author: BECK, Judge:

text:
    456 A.2d 622
    COMMONWEALTH of Pennsylvania v. Alphonzo F. ZABALA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1981.
    Filed Feb. 11, 1983.
    Petition for Allowance of Appeal Denied June 2, 1983.

      Abraham A. Hobson, III, Norristown, for appellant.
    Robert P. Brendza, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   BECK, Judge:

Appellant Alphonzo F. Zabala appeals from the judgment of sentence entered by the Court of Common Pleas of Chester County after a jury convicted Appellant of robbery, burglary, theft by unlawful taking or disposition, terroristic threats, recklessly endangering another person, simple assault, receiving stolen goods, and conspiracy. We affirm.

On January 27, 1977, a burglary and robbery occurred at the Chester County home of Dr. Caeser Sarni while Dr. Sarni’s housekeeper was in the home. Although the housekeeper was prevented from summoning assistance during the commission of the crime, she contacted the police shortly after the crimes had been completed and described one of the three perpetrators.

Two days later in Chester County the housekeeper [hereinafter “the witness”] worked with police artists to produce a composite sketch of the individual she had previously described. On February 4, 1977, the witness identified a picture of Appellant’s brother, Vincent Zabala, from a display of fourteen photographs which did not include a picture of Appellant.

Subsequently, in March of 1977, Montgomery County police officers armed with a warrant searched the shop space (coin shop) which Appellant rented in a Montgomery County building. In the building’s boiler room the officers found an unsecured cloth bag inside which were burglary tools and several notebooks. One of the notebooks contained the address of Dr. Caesar Sarni.

On July 15, 1977, under the direction of Chester County police and the Federal Bureau of Investigation a display of six photographs which included a picture of Appellant but did not include a picture of Appellant’s brother Vincent, was shown to the witness at which time the witness identified Appellant’s photograph.

In August of 1977 a Montgomery County judge ruled that the warrant authorizing the March search of Appellant’s Montgomery County coin shop was invalid. Consequently, the evidence seized pursuant to the warrant was suppressed in the Montgomery County proceedings against Appellant.

On September 23, 1977, Appellant was charged in Chester County with multiple offenses stemming from the January 27, 1977, entry into Dr. Sarni’s residence. On March 14, 1978, a mistrial was declared because the jury could not agree upon a verdict, and a new trial was ordered.

As a result of continuances requested by Appellant and extensions requested by the Commonwealth, Appellant’s second trial did not commence until October 27, 1980.

In conjunction with his new trial Appellant filed a motion to dismiss the charges against him, alleging that his second trial commenced after the time period specified in Pa.R. Crim.P. 1100(e). Additionally, Appellant filed a motion to suppress not only the evidence seized in Montgomery County during the March, 1977, search of the building in which Appellant rented space (coin shop) but also the witness’s in-court identification of Appellant. Finally, Appellant asked the Chester County court not to permit the introduction of evidence relating to Appellant’s prior convictions for crimes involving dishonesty, which evidence the Commonwealth sought to utilize to impeach Appellant’s credibility.

All of Appellant’s motions were denied, and on October 30, 1980, a jury found Appellant guilty of robbery, burglary, theft by unlawful taking or disposition, terroristic threats, recklessly endangering another person, simple assault, receiving stolen goods, and conspiracy.

Appellant’s post-trial motions in arrest of judgment and for a new trial were denied, and after a hearing Appellant was sentenced in accordance with the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and the doctrine of merger, Commonwealth v. Eberts, 282 Pa.Super.Ct. 354, 422 A.2d 1154 (1980); Commonwealth v. Crocker, 280 Pa.Super.Ct. 470, 421 A.2d 818 (1980). Thereafter, Appellant filed a direct appeal from the judgment of sentence.

Initially, Appellant contends on appeal that his motion to dismiss should have been granted because his new trial did not begin within the 120-day period mandated by Pa.R.Crim.P. 1100(e).

Due to a “hung” jury Appellant’s first trial was terminated by a declaration of mistrial on March 14, 1978, at which time a new trial was ordered. Pursuant to Rule 1100(e) the run date for Appellant’s new trial was July 12, 1978, i.e., 120 days from the date on which the new trial was ordered. Although several lengthy continuances and extensions delayed the start of Appellant’s trial until October 27, 1980, Appellant’s argument on appeal concerns only the period between March 14, 1978, and February 20, 1979, during which Appellant was not brought to trial.

On March 22, 1978, the Commonwealth filed an application to extend the commencement of trial. A rule to show cause why the Commonwealth’s application should not be granted was entered against Appellant and made returnable on April 3, 1978. A hearing on the application was scheduled for July 12, 1978.

Meanwhile, Appellant executed a written waiver of his Rule 1100 rights from July 3, 1978, to October 14, 1978, and was granted a continuance to the October, 1978, trial term.

On July 12, 1978, the Commonwealth’s application to extend was granted, and the time frame within which the Commonwealth could try Appellant was expanded to October 17, 1978.

Having learned that his case was listed for October 10, 1978, Appellant appeared in court on September 22, 1978, to request an additional continuance until the November, 1978, trial term. Appellant waived Rule 1100 until November 13, 1978, and was granted a continuance coextensive with the length of his waiver.

On October 16, 1978, the Commonwealth filed an application to extend the start of Appellant’s trial. A rule to show cause why the Commonwealth’s application should not be granted was entered against Appellant, and a hearing on the application was scheduled for January 17, 1979.

On November 6, 1978, Appellant’s trial attorney filed a petition to withdraw as Appellant’s counsel, and a rule to show cause was entered against the Commonwealth. A hearing on the petition was conducted on November 13, 1978, at which time counsel was permitted to withdraw.

On November 14, 1978, Appellant executed a written waiver of Rule 1100 until the conclusion of the December, 1978, criminal trial term. The waiver stated that Appellant’s Rule 1100 rights had been explained to him by his former counsel and were also explained to him in open court on November 14, 1978, by the assistant district attorney and the trial judge.

On November 27, 1978, through his new counsel Appellant filed an application for a continuance until March 31, 1979, and concomitantly executed a written waiver of Rule 1100 until March 31, 1979. At a hearing on December 4, 1978, in the presence of Appellant and counsel for the Commonwealth, Appellant’s new counsel requested, and received, a continuance through the February 1979 trial term. The court asked Appellant' if his new counsel had explained Appellant’s Rule 1100 rights, and Appellant replied that his rights had been explicated and that he was waiving Rule 1100 through the February 1979 trial term. Judge Stively entered an order directing that the “matter be continued, [Appellant] having waived Rule 1100 for the period of time required to relist this matter for trial.”

Subsequently, the case appeared on the January 8, 1979, trial list. Both counsel for Appellant and counsel for the Commonwealth were present in the courtroom before Judge Pitt when the case was called on January 8. Appellant’s counsel indicated his readiness to proceed to trial. However, counsel for the Commonwealth stated that the Commonwealth was not prepared to begin its presentation since its witnesses were not present. Asked by Judge Pitt to explain the witnesses’ • absence, counsel for the Commonwealth responded that he and counsel for Appellant had agreed orally before Judge Stively to a waiver of Rule 1100 until the end of the February, 1979, trial term. Appellant’s counsel concurred with the prosecutor’s response, adding, “It was an oral waiver by Judge Stively. It is a valid waiver ----” Accordingly, Judge Pitt deemed the case continued until the February trial term.

