author: HESTER, Judge: BECK, Judge,

text:
    452 A.2d 759
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard HENKEL.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1982.
    Filed Nov. 15, 1982.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Paul R. Gettleman, Zelienople, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   HESTER, Judge:

On May 18, 1979, the body of 26 year old Deborah Gentile was found in Room 239 of the Greater Pittsburgh International Airport Hotel in Allegheny County, Pennsylvania. She had died of multiple .22 caliber gunshot wounds to the head and stab wounds of the chest, back and neck.

A warrant for the arrest of appellee, Richard Henkel, was issued by Judge Robert E. Dauer on October 22, 1980. Probable cause for the arrest warrant was provided by the Presentment of the June, 1979 Allegheny County Investigating Grand Jury. The investigation revealed, inter alia, that the victim and appellant had known each other quite well for approximately one year prior to her death. The victim had been employed by the appellee as a barmaid in his West End bar and restaurant in Pittsburgh. She continued to work there until an altercation between them led to her dismissal in January, 1979. A reconcilation ensued and the appellee arranged for the victim to work with his partner, Jack David Siggson, in their gold jewelry enterprise in California. The victim was employed in the jewelry business from March, 1979 until May, 1979, at which time the appellee arranged through Siggson for her return flight to Pittsburgh.

Before the victim departed California for Pittsburgh, the appellee induced her to apply for $800,000.00 of insurance coverage through the Airline Passenger’s Association. The appellee’s 74 year old mother, Hannah Henkel, was the designated beneficiary.

The grand jury concluded that the afore-mentioned facts discovered during the investigation provided the probable cause to believe that the appellee committed the criminal attempt of theft by deception, criminal conspiracy and criminal homicide.

The appellee was arrested on October 23, 1980 in his residence at 2305 West Hardies Road, Hampton Township, Allegheny County, Pennsylvania. For three days immediately preceding the arrest, an investigation team led by Inspector Charles Mosser, Chief of the Homicide Division of Allegheny County, placed the appellee’s residence under surveillance. At approximately 7:20 a.m. on October 23, 1979, Officers Payne and Lackovic and F.B.I. Agent Petritis approached the front door of the residence; Officer Halligan and Detectives Foot and Fitzgerald positioned themselves at the rear door. Inspector Mosser vacillated between both entrances in an effort to determine whether the appellee submitted to the officers’ request to gain entry. Officer Pajac remained in the vehicle parked across the street with a dog specially trained in bomb detection.

No response came from within the home; consequently, Halligan, Fitzgerald and Mosser forcibly entered through the basement door. Upon reaching the first floor hallway, they discovered the appellee with one hand on the handrail and one foot on the bottom step of the stairway leading to the second floor. The appellee was restrained by Fitzgerald’s raised shotgun and Halligan’s service revolver; however, the appellee would not immediately lie face down on the floor in spite of the officers’ frequent commands. Instead, he pleaded to use the second floor bathroom.

Inspector Mosser promptly opened the front door and instructed Detective Payne and Agent Petritis to briefly check the second floor for other inhabitants of the house. Detective Halligan followed them to the second floor. They completed a one-minute cursory search of the second floor and recovered a .9 millimeter automatic handgun lying on the bedroom floor and partially concealed beneath the bed.

On October 23,1980, the day of arrest, a search warrant of the appellee’s residence was issued by a nearby magistrate for the purpose of locating and seizing a .25 caliber handgun, any other firearms, documents pertaining to the purchase of said handgun, and documents proving appellee’s place of residence. The probable cause for the search warrant was supplied by the cursory search conducted earlier that day and by information disclosed to authorities by Jack David Siggson, appellee’s business partner.

Subsequent search warrants were issued to recover, inter alia, writing tablets, telephone bills, business cards, registered mail receipts, address books, film rolls, cassette tapes, a diamond ring, Last Will and Testament of Hannah Henkel, a telephone interceptor device and safe deposit keys. Once again, the probable cause for these warrants was largely supplied by Siggson’s statements and items inadvertently seen, but not seized, during the cursory search on the day of arrest.

As a result of items seized under the authority of these search warrants, the appellee was further charged on November 2, 1980 with two counts of violating the Uniform Firearms Act; the interception, disclosure or use of wire oral communications and the possession, sale, distribution, manufacture or advertisement of intercepting devices.

On January 19, 1981, as part of an omnibus pre-trial motion, the appellee filed a motion to suppress all items seized incident to the arrest and pursuant to the search warrants. After a lengthy suppression hearing, the lower court found that the seizure of the .9 millimeter pistol, without securing a search warrant beforehand, was unlawful. The court further concluded that the use of the handgun for any purpose, including evidence of guilt and probable cause for the subsequently issued search warrants was unlawful; consequently, the evidence seized under the aegis of the search warrants was likewise inadmissible. The affidavits for probable cause for the search warrants themselves; however, were deemed valid and lawful by the lower court.

The Commonwealth appeals from that portion of the Order suppressing the use of the .9 millimeter handgun as evidence; the appellee-defendant, Richard Henkel, appeals from thát portion upholding the affidavits for probable cause. For purposes of clarification, the Commonwealth will hereafter be referred to as the appellant and Richard Henk-el as the appellee.

The appellant’s argument can be neatly capsulized as follows: the brief visual inspection of the appellee’s second floor quarters was conducted solely for the purpose of protecting the officers from injury inflicted by the appellee’s recondite confederates. The presence of the appellee’s confederates was suspected and feared. Once it was determined that the officers were lawfully on the second floor, the appellant reasons, any items in plain view, such as the .9 millimeter handgun, could be seized. The appellee, in turn, argues that the “protective sweep” doctrine has not yet been recognized by the Pennsylvania courts. Furthermore, he maintains that the arresting officers did not know for certain whether anyone other than the appellee was present in the residence at the time of arrest; that no one, other than appellee, was seen leaving or entering the house during the three-day surveillance; that no noises came from upstairs during the arrest assault; and, the officers could have minimized any danger of physical harm by immediately removing the appellee to the premises outside the house instead of remaining inside to complete the arrest and search the second floor. The appellee’s general position is that no exigent circumstances occurred after the officers’ entry into his home to justify a cursory search; their fears were generated by facts known to them for weeks before the arrest. As a result, the appellee maintains that a search warrant should have been secured prior to arrest.

The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. U.S. v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Securing a warrant under the discernment of a detached and impartial issuing authority prevents the dangers of unfettered intrusions into such sacrosanct environments. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). As a result, warrantless searches and seizures inside a home are presumptively unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This presumption can be overcome where a lawful arrest necessitates the search and seizure of dangerous weapons within reach of the accused in the interest of insuring the safety of the arresting officers. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). Neither Chimel, supra, nor Bess, supra, permit searches of that portion of the premises beyond the accused’s immediate control.

The aforementioned principles of law have recently been expanded; therefore, we hold that arresting officers are permitted to conduct a brief search of the entire building, within which the accused is arrested, for the limited purpose of seeking other people who may threaten the officers’ well being, provided, of course, that such officers have reason to believe that other people are present.

In Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), the arresting officers broke into the defendant’s apartment with neither an arrest nor search warrant, detained and arrested the defendant in the living room and then seized a knife in plain view on a bedroom nightstand. The arresting officers were apprised by the victim, after she identified the defendant as her assailant, that she had been forcibly raped at knifepoint. Furthermore, reliable sources raised suspicion that the defendant’s brother inhabited the apartment too.

The Norris court concluded that the officers were permitted a cursory search of the other rooms, even after the defendant was detained, in order to insure their safety from the brother or another person whose presence was reasonably suspected, but not unequivocally known. Having lawfully entered the bedroom, the officers were in a position to rightfully seize whatever instruments of crime that were in plain view. Coolidge v. New Hampshire, supra; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

The officers in the case before us entered the appellee’s house with reservations similar to those held by the officers in Norris, supra. In both situations, the defendants were first immobilized as part of a lawful arrest and then certain officers were instructed to search through the house for persons who might be hiding and posing a threat to the safety of the arresting team. Likewise, both sets of officers were cognizant of reliable information prior to arriving at the scene of the arrest. For example, the officers and agents here had sufficient cause to believe that the appellee was a dangerous man who may have been living with accomplices. There was evidence that the appellee resided with several men and women at previous addresses and that they may have worked with him on possible extortion plots and the construction and detonation of high explosives. The appellee was, at the time of his arrest, reasonably suspected in the brutal deaths of several of his accomplices. Moreover, Jack David Siggson had disclosed to officials, prior to the arrest, that the appellee kept weapons in his house; that he constructed bombs and tested them in the Summer of 1977; that Sasha Scott, one of the appellee’s roommates, was killed by a bomb explosion on December 23, 1977; and, that the appellee swore not to return to jail.

The aforementioned information accumulated prior to arrest becomes more substantial when coupled with events at the time of arrest. For example, the appellee pleaded with the officers to use the second floor bathroom for the ostensible purpose of defecation. Also, the appellee was reluctant to lie face-down on the living room floor, thereby precluding the officers from bringing him under immediate and complete detention. Inspector Mosser testified that the appel-lee’s preoccupation with the second floor enhanced his anxiety; therefore, he commanded Detective Payne to inspect the second floor for other inhabitants, an escape route or explosives. In light of the extremely short amount of time (not in excess of one minute) taken for the search of the second floor, we cannot perceive the scope to have encompassed anything more than a search for obvious escape routes and dangerous persons in control of explosives.

