101. Further, counsel made no motion to strike any of the officers’ testimony.

Thus, the trial court was given no opportunity to rectify any alleged error at the time it was claimed to have been made. “ ‘[A] party may not remain silent and take chances on a verdict and afterwards complain of matters which, if erroneous, the [trial court] would have corrected.’’ ” Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974), quoting Commonwealth v. Marlin, 452 Pa. 380, 382, 305 A.2d 14, 16 (1973). Nor can a party allege basic and fundamental error to seek reversal on alleged errors not properly preserved in the trial court. Id. “In order to preserve an issue- for review, it must be specifically raised at trial and in post-verdict motions.” Commonwealth v. Williams, 537 Pa. 1, 21, 640 A.2d 1251, 1261 (1994), citing Commonwealth v. Gravely, 486 Pa. 194, 200, 404 A.2d 1296, 1298 (1979).

Craft has not claimed that the distinguished trial judge, the Honorable William L. Henry, has committed any error of law or abuse of discretion. However, if such a claim is deemed to be implicated in the brief submitted without argument to this Court, I would conclude that it has been waived and may not be reviewed by this Court. Accordingly, I would decline to consider the issue sought to be raised. I would affirm the judgment of sentence and leave for another day the consideration of the constitutional question belatedly posed by Craft’s counsel.

      . While our distinguished colleague Judge Johnson is correct in stating that the issue was not included in an omnibus pre-trial motion nor in a pre-trial motion for suppression of evidence, the Appellant filed a motion to amend post-verdict motions raising the issue for the first time. The issue was addressed by the trial court, and, for that reason, we will address the issue on appeal to avoid a later PCRA claim.

      . After hearing the testimony by a confidential informant that Appellant sold morphine to him in the informant’s home, a jury found Appellant guilty of possession and delivery of a controlled substance.

      . Our supreme court recently noted that the failure of a litigant to present a constitutional claim as set forth in Edmunds is not fatal to the appeal, but the court continues to highly recommend use of the Edmunds format. Commonwealth v. Swinehart, 541 Pa. 500 ftn. 6, 664 A.2d 957 ftn. 6 (1995).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: OLSZEWSKI, Judge:

text:
    669 A.2d 399
    COMMONWEALTH of Pennsylvania v. Vincent J. FISCHETTI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1995.
    Filed Dec. 28, 1995.

      Matthew T. Budash, Indiana, for appellant.
    Michael Handler, District Attorney, Indiana, for Commonwealth, appellee.
    Before McEWEN, JAMIESON and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant, Vincent J. Fischetti, appeals from the judgment of sentence entered in the Court of Common Pleas of Indiana County on March 20,1995.

Appellant was convicted on December 18, 1980, following a jury trial for one count of burglary, two counts of theft, and two counts of receiving stolen property. These convictions resulted from the break-in of two residences in Indiana County. He was subsequently sentenced on October 5, 1981, to concurrent prison terms of ten to twenty years and two and one-half to five years. Upon appeal, we affirmed this judgment of sentence.

On August 9, 1991, appellant filed a petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. The trial court initially appointed Donald McKee, Esquire, to represent appellant in amending this pleading. Attorney McKee withdrew, however, and in 1994 Matthew T. Budash, Esquire, was appointed as counsel. Attorney Budash subsequently submitted an amended' PCRA petition. Pursuant to the PCRA, the trial court vacated appellant’s sentence on November 30, 1994, finding that he was uncounseled when sentenced. Following a hearing, appellant was ordered on March 20, 1995, to undergo incarceration for a period of ten to twenty years and a concurrent term of two and one-half to five years. Appellant now appeals this judgment of sentence.

In his brief, Attorney Budash seeks to withdraw as counsel in this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), since he finds no basis upon which relief may be granted to appellant. In response, appellant has filed a pro se petition setting forth grounds for relief and requesting the appointment of new counsel.

Before we may review the merits of this case, we must address the request to withdraw. Commonwealth v. Torres, 428 Pa.Super. 283, 284-85, 630 A.2d 1250, 1251 (1993). The standard for determining whether to grant counsel’s request for withdrawal is well settled:

In order to satisfy the requirements of Anders, the following requirements must be met. Counsel must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record ... counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit[,] and (3) furnish a copy of the brief to [appellant] and advise him of his right to retain counsel or raise any additional points he deems worthy of this Court’s review.