On February 20, 1979, the case was again called to trial before Judge Pitt. The Commonwealth reiterated its position that Appellant had waived Rule 1100 through the February trial term, but nevertheless the Commonwealth requested an extension until February 24, 1979. Counsel for Appellant acceded to the Commonwealth’s request for an extension, stating that “February 24 ... is satisfactory to the defense.” Thus, Judge Pitt relisted the case for February 24, 1979, having found a waiver of Rule 1100 by Appellant and a timely application for extension by the Commonwealth, which application was duly supported by a showing that the Commonwealth had exercised due diligence in attempting to bring Appellant to trial.

Appellant concedes that under Rule 1100(d)(2)-(3) the interim from July 3, 1978, to January 8, 1979, is excludable from a determination of the trial date as a consequence of Appellant’s express waivers of Rule 1100 and the granting of continuances requested by Appellant. However, Appellant asserts that 110 days elapsed from March 14, 1978, until July 3, 1978, and that an additional 41 days elapsed from January 8, 1979, until February 20, 1979, i.e., that a span of 151 days occurred during which the Commonwealth did not seek an extension and Appellant neither waived Rule 1100 nor applied for a continuance. Based upon this computation Appellant maintains that the Commonwealth exceeded the 120-day period of Rule 1100(e) and that the charges against him must therefore be dismissed.

In calculating a total of 151 days, Appellant argues that despite having orally agreed before Judge Stively on December 4, 1978, to waive Rule 1100 until the end of the February, 1979, trial term, he effectively revoked his waiver on January 8, 1979, when his counsel appeared at the call of his case and announced his readiness to proceed to trial.

Repeatedly it has been held that

‘Rule 1100, like the right to a speedy trial which it protects, may be waived.’ Commonwealth v. Myrick, 468 Pa. 155, 159, 360 A.2d 598, 600 (1976). There are no formal requirements for a valid waiver of Rule 1100; ‘[s]o long as. there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity.’ Id., 468 Pa. at 160, 360 A.2d at 600.

Commonwealth v. Brown, 497 Pa. 7, 11, 438 A.2d 592, 594 (1981); Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

In this instance the colloquy at the December 4, 1978, hearing, the statements of Appellant’s counsel at the January 8, 1979, call of the case and the written waiver of Rule 1100 executed by Appellant on November 27, 1978, in conjunction with his application for a continuance evidence that on December 4, 1978, Appellant validly waived Rule 1100 until the close of the February, 1979, trial term. “[Sjince [Appellant’s] waiver of his Rule 1100 rights was valid, it could not ... be revoked____” Evans, 489 Pa. at 90, 413 A.2d at 1027 (footnote deleted). Thus, the trial court properly denied Appellant’s motion to dismiss the charges against him.

Next, Appellant contends that the Chester County trial court should have granted his motion to suppress evidence seized from the boiler room of the Montgomery County building in which Appellant rented space (coin shop).

Appellant states that his contention is buttressed by the ruling of a judge of the Court of Common Pleas of Montgomery County which held invalid the warrant pursuant to which Montgomery County police searched Appellant’s shop and the boiler room of the building in which the shop was located.

At the Chester County trial the Commonwealth did not introduce evidence derived from a search of Appellant’s shop, but rather, presented evidence found in the boiler room of the building in which Appellant’s shop was situated. Therefore, our inquiry concerns whether, with respect to the unsecured cloth bag left in the building’s boiler room, Appellant had a legitimate expectation of privacy which would invoke the protection of the fourth amendment. Commonwealth v. Freeman, 295 Pa.Super.Ct. 467, 441 A.2d 1327 (1982).

This inquiry ... embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ . i.— whether, in the words of the Katz [v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ] majority, the individual has shown that ‘he seeks to preserve [something] as private .... ’ The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable” ’ ...—whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances.
... ‘Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society____’ Thus, the Supreme Court has considered whether the individual claiming the protection of the fourth amendment took ordinary precautions to insure his privacy ... and has examined the manner in which an individual has used a particular location ____

Commonwealth v. Sell, 288 Pa.Super.Ct. 371, 378-79, 432 A.2d 206, 210 (1981) (citations omitted) (footnote deleted), allocatur granted, October 9, 1981.

In the case at bar the cloth bag found in the boiler room was not locked or secured in any manner and accordingly lacked any indication that Appellant intended its contents to be private. See, e.g., United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Commonwealth v. Gabrielle, 269 Pa.Super.Ct. 338, 409 A.2d 1173 (1979), where a legitimate expectation of privacy existed because items were stored in secured lockers. Furthermore, Appellant had not otherwise appropriated the boiler room to his own use. The boiler room served offices in the building other than Appellant’s shop and was not only unlocked but was also accessible from a foyer used in common by the occupants of the four first-floor offices among which was Appellant’s shop. Thus, Appellant did not enjoy a legitimate expectation of privacy in regard to the unsecured cloth bag found in the boiler room.

Because the fourth amendment guarantees do not extend to the items inside the unsecured bag left in the boiler room, the alleged invalidity of the warrant pursuant to which Montgomery County police conducted their search of Appellant’s shop and the building’s boiler room is immaterial to the admissibility of the evidence seized in the boiler room. Consequently, the trial court correctly denied Appellant’s motion to suppress the evidence seized in the boiler room, i.e., the unsecured cloth bag containing notebooks and burglary tools.

Additionally, Appellant asserts that the trial court should have suppressed his in-court identification by the Commonwealth’s witness because his arrest stemmed from (1) an illegal search and seizure and (2) an uncounseled photographic display.

Having already determined that the police search of the boiler room and accompanying seizure of the cloth bag were not within the ambit of protection afforded by the fourth amendment, we deem moot Appellant’s assertion that his arrest was the fruit of an unlawful search and seizure.

We now consider whether Appellant’s arrest resulted from an out-of-court photographic identification which was illegal either because it was uncóunseled or because it was suggestive.

Pennsylvania courts have long held that an accused’s right to counsel is triggered by the accused’s arrest. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), cert. denied, 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1970); Commonwealth v. Liverpool, 294 Pa.Super.Ct. 133, 136 n. 6, 439 A.2d 786, 787 n. 6 (1982); Commonwealth v. Riley, 284 Pa.Super.Ct. 280, 290 n. 7, 425 A.2d 813, 818 n. 7 (1981); Commonwealth v. Mallon, 279 Pa.Super.Ct. 350, 421 A.2d 234 (1980); Commonwealth v. Knox, 273 Pa.Super.Ct. 563, 417 A.2d 1192 (1980). For example, in Whiting the Pennsylvania Supreme Court declared that an accused had the right to counsel at a post-arrest photographic identification because such a post-arrest identification constituted a “critical stage” in the criminal proceedings against the accused. Following Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Pennsylvania Supreme Court explained in Richman that the United States Supreme Court applied

the Sixth Amendment right to counsel ... only to lineups conducted ‘at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information or arraignment.’ 406 U.S. at 689 [92 S.Ct. at 1882].
Kirby does not establish an all inclusive rule; rather, the line to be drawn depends upon the procedure employed by each state. We are therefore faced with the issue of whether this lineup preceded the ‘initiation of adversary judicial proceedings’ as defined in Pennsylvania
____ [W]e hold that Commonwealth v. Whiting ... appropriately draws the line for determining the initiation of judicial proceedings in Pennsylvania at the arrest.