Additional evidence solidifies the reasonableness of suspecting the presence of other persons in the house. The officers knew that the real estate was recorded in the name of the appellee’s brother; that the handguns, said to be present by Siggson, were registered in Gary Small’s name; and, that the appellee’s practice of living with former suspected accomplices may have been continuing with new, unknown accomplices. We are not persuaded by appellee’s argument that the fear of hidden dangerous persons with possible explosives at their control could have been averted by simply moving the appellee outside. The risk of danger was just as severe as the officers moved away from the house; certainly, hidden confederates would be aware of the departure of several people.

The Third Circuit Court of Appeals, in U.S. v. Looney, 481 F.2d 31 (5th Cir., 1973), was confronted with the issue of whether a weapon seized pursuant to a cursory search of an area far removed from that space immediately surrounding the defendant at the time of arrest, is admissible evidence not violative of the Fourth Amendment safeguards. The Looney court was not impressed with the fact that the area subject to the co-defendants’ immediate control was rid of harmful objects or weapons. It was far more significant that after the co-defendants were rendered immobile, the officers wandered throughout the house in search of people, not objects. In fact, the Looney court concluded that there was no Fourth Amendment search at all; the officers were merely attempting to complete the arrests without risk of harm from concealed inhabitants. As a consequence of the protective search, a machine gun was located in plain view on the floor of the second floor bedroom. The machine gun was properly seized and admissible as evidence. Coolidge v. New Hampshire, supra; Harris v. U.S., supra. The Eight Circuit reached the same conclusion concerning the seizure of the shotgun in a similar factual background. U.S. v. Briddle, 436 F.2d 4 (8th Cir., 1970).

Both Looney, supra, and Briddle, supra, are easily distinguishable from Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, supra, a warrantless search was conducted of concealed spaces in rooms removed from the presence of the detained defendant; the search was conducted solely for incriminating objects. As in Looney, supra, and Briddle, supra, the case before us involved searches for people in the interest of safety and unobstructed arrest procedures. Chimel, supra, on the other hand, involved a warrantless search of objects; therefore, the appellee’s reliance on Chimel, supra, is misplaced.

The appellee’s reference to U.S. v. Gamble, 473 F.2d 1274 (7th Cir., 1973); U.S. v. Carter, 522 F.2d 666 (D.C.Cir., 1975) and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) is misconstrued as well. In none of these cases did the arresting officers demonstrate exigent circumstances suggesting the defendant’s possible co-habitation with other persons. Also, the appellee’s argument that the officers, equipped with this prior knowledge, had ample time to secure a search warrant before the arrest misses the point. Suppression hearing testimony revealed that the officers doubted having probable cause for the basis of securing a search warrant; furthermore, in reiteration, the object of the cursory search was the discovery of dangerous persons, not objects.

The second issue to be decided here on review is whether the search warrants executed on October 23, 1980 and October 24, 1980 were invalid as a matter of law. The appellee argues that the search warrant was defective for the following reasons: that the affidavit of probable cause for the search warrants contained misrepresentations and omissions of fact that deceived the issuing authority into believing that probable cause existed for the issuance of the warrants; that the issuing authority for one search warrant was not a detached and neutral magistrate; that the affidavit of probable cause for the search warrants was based upon stale information; and that there was no probable cause to listen to a cassette tape.

After a review of the arguments, issues and applicable law, we find the lower court opinion to be a thorough and correct response to this second view; consequently, we defer to it to that extent.

The motion to quash Commonwealth’s appeal is denied. The Order of the court below suppressing the use of the .9 millimeter handgun as evidence is reversed. The Order of the court below upholding the affidavits for probable cause is affirmed.

Order reversed in part and affirmed in part.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

We agree with the majority that the police officers’ search was valid but base that conclusion, under the facts of this case, on the doctrine of the moveable area of control and not, as the majority has done, on the protective sweep doctrine.

We concur with the majority’s opinion that when police officers are executing an arrest they are permitted to conduct a brief search of the premises in which the arrest takes place for the limited purpose of apprehending others who may threaten the officers’ safety, provided that the officers have reason to believe that other dangerous persons are present. We disagree, however, that the facts in this case justify a “protective sweep” of the premises based on reasonable suspicion of other dangerous persons.

Since all warrantless searches are presumptively unreasonable violations of the Fourth Amendment, only where the government has obtained a valid consent, or has sustained the heavy burden of demonstrating exigent circumstances, may a warrantless search stand. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Among the recognized exceptions to the warrant requirement are searches growing out of the hot pursuit of fleeing felons, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Another delineated exception is the search incident to arrest, at which time arresting officers may search the person and area within reach of the suspect, in the interest of preserving the safety of those making the arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). When police officers have a lawful right to be on a scene, they may lawfully seize objects of an incriminating character, which are in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Seip, 285 Pa.Super. 551, 428 A.2d 183 (1981).

The doctrine of “protective sweep” (also known as the protective walk-through, or fan-out), essentially a search of a private residence for people, not evidence, expands the well-established limits of Chimel for two basic purposes: one is to ascertain whether other persons are present who might endanger the safety of arresting officers; the other is the “evidentiary sweep” to determine whether other persons are present who might remove or destroy evidence believed to be located in the residence. In the instant case we are concerned only with the former.

Our analysis begins with an inquiry into whether the search of Henkel’s house was conducted because police officers could reasonably justify the intrusion into the residential privacy that the Fourth Amendment protects. In this approach we follow the majority of state and federal courts which had identified a standard of justification in passing on the validity of a protective sweep. The usual standard is the one defined by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) for “stop and frisk,” i.e. a “reasonable suspicion” based on “specific and articulable facts.” We are also guided by the test set out in Bess, supra; i.e. does the arresting officer reasonably believe that the arrestee might still obtain weapons from another area and attempt to use them.

The Commonwealth here maintains that the protective sweep was justified by the heinous nature of the crime and the dangerous propensities of the suspect; by a reasonable belief that confederates of the arrestee were present; by a fear (based on the accused’s past record) that bombs or explosives were in the house; and also on the basis of Henkel’s own actions and words at the time of the arrest. We examine each of these contentions.

The Supreme Court has recently addressed the question of whether the search of a homicide scene should be recognized as an exception to the warrant requirement. The Arizona Supreme Court had ruled that the warrantless search of an apartment where a police officer was murdered was constitutionally permissible:

“We hold a reasonable, warrantless search of the scene of a homicide—or of a serious personal injury with likelihood of death where there is reason to suspect foul play—does not violate the Fourth Amendment to the United States Constitution where the law enforcement officers were legally on the premises in the first instance.... For the search to be reasonable, the purpose must be limited to determining the circumstances of death and the scope must not exceed that purpose. The search must also begin within a reasonable period following the time when the officials first learn of the murder (or potential murder).” State v. Mincey, 115 Ariz. 472 at 482, 566 P.2d 273 at 283.

The Supreme Court reversed, in an opinion joined by eight justices, holding that even the exigency of a murder committed on premises did not justify a warrantless search.

[T]he State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, robbery, or a burglary? “No consideration relevant to the Fourth Amendment suggests any point of rational limitation” of such a doctrine. Chimel v. California, supra, 395 U.S. at 766, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685.
Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. Coolidge v. New Hampshire, supra, [403 U.S.] at 481, 91 S.Ct. 2022 [2045], 29 L.Ed.2d 564. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.

Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978). In light of Mincey, the heinousness of a crime committed elsewhere cannot be used to justify the search of a suspected murderer’s residence.

The Commonwealth argues that Henkel’s tendency to use confederates justified the sweep. Since the search for other dangerous persons reasonably believed to be on premises is the essential purpose of the protective sweep, this element of the case requires careful scrutiny. Police surveillance of Henkel’s residence for about three days prior to the arrest failed to note anyone but Henkel entering or leaving the house. (R.136-9, 248, 379-83, 413-21). No one but Henkel was sighted through the windows, and no noises were heard from other rooms (R. 151-2). The arresting police officers, when questioned during the trial, admitted that they did not believe there were other persons in the house at the time that they entered. (R.239, 344-5, 375). Appellee had, in the past, lived at another address with accomplices, but the record shows that at the time in question Henkel’s principal co-conspirator lived in California (R.ll-12, 28, 121, 271-2). Henkel had been seen with another individual who had a criminal record shortly before the arrest, but that person was known to live elsewhere in Pittsburgh (R.74). Showing that an arrestee has lived with confederates in the past (at other residences), or that some confederates in the crime have not yet been apprehended, does not lead to the reasonable conclusion that dangerous accomplices are expected to be found in the home, when direct observation and reliable information leads to the opposite conclusion.

The Commonwealth argues also that appellee’s past record of criminal use of bombs and explosives justified the sweep. A bomb dog accompanied the arresting team of eight or nine men, but was not used in the cursory sweep of the second floor, nor in the subsequent search conducted under the auspices of a warrant. It appears, therefore, that the fear of bombs was not, in fact, the underlying rationale of the residential sweep.