Commonwealth v. Gee, 394 Pa.Super. 277, 279, 575 A.2d 628, 629 (1990) (citation omitted).

Initially, we note that although counsel has not filed a separate petition to withdraw, he has set forth his withdrawal request in his Anders brief. “Although we believe the more desirable practice would be to submit a separate withdrawal request to the court, we ... treat counsel’s [request] in the brief itself as such a request.” Commonwealth v. Green, 355 Pa.Super. 451, 456, 513 A.2d 1008, 1010 (1986) (citation omitted). “Consequently, we find that counsel’s motion is properly before this Court for review....” Id.

Based upon our review of Attorney Budash’s motion to withdraw, however, we find that it fails to comply with the minimum requirements for withdrawal set forth above, and thus deny his withdrawal request. Specifically, we find that counsel has not fully satisfied requirement (1) relating to the extent of his review and the requisite resulting finding to be made.

Counsel has not specifically labeled the appeal as “frivolous.” Instead, he advances his withdrawal request by stating that:

There are no issues properly preserved in the record on which counsel could reasonably base an argument to secure meaningful appellate relief for appellant.

Appellant’s brief at 7. Counsel continues by later concluding that

after careful review of the record in this case ... he is unable to raise any argument which would permit this court to [order] either a new trial, an arrest of judgement [sic], and/or a remand for resentencing.

Appellant’s brief at 14. In this appeal, we are concerned with whether counsel’s statements are tantamount to a finding on his part that the appeal is “frivolous.” We conclude that they are not.

In Commonwealth v. Creen, supra, counsel, as here, did not characterize the appeal as “frivolous” but instead stated her inability “to support argument for the requested relief.” In addressing the adequacy of counsel’s motion to withdraw under Anders, McClendon, and their progeny, we noted the following:

The major thrust of Anders was to assure careful assessment of any available claims that an indigent appellant might have. McClendon, supra, 434 A.2d at 1188.
In Commonwealth v. Worthy, this Court recognized that “[p]rogeny of Anders have provided us with a continuum of degrees of meritlessness.” [301 Pa.Super 46, 446 A.2d 1327 (1982)]. Hence, a difference in word choice may signify a difference in substance rather than merely a change in semantics.

Commonwealth v. Green, 355 Pa.Super at 458, 513 A.2d at 1011 (emphasis added). Thus, we emphasized that Anders requires a “clear and unambiguous” averment in regard to a finding of frivolity. Id. Accordingly, the Green decision, while at first blush appears to elevate form over substance, reflects the importance that has been assigned to counsel’s responsibility to conduct a review of the record and thereby determine whether withdrawal is appropriate. Based upon this principle we held that:

Counsel avers only that she is “unable to support argument for the requested relief.” We find this averment to be too ambiguous to be considered the legal equivalent of a finding that the appeal is “wholly frivolous”.... Consequently, we cannot grant counsel’s petition to withdraw.

Id. We further explained this holding as follows:

Moreover, counsel appears to have restricted her review of the record to the “requested relief’. However, McClendon requires that counsel review the record for “any available claims an indigent appellant might have.” 434 A.2d at 1188. (Emphasis added). Indigent appellants are not generally equipped with the knowledge of the law required to discern what constitutes error and what does not. Consequently, it is incumbent upon court appointed counsel to review the record generally and not solely with respect to those issues which an unlearned, indigent appellant has set forth----

Id. (emphasis in original).

Our Supreme Court confronted a similar situation in Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974). The Court denied counsel’s motion to withdraw where he merely submitted that he was “unable to raise any argument which would compel or even permit this Court to grant a new trial.” The Court held that:

[wjhile it may or may not be true that appellant’s prospects on appeal are dim, counsel may not withdraw unless he has determined that his client’s case is entirely frivolous.

Id. 455 Pa. at 108, 314 A.2d at 514 (emphasis added).

In light of the aforementioned precedent, we do not find counsel’s assertions in the present case to be clear and unambiguous in communicating the extent of his review and resulting conclusions. Consequently, counsel’s characterization of this case in lieu of an allegation of frivolity does not satisfy us that he has made the required determination that the appeal lacks any basis in law or fact. See Marino by Marino v. Marino, supra.

Accordingly, we do not proceed to making an independent judgment as to whether the appeal is in fact wholly frivolous. Should counsel, as a result of the foregoing, still wish to withdraw, he must amend his request within thirty days of the date of notice hereof so that it meets the requirements of Anders and McClendon, and their progeny, as cited herein. Alternatively, counsel must file an advocate’s brief within such period. In either case, counsel is further directed to address the issue, raised in appellant’s pro se memorandum, regarding the concurrent versus consecutive nature of his present sentence with the sentence imposed in Allegheny County.