Id. 458 Pa. at 171, 320 A.2d at 353; accord, Scott 469 Pa. at 270 n. 9, 365 A.2d at 146 n. 9; Commonwealth v. Garland, 234 Pa.Super.Ct. 241, 243 n. 1, 339 A.2d 109, 110 n. 1 (1975); Commonwealth v. Tate, 229 Pa.Super.Ct. 202, 207 n. 1, 323 A.2d 188, 191 n. 1 (1974) (Hoffman, J., dissenting) (All three cases note that the Pennsylvania Supreme Court has not yet departed from the views expressed in Whiting despite the United States Supreme Court’s decision in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)).

Since at the time of the July 15, 1977, photographic identification Appellant was not under arrest in Chester County for the crimes relating to the entry of Dr. Sarni’s residence (Appellant was not arrested in Chester County for said crimes until December 1, 1977), Appellant could not assert a right to counsel’s presence at the photographic display. Therefore, the out-of-court photographic identification of Appellant was not unlawful because counsel for Appellant did not witness the identification.

Alternatively, Appellant argues that the out-of-court photographic identification should be deemed invalid because it was “ ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” Commonwealth v. Griffin, 271 Pa.Super.Ct. 228, 233-34, 412 A.2d 897, 900 (1979) (citation omitted), allocatur denied, April 1, 1980.

“When the accused challenges an identification, it is the Commonwealth’s burden to prove that the identification procedure was not unduly suggestive.” Commonwealth v. Lee, 262 Pa.Super.Ct. 280, 286, 396 A.2d 755, 757 (1978), allocatur denied, May 16, 1979. At the suppression hearing in this matter the Commonwealth’s witness, a special agent for the Federal Bureau of Investigation, and a Chester County police officer testified that they were present at the July 15, 1977, photographic display. All three testifiers stated that (1) the photographic display consisted of six black and white photographs of white males in their late twenties and thirties and (2) the photographs were arranged in two rows of three pictures each and placed on a table for viewing by the Commonwealth’s witness. Each of the pictures was identified only by a number assigned sequentially so that the display could be accurately preserved. At the suppression hearing the Commonwealth offered the display into evidence as an exhibit, thereby affording counsel for Appellant an opportunity to observe the array and cross-examine regarding it. Commonwealth v. Brown, 302 Pa.Super.Ct. 80, 448 A.2d 535 (1982). Furthermore, all three testifiers maintained that the Commonwealth’s witness was not influenced to identify any of the photographs in the display but was merely asked to view the display to ascertain whether she could recognize any of the persons pictured.

Nevertheless, Appellant contends that the July 15, 1977, display was suggestive in that although the Commonwealth’s witness had identified a picture of Appellant’s brother at the February 4, 1977, photographic display which did not contain a picture of Appellant, at the July 15, 1977, display a picture of Appellant’s brother was not included, and the Commonwealth’s witness identified Appellant’s picture which did appear in the second display.

While the witness’s having identified both Appellant and Appellant’s brother as her attacker may affect the weight and credibility accorded by the jury to her testimony, Commonwealth v. Boone, 287 Pa.Super.Ct. 1, 429 A.2d 689 (1981), it does not render the July 15, 1977, display suggestive. See, e.g., Commonwealth v. Lavelle, 277 Pa. Super.Ct. 518, 419 A.2d 1269 (1980). Although Appellant does have a right not to have his picture differ markedly from other pictures presented in a photographic display, Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976) (In a thirteen-picture display eleven pictures, excluding the accused’s, were mug shots. In an eleven-picture display only the accused was shown in a polaroid snapshot.); Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981) (similarity of physical features), there are no cases according Appellant the right to choose the persons whose photographs appear in the display. Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (affirmance resulting from equally divided court; court unanimous regarding no right to choose photographs for array) (no right to have possible accomplices’ pictures in display). Here, the testimony at the suppression hearing indicated that all six photographs were black and white photographs depicting similarly-featured white males of approximately the same age. There was no evidence that the photographs did not comport with either the composite sketch supplied by the Commonwealth’s witness two days after the crime or the description that the witness provided to the police immediately after the crime. Thus, in these respects, the out-of-court photographic identification was not suggestive and was properly held admissible by the suppression hearing judge. Commonwealth v. Hall, 456 Pa. 243, 317 A.2d 891 (1974); Griffin.

Assuming arguendo, however, without deciding, that the witness’s having seen the photograph of Appellant’s brother in February might have unduly influenced her identification of Appellant in July, Fowler (repetitive display of the accused’s photograph between May and August, rather than the witness’s remembrance of perpetrator at actual occurrence of the crime, may have caused witness’s recognition and identification of accused’s photograph), we proceed to consider whether the witness’s in-court identification of Appellant had a basis independent of the out-of-court photographic identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Keaton, 276 Pa.Super.Ct. 518, 419 A.2d 578 (1980).

Subsequent to an illegal arrest or a suggestive out-of-court identification, an in-court identification is admissible if, considering the totality of the circumstances, it is determined that the in-court identification had an independent origin sufficiently distinguishable from the impermissible pre-trial encounter so as to be purged of any taint of that initial illegality ____ Such an independent basis need not be established by the Commonwealth beyond a reasonable doubt, but only by the existence of clear and convincing evidence.

Commonwealth v. Davis, 264 Pa.Super.Ct. 505, 509, 400 A.2d 199, 201 (1979); Commonwealth v. Smith, 290 Pa.Super.Ct. 33, 434 A.2d 115 (1981).

‘[T]he suggestiveness of a courtroom identification is only one factor to be considered in determining the reliability of the identification____’ A victim’s in-court identification of an accused is admissible into evidence if there are sufficient guarantees that the identification resulted from the victim’s memory of the actual attack by the assailant, rather than the victim’s memory of seeing the accused at an illegal show-up, lineup, [photographic identification] etc.
The factors to be considered in determining whether the in-court identification testimony was purged of any primary illegality are: (1) the prior opportunity [of the victim] to observe the criminal act; (2) any discrepancy between any pre-confrontation description and [the accused’s] actual appearance; (3) any identification of anyone other than [the accused]; (4) any failure to identify [the accused]; (5) the lapse of time between the criminal act and the confrontation; (6) [the victim’s] degree of attention; and (7) the degree of certainty in identifying [the accused].

Commonwealth v. W.P., 302 Pa.Super.Ct. 66, 70, 448 A.2d 97, 99 (1982) (citations omitted).

The unlawful entry into the Sarni residence occurred at 11:00 in the morning when a man (hereinafter referred to as Appellant) came to the door of the Sarni residence and asked the Commonwealth’s witness for directions. The witness spoke at the door with Appellant for the length of time necessary to provide appropriate directions. The witness testified that she was standing approximately four feet from Appellant while she was speaking with him and that their conversation lasted a few seconds to a few minutes. Appellant then took a gun from his pocket and forced his way through the doorway and into the entrance hallway of the Sarni home which led to the kitchen. The witness asserted that the hall light provided additional opportunity for her to observe Appellant as he backed her along the twelve-foot hallway to the kitchen. Furthermore, the witness stated that from the moment she spoke with Appellant at the door until she and Appellant reached the kitchen, she and Appellant were facing each other.