We turn now to the particular behavior of arrestee Henkel when he was being taken into custody. At the time the police were executing the arrest, Henkel resisted their orders to lie on the floor and attempted to use the stairs to the second floor, purportedly for the purpose of using the bathroom. This behavior led the officers to suspect that he was trying to lay hands on a weapon, or to effect an escape by means of an exit to an adjoining second floor residence. In this connection we note that courts have conceived of a “moveable area of control”, extending the search incident to arrest in those instances in which the arrestee is moving to other parts of the premises, usually to the bedroom in order to dress. When movement is necessary, or made at the behest of the arrestee, courts have unanimously upheld the search of those areas into which the arrestee is to move, including closets in the rooms that are entered. United States v. Smith, 565 F.2d 292 (4th Cir.1977); United States v. Manarite, 314 F.Supp. 607 (S.D.N.Y.1970), aff’d 448 F.2d 583 (2d Cir.1971), cert. den. 404 U.S. 947, 92 S.Ct. 298, 30 L.Ed.2d 264 (1971).

Under those circumstances where police executing an arrest reasonably believe there are other persons on premises who might endanger their safety, we agree that Pennsylvania law should permit a cursory sweep in the interest of protecting officers engaged in the hazardous work of law enforcement. On the facts of this case, however, we reject the use of the protective sweep doctrine to justify the search, since there was no reason to believe that there were persons on the second floor of the house. However, since Henkel himself was attempting to reach the second floor, we uphold the sweep on the basis of the “moveable area of control.” Accordingly, we find that the police lawfully and constitutionally retrieved the .9 mm. weapon that was partially exposed under a second floor bed, and we reverse the lower court.

      . Gary Small was the appellee’s Mend, former live-in mate and possible accomplice.

      . See U.S. v. Bowdach, 561 F.2d 1160 (5th Cir., 1977); McGeehan v. Wainwright, 526 F.2d 397 (5th Cir., 1976); U.S. v. Smith, 515 F.2d 1028 (5th Cir., 1975) for an approval of the protective search for persons inside a residence even where the arrest is made outside the residence.

      . Standards, and other aspects of the protective sweep doctrine, are discussed in Kelder and Statman, The Protective Sweep Doctrine; Recurrent questions regarding the propriety of searches conducted contemporaneously with an arrest on or near private premises, 30 Syracuse Law Rev. 973 (1979).

      . Ringel, Searches and Seizures, Arrests and Confessions (2d ed. 1981), 12.5(c).


source: Caselaw Access Project

author: JOHNSON, Judge: WATKINS, Judge,

license: Public Domain

text:
    452 A.2d 766
    COMMONWEALTH of Pennsylvania v. Daniel DELKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1982.
    Filed Nov. 12, 1982.

      Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   JOHNSON, Judge:

This is an appeal from the denial of Appellant’s petition filed pursuant to the Post Conviction Hearing Act (PCHA). Appellant, while represented by the Public Defender’s Office, was found guilty by a jury of assault with intent to kill, assault by a prisoner, aggravated assault and battery and assault and battery. Following the denial of post-verdict motions, Appellant was sentenced, which judgment of sentence was affirmed per curiam by the Superior Court. Commonwealth v. Delker, 233 Pa.Super. 704, 338 A.2d 176 (1975). Appellant thereafter filed a PCHA petition alleging, inter alia, ineffective assistance of counsel. The trial court appointed the same Public Defender’s Office to represent Appellant on his PCHA petition as had.represented Appellant at trial. The Public Defender’s Office then filed a motion to withdraw as counsel and for appointment of new counsel because of the conflict of interest arising from Appellant’s allegation of ineffective assistance of trial counsel. The trial court denied the motion for withdrawal as counsel and on May 12, 1981, denied the PCHA petition, after a hearing. This appeal followed.

We find the instant situation to be nearly identical to that in Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977), where the court stated:

A PCHA petitioner alleging ineffective assistance of counsel may not be represented by an attorney from the same office as the allegedly ineffective attorney, regardless of the fact that one started working there after the other left. The later attorney, by reason of his association with the same office, still has an appearance of a conflict of interest threatening his duty of zealous advocacy.

Id., 473 Pa. at 398, 374 A.2d at 1273. See also, Commonwealth v. Willis, 492 Pa. 310, 424 A.2d 876 (1981).

We therefore remand this case for appointment of counsel other than a public defender. Do not retain jurisdiction.

WATKINS, J., files a dissenting opinion.

WATKINS, Judge,

dissenting:

I dissent and would affirm the Order of the court below. The public defender who was the defendant’s trial counsel represented the defendant eight years prior to the instant proceeding. That attorney voluntarily retired from the Public Defender’s Office six years prior to this proceeding and has not been remotely connected with that office since that time. Such a lengthy absence should eliminate any appearance of impropriety of a present member of the public defender’s office arguing ineffectiveness of counsel on appeal.

Perhaps each judicial district in Pennsylvania should have two separate public defender’s offices which are totally distinct from one another. Then an attorney from Public Defender’s Office I could represent indigent criminal defendants at trial and one from Public Defender’s Office II could represent indigent defendants on appeal when they allege ineffective assistance of the Public Defender’s Office I trial counsel. Of course, the cost of all this would be done at the taxpayer’s expense. I believe that the majority goes too far in protecting a defendant’s rights against a non-existent conflict. I would hold that no conflict of interest exists in the instant case.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq.


author: MONTGOMERY, Judge:

text:
    452 A.2d 768
    COMMONWEALTH of Pennsylvania v. Derrick SATCHELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1981.
    Filed Nov. 12, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

Appellant was convicted on charges of three counts of burglary, three counts of robbery, and three counts of criminal conspiracy. He was subsequently sentenced to an indeterminate to six (6) years term under the Youthful Offender Act with four (4) years state probation to run consecutively thereto on two counts each of burglary and robbery, and one count of criminal conspiracy; three (3) to six (6) years at Camp Hill and four (4) years consecutive state probation on one count of criminal conspiracy; and, ten (10) years state probation concurrent with all other sentences on the remaining counts of burglary, robbery and criminal conspiracy. The above convictions resulted from two separate incidents involving appellant. Though a juvenile petition was filed against appellant following each arrest, he was certified for trial in adult criminal court on all charges.

Appellant sets forth several assignments of error herein alleging that the lower court erred (1) in certifying him to adult court when the Commonwealth failed to meet its burden of proof; (2) in refusing to grant appellant’s motion to dismiss under Pa.R.Crim.P. 1100; (3) in denying his motion to suppress a certain statement; and, (4) in refusing to suppress both the lineup and in-court identifications made by a Commonwealth witness.

As to appellant’s claim that the lower court erred in certifying him to adult court, the law is clear. The Commonwealth has the burden of establishing, on reasonable grounds, that a juvenile is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities. See, 42 Pa.C.S.A. § 6355(a)(4)(iii). A challenge to a certification order must demonstrate that the court committed a gross abuse of discretion. Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980). Such abuse is not merely an error of judgment, but the misapplication, or an overriding, of the law; or, the exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will. Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977). We find no indications of manifestly unreasonable judgment on the part of the certification court herein.

The next assignment of error asserted by appellant is that his Pa.R.Crim.P. 1100 rights were violated. He argues that the 180 day period should have begun to run when the juvenile petition was filed and not when he was certified to adult court. We have rejected this argument on numerous occasions, and continue to do so. See, e.g., Commonwealth v. Jackson, 287 Pa.Super. 430, 430 A.2d 680 (1981); Commonwealth v. Mitchell, 283 Pa.Super. 455, 424 A.2d 897 (1981). See also, Commonwealth v. Bell, 245 Pa.Super. 164, 369 A.2d 345 (1976), aff’d, 481 Pa. 229, 392 A.2d 691 (1978); and, Pa.R.Crim.P. 1100(a)(3).

Appellant also contends that the lower court erred in denying his motion to suppress a certain in-custody statement. He specifically argues that he was not provided an opportunity to consult with an “interested adult” as mandated by precedential case law.

Pa.R.Crim.P. 323 specifically states that

“(a) [t]he defendant or his attorney may make application to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights.
(d) The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof. ...”

Appellant’s motion to suppress his statement was phrased in general terms. His asserted basis for relief was that he “did not knowingly, intelligently and voluntarily waive his privilege against self incrimination or his right to counsel.” During the hearing, defense counsel generally maintained that the suppression of appellant’s statement was based on a violation of the juvenile’s rights as required by case law and an unnecessary prearraignment delay. Immediately prior to the close of the hearing, appellant argued that the statement should be suppressed as he “did not have the advice of counsel, of the interested adult.” Following expansion of that argument, the suppression court made the following interpretation on the record:

“You are saying that therefore [the interrogators] had to notify the attorney as the interested adult, and it wasn’t sufficient to have [appellant’s] mother and her boyfriend.”

Counsel responded positively and added that under the circumstances the mother should not be viewed as an interested adult.

An interested adult has been defined by our Supreme Court as “one who is genuinely interested in the welfare of the accused juvenile . . . [and who has been] informed and [is] aware of those fifth and sixth amendment rights guaranteed to the juvenile.” Commonwealth v. Barnes, 482 Pa. 555, 560, 394 A.2d 461, 464 (1978).

The record before us reveals that appellant was alone with his mother and stepfather for ten to fifteen minutes prior to making the challenged statement. Both adults actively participated in the Miranda colloquy. Our review of the record indicates that both adults, particularly the mother, were genuinely concerned about appellant’s welfare. As a result, we find that the Commonwealth met its burden of establishing that prior to waiving his fifth amendment rights, appellant had an opportunity to consult with an interested adult. Cf., Commonwealth v. McFadden, 470 Pa. 604, 369 A.2d 1156 (1977); and, Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979). Appellant’s suppression motion was, therefore, properly denied.