Request to withdraw as counsel is denied. In view of our disposition of this matter, appellant’s request for new counsel is also denied.

Jurisdiction of this panel is relinquished. Jurisdiction of the Superior Court is retained. Case to be reassigned by the Superior Court prothonotary to another panel.

McEWEN, J., concurs in the result.

      . Counsel provides no indication that he interviewed appellant with regard to the appeal. Appellant, in his pro se reply memorandum, argues that this constitutes a deficiency in counsel's representation entitling him to new counsel. We disagree.
      In Commonwealth v. Torres, supra, we clearly set forth the law relating to counsel’s responsibility to interview a defendant when representing him or her on appeal. Presently, counsel was familiar with appellant's claims since he previously represented him both in filing his PCRA petition and during re-sentencing. Thus, an interview was not necessary for counsel to adequately fulfill his responsibility.

      . An appeal is "frivolous'' where it lacks any basis in law or fact. See, e.g., Marino by Marino v. Marino, 411 Pa.Super. 424, 443, 601 A.2d 1240, 1250 (1992).

      . We note that, in his statements, counsel qualifies, the availability of appellate relief and, thus, does not conclusively state his position as to the availability of' "any” appellate relief. See Green, supra. Also, counsel renders judgment as to the availability of specific forms of judicial relief. Pursuant to both Green, supra, and Greer, supra, we again find this insufficient in advancing his withdrawal request.

      . In addressing individual claims in his Anders brief, counsel does assert that each claim is "without appealable merit.” It has been held that the lack of merit in an appeal is not the legal equivalent of frivolity. Commonwealth v. Bradley, 311 Pa.Super. 160, 162-63, 457 A.2d 544, 545 (1983). See also Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974). In this case, we find that counsel’s conclusion that the particular issues set forth "are without appealable merit” does not answer the question of whether the appeal has any basis in law or fact.


author: BECK, Judge:

text:
    669 A.2d 402
    Joseph MUNN v. Paul SCHELLENBERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1995.
    Filed Jan. 3, 1996.
    Joseph J. Knox, Macungle, for appellant.
    Richard W. Kolosky, Allentown, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   BECK, Judge:

Appellant, defendant below, challenges the trial court’s January 6, 1995 order denying his Petition to Reinstate Appeal from an arbitrators’ award. His appeal was dismissed by order of the trial court on October 3, 1994 for failure to provide the Lehigh County Coordinator for Civil Operations with a copy of his Notice of Appeal in accordance with the requirement of Lehigh County Rule of Civil Procedure 1308.

Appellant contends that the trial court abused its discretion in dismissing his appeal based on his noncompliance with a technical requirement of the local rule. He asserts that because he properly filed his Notice of Appeal with the prothonotary, paid all applicable filing fees and took the steps necessary under Pennsylvania Rule of Civil Procedure 1308 to ensure that all parties were served with notice of the appeal, the trial court should have granted him relief pursuant to Pennsylvania Rule of Civil Procedure 126, which permits a court to disregard procedural defects which do not affect the substantial rights of the parties.

Appellant’s argument appears to have some merit. See Briga v. Ken-Tuck Signs, Inc., 279 Pa.Super. 537, 421 A.2d 329 (1980) (trial court abused its discretion in quashing appeal from arbitration award for failure to comply with local rule requiring Notice of Appeal to be accompanied by copy of Complaint). See also Pa.R.C.P. 239(f) (providing that no proceeding shall be dismissed for failure to comply with a local rule other than one adopted pursuant to Pa.R.J.A. 1901 providing for termination of inactive matters). However, we are constrained to quash this appeal as untimely.

An order dismissing an appeal from an arbitration award is final and appealable. See Lough v. Spring, 383 Pa.Super. 85, 556 A.2d 441 (1989) (appeal from order quashing appeal from arbitration award based on initiation of appeal by motion to strike award, rather than Notice of Appeal); Briga v. Kerb-Tuck Signs, Inc., supra (appeal from order quashing appeal from arbitrators’ award based on failure to comply with local rule). See also Hines v. Southeastern Pennsylvania Transportation Authority, 147 Pa.Cmwlth. 189, 607 A.2d 301 (1992) (appeal from order quashing appeal from arbitration award for failure to comply with notice requirements of Pa. R.C.P. 1308). Appellant did not take his appeal to this court directly from the order dismissing his arbitration appeal, however. Instead, he filed a petition to reinstate the appeal and awaited the entry of an adverse ruling on that petition, some three months later, before filing his appeal to this court. As his appeal to this court was taken more than thirty days after entry of the final order in this case, we must conclude that it is untimely arid that we are without jurisdiction to grant him appellate relief.