In the police interview conducted on January 27, 1977, immediately after the crime, the witness noted the following distinguishing features of her attacker: dirty blond hair partially covered by a ski cap; white male in late twenties or thirties; 5'8"; stocky; white parka; square-shaped, metal frame eyeglasses. The witness repeated this description at the suppression hearing and stated that she could identify Appellant based solely on her recollection of seeing him at the time of the crime. Moreover, the witness’s recollection of Appellant was used by the police on January 29, 1977, to create a composite sketch which guided the selection of pictures for the subsequent photographic displays.

Although the witness identified a picture of Appellant’s brother at the February 4, 1977, photographic display, this misidentification does not detract significantly from the witness’s identification of Appellant on July 15, 1977. In identifying Appellant’s brother the witness stated that if the pictured man were wearing eyeglasses, he would look like her attacker. Although the record does not reveal the extent to which Appellant resembles his brother, the record does establish that Appellant wears eyeglasses. Finally, the witness stated that after her July 15, 1977, identification of Appellant she had compared pictures of Appellant and Appellant’s brother and was certain tht Appellant was her assailant.

Thus, the witness’s in-court identification was based on her memory of the crime itself and was sufficiently independent of any possibly suggestive, intervening, out-of-court photographic identification so as to be admissible into evidence as the hearing judge ruled.

Finally, Appellant argues that his case was prejudiced by the trial court’s refusal to prevent the Commonwealth’s introduction of Appellant’s prior convictions for the purpose of impeaching Appellant’s credibility.

Since evidence of prior convictions may unduly influence a jury’s decision in a pending case by suggesting an accused’s propensity for crime, such evidence is admissible only where the Commonwealth proves that its need for such evidence outweighs the potential prejudicial effect of the evidence. Commonwealth v. Williams, 273 Pa.Super.Ct. 389, 417 A.2d 704 (1980).

In Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978), the Pennsylvania Supreme Court enumerated various factors to be evaluated by the trial court in determining the admissibility of prior conviction evidence:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

Henderson; Williams. These criteria will be discussed seriatim in relation to Appellant’s case.

The Commonwealth sought to offer into evidence Appellant’s 1980 Pennsylvania convictions for theft and forgery. Thus, as in Henderson the Commonwealth adduced evidence of two crimen falsi which were “highly pertinent to [Appellant’s] veracity and credibility.” Id. 497 Pa. at 36, 438 A.2d at 957. Moreover, because the convictions were recent, “their relevance [was] not attenuated by age.” Id.

The prior convictions for forgery and theft differed enough from the present charges against Appellant (terroristic threats, recklessly endangering another person, simple assault, robbery, burglary, theft by unlawful taking, receiving stolen goods, conspiracy) to preclude the jury’s assumption that the earlier convictions demonstrated the likelihood of Appellant’s having committed the acts with which he was currently charged. See Williams.

Appellant was an adult self-employed as the owner of a coin shop.

The Commonwealth’s case was supported principally by the testimony of the victim-witness, i.e., the Sarni’s housekeeper. Appellant was not apprehended in the actual commission of any of the crimes with which he was charged. The cloth bag found in the boiler room of the building in which Appellant rented space tended to imply Appellant’s participation in the Sarni incident but did not directly establish Appellant’s guilt. Furthermore, the Commonwealth was unable to secure a unanimous verdict in Appellant’s first trial and could logically anticipate difficulty in persuading the jury at the second trial if Appellant intended to testify.

The Commonwealth lacked alternative means for impeaching Appellant’s credibility since Appellant had not made prior inconsistent statements on the record and the Commonwealth could not produce any witness other than the victim who could testify about Appellant’s presence at, and participation in, the crime. The Commonwealth did not possess other methods of successfully “cross-examining [Appellant] upon his mere denial of guilt.” Henderson 497 Pa. at 37, 438 A.2d at 957.

Accordingly, the trial court properly permitted the Commonwealth to introduce evidence of Appellant’s 1980 convictions for theft and forgery as a means of attacking Appellant’s veracity as a witness. For the foregoing reasons we affirm the judgment of sentence of the Court of Common Pleas of Chester County.

      . Following a jury trial begun on November 7, 1977, Appellant was acquitted in the United States District Court for the Eastern District of Pennsylvania of a charged violation of 18 U.S.C.App. § 1202(a)(1) [former felon not to possess firearm] arising from the Sarni incident.

      . Appellant was arrested in Chester County on December 1, 1977.

      . Both Appellant and the Commonwealth requested, and were granted, multiple continuances and extensions throughout the course of this case. On several occasions the periods of the continuances and extensions overlapped.

      . The colloquy on the record establishes that Appellant’s waiver was both informed and voluntary and was therefore valid. Commonwealth v. Krasner, 285 Pa.Super.Ct. 389, 427 A.2d 1169 (1981).

      . Additionally, on February 20, 1979, Appellant sought reconsideration of the trial court’s refusal to suppress evidence in Appellant’s original Chester County trial and moved for dismissal of the charges against him, claiming that his trial in Chester County was barred by a prior federal prosecution arising from the same incident. See note 1, supra. After reviewing the notes of the suppression hearing that preceded the original trial, Judge Pitt affirmed the denial of Appellant’s motion to suppress. Moreover, after hearing testimony from Appellant and brief arguments by counsel for Appellant and the Commonwealth, Judge Pitt also denied Appellant’s motion for dismissal on the grounds of double jeopardy.

      . In suppression cases our scope of review where the Commonwealth has prevailed below consists of determining
      whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

        Commonwealth v. Hunt, 280 Pa.Super.Ct. 205, 207-08, 421 A.2d 684, 685 (1980).

      . In the interests of completeness and clarity we note that had we found Appellant’s arrest to be illegally based upon an improper search and seizure, the witness’s in-court identification of Appellant would not be automatically suppressed. The in-court identification would be admissible if its source were independent of the prior illegality. Commonwealth v. Townsend, 280 Pa.Super.Ct. 155, 421 A.2d 452 (1980).

      . At the time of the first photographic identification, i.e., February 4, 1977, Appellant’s photograph was not shown to the Commonwealth’s witness. Consequently, Appellant disputes the legality of only the July 15, 1977, (second) photographic identification.

      . The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest .... An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest.

        Commonwealth v. Benson, 280 Pa.Super.Ct. 20, 27, 421 A.2d 383, 386 (1980), allocatur denied, December 10, 1980. "The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.” Commonwealth v. Haggerty, 495 Pa. 612, 615, 435 A.2d 174, 175 (1981).

      . For example, the FBI special agent testified that he "advised [the Commonwealth’s witness] that there was a possibility that someone who was involved in the [Sarni incident] ... possibly could be there
        [i.e., in the photographic display], and quite possibly they were not. I just told her to look at the pictures ...." (N.T. at 109-10.)


source: Caselaw Access Project

author: JOHNSON, Judge: WATKINS, Judge,

license: Public Domain

text:
    456 A.2d 632
    Patrick DUNN v. MAISLIN TRANSPORT LIMITED, A Corporation Organized and Existing Under the Laws of The Dominion of Canada, and Guy Castiglia, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed Feb. 11, 1983.
    Petition for Allowance of Appeal Denied May 12, 1983.