Appellant also contends that the lower court erred in refusing to suppress the lineup identification made by a Commonwealth witness, Mrs. Merriman. He argues that the lineup was unconstitutionally suggestive, and the resulting identification tainted the subsequent in-court identification.

In his suppression motion made prior to trial, appellant generally challenged all out-of-court identifications which would, of course, include Mrs. Merriman’s. Mrs. Merriman’s identification was specifically challenged in his post-verdict motions. However, in response to the lower court’s order to comply with Pa.R.A.P. 1925(b), appellant challenged the identification made by one Charles Drummond, but not that made by Mrs. Merriman.

The Commonwealth argues that as a result of this failure, appellant has waived this particular argument. An appellate court, however, may review a claim not presented in appellant’s Pa.R.A.P. 1925(b) statement if the failure does not defeat effective appellate review. Commonwealth v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1979). In the instant case, we will reach the merits of the issue as appellant’s failure to raise this claim in his Rule 1925(b) statement does not defeat effective review. As this issue was the subject of testimony at the hearings on the suppression and post-verdict motions, the means for achieving a review of the claim is available to us. Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979).

Appellant argues that the lineup from which he was identified by Mrs. Merriman was unconstitutionally suggestive; and, as a result, Mrs. Merriman’s in-court identification was tainted. Suggestiveness alone does not warrant the exclusion of identification evidence, as a totality of the circumstances test is employed to determine the reliability of a challenged identification. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979). The factors relevant to determining the reliability of the identification include:

“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Commonwealth v. Kennedy, 271 Pa.Super. 1, 8, 411 A.2d 1249, 1253 (1979), quoting, Manson v. Braithwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

Our review of the record herein evinces that Mrs. Merriman’s identification of appellant is free of impermissible suggestiveness and is reliable. Though all of the participants may not have been replicas of appellant, that does not provide a sufficient basis to overrule the findings of the lower court. Application of the totality of the circumstances test to the identification made by the witness leads us to the finding that any suggestiveness which may have been present is outweighed by other factors. Furthermore, since we find the lineup identification to be reliable, we need not reach appellant’s claim that the in-court identification was tainted.

Judgments of sentence affirmed.

      . The Commonwealth argues that this issue has been waived. The question was argued at the suppression hearing, and included in appellant’s post-verdict motions and statement of matters complained of on appeal. As a result, the issue has been preserved for our review. See, Commonwealth v. McFadden, 470 Pa. 604, 369 A.2d 1156 (1977).

      . Pa.R.A.P. 1925(b): “If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matters complained of.”

      . The lower court found, after hearing testimony on the motion to suppress,- that “[t]here was sufficient similarity that if you are going to make a bona fide identification out of that group, you have to know what you are doing in order to select Derrick Satchell.”


author: PER CURIAM:

text:
    452 A.2d 771
    In the Matter of the ADOPTION OF M.S.G. and J.K.G. Appeal of J.R.G.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1981.
    Filed Nov. 15, 1982.

      Jay S. Nedell, Erie, submitted a brief on behalf of appellant.
    Gerald McNelis, Jr., Erie, for appellees.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from an order terminating the parental rights of the appellant, J.R.G., the father of M.S.G. and J.K.G. Since the lower court entered its order terminating appellant’s parental rights the United States Supreme Court has filed its opinion in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 594 (1982). There the court held that the standard of proof in such cases must be at least “clear and convincing evidence.” The Orphans’ Court Division, below, applied “the preponderance of evidence” standard. Therefore, we must remand to the lower court for a new hearing in light of Santosky.

Order vacated and case remanded. We do not retain jurisdiction.


author: CERCONE, President Judge:

text:
    452 A.2d 772
    COMMONWEALTH of Pennsylvania v. Donald L. WILSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed Nov. 19, 1982.

      John J. Moran, II, Assistant Public Defender, York, for appellant.
    Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of York County on September 5, 1978.

On July 18, 1978, appellant entered pleas of guilty to the charges of aggravated assault, kidnapping, rape and involuntary deviate sexual intercourse. On September 5, 1978, appellant was sentenced to imprisonment in a state correctional institution for a term of not less than ten (10) nor more than twenty (20) years for each count of kidnapping, rape and involuntary deviate sexual intercourse in Criminal Action No. 382 of 1978. The sentence was to run concurrently with respect to each count. On the charge of aggravated assault entered in Criminal Action No. 350 of 1978, appellant was ordered to serve a prison term of five (5) to ten (10) years. This period of internment was to run consecutively with that imposed in Criminal Action No. 382 of 1978. On September 15, 1978, counsel for appellant in Action No. 350 filed a petition for reconsideration of the punishment levied by the court for aggravated assault. By an order dated October 11, 1978, the court indicated its unwillingness to modify the terms of that sentence although it did agree to alter the order in which the sentences in Nos. 382 and 350 would be served.

The facts surrounding appellant’s arrest for aggravated assault are not at issue and are deserving of only the briefest recitation. On March 3, 1978, appellant accosted Dian J. Burkhart of Emigsville, Pennsylvania in the parking lot of the York Mall located on East Market Street in York, Pennsylvania. Appellant compelled Ms. Burkhart at knife-point to drive him in her car for a short distance to at a location several hundred yards from the Sprigettsbury Township Police Department. During the period in which appellant was in the vehicle, Ms. Burkhart was forced to commit fellatio upon appellant. In addition, upon parking the automobile, appellant forcibly involved the victim in other deviate sexual acts which culminated, ultimately, in the rape of Ms. Burkhart. After the rape, appellant surrendered his knife to the victim, alighted from the automobile and fled from the scene.

On March 14, 1978, while walking along a sidewalk in York, Pennsylvania, appellant was stopped by Shirley Stam-baugh who asked him for assistance in locating a parking meter which had been enshrouded by a recent snowfall. After offering some suggestions to Ms. Stambaugh, appellant pushed the woman through the open door of her automobile and onto its front seat where he brandished a paring knife before the victim’s face. Ms. Stambaugh’s screams commanded the attention of a local businessman and a youth who were then passing by this scene on the sidewalk next to the victim’s car. These individuals summoned the police and attempted to subdue appellant. During the fracas which accompanied appellant’s capture, appellant inadvertently inflicted a gash on Ms. Stambaugh’s neck with the knife. The commission of these offenses followed closely on the heels of appellant’s pre-release from a Community Work Program. Appellant participated in the program after having served a brief portion of a ten (10) year sentence imposed for appellant’s perpetration of a series of sexual crimes in 1974.

Appellant now seeks relief from the lower court's imposition of a five (5) to ten (10) year term of incarceration for aggravated assault in No. 350 which was to run consecutive to the sentence imposed in No. 382. He denounces the sentence as violative of the sentencing guidelines in that it is injudiciously harsh, unsupported by the evidence on the record, and inconsistent with both the character of appellant and the nature of the offense. For the reasons advanced infra, we now conclude that appellant’s argument is without merit and hold that the lower court acted within the bounds of its lawful discretion in refusing to reconsider its sentence prescribed for the crime of aggravated assault in Criminal Action No. 350 of 1978.

The most serious of appellant’s allegations are those maintaining that the sentencing judge ignored the nature of the offense as well as the character and rehabilitative needs of appellant, specifically, his alleged need for psychiatric counselling. After conducting a careful review of the record, we believe the lower court did not abuse its discretion in sentencing appellant to a prison term of five (5) to ten (10) years for aggravated assault.

Under the holding of our Supreme Court in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the sentencing court must state on the record the reasons underlying the sentence which it imposes. Id., 474 Pa. at 122, 377 A.2d at 143. In Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 401 A.2d 1223 (1979), wherein we sought to explain the requirements of Riggins, we ruled that the statement of reasons must

... demonstrate that the court has considered the factors specified in the Code, and that it has balanced the specific background, character and circumstances of the defendant with the circumstances of the crime, the need for incarceration, to prevent future offenses by the defendant and by others, and the possibility of rehabilitation. Id., 265 Pa.Superior Ct. at 314, 401 A.2d at 1227.

Although the sentencing court is also required to indicate on the record at the time of sentencing that the guidelines of the Sentencing Code were considered in the sentencing process, we have not required the trial judge to recite each of those criteria and detail his respective responses. Commonwealth v. Rooney, 296 Pa.Superior Ct. at 293 n. 4, 442 A.2d at 775 n. 4. Moreover, we have never viewed the Sentencing Code as containing the exclusive and inflexible formula for proper sentencing. A sentencing court’s statement of reasons will not be deemed insufficient where it is plain that the court considered and applied the Code even though it makes no explicit reference to its guidelines. Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 417, 433 A.2d 517, 519 (1981), quoting Commonwealth v. Zimmerman, supra, 282 Pa.Superior Ct. at 299, 422 A.2d at 1125.