Appeal quashed.

      . In the Statement of Jurisdiction in his appellate brief, appellant cites Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 594 A.2d 737 (1991) and Jay Dee Department Store v. South Penn Gas, 362 Pa.Super. 404, 524 A.2d 940 (1987) for the proposition that the order denying his Petition to Reinstate Appeal is final for purposes of appeal. However, both of the cited cases deal with appeals from determinations entered •by a District Justice. Under the rules of civil procedure applicable to District Justices, such appeals may be stricken by the Prothonotary upon praecipe of appellee for failure to comply with the service or time requirements of the rules. Pa.R.C.P.D.J. 1006. This ministerial action by the prothonotary is expressly made subject to the discretion of the court of common pleas to reinstate the appeal upon good cause shown. Id. In such cases, the appeal properly lies not from the ministerial action, but from the judicial determination embodied in the order denying the petition to reinstate.
      In contrast, in the present case the dismissal of the appeal from the arbitration award was not a ministerial act of the prothonotary, but was itself a judicial determination which disposed of all claims as to all parties. Neither Pa.R.C.P. 1308 nor the parallel Lehigh County local rule governing appeals from arbitration awards provides for the filing of a petition to reinstate the appeal as do the District Justice rules applicable in Anderson, supra and Jay Dee, supra. We must therefore conclude that the cases cited by appellant are distinguishable from that before us and that the order dismissing the appeal from the arbitration award in this case was the final, appealable order under Pa.R.A.P. 341 (Final Orders, Generally).


author: DEL SOLE, Judge:

text:
    669 A.2d 404
    Catherine SCHULZ, Admx. of the Estate of Robert Schulz, Deceased, Appellant, v. CELOTEX CORPORATION, Keene Corporation, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Garlock Inc., Eagle-Picher Industries Inc., Raymark industries Inc., Flinkote Company, Rock Wool Manufacturing Company, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed Jan. 12, 1996.
    Robert J. Murphy, Philadelphia, for appellant.
    Karen F. Cooper, Philadelphia, for Garlock Inc., Eagle-Picher & Raymark, appellees.
    Anthony R. Sherr, West Conshohocken, for Flinkote & Rock Wool, appellees.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge:

Following an adverse jury verdict in a reverse bifurcated trial involving asbestos exposure claims, the plaintiff filed Rule 227.1 Post-trial Motions. The trial court dismissed these motions because the plaintiff failed to file a brief as required by Philadelphia Civil Rule 227.1 which the court recites in its February 27,1995 Opinion on page 3 as follows:

(E) Briefs.
(1) All briefs shall be filed in the post-trial motions unit of Motion Court. The moving party shall file its brief in support of its motion within thirty-five days after the date of the notice of availability of the notes of testimony. If it has been certified that the notes of testimony are not essential, the moving party shall file its brief within thirty-five days of the filing of the motion.
(3) Should the moving party fail to file its brief within the allowed time, the motion shall be dismissed with prejudice

We find this procedure to be in violation of Pa.Rule of Civil Procedure 239(f) which specifically prohibits the dismissal of. any civil action or proceeding “for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901.”

We are mindful of the Commonwealth Court of Pennsylvania’s decision in City of Philadelphia v. Tasker, 119 Pa. Cmwlth. 519, 547 A.2d 1261 (1988), alloc. den., 522 Pa. 592, 561 A.2d 744 (1989) wherein the court held that “[dismissal of a motion for post-trial relief ... does not constitute dismissal of an ‘action’, Davison v. John W. Harper, Inc., 342 Pa.Superior Ct. 560, 566, 493 A.2d 732, 736 (1985). Nor does it constitute dismissal of a ‘proceeding’.” Id. 119 Pa.Cmwlth. at 525, 547 A.2d at 1264. However, we are not bound by the Commonwealth Court’s decision and choose not to follow its interpretation of Rule 239(f). Rather, we agree in principle with the dicta expressed in Davison v. John W. Harper, Inc., supra, that Rule 239(f) was designed to prevent the type of harm that occurred here. The dismissal of Post-trial Motions for failure to file a brief within the time required by a local rale is the dismissal of a proceeding and results in serious consequences for the litigant. It is the type of action Rule 239 was enacted to prevent. While we fully support the need of local courts to establish rules for the orderly transaction of business, those local rules cannot provide for the automatic dismissal of a party’s cause in the event of a breach. See also: Murphy v. Armstrong, 424 Pa.Super. 424, 622 A.2d 992 (1993).