      Mark A. Ciavarella, Jr., Wilkes-Barre, for appellants.
    John J. Byrne, Scranton, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This case presents the issue of whether an order precluding defendants from entering any defense at trial as to plaintiffs claim, where unverified answers to interrogatories have already been delivered to plaintiff, constitutes an abuse of discretion as an inappropriate sanction under Pa.R. C.P. 4019. Because our review of the facts leads to the conclusion that the sanction here imposed was unwarranted, we reverse and remand.

This action, involving damage claims for both personal injury and property loss, arose out of a collision between plaintiffs 1976 Lincoln automobile and a tractor-trailer .owned by the corporate defendant and operated by the individual defendant. The accident occurred on Interstate Route 84 in Lackawanna County at approximately 4:45 a.m. on October 3, 1977. An original complaint was filed on September 5, 1978, and amended complaints were filed on December 6, 1978 and July 3, 1979.

On January 30, 1979, interrogatories propounded by the plaintiff to each of the defendants were filed. On July 21, 1980, a year following the filing of plaintiff’s second amended complaint, he secured a rule on the defendants to show cause why sanctions should not be imposed for defendants’ failure to either object or make answer to the interrogatories. In his motion for sanctions, pursuant to Rule 4019(a), plaintiff suggested five alternative sanctions for the consideration of the court:

The sanction order suggested is:

1. To refuse to allow the Defendant, MAISLIN TRANSPORT LIMITED and GUY CASTIGLIA, to support or oppose designated claims or defenses at trial or hearing in this matter.
2. To construe, for the purpose of the trial or hearing, the facts covered by the Interrogatories to be established in the form most favorable to the Plaintiff.
3. To refuse the Defendants to enter any defense at trial as to the Plaintiff’s claim.
4. Direct the Defendants to answer the Interrogatories within 7 days from the date of the entry of a sanction order.
5. Enter a Default Judgment in favor of the Plaintiff and against the Defendants.

Following a hearing on plaintiff’s motion, the trial court entered its order on May 13, 1981, which decreed:

The defendants are precluded from entering any defense at trial as to the plaintiff’s claim.

It is from this order that the defendants appeal.

The trial court based its order on Rule 4019(a)(l)(i) which provides that:

Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate order if
(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005. ...

We recognize that the imposition of specific sanctions is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 45, 281 A.2d 886, 888 (1971). And as a general rule, sanctions will not be imposed in the absence of some wilful disregard or disobedience of a court order or an obligation expressly stated in the Rules. Id. Once it has been determined that the Rules have been disregarded, however, Rule 4019 envisions a procedure by which the court will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which “fits the crime.” Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 252, 407 A.2d 1338, 1341 (1979).

In Gonzales, this court had to consider the validity of a local court rule which mandated the entry of judgment of non pros by the local prothonotary against a plaintiff, where written interrogatories were not answered and certain procedural steps were followed by the defendant, including notice and praecipe. In holding that the local rule, which did not require the intervention of the court and did not permit the prothonotary to exercise any discretion in fashioning the sanction order, was invalid, we said:

Pa.R.C.P. No. 4019 envisions a procedure by which the court, when confronted with a failure or refusal to answer interrogatories, will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which “fits the crime.” If a written interrogatory asks for information which, although relevant, is not determinative of the entire controversy, a default judgment, which in effect is an adjudication of the merits, would seldom, if ever, be appropriate. Under such circumstances, it would be more appropriate to treat the default as an admission or to disallow proof at trial of such undisclosed information. The need to “fit the punishment to the crime” compels the exercise of judicial discretion. The court is required to strike a balance between the procedural needs to move the case to a prompt disposition and the substantive rights of the parties.

Id., 268 Pa.Superior at 252, 407 A.2d at 1341.

An examination of the pleadings suggests that the defendants here have been subjected to “harsh and excessive punishment.” The sixty-eight interrogatories directed to the individual defendant contained eighty-five sub-parts, cf. Jerry Pitell Co. v. Penn State Constr., 277 Pa.Super. 575, 577 n. 4, 419 A.2d 1299, 1300 n. 4 (1980) and might be most charitably described as “canned.” They sought information concerning the defendant driver’s marital status, the name and address of both the defendant driver’s present spouse as well as “every former spouse,” the color of defendant’s eyes and hair, in addition to detailed information concerning the defendant’s military service, including the type of discharge received. At least three of the interrogatories seek to elicit information concerning the “car” or “automobile” in which the defendant was riding, even though it is clear from the complaint that the individual defendant was operating a tractor-trailer at the time of the occurrence.

Although the accident occurred along an interstate highway, the plaintiff sought to compel the defendant to answer as to whether there were any people, such as a gas station attendant, a mailman, or people waiting for a bus in the immediate area of the accident! At least several of the interrogatories make no sense whatsoever when propounded by a plaintiff to a defendant, but might properly be included in interrogatories directed to a party plaintiff.

We note that the sole interrogatory directed to the corporate defendant sought merely to establish the agency/employe relationship of the individual defendant to the corporate defendant and, if such a relationship was admitted, to determine the existence of insurance held by the corporate defendant covering the activities of the individual defendant in his capacity as agent/employe.

A party upon whom interrogatories have been served is required to answer them within thirty days, unless objected to. Rule 4006(a)(2). We note that counsel for the defendants, in the response to the motion for sanctions, alleged that the unknown whereabouts of the individual defendant had prevented counsel from obtaining answers. We further note that the plaintiff was able to secure sufficient information from defense counsel to warrant amendments to the complaint. This, of course, in no way excuses the defendants’ failure to either file written, verified answers or objections. See Rule 4019(a)(2).

In this case, plaintiff’s Memorandum in Support of ... Sanctions filed in the trial court on June 2, 1981 admits receipt of unverified answers to interrogatories from the individual defendant in January 1981 and from the corporate defendant in March 1981. The fact of this receipt is acknowledged by the trial judge in his opinion filed May 13, 1981 awarding sanctions. The Supplemental Answers to Interrogatories of the individual defendant were filed of record on April 10, 1981. It is clear that none of these answers, all of which were unverified, met the requirements of Rule 4006(a)(1).

However, Rule 4019(a)(1) provides for an “appropriate” order on motion where a party fails to serve answers. The obvious sanction would be to construe the failure to answer as an admission that a complete answer would be unfavorable to the answerer, and favorable to the inquirer. Thus, for the purpose of trial, the facts covered by the questions would be considered as established in the form most favorable to the inquirer. Goodrich-Amram 2d § 4019(a):2, pp. 518-19. This is expressly covered by Rule 4019(c)(1). Similarly, if such a sanction is imposed, the defaulting party may be barred from asserting any claim or defense which is directly related to the failure to answer the specific interrogatories posed.

All that the plaintiff seeks, through Rule 4005 interrogatories, is pretrial information. If he gets the maximum that he could hope for, namely an admission in the most favorable possible form, the ultimate purpose of Rule 4005 has been accomplished. To deny the defendants the opportunity to enter any defense at trial, as was done here by the trial court, does not accomplish anything constructive and constitutes unnecessary and excessive penalty. Cf. Goodrich-Amram, id., at pp. 520-23.