The transcript of the sentencing proceeding does not substantiate appellant’s allegations but reflects, instead, the great deference paid by the lower court to proper sentencing practice. Prior to its imposition of the sentence challenged instantly, the court stated its reasons for the sentence beginning with its consideration of the nature of the offense. The court acknowledged that the assault committed by appellant upon Ms. Stambaugh was accomplished with the use of a deadly weapon, specifically a knife. The court noted further that given the brutality of the assault the crime is not likely to be quickly forgotten by the victim. This conclusion is defensible since the record reveals that Ms. Stambaugh sustained a cut on her throat as a consequence of the attack. Appellant places considerable emphasis on the fact that the laceration was inflicted inadvertently and did not endanger the victim's life, and posits that “the characterization of the offense as violating the physical integrity of her body is patently absurd.” We are unable to concur in this view for we believe it to be abundantly clear that any assault upon a person, regardless of the individual’s gender, where carried out by the use of a knife or other dangerous instrument and in a manner likely to cause the victim to fear for his or her life, is very serious indeed. It was fortunate for all parties concerned that the victim in the case at bar was not more grievously injured. This fact alone, however, does not alter the serious nature of the offense.

Appellant’s contention that the lower court imposed sentence without adequately appraising his character and rehabilitative needs is similarly frivolous. Contrary to appellant’s representations, the sentencing court paid considerable attention to his unique background and character in passing sentence and stated so in specific, unmistakable language during the sentencing proceeding. The court began its review of appellant’s personal qualities by noting that his criminal record dates to 1970 and its replete with convictions for grave offenses:

THE COURT: We note that the defendant presents to the Court a criminal record going back to 1970 for serious crimes. The first two crimes with which the defendant was charged and sentenced were crimes against property back in 1970 and 1971, and then the next three crimes with which he was charged all involve the same type of criminal activities as the defendant is presently charged with. In 1974, he was sentenced to ten years probation for Rape, Involuntary Deviate Sexual Intercourse. Later in 1974, he was sentenced five to ten years in a state correctional institution for Kidnapping, Statutory Rape and Involuntary Deviate Sexual Intercourse. Then a little later in 1974, he was given one year probation and two years probation on charges of Aggravated Assault, Prohibitive Offensive Weapons, Felonious Restraint and Indecent Assault. The defendant’s past record unfortunately is replete with examples of the defendant engaging in criminal activity of the type which he is now before the Court. The record clearly indicates that probation has not worked. In fact, it also indicates he violated his parole term on two different occasions. The defendant was last in jail for these offenses occurred, November 8, 1974 until February 14, 1978 when he was released to the Community Treatment Program in York and within three weeks thereafter of his release, he committed the first of these two offenses, such a short time after his release and having served a little over three years in a state correctional institution.

The sentencing judge next turned to the subject of appellant’s apparent rehabilitative needs as they may be gleaned from his past criminal offenses and the extensive pre-sen-tence report which incorporated a comprehensive psychiatric evaluation of appellant:

THE COURT: Now, we note his institutional adjustment is good and that the progress he made there, the motivation he found there to want to continue his education was outstanding but our conclusion from all this is that within a controlled institutional setting, his behavior is satisfactory but when he is allowed the freedom of the community, he is unable to control his behavior. We have looked for signs of social stability in the defendant’s background and we find that the only marriage of the defendant ended in divorce and there is one child. Apparently the defendant has had very little, if any, contacts with his child and the contacts are maintained by his parents. We note that the defendant is now engaged and we note that during his life the defendant has basically lived with his parents other than during the very short time he was married.
We are very much aware of the defendant’s mental and emotional background and I dare say that this has been delved into by the various prison and correctional authorities in Pennsylvania more thoroughly than most prisoners emotional and mental background is inquired into and endeavored to be treated. The first report we have of this goes back back to February 12, 1975. There is a therapy report of September 8, 1976, a very detailed psychiatric evaluation of the defendant on October 7, 1977 which resulted in his assignment for community treatment in York County. In fact, the conclusion of that report is “Mr. Wilson may be at some risk for continuing to have a drinking problem but I believe there to be a fair chance that he would not commit sexual offenses again even if he were to become intoxicated.” Notwithstanding that conclusion of that psychiatric report, within three weeks thereafter he did just what that report said he would not do; Then after the arrest of these two offenses, the defendant underwent extensive psychological evaluation on April 29, 1978, a copy of which Mr. Moran has. We find these reports have been very thorough and have given the Court the necessary insight that the Court needs into passing sentence. Mr. Moran presented to this Court last week a petition for a psychological evaluation for sentencing purposes. We told Mr. Moran and we reiterate it on the record that we reject the application because the record and these reports I just mentioned provide the Court with ample information to assist the Court for sentencing purposes in terms of analyzing and reviewing the defendant’s psychological and emotional health.
We note that the defendant has had an alcoholic problem since he has been fifteen and in fact, each of these two crimes appear on the presentence report to have been preceded by the use of alcohol by the defendant. We also note that the defendant lacks insight into these offenses and we are aware of the defendant’s desire to see to it that these offenses are not repeated and yet we think it significant that after the defendant committed the first offense on March 3, 1978 which terminated in his telling the victim that he couldn’t turn himself into the authorities that he did nothing by way of seeking help for his problems and rather continued in the Community without seeking help and then on March 14 committed the second criminal act which is before the Court for sentencing so we are very skeptical of the defendant’s statements that he now wants help when he rejected a very likely opportunity to get help after he committed the first offense.
We repeat what we said earlier that the record indicates the defendant was fully cognizant of what he was doing during the March 3 episode when he kidnapped the victim at the York Mall and then raped her and committed the involuntary deviate sexual intercourse. His details which he provided to the police, he was very fully aware of what he was doing and was able to account to them what had happened.. It is obvious that past theraputic efforts have failed. As indicated, the last psychiatric evaluation in October indicated that the evaluator thought he was prepared to resume a place in society. It may be that some place there is a resource available to deal with this defendant’s emotional and psychological problems. A fairly extensive effort has been made so far by society. A fairly extensive effort has been made so far by society and the Commonwealth of Pennsylvania to deal with it but it appears to no avail, at least so far.

(Emphasis added).

As the above quoted portions of the sentencing colloquoy amply demonstrate, the lower court adhered to the guidelines contained by the Sentencing Code in near-literal fashion, delineating in precise terms the reasons for the sentence and their specific relation to the gravity of the offense, as well as appellant’s character and rehabilitative needs. As we so recently stated in Commonwealth v. Campolei, 284 Pa.Superior Ct. 291, 425 A.2d 818 (1981), it is not our function to determine whether we agree with the statements of the .sentencing court “in the sense that if we had been the sentencing court we would have said the same thing and imposed the same sentence.” Id., 284 Pa.Superior Ct. at 299, 425 A.2d at 822. So long as we are able to conclude that the confinement imposed on appellant was the product of an articulable consideration of sentencing guidelines, we will not rule that the lower court manifestly abused its discretion. Commonwealth v. Rooney, supra, 296 Pa.Superior Ct. at 294, 442 A.2d at 776.

Appellant also attacks the sentence on the basis that it is unduly harsh and founded upon personal opinions embraced by the sentencing judge, and not upon evidence gleaned from the record. Insofar as these contentions are conclusory in nature and lack plausibility in the absence of a demonstrated breach of the sentencing guidelines, our disposition of appellant’s foregoing claims necessarily renders these arguments meritless.

Having determined that the sentence imposed by the lower court for aggravated assault in Criminal Action No. 350 of 1978 comports in all respects with the Sentencing Code and therefore is not manifestly excessive, and in the absence of any allegation that the sentence imposed exceeded the statutory limit, it is plain that the lower court did not abuse its discretion.

Affirmed.

      . Appellant correctly instructs that on the date the instant sentence was imposed, the lower court was obliged by the Sentencing Code to prescribe punishment “for a minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” 18 Pa.C.S.A. § 1321(b). Since that time, however, the Sentencing Code has been amended and the operative language, stripped of the words “minimum amount of,” now provides:
      “... In selecting from the alternative set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community and rehabilitative needs of the defendant...” 42 Pa.C.S.A. § 9721(b).

      . See also Commonwealth v. Rooney, 296 Pa.Superior Ct. 288, 442 A.2d 773 (1982); Commonwealth v. Weaver, 280 Pa.Superior Ct. 481, 421 A.2d 824 (1980); and Commonwealth v. Turecki, 278 Pa.Superior Ct. 511, 420 A.2d 658 (1980).

      . See Commonwealth v. Rooney, supra; Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Stufflet, 291 Pa.Superior Ct. 516, 436 A.2d 235 (1981); Commonwealth v. Williams, 274 Pa.Superior Ct. 464, 418 A.2d 499 (1980); and Commonwealth v. Skinner, 275 Pa.Superior Ct. 251, 418 A.2d 707 (1980).

      . See also, Commonwealth v. Zimmerman, 282 Pa.Superior Ct. 286, 422 A.2d 1119 (1980); Commonwealth v. Williams, supra; and Commonwealth v. Wicks, supra.

      . See also Commonwealth v. Rooney, supra, 296 Pa.Superior Ct. at 294, 442 A.2d at 776.

      . See also Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).


author: HESTER, Judge:

text:
    452 A.2d 777
    COMMONWEALTH of Pennsylvania v. Michael FRANKLIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 6, 1982.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied March 3, 1983.

      John Albert Wetzel, Philadelphia, for appellant.
    David DaCosta, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before HESTER, CAVANAUGH and CIRILLO, JJ.
   HESTER, Judge:

The appellant, Michael Franklin, was charged with criminal conspiracy, possessing an instrument of crime, robbery, carrying firearms on a public street and carrying firearms without a license. These charges arose from an incident wherein the appellant and his co-defendant entered a Philadelphia grocery store, threatened the owner with a sawed-off shotgun and fled with a revolver and $135.00 in cash.