Therefore, we find it necessary to vacate the trial court’s Order dismissing the Appellant’s Post-Trial Motion, and remand for consideration of the Motion on the merits.

Order reversed, case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.


author: POPOVICH, Judge:

text:
    669 A.2d 954
    COMMONWEALTH of Pennsylvania v. Kevin WYATT, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1995.
    Filed Nov. 21, 1995.
    Reargument Denied Feb. 1, 1996.

      Barnaby Wittels, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for the Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

Following his convictions on charges of murder in the first degree, two counts of robbery and criminal conspiracy, appellant asks this court to award him a new trial on grounds that the police violated his constitutional right to legal representation when he confessed to participating in the robbery of Gold Man Jewelry Store during which Mrs. Ju Yang Lee was slain. More particularly, appellant contends it was a violation of the Fifth Amendment of the Constitution of the United States for the police to have interrogated him concerning the robbery and murder because, at the time, appellant was incarcerated on unrelated charges and was represented by legal counsel in that unrelated case. Upon review, we must remand this action for a hearing to permit development of a record which is sufficient for accurately assessing the merits of appellant’s claim.

The record reveals the following facts and procedure: On March 19, 1990, appellant and his four co-conspirators, Kecia Ray, Paul Johnson, Tony Bennett and Michael Mayo, together left a bar and drove to 52nd and Walnut Streets in Philadelphia. Appellant, Ray and Bennett went into a nearby Kentucky Fried Chicken Restaurant. Johnson and Mayo entered the Gold Man Jewelry Store for the purpose of pawning a gold chain. The two men left the jewelry store after the salesperson (and, ultimately, victim) Mrs. Ju Yang Lee failed to offer them the desired sum of money, and they went to meet their co-conspirators at the Kentucky Fried Chicken Restaurant.

At the restaurant, Mayo told the others what had transpired at the jewelry store and commented that they “should go back and rob the bitch.” They all agreed, and a plan was developed. Specifically, appellant and Bennett would wait in the “get-away” car; appellant would drive; Ray would hold the door to the store so that the robbers could exit the store quickly; Johnson and Mayo would perform the robbery; and Mayo would use Bennett’s .38 caliber revolver.

Once inside the store, Mayo jumped over the store counter and held the gun against the hip of Scott Park, a store employee, and shouted, “Don’t move.” Johnson was just beginning to access the jewelry when he noticed the victim reach under the display counter for a handgun. Johnson then pointed at the victim, and Mayo fired two shots at Mrs. Lee. The first shot struck her in the hip, and as she fell, the second, fatal shot struck her in the shoulder and travelled downward through her body puncturing a lung and a large blood vessel near her heart. Empty-handed, Johnson and Mayo then fled the store, and appellant, Bennett, Johnson and Mayo left in the car, while Ray fled on a public bus. The entire event was captured on video tape by the store’s surveillance system.

On March 26,1990, appellant was arrested and charged with theft of an automobile, and, on May 8,1990, appellant pleaded guilty to that charge. Appellant was represented by legal counsel in regard to the theft charge and was incarcerated while awaiting sentence. Subsequently, police received information which indicated that appellant had been involved in the robbery/murder. On May 22, 1990, Detective Devlin removed appellant from the detention center and brought him to the homicide unit of the Philadelphia Police Department for questioning. The detective informed appellant of his constitutional rights. See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant waived those rights and gave the police a statement implicating himself in the robbery/murder.

Prior to trial on the charges sub judice, appellant filed a pro se motion to suppress his statement. Therein, he alleged that he was improperly brought to the homicide unit for questioning because the police lacked probable cause to believe he was involved in the robbery/murder. He also alleged that he was not given his Miranda warnings and, thus, could not voluntarily, knowingly and intelligently waive his constitutional rights.