In the instant appeal, it is useful to keep in mind that we are not dealing with the failure by the defendant to comply with any order of court respecting discovery. Plaintiff argues that without real sanctions, enforcement of the discovery rule would not be possible. While we cannot disagree with such an assertion, it is not helpful in resolving the issue now before this court on review.

Indeed, had the trial court imposed the purport of plaintiffs suggested sanction # 1 or # 2, see pp. 633-34 supra, the discovery rule would have been appropriately enforced. While the defendants might be found guilty of inexcusable delay, it is also true that the plaintiff took no action on his right to secure sanctions until July 21, 1980, nearly seventeen months after the expiration of the thirty day period after which a request for sanctions would have been properly entertained.

We view the submission of suggested alternative sanctions by the plaintiff as a recognition that an “appropriate” order might not require the extreme penalty imposed in this case. Although the trial court declares that the defendants’ “inordinate delay ... operated to the plaintiff’s prejudice”, our examination of the record does not reveal precisely what that prejudice might be. Clearly, a more restricted penalty could protect the plaintiff as he pursues his claim in this negligence action.

The plaintiff contends that the trial court found the written interrogatories to have been “significantly determinative of the controversy,” thus justifying the extreme sanction imposed. First, the trial judge did not make such a finding. Second, upon a review of the interrogatories, they do not permit of such a finding. This is not a case where the plaintiff must secure information solely in the possession of the defendants in order to proceed to trial. On the contrary, a reading of the complaint indicates that, as pled, this is an ordinary automobile accident case in which recovery will depend largely on the presentation of evidence under the control of, or ascertainable by, the plaintiff.

While Rule 4005 interrogatories are often a necessary part of the proper preparation for trial of a negligence case, the failure to secure answers thereto merely impedes, while not preventing, the plaintiff from prevailing. We are not here faced with the situation where a defendant might be prevented from preparing a proper defense by virtue of the failure of a moving plaintiff to reveal' relevant aspects of the case through pretrial discovery. In this case, one might fairly presume that the party seeking sanctions, that is, the plaintiff, is prepared to proceed to trial soon after the complaint is filed. The sanctions which are appropriate may well differ in degree, if not in kind, from those to be imposed were the roles reversed.

The purpose of Rule 4019 is to ensure compliance with proper orders of the court and adequate and prompt discovery of matters allowed by the Rules of Civil Procedure. Gonzales, supra, 268 Pa.Super. at 251, 407 A.2d at 1341. The sanction of,precluding the entry of any defense at trial, when viewed in the light of the content of the interrogatories here at issue, and coupled with the fact that defendants had indeed served answers, albeit unverified, constitutes an abuse of discretion. The Order entered May 13, 1981 is reversed, and the case remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is not retained.

WATKINS, J., files a dissenting opinion.

WATKINS, Judge,

dissenting:

I respectfully dissent and would affirm the order of the court below.

In this case counsel apparently did nothing in regard to the rule for filing interrogatories for over two years. The rule was patently violated. The pertinent part of Rule 4006 of Pa.R.Civ.Pro. reads as follows:

Rule 4006. Answers to Written Interrogatories by a Party.
(2) ... The answering party shall file and serve a copy of the answers, and objections if any, within thirty (30) days after the service of the interrogatories...

Sanctions to be taken by the court are provided in Rule 4019 of Pa.R.Civil Pro. and provide the following:

Rule 4019. Sanctions.
(a)(1) The court may,' on motion, make an appropriate order if
(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005; ...

If the rules are not to be obeyed as written, then they should be either modified or stricken.

It is also apparent that the case in question was inordinately delayed at a time when our courts are under constant criticism for the time occasioned until finality of disposition. In this case the failure to file answers to interrogatories was delayed for over two years and it is conceivable that several more years may pass before a suit based upon an accident which occurred on October 3, 1977 is finally decided.

      . For example, interrogatory 66 was propounded as follows:
      “66. Do you have any information tending to indicate:
      (a) that any Plaintiff was, within the five (5) years immediately prior to said occurrence, confined in a hospital, treated by a physician or X-rayed for any reason other than personal injury? If so, state each Plaintiff so involved and give the name and address of each such hospital, physician, technician, or clinic, the approximate date of the confinement or service and state, in general, the reason for such confinement or service.
      (b) that any Plaintiff had suffered serious personal injury prior to the date of said- accident? If so, state each Plaintiff so involved and state when, where and in general, how he or she was injured and describe in general the injuries suffered.
      (c) that any Plaintiff has suffered either (1) any personal injury or (2) serious illness, since the date of such occurrence? If so, state each plaintiff so involved and, for (1) state when, where and in general how he or she was injured and describe in general the injuries suffered; and for (2) state he or she was ill and describe in general the illness.

        (d) that any plaintiff has ever filed any other suit for his or her own personal injuries? If so, state each plaintiff so involved and give the court in which filed, the year filed and the title and docket number of said case."
      We cannot see how an answer by the individual defendant to this interrogatory would assist the plaintiff in any meaningful discovery or preparation for trial of this case. See Pa.R.C.P. No. 4001.

      . Neither of the original defendants’ Answers to Interrogatories are contained in the certified record before this court.


author: VAN der VOORT, Judge:

text:
    456 A.2d 637
    COMMONWEALTH of Pennsylvania v. Edwin WILCOX, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed Feb. 11, 1983.

      Catherine M. Harper, Philadelphia, for appellant.
    Michael Clarke, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was convicted on December 3, 1980, of receiving stolen property, unauthorized use of an automobile (18 Pa.C.S. §§ 3925, 3928), and possession of a controlled substance (35 P.S. § 780-113(a)(16). He was sentenced to concurrent terms of imprisonment of from one to three years on the charges of receiving stolen property and possession of a controlled substance. Sentence was suspended on the charge of unauthorized use of an automobile. Appellant appeals the judgment of sentence on all three counts, contending that the evidence of the Commonwealth was not sufficient to establish his guilt, and that business records were improperly admitted to establish ownership of the stolen vehicle.

Two police officers and an official of the Hertz Corporation testified for the Commonwealth. The first officer testified that on July 12, 1980, he attempted to stop a vehicle, driven by Appellant, in the area of 33rd Street and Columbia Avenue, Philadelphia. When the police vehicle put on its siren and overhead lights, the vehicle driven by Appellant turned onto a side street and accelerated. The police gave chase. After approximately one mile, the vehicle stopped, Appellant jumped out and fled on foot. The officer chased Appellant for two blocks before he caught him. Appellant, at the time of his arrest, dropped a set of keys suitable for operating General Motors and Ford cars.

The second officer testified that he responded to a radio call for help from the other officer and, within a minute or two of the call, reached the vehicle which Appellant had abandoned and guarded it until the first officer returned. When he arrived, he found the front door open on the driver’s side of the car and the engine running. He turned off the engine and, in the process, observed on the driver’s seat a cellophane cigarette packet containing what has been stipulated to be four packets of methamphetamine and one packet of cocaine and reducing sugar, controlled substances (schedule 2 of 35 P.S. § 780-104). The package was uncrushed, as it would have been had it been sat upon by Appellant while driving the car.