The charges were brought via the filing of a written complaint on October 18, 1974. Trial finally commenced on April 30, 1975, 193 days following the filing of the written complaint. During the period between the filing of the complaint and the trial date, four continuances were ordered due to the unavailability of courtrooms; one 3-day continuance due to a conflict in the schedule of appellant’s counsel; and, one continuance due to the illness of co-defendant’s counsel. The four continuances due to judicial delay alone prevented commencement of trial within 180 days.

On May 2, 1975, the jury returned a guilty verdict to criminal conspiracy, possession of an instrument of a crime generally and robbery. Motions in arrest of judgment and for new trial were denied on June 3, 1975; and, on that same date the appellant was sentenced to a term of imprisonment of seven and one-half {llh) to fifteen (15) years on the robbery bill and a consecutive five (5) years’ probation on the remaining charges. An appeal from the judgment of sentence was denied at Commonwealth v. Franklin, 252 Pa.Super. 619, 382 A.2d 747 (1978). Appellant’s subsequent Writs of Habeas Corpus filed in both the Supreme Court of Pennsylvania and the United States District Court were denied as well.

Following retention of new counsel, appellant filed a petition for post conviction relief in the Court of Common Pleas of Philadelphia County. The prayer was denied and this appeal followed.

Appellant argues first that he is entitled to discharge because his right to a speedy trial under Pa.R.Crim.P. 1100 was denied. He concedes that this argument was not properly preserved for appeal because his trial counsel neglected to raise it initially in post trial motions; nevertheless, he maintains counsel’s negligence constituted ineffectiveness which in turn is an extraordinary circumstance permitting appellant to raise this argument for the first time on appeal. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976). We agree with the appellant that counsel is deemed ineffective for failing to preserve a meritorious claim that defendant’s right to a speedy trial was abridged. Commonwealth v. Foley, 269 Pa.Super. 71, 409 A.2d 68 (1979). We do not agree, however, that a determination of ineffectiveness of counsel necessarily depends upon a resolution of whether Rule 1100 was violated below. We find that despite a violation of appellant’s right to a speedy trial, the state of the law as it existed during the lower court proceedings was such that appellant’s trial counsel could not be deemed ineffective for refusing to object to a Rule 1100 violation.

Rule 1100(a)(2) of the Pa.R.Crim.P. sets forth that trial must commence no later than 180 days from the date of filing the written criminal complaint. Section (c)(1) of that same Rule provides:

“At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.”

Such application shall be granted under Section (c)(3) where:

“upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the cause of the delay and the reasons why the delay cannot be avoided.”

Section (d), another applicable section of Rule 1100, permits the automatic exclusion of certain periods from computation of the 180-day period for commencement of trial: the period of time between filing the complaint and arrest under certain circumstances; the period of time for which the defendant waives Rule 1100; the period of time resulting from the unavailability of the defendant or his attorney or from any continuance granted at the request of the defendant or his attorney. Rule 1100 makes no particular mention of excluding delay attributed to the judiciary; therefore, unless case law expands the import of the Rule, we cannot exclude the continuances caused here by unavailability of courtrooms from the 180-day computation.

The lower court held that delays due to the unavailability of courtrooms were excluded by local Philadelphia practice from the computation of the 180-day period. According to the opinion drafted below, this practice was not negated by our appellate courts until some time after the filing of the post trial motions here; and, of course, appellant’s trial and post-trial counsel cannot be held accountable for foreseeing future revisions in the law. Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979). The lower court concluded, therefore, that the four judicial continuances accounting for nearly 30 days, were excludable from the calculation. Such a conclusion permits the further determination that trial here commenced within 180 days of the filing of the complaint. For those reasons hereinafter discussed, we find the lower court opinion to be somewhat awry although we agree with the result reached.

There appears to be no appellate court decision in effect at the time appellant’s charges were pending in the lower court that addressed the excludability of court delay from the 180-day time period. The issue of the effect of judicial delay upon Rule 1100 was finally settled by the Pennsylvania Supreme Court in Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976) and Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). In Shelton, supra, the court began its inquiry with the premise that any period beyond that prescribed by the statute must either be excluded from the computation under Pa.R.Crim.P. 1100(d) or permitted by an Order in response to a request for an extension pursuant to 1100(c). Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872 (1976). The application for an extension must be timely filed before the expiration of the 180-day period. Shelton, supra; O’Shea, supra; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). The time for filing an application for an extension is determined by the 180-day period plus any time properly excluded under 1100(d). Shelton, supra.

Shelton, supra; Mayfield, supra, and their progeny reasoned that “judicial delay” must, at times, justify an extension of time under Rule 1100, because the unavailability of a judge or courtroom could interfere with timely prosecution despite the due diligence of the Commonwealth. See also Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977); Commonwealth v. Kelly, 246 Pa.Super. 196, 369 A.2d 879 (1976). These same decisions recognized that the excludability of judicial delay somewhat weakened an accused’s right to a speedy trial; consequently, an exclusion for judicial delay is not automatic under Rule 1100(d). It must instead be issued in response to an application for an extension under 1100(c). Beyond the requisite filing of an application for an extension, the trial court must find: (1) the due diligence of the prosecution in attempting to commence trial within the prescribed limit; and, (2) proof that the trial is scheduled at the earliest date commensurate with the court’s business. If the delay is attributed to the court system, then the record must explain the inevitable delay.

The lower court record here indisputably reveals that the Commonwealth never filed an application for an extension. Although the unavailability of courtrooms may have alone contributed to the commencement of trial beyond 180 days, the record is deplete of an explanation whether the actual first day of trial was the earliest possible date. It appears, then, that trial was conducted in violation of the appellant’s speedy trial rights.

If the only issue concerning Rule 1100 before us was whether trial was timely commenced, we would be compelled to reverse the judgment of sentence and dismiss the appellant; however, since appellant is raising the speedy trial issue for the first time on appeal, the ultimate issue for our determination is whether trial counsel was ineffective in not objecting to a violation of Rule 1100 in post-trial motions.

The practice of the Philadelphia County Courts of Common Pleas at the time that these criminal proceedings were pending below was to exclude time attributed to the unavailability of courtrooms from a computation of the 180-day period. Commonwealth v. Shelton, supra, did not alter that rule until two years later. As discussed above, judicial delay incurred here could not properly be excluded from a 180-day calculation because the Commonwealth never filed an application for an extension and there was no on-the-record showing that the first trial date was the earliest available; however, trial counsel did not know that nor can we charge him with the obligation of knowing it. The Shelton decision did not materialize until two years after trial and post-trial motions. Counsel cannot be found ineffective for not acting in conformity with unforeseen law, Ray, supra, or for not pursuing meritless claims. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974); Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979). We hold, therefore, that trial counsel properly acted in conformity with local practice in the Philadelphia court system by not challenging the timeliness of trial. Trial was timely commenced; there was no issue at that time to raise on appeal. This same conclusion dismisses appellant’s argument that his appellate counsel was likewise ineffective for not raising ineffectiveness of trial counsel with respect to the Rule 1100 issue.

Appellant’s remaining argument is that trial counsel was ineffective in failing to file a reconsideration of sentencing before filing an appeal. Appellant offers no evidence in support of his proposition that trial counsel was ineffective in choosing not to pursue a petition for reconsideration of sentencing. In the absence of such evidence, we cannot agree with appellant. Appellant bears the burden of establishing post-conviction relief. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Commonwealth v. London, 461 Pa. 673, 337 A.2d 822 (1975).

Order denying post conviction relief is affirmed.

      . Changes in law subsequent to judgment, and before decision by appellate courts must be given effect on direct review, Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Bradley v. School Board of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).


text:
    452 A.2d 781
    COMMONWEALTH of Pennsylvania v. Richard PARRY, Junior, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1982.
    Filed Nov. 19, 1982.

      Anthony Peter Daniel, Easton, for appellant.
    Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   HESTER, Judge:

Appellant, Richard Parry, Jr., was charged with kidnapping, unlawful restraint, robbery, involuntary deviate sexual intercourse, aggravated assault, and conspiracy. On September 19, 1980, after a trial by jury, appellant was found guilty of all of the above charges with the exception of kidnapping. Post-verdict motions for a new trial and in arrest of judgment were denied and dismissed. Appellant was thereafter sentenced to a term of incarceration of not less than four (4) years nor more than eight (8) years. The sentencing court denied appellant’s petition for reconsideration of sentence on October 15, 1981. This appeal ensued.

The facts which led to the prosecution and conviction in this case are as follows. On March 26, 1980, appellant and three others picked up the victim, a slightly retarded young man who had been hitchhiking. Appellant and co-defendant, Carl Hoffman, forced the victim to perform involuntary deviate sexual intercourse at gunpoint. The victim was subsequently robbed, severely beaten and kicked in the body and head, and left nude, face down in a roadside puddle.