However, once at the suppression hearing, counsel informed the court that the grounds for suppression were different from those proposed in appellant’s motion. Counsel, citing Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), argued that the police violated appellant’s Fifth Amendment right to legal counsel when they interrogated appellant since he was represented by counsel, albeit in an unrelated case, at the time of questioning.

The lower court, citing Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513, (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989), ruled that appellant could voluntarily waive his right to counsel in the present case, even though he was represented by counsel on the unrelated theft charge to which he had pleaded guilty two weeks earlier.

The United States Supreme Court, in McNeil v. Wisconsin, 501 U.S. 171, 174-177, 111 S.Ct. 2204, 2207-2208, 115 L.Ed.2d 158 (1991), compared the different constitutional rights to counsel afforded by the Fifth and Sixth Amendments to the Constitution of the United States and discussed when a defendant can voluntarily waive his right to legal counsel, as follows:

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), we held that “once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective.” It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally charged.

The Sixth Amendment right, however, is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion)). And just as the right is offense-specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific.

“The police have an interest ... in investigating new or additional crimes [after an individual is formally charged with one crime.] ... [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at the time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities.... ” Maine v. Moulton, 474 U.S. 159, 179-180, 106 S.Ct. 477, 488-489, 88 L.Ed.2d 481 (1985).
“Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Id., at 180, n. 16, 106 S.Ct., at 489, n. 16. See also Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). Because petitioner provided the statements at issue here before his Sixth Amendment right to counsel with respect to the Caledonia offenses had been (or even could have been) invoked, that right poses no bar to the admission of the statements in this case.
Petitioner relies, however, upon a different “right to counsel,” found not in the text of the Sixth Amendment, but in this Court’s jurisprudence relating to the Fifth Amendment guarantee that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., at 475, 86 S.Ct., at 1628.
In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached “until counsel has been made available to him,” 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 — which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspects executes a waiver and his statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Michigan v.,. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

In the case sub judice, appellant, on May 8, 1990, pleaded guilty to an unrelated theft charge. He was incarcerated while awaiting sentencing on that theft charge when the police learned of his possible involvement in the robbery of the Gold Man Jewelry Store and the murder of Mrs. Lee. It is undisputed that appellant was represented by legal counsel in the theft action when the police initiated the interrogation in question.

Just as in McNeil, supra, it is clear that appellant provided his statement at issue before his Sixth Amendment right to counsel with respect to the robbery and murder offenses had been invoked, and, therefore, that right poses no bar to the admission of his statement in this case. However, appellant now argues that he invoked his “non-offense-specific Miranda-Edwards right” at the time of his arrest for the theft offense, and, consequently, his statement to the police was the product of an impermissible approach by the police and an invalid waiver of his “Fifth Amendment right to counsel.”

During his suppression hearing, appellant testified that when he was read his Miranda warnings following his arrest on the theft charge, he informed the officers that he wanted to remain silent and that he wanted a public defender. N.T., 2/25/92, pp. 121-123. Assuming appellant’s self-serving testimony is true, appellant clearly did invoke his “non-offense-specific Miranda-Edwards right” as set forth in McNeil, supra, and Roberson, supra. Thus, police violated appellant’s “Fifth Amendment right to counsel” when they interviewed appellant without his counsel being present. Since appellant was represented by counsel in the unrelated theft charge, his statement is considered involuntary and, therefore, inadmissible, even though appellant executed a waiver of Ms Miranda rights and his statement would be considered voluntary under traditional standards. McNeil, supra.

However, appellant cannot prevail upon the current record. As we previously noted, appellant raised this issue for the first time orally at the suppression hearing, and the Commonwealth objected to appellant’s presentation of the issue. Further, the Commonwealth specifically requested an opportunity to present evidence concerning whether appellant did, in fact, assert his Miranda rights at the time of his arrest for automobile theft. N.T., 2/25/92, p. 131. However, the Commonwealth did not pursue this request in light of the lower court’s ruling in its favor. Thus, before we rule upon the merits of appellant’s asserted violation of Ms “non-offense-specific Miranda-Edwards right [to counsel]”, we deem it necessary to permit the Commonwealth an opportunity to present testimony as to this issue.