The prosecution also presented the testimony of an Assistant Custodian of Records of the Hertz Corporation, who identified corporate records as ones kept in the ordinary course of business, which established that the vehicle was owned by the Hertz Corporation and had been leased on July 5, 1980, to one Steven Heppner, at the Newark Airport. The expiration date of the lease was July 9, 1980, three days prior to Appellant’s arrest. The witness also identified records showing that the car had been leased on the credit of an American Express card, which was subsequently reported on July 6 to have been stolen. The witness had not personally prepared any of the records nor was he personally acquainted with the officials who had prepared them or had them in custody. But, he testified that they had been prepared in the regular course of business.

Appellant testified in his own defense that in the early morning hours of July 12, he had attended a party, had been drinking, and later left the gathering with two other people, a man of his acquaintance known to him as Al and a woman companion of Al’s, known to Appellant only as Kay. He and his companions proceeded in the woman’s car to the 30th Street Station where a vehicle belonging to Appellant’s male companion was parked. Upon reaching the station, Appellant was asked by Kay to drive her car back to the party, so that Al and his companion might drive back to the party in Al’s car.

Appellant was given the keys to the car and told that the owner’s card was in the glove compartment. He took the car and was apprehended by the police a few minutes later. He testified that he fled from the police because he was on parole and did not want to be arrested for drunken driving, and also because he was afraid the police were going to shoot him.

The trial Judge, sitting without a jury, did not believe Appellant’s explanation of either his possession of the car or the controlled substance. The credibility of witnesses is for the factfinder. He may believe all, part, or none of witnesses’ testimony. Judging the credibility of a witness is the exclusive province of the trier of fact and will not be disturbed, absent an abuse of discretion. Commonwealth v. Myrick, 468 Pa. 155, 163, 360 A.2d 598 (1976); Commonwealth v. Farquharson 467 Pa. 50, 59, 354 A.2d 545 (1976); Commonwealth v. Darush, 256 Pa.Super 344, 351, 389 A.2d 1156 (1978).

We therefore disregard Appellant’s explanations as lacking in credibility and review the testimony of the Commonwealth to determine whether its evidence was sufficient to establish Appellant’s guilt. The test is whether the Commonwealth’s evidence and all reasonable inferences to be drawn from it establish Appellant’s guilt beyond a reasonable doubt. Commonwealth v. Flythe, 273 Pa.Super.Ct. 248, 251, 417 A.2d 633 (1979). Appellant’s guilt may be established wholly or in part by circumstantial evidence. Commonwealth v. Murray, 246 Pa.Super.Ct. 422, 427-8, 371 A.2d 910 (1977); Commonwealth v. Lloyd, 239 Pa.Super.Ct. 273, 277, 361 A.2d 430 (1976).

Appellant’s conviction on the charge of receiving stolen property must be supported by evidence that the car was stolen, that Appellant was in possession of the car, and that he knew, or had reasonable cause to know, that the car had been stolen. Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119 (1971).

Evidence that the car was stolen is found in the testimony that Hertz Corporation had title to the car, had leased it to an unidentified party named Steven Heppner on the credit of an American Express card, which had been stolen from the owner, and that the lease had expired three days before the police had recovered the car in Appellant’s possession. Appellant was not an employee of Hertz, and neither he, nor anyone else, had that company’s permission to be driving the car after the expiration of the rental contract.

Appellant contends that the Hertz records were inadmissible because it was not shown which Hertz employee had knowledge of the facts or made the record entries and since it was not shown that the entries were made contemporaneously with the circumstances they recorded.

These contentions are without substance. The testimony of the Hertz witness was to the effect that the lease agreement for the car was prepared on July 5,1980, the day the car was leased, and this is corroborated by a stamped date on the right-hand corner of the document. He testified that the lease was a contract entered into in the ordinary course of business by Hertz.

It is not required that the person who prepared the lease agreement for Hertz be identified or that the witness have any personal knowledge of the preparation of this particular rental agreement. In re Estate of Indyk, 488 Pa. 567, 571-2, 413 A.2d 371 (1979); Fauceglia v. Harry, 409 Pa. 155, 158-60, 185 A.2d 598 (1962). A proper foundation was laid for the admission of the Hertz rental agreement under the requirements of the Uniform Business Records As Evidence Act, 42 Pa.C.S. § 6108.

It was established by the testimony of the arresting officer that Appellant was in exclusive possession of the car when apprehended. Evidence to establish that Appellant knew or had reasonable cause to know that the car had been stolen is necessarily circumstantial in view of his denial of such knowledge. The circumstances that confirm that conclusion include the fact that Appellant had neither a driver’s license nor any proof of his ownership of the car in his possession, other than the Hertz lease agreement with Steven Heppner, which was found in the glove compartment of the car. When Appellant realized he was being followed by the police, he fled the car, and then Appellant dropped a key ring containing a collection of keys to Ford and General Motors cars. Both Appellant’s flight and his collection of car keys are supportive of Appellant’s knowledge that the car was stolen. Appellant’s claim that he was asked to drive the car by a girlfriend of an acquaintance of his was not corroborated by the testimony of either the acquaintance or the girlfriend, from which circumstance it is a reasonable inference that they could not confirm his story. We find the Commonwealth’s evidence sufficient to sustain the conviction and sentence on the charge of receiving stolen property.

Appellant has also been convicted and given a suspended sentence on the charge of unauthorized use of an automobile. Appellant's unauthorized use of the automobile was also the basis on which he was convicted of receiving stolen property. The lesser crime of unauthorized use was necessarily an integral part of the more serious crime of receiving stolen property, and the two should have been merged for sentencing purposes and only one sentence imposed. Commonwealth v. Brown, 290 Pa.Super.Ct. 448, 453, 434 A.2d 838 (1981); Commonwealth v. Turner, 265 Pa.Super.Ct. 486, 490, 402 A.2d 542 (1979). Even though the sentence on the lesser charge of unauthorized use was suspended, it had the potential for future prejudice to Appellant and should be vacated. Commonwealth v. Richardson, 232 Pa.Super.Ct. 123, 127, 334 A.2d 700 (1975).

The Commonwealth’s evidence adequately supports Appellant’s conviction and sentence on the charge of possession of a controlled substance. Appellant was in exclusive possession of the automobile when he encountered the police. The controlled substance was found in a cigarette case on the driver’s seat by the officer who took control of the car while the first officer was chasing Appellant. The fact that it was uncrushed, although found on the driver’s seat, leads to the reasonable inference that it was put there by Appellant as he fled the car, either inadvertantly in his haste to escape or intentionally so that it would not be found on his person if he were unsuccessful in his flight. The fact that the car was momentarily unattended during Appellant’s flight from the scene does not create a reasonable doubt as to whether the packet had been left on the seat by Appellant. The hour was 5 o’clock in the morning and the interval was not more than a minute or two. Appellant’s flight from the officer is another circumstance supporting the conclusion that he had knowledge of the controlled substance or that the car was stolen or both. The evidence fully sustains the trial Court’s conclusion that Appellant was knowingly in possession of a controlled substance.