Appellant’s sole concern on this direct appeal is his sentence. He contends that the sentencing judge abused his discretion when his sentence is compared to the sentences received by the other actors involved in this affair. Co-defendant Hoffman, who was the principal actor and who had an extensive criminal record, received the same sentence as appellant. Two other co-defendants, who respectively pleaded guilty and nolo contendere to unlawful restraint, were sentenced to six to twenty-three months imprisonment with immediate work release eligibility. Appellant argues that since both he and Hoffman received identical sentences, the sentencing judge failed to adhere to the philosophy of individual sentencing as mandated by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and as codified by the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345,18 Pa.C.S.A. § 1321(b), as amended October 5, 1980, P.L. 693, No. 142, 42 Pa.C.S.A. § 9701 et seq. Moreover, he asserts that his right to equal protection of the law was violated when the sentencing judge imposed disparate sentences upon himself and the two other similarly situated co-defendants.

Imposition of a proper sentence is firmly settled to be within the sound discretion of the lower court, and we will not disturb the sentence on appeal absent a manifest abuse of discretion. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). The procedure of indeterminate sentencing as employed in this Commonwealth requires the sentencing judge to weigh the varying factors of each case, including the particular circumstances of the offense and the characteristics of the defendant. Commonwealth v. Jezorwski, 280 Pa.Super. 178, 421 A.2d 464 (1980). In formulating the sentence, the lower court should impose the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitation needs of the defendant. Commonwealth v. Martin, supra; 42 Pa.C.S.A. § 9721(b).

In the instant case, the sentencing judge was also the trial judge and consequently was fully versed in the facts surrounding the offense. After the trial, he received a thorough presentence investigation report on the character of appellant. In fashioning appellant’s sentence, the trial judge considered that appellant’s conduct threatened and caused serious harm to the victim. Although appellant did not engage in involuntary deviate sexual intercourse with the victim, he did point a rifle at the victim as appellant’s co-defendant sexually molested him. Testimony at trial indicates that both appellant and co-defendant Hoffman were the principal agressors against the victim. The trial judge further weighed the fact that the appellant had a prior history of criminal activity. In fact, the criminal conduct in the case at bar occurred merely eight hours after appellant’s release on parole from Northampton County Prison on other charges. Moreover, while appellant had been incarcerated at the aforesaid prison, he failed to avail himself of alcohol counseling and rehabilitative training available therein.

Clearly, the trial judge’s decision to impose a sentence of total confinement was consistent with the nature and seriousness of the crime and with appellant’s character and rehabilitative needs. Furthermore, the length of the sentence, four to eight years, is well within the total statutory limits for the crimes of which appellant stands convicted. Appellant’s role in this criminal episode was significant enough to warrant at least the sentence received. Where, as here, the trial judge fully complied with the philosophy of individual sentencing by considering the facts of the crime, appellant’s background and characteristics, and his need for rehabilitation, the sentence will be affirmed. That appellant’s co-defendant Hoffman received a similar sentence reflects a decision by the sentencing judge that these actors shared a similar degree of culpability. It does not in any way indicate that appellant’s sentence fails to comport with the case law and statutory requirements of this Commonwealth.

Appellant’s claim that the lighter sentences received by the two other co-defendants also constitutes an abuse of discretion by the sentencing judge is devoid of merit. A trial judge is not bound to impose similar sentences on all participants of a crime. Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). Disparity of sentences is permissible when facts exist to warrant the unequal sentences. Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973); Commonwealth v. Hollarbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982); Commonwealth v. Jezorwski, supra; Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Thurmond, 268 Pa.Super. 283, 407 A.2d 1357 (1979). When rational support exists to justify the different treatment, there is no denial of equal protection. Commonwealth v. Staub, 461 Pa. 486, 337 A.2d 258 (1975); Commonwealth v. Walters, 250 Pa.Super. 446, 378 A.2d 1232 (1977).

Herein, the two other co-defendants each received a sentence of six to twenty-three months imprisonment with immediate eligibility for work release. Co-defendant Richard Klingle, although present at the scene of the crime, refrained from engaging in any agression toward the victim. Co-defendant Brian Everitt, who pleaded guilty to unlawful restraint and subsequently testified at appellant’s trial on behalf of the Commonwealth, halted the sexual and physical abuse of the victim by appellant and Hoffman.

Clearly, sufficient reasons were apparent from the facts of the crime alone to justify a difference between the sentence of appellant and those of co-defendants Everitt and Klingle. The cooperation and less culpable behavior of the latter two differs sharply with appellant’s conduct. We find that, the trial judge properly exercised his discretion in imposing a more severe sentence on appellant than Everitt and Klingle. Appellant suffered no deprivation of his right to equal protection of the law.

Judgment of sentence affirmed.

      . Appellant does not contend that the sentencing failed to articulate the reasons for the sentence on the record as mandated by Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Consequently, we will not address that issue.

      . The maximum length of imprisonment for unlawful restraint, a first degree misdemeanor, is five years. 18 Pa.C.S.A. § 1104. Involuntary deviate sexual intercourse is a first degree felony conviction and carries a maximum penalty of twenty years imprisonment. 18 Pa.C. S.A. § 1103. Aggravated assault, robbery and conspiracy are second degree felony convictions and each carries a maximum penalty of ten years. 18 Pa.C.S.A. § 1103. Thus, appellant could have received a maximum sentence of fifty-five years.


author: CAVANAUGH, Judge:

text:
    452 A.2d 784
    COMMONWEALTH of Pennsylvania, v. Anthony VENERI, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Craig THOMAS.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Sept. 8 and 19, 1983.

      David E. Fritchey, Deputy District Attorney, Media, for Commonwealth, appellant.
    Thomas F. Lawrie, Jr., Media, for Thomas, appellee.
    David H. Kubert, Philadelphia, for Veneri, appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

      Before CERCONE, President Judge, and HESTER, CA-VANAUGH, BROSKY, McEWEN, BECK and JOHNSON, JJ.
   CAVANAUGH, Judge:

These are consolidated appeals in two separate cases from the Court of Common Pleas of Delaware County. The common issues in these otherwise unrelated cases are (1) whether an information containing only a rubber stamp facsimile of the signature of the district attorney is properly signed within the meaning of Pa.R.CrinuP. 225(b), and (2) assuming that a rubber stamp is insufficient, whether its use renders the information void ab initio or merely voidable. Because these issues have been the the subject of continuous debate in our decisional law we consolidated these cases for en banc consideration.

On July 11, 1978, a complaint was filed charging defendant Anthony Veneri with robbery and related charges in connection with an armed robbery at the Greater Delaware Valley Savings and Loan Association. A second complaint, containing similar charges in connection with an armed robbery at the Elmwood Federal Savings and Loan Association, was filed against defendant on July 13, 1978. Bills of information were subsequently filed against defendant, each containing a rubber stamp facsimile of the signature of Frank T. Hazel, the district attorney of Delaware County. The cases were consolidated for trial before a jury and defendant was convicted of both robberies. Post-verdict motions were filed and denied. This appeal followed. In his brief, defendant, for the first time, argues that his trial was void ab initio because the bills of information had not been properly signed by the district attorney. Accordingly, defendant claims that he is entitled to a discharge.

Defendant Craig Thomas was charged by a complaint of April 11, 1979, -with various drug offenses. A criminal information was filed against him containing a rubber stamp facsimile of the signature of Delaware County district attorney, Frank T. Hazel. The case then proceeded to trial before the Honorable Melvin G. Levy, sitting without a jury. After the presentation of the Commonwealth’s case, the defendant orally presented a motion to dismiss the information on the grounds that a rubber stamped signature was defective. The lower court agreed and dismissed the information. The Commonwealth then took this appeal.

Pa.R.Crim.P. 225(b) states, in pertinent part, that an information “shall be signed by the attorney for the Commonwealth.” The Rules are silent, however, as to the definition of the word “signed.” Pa.R.Crim.P. 2 states in part that the rules “shall be construed ... as nearly as may be in consonance with the rules of statutory construction;” the Statutory Construction Act in turn provides that “[wjords and phrases shall be construed ... according to their common and approved usage.” 1 Pa.C.S. § 1903(a). The Commonwealth predictably argues that a “common usage” of the term signature includes the use of a rubber stamp. Had the Supreme Court intended, in promulgating Pa.R.Crim.P. 225(b), to require a manual signature, the word “subscribe” •would have instead been used. We look first to our deci-sional law for guidance in determining the meaning of the word “signed” as used in Pa.R.Crim.P. 225(b).

In Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978), our court considered an information without any signature at all by the district attorney. In holding that such information was void ab initio, the Court stated:

When the vehicle for initiating a criminal trial (i.e. the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document. The requirement of Rule 225(b) that the information be signed by the attorney for the Commonwealth must, as a result, be deemed mandatory rather than merely directory.

Id., 258 Pa.Super. at 156-157, 392 A.2d at 731. Next, in Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980), we considered an information in which an assistant district attorney had signed the district attorney’s name followed by his own initials. The Court noted that the Judicial Code provides that an information may be signed by “any assistant district attorney whose authority to act for the district attorney ... is evidenced by a written designation executed by the district attorney . . . and filed with the clerk of the courts.” 42 Pa.C.S.A. § 8931(e), (i). The de-, fendant in Levenson did not dispute that the assistant district attorney was authorized to act for the district attorney. Thus, the court rejected defendant’s argument that the information was void because the designated assistant district attorney had not signed his full name on the information. Citing Belcher, supra, the court stated: “In the absence of a specific requirement as to the manner of signing the information, we believe that the signature required need not be made in any particular manner so long as it is subject to identification.” Id., 282 Pa.Super. at 410, 422 A.2d at 1358.