As previously stated, the lower court rejected appellant’s argument based upon our Supreme Court’s decision in Yarns, supra. Thus, we will now consider the continuing validity of Yarris, supra, in light of the United States Supreme Court’s decision in McNeil, supra. Therein, Yanis was imprisoned on unrelated charges when he initiated conversations with the police and prison officials about an unsolved rape and murder. On January 12, 1982, in the first of several police-initiated interviews, appellant gave a self-exculpatory statement, and police did not attempt to elicit incriminating statements. In a second police-initiated interrogation on January 27, 1982, appellant waived his Miranda rights and repudiated his earlier statements. On February 1, 1982, appellant contacted the police and admitted participating in the rape and murder. Later, police contacted appellant and informed him of his Miranda rights. During the police-initiated interrogation, Yarris waived his right to counsel and again admitted his participation in the rape and murder.

Our high court ruled that a suspect’s right to counsel only applied in those interviews which were initiated by the police, Yarris, 549 A.2d at 523, and, then, those rights could be validly waived. Yarris, 549 A.2d at 524. The Court made no determination whether appellant had asserted his “Fifth Amendment right to counsel” in the unrelated case. Instead, the Court specifically stated:

We emphatically decline to add such a condition [i.e., counsel’s presence at the initiation of the interrogation] to the validation of a suspect’s waiver of the right to counsel prior to a custodial interrogation. The fact that he is represented by an attorney in connection with unrelated charges may be a factor to evaluate in determining voluntariness of a Miranda waiver under the totality of the circumstances, but we do not hold that a suspect loses his competency to waive his right to counsel as soon as he obtains representation in an unrelated case. '

Yarris, 549 A.2d at 524.

We note that the holding is in direct conflict with McNeil, supra, in situations where a defendant has asserted his “Fifth Amendment right to counsel” in an unrelated case and is then subjected to a police-initiated interrogation out of counsel’s presence. Of course, at the time Yarris, supra, was written our Supreme Court was without guidance from McNeil, supra. Since that time, however, our Supreme Court has approvingly applied the holding of McNeil, supra, in the case of Commonwealth v. Santiago, 528 Pa. 516, 599 A.2d 200 (1991).

Unfortunately, the lower court sub judice made no determination whether appellant asserted his “non-offense-specific Miranda-Edwards right” at the time of his arrest on theft charge. Rather, the court summarily rejected appellant’s argument based upon Yanis, supra. N.T., 2/25/95, pp. 152-153. Accordingly, we remand this case for a hearing on the issue of whether appellant did assert his “non-offense-specific Miranda-Edwards right to counsel” at the time of his arrest and incarceration on the unrelated automobile theft charge. If the court finds that appellant did assert such a right, then appellant must be awarded a new trial.

Case remanded for a hearing in accordance with the provisions of this opinion. Jurisdiction retained.

      . Appellant later withdrew his guilty plea in the theft case.

      . The Commonwealth argues that appellant waived the "right to counsel” argument presented herein because he did not raise the issue in his original suppression motion. We disagree. The lower court permitted appellant to present testimony concerning the motion and permitted both parties to argue the merits of the issue before resolving it in the Commonwealth’s favor. Where a defendant raises an issue in a procedurally defective manner and the trial court chooses to overlook that defect and decide the issue on its merits, we will generally not apply the waiver doctrine. Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (per curiam), reversing, 365 Pa.Super. 613, 530 A.2d 480 (1987); but see, Commonwealth v. Metz, 534 Pa. 341, 633 A.2d 125 (1993) (failure to apply waiver doctrine is error when appellant does not create a sufficient record on which to make a reasoned decision).

      . We do not think it is relevant that appellant had already pleaded guilty to the theft charge at the time the police interrogated appellant concerning his involvement in the robbery and murder before us. Appellant had not yet been sentenced. Further, although there is no absolute right to withdraw one’s guilty plea, appellant could have filed a motion to withdraw his plea which for “any fair or just reason” should have been granted. Commonwealth v. Myers, 434 Pa.Super. 221, 642 A.2d 1103 (1994); Commonwealth v. Turiano, 411 Pa.Super. 391, 601 A.2d 846 (1992), appeal denied, 531 Pa. 654, 613 A.2d 559. Thus, there was no final order in appellant's case which would have served to divest him of his right to counsel.

      . We note that the lower court judge in this case, the Honorable Juanita Kidd Stout, was a Justice of the Supreme Court of Pennsylvania when Yarris, supra, was decided.

      . Appellant also alleges that the lower court erred in permitting the video tape of the murder to be shown during his trial. We will not address this issue at this time, given the fact that appellant could be awarded a new trial. Should the lower court find appellant is not entitled to a new trial, we will then entertain appellant’s challenge to the video tape evidence.