The Pennsylvania Supreme Court first addressed the signature requirement of Pa.R.Crim.P. 225(b) in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). There the court examined informations containing a rubber stamp facsimile of the district attorney’s signature followed by “Approved 12-20-78 R.C.W.” (R.C.W. were the initials of an assistant district attorney). Rejecting the defendant’s claim that the informations were invalid because they lacked the personal signature of the district attorney, the Court, citing 42 Pa.C.S.A. § 8931, Pa.R.Crim.P. 225(b), as well as our opinion in Commonwealth v. Belcher, supra, stated: “We believe that the approval and initialing of the information by an assistant district attorney, along with the stamped approval by the district attorney, complies with our rules, the Judicial Code and the concerns enunciated in Belcher, as [the assistant district attorney] has been designated to act in the district attorney’s stead in the manner called for in the Judicial Code.” Id., 492 Pa. at 470, 424 A.2d at 1287. Accord, Commonwealth v. Walters, 303 Pa.Super. 203, 449 A.2d 649 (1982). .

Contakos, which involved a rubber stamp signature of a district attorney and initialing by a duly designated assistant district attorney, was distinguished by our court in Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981) (allocatur granted) where we considered informations identical to those in the instant appeals, viz., containing only a rubber stamp facsimile of the signature of Delaware County District Attorney Frank T. Hazel. We held in that case that the use of a rubber stamp facsimile, standing alone, does not meet the signature requirement of Pa.R. Crim.P. 225(b).

Were we to approve the use of a rubber stamp, it would be virtually impossible to identify the person who stamped the information. See Commonwealth v. Levenson, supra. If that person is unknown, then, as in the case of an information with a blank signature line, “it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made.” Commonwealth v. Belcher, supra. Moreover, were we to approve the Commonwealth’s practice in this case, the Judicial Code provision requiring district attorneys to file with the clerk of the courts a written designation identifying assistant district attorneys authorized to sign informations for them would be rendered meaningless. An assistant district attorney who has not been so authorized could “sign” informations with the rubber stamp. We believe that it is not an unreasonable burden to require district attorneys, or assistant district attorneys acting for them in accordance with 42 Pa.C.S. § 8931(i), to sign informa-tions manually. Accordingly, we hold that the lower court properly concluded that the informations in this case were not “signed” by the district attorney as required by Rule 225(b).

Id., 285 Pa. Super, at 597-598, 428 A.2d at 206 (citation omitted).

In this appeal, we are asked to evaluate the continued viability of Commonwealth v. Emanuel, supra. We have done so and, accordingly, concur in its conclusion that the signature requirement of Pa.R.Crim.P. 225(b) is not met by a mere rubber stamp facsimile of the district attorney’s signature.

We see no merit to the Commonwealth’s argument that Pa.R.Crim.P. 225(b) would have used the term “subscribed” rather than “signed” if the intention was to require an actual signature by the district attorney and that, therefore, a rubber stamp facsimile of that signature suffices. Under Pa.R.Crim.P. 225(a) the attorney for the Commonwealth has the discretionary power to either proceed with charges by information or move to nolle prosequi the charges. The district attorney or his designee is also mandated to inquire into .and make full examination of all the facts and circumstances connected with each case to determine if the filing of an information is warranted 42 Pa.C.S.A. § 8931(d). Thus the act of approving the information is one fraught with grave consequences not the least of which may be the career, reputation and very freedom of the defendant. It would demean the significance of this fateful document if we were to interpret the words “shall be signed” to permit affixing a rubber stamp facsimile to the information. We would thus reduce the required attestation to a mere clerical mechanism no different or more deliberative, for example, than assigning the information a file number for office convenience. It would be simpler and just as meaningful to have the name of the attorney for the Commonwealth pre-printed on the information form. It is, therefore, our belief that only a written indication, by the district attorney or his designee, that the charges contained in an information have been considered and approved satisfy the “signature” requirement of Pa.R.Crim.P. 225(b). While the prosecution may find the personal signature requirement of Pa.R. Crim.P. 225(b) to be burdensome, any inconvenience is far outweighed by the need for a deterrent against frivolous charging of an accused.

We must then decide whether the absence of a required signature renders the information void ab initio or merely voidable.

As we have noted, the court in Commonwealth v. Belcher, supra, held that the signature requirement of Pa.R.Crim.P. 225(b) was mandatory and not merely directory. It was, therefore, held that the failure of the district attorney to sign an information renders it void ab initio. As a result, a defendant charged by a defective information need not raise that defect prior to trial. Id., 258 Pa. Super, at 156 n. 4, 392 A.2d at 731 n. 4.

No decision since Belcher has squarely raised the void/voidable issue. Such a discussion was unnecessary in Commonwealth v. Contakos, supra, where the Supreme Court held the challenged information to be sufficient. The Contakos court did cite Belcher, but only for the purpose of demonstrating the Court’s consideration of the concerns raised therein regarding the need for a signed information. The Court, furthermore, distinguished Belcher as presenting a different question than that before it in Contakos, i.e. an information which contained no signature whatsoever. Under these circumstances, it cannot be said that the Contakos court adopted the holding in Belcher that an unsigned information is void and need not be raised pre-trial.

In Commonwealth v. Emanuel, supra, we declined to address the void/voidable issue because the defendant, in that case, had objected to the rubber stamped information in a pre-trial motion. See also, Commonwealth v. Dupree, 290 Pa.Super. 202, 434 A.2d 201 (1981).

Hence Belcher remains the existing authority on the void/voidable question. Interestingly, however, two recent cases decided by this Court appeared to disregard Belcher. In Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981), the court stated “under the state of the present law, appellant’s failure to file a pre-trial motion to quash the information constitutes a waiver of his right to assert this impropriety in any subsequent proceeding.” Id., 292 Pa.Super. at 197 n. 5, 436 A.2d at 1220 n. 5. That portion of Harper was quoted with approval in Commonwealth v. Watts, 294 Pa. Super. 319, 439 A.2d 1220 (1982). Neither Harper nor Watts contained a reference to Belcher.

While we find that Harper and Watts were wrongly decided in light of Belcher, we believe that Belcher is incorrect law and must be overruled. We instead hold that the signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash. Pa.R.Crim.P. 306.

We have already concluded that a signed information is required as a memorial that there has in fact been a responsible decision to proceed with charges by one who holds a public trust. A defendant has a right to demand that a public official who accuses him of a crime give tangible evidence of his prosecutorial decision; that is, to require that the attorney for the Commonwealth or his designee sign- the information and thereby assume responsibility for his discretionary and deliberative charging act. Such a demand can be reasonably made only prior to trial so that the Commonwealth can have an opportunity to rectify an unsigned information.

Our reasoning is twofold. First, it is clear that the absence of a signature does not prejudice the defendant in his preparation for trial. Secondly, it is unrealistic to assume that Pa.R.Crim.P. 225(b) intended the signature of the attorney for the Commonwealth to be the exclusive deliberative act which charged the defendant and that its absence annuls the validity or integrity of an otherwise untainted prosecution process. If the case has gone on to a point where the information has lost any meaning, i.e., where the Commonwealth has begun to support the charges by proof at trial or the defendant stands convicted, to even require a signature at that stage would be not only meaningless but a mere technical vanity. To upset a just verdict for want of a signature would be judicial sleight of hand of totally unacceptable proportions.

Some of our rules are sufficiently significant so as to entitle a defendant to a discharge where they have been violated even though their violation is unrelated to guilt or innocence, e.g. Pa.R.Crim.P. 1100. We do not believe that the prosecution’s failure to satisfy Pa.R.Crim.P. 225(b) is equally significant to justify, for its abridgement, the extreme remedy of discharge.

Our analysis leaves remaining the question of whether the defendants have timely raised the defect in the informations by which they were charged. Defendant Veneri first challenged the use of a rubber stamped information in his appeal to this Court; defendant Thomas did so after the Commonwealth had rested its case at trial. Neither defendant filed a pre-trial motion to quash the informations as required by Pa.R.Crim.P. 306. Their claims have, therefore, been waived.

The judgment of sentence in Veneri is affirmed. The lower court’s order dismissing the information in Thomas is reversed and the case remanded for trial.

      . See, e.g. Commonwealth v. Brinton, 303 Pa.Super. 14, 21 n. 12, 449 A.2d 54, 57 n. 12 (1982).

      . “Signature” is defined in Black’s Law Dictionary, 4th edition, as follows:
      The act of putting down a man’s name at the end of an instrument to attest its validity, the name thus written. A “signature” may be written by hand, printed, stamped, typewritten, engraved, photographed ... it being immaterial with what kind of instrument a signature is made.

      . “Signed” and “Subscribed” are distinguished in Black’s Law Dictionary, 4th edition, as follows:
      To “sign” is merely to write one’s name on paper, or- declare assent or attestation by some sign or mark, and does not, like “subscribe,” require that one should write at the bottom of the instrument signed.
      The word “subscribed” is more restricted than the word “signature.” The word “signature” in its origin involves merely a sign, the word “subscribed” involves a writing.

      . Three recent decisions of this court have cited Commonwealth v. Emanuel, supra, but have not re-assessed its conclusions. Commonwealth v. Dupree, 290 Pa.Super. 202, 434 A.2d 201 (1981); Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981); Commonwealth v. Watts, 294 Pa.Super. 319, 439 A.2d 1220 (1982).

      . We have reviewed the several additional claims raised by appellant Veneri and find that they do not entitle him to relief.