The judgment of sentence on the charges of receiving stolen property and possession of a controlled substance is affirmed, and the suspended sentence on the charge of unauthorized use of an automobile is vacated.


text:
    456 A.2d 641
    COMMONWEALTH of Pennsylvania v. Patrick LONG, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed Feb. 11, 1983.
    Petition for Allowance of Appeal Denied June 1, 1983.

      Joseph P. Martone, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was charged with thirteen violations of the Crimes Code, 18 Pa.C.S. § 101 et seq., including rape,

involuntary deviate sexual intercourse and kidnapping, arising from the repeated sexual attacks upon a young woman. After the prosecution had presented approximately half of its case to the jury, appellant entered a guilty plea to ten of the thirteen counts. The plea was accepted and the court ordered a pre-sentence investigation be performed. Prior to sentencing, appellant filed an application to withdraw his previously entered guilty plea. The lower court denied the application and imposed an aggregate sentence of 55 to 122 years. A second request to withdraw the plea and to modify the sentence was refused. This appeal followed.

Appellant raises four contentions in this court; we will address them in an order different from that of the appellant.

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW THE DEFENDANT TO WITHDRAW HIS GUILTY PLEA BASED ON THE POSSIBILITY THAT THE COURT-ORDERED PSYCHIATRIST WOULD CHANGE HIS OPINION IN LIGHT OF ADDITIONAL INFORMATION.

Appellant argues that in the period between the entry of his plea and the imposition of sentence, the examining psychiatrist received prior records concerning appellant’s mental state. The results of one test indicated that in certain circumstances appellant’s actions could be beyond his control. The doctor suggested additional testing to determine appellant’s state of mind at the time of the incident. Thus appellant claims he was entitled to withdraw his guilty plea to allow him to consider presenting an insanity defense.

Unfortunately for appellant, the law of this Commonwealth is not in accordance with his position. While a pre-sentence attempt to withdraw a guilty plea should be liberally allowed, when the case has proceeded to trial the Commonwealth has been, in several instances, deemed prejudiced by the withdrawal of the plea. The trial court will not be held to. have abused its discretion in failing to grant the leave. Commonwealth v. Whelan, 481 Pa. 418, 392 A.2d 1362 (1978); Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973); Commonwealth v. Ammon, 275 Pa.Superior Ct. 324, 418 A.2d 744 (1980); Commonwealth v. Champion, 264 Pa.Superior Ct. 605, 401 A.2d 760 (1979). Two cases are worthy of further discussion.

In Champion, Id., the jury had been impanelled when the defendant attempted to withdraw his plea. This court found that the lower court had abused its discretion in refusing the motion. The panel of this court while espousing the requirement that a defendant must show “compelling reasons” for withdrawing a plea at this stage of the pleadings, found the standard was met as the plea itself was not knowingly and intelligently entered. The defendant had been incorrectly advised that his challenge based on Rule 1100, Pa.R.Crim.P. would be preserved, and he was not advised of the presumption of innocence. Here appellant’s plea was knowingly and intelligently entered (See issue number 2, supra). Of more interest is Commonwealth v. Reider, 255 Pa.Superior Ct. 163, 386 A.2d 559 (1978) which appellant improperly relies on. Reider involved a plea entered prior to commencement of trial. There the defendant attempted to withdraw the plea in circumstances very similar to those at hand. Prior to the plea a psychiatric evaluation indicated the defendant was sane; prior to- sentencing further psychiatric observation showed the defendant to suffer from paranoia. The lower court refused to permit the plea to be withdrawn. This court found the change in mental evaluations did not amount to a “fair and just” reason since the defendant was aware, based on his prior history, of a possible insanity defense. However, as the Commonwealth would not be prejudiced by the withdrawal, (it had not proceeded to trial,) the court should have allowed appellant to withdraw his plea.

Here, appellant knew of his prior mental history but did not attempt to withdraw the plea until the Commonwealth was about to put the victim on the stand. In these circumstances, we find the prosecution would be severely prejudiced if appellant was permitted to withdraw his plea.

2. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE DEFENDANT TO WITHDRAW HIS GUILTY PLEA, WHICH PLEA, WAS NOT VOLUNTARILY, UNDERSTANDINGLY, AND INTELLIGENTLY TENDERED.

Appellant contends he was mentally incompetent to plead guilty. He claims he had been held in solitary confinement where he experienced auditory hallucinations. Based on the pressures of the situation he pleaded guilty. Appellant supports his contention by referring to his previous diagnosis as a paranoid schizophrenic and the fact he was under the influence of the drug, Navane.

The test for determining a defendant’s mental competency to enter a guilty plea is whether he had sufficient ability at the pertinent time to consult with counsel with a reasonable degree of rational understanding, and have as a rational, as well as a factual understanding of the proceedings against him. Commonwealth v. Marshall, 454 Pa. 413, 312 A.2d 6 (1973); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973).

Commonwealth v. Scott, 271 Pa.Superior Ct. 545, 414 A.2d 388 (1979). We find that at the time of sentencing appellant was mentally competent. Pursuant to the court’s order for a pre-sentencing report, appellant underwent further mental examination. He was found to be competent. As to the influence of the drug Navane, appellant himself stated the drug merely kept him calm; he did not indicate that it interfered with his ability to understand and react to the proceedings. (N.T., 3/13/81, p. 14) The drug was a tranquilizer; there was no claim that it inhibited his thought process. (N.T., 8/14/81, p. 5) The pressures to which appellant claims he succumbed, were those faced by most if not all criminal defendants facing trial and the possibility of a prolonged incarceration.

Therefore, we find the trial court acted properly. The court could assess for itself appellant’s mental state. A recent mental evaluation contradicted appellant’s claim. No adverse affect of the drug was detected. The colloquy had been full and complete with no indication that the plea was not freely and knowingly entered. Except for appellant’s own testimony, the record does not support his position. Compare, Commonwealth v. O’Brien, 273 Pa.Superior Ct. 198, 417 A.2d 236 (1979); Commonwealth v. Scott, supra.

3. WHETHER THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE IN LIGHT OF THE JUDGE’S FAILURE TO ARTICULATE HIS REASONS FOR THE SENTENCE ON THE RECORD.

The sentence imposed was within the statutory permissible range. Appellant’s contention is that the sentencing court ignored the Sentencing Code guidelines, 18 Pa.C.S. § 1301, et seq., and failed to articulate its reasons for the sentence imposed. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). This, appellant insists deprives this court of its ability to review the sentence.

Defense counsel argued on behalf of appellant; the prosecutor reviewed, on the record, appellant’s prior criminal history including unsuccessful rehabilitative attempts. Judge Dwyer then offered the following comments:

As of this morning, I frankly, can see no hope for you [the appellant] at all, and for the last 15 years you have been involved in various types [of offenses]; including a number of serious offenses as a youngster, and as an adult.
The information received from Warren and from the other psychiatrists Wid'-psychologists indicate that you have a real bad nature and how it started or why it started, .1 don’t know. You will get some attention—I am going to sentence you so that you, naturally, would get some attention, and if there is any hope to straighten you out, that will be given your (sic) chance____
You should have real in-depth psychiatric treatment in any way of helping you and helping society. Considering the testimony that was presented at the trial and the colloquy between you and your attorney and the district attorney, at the time of the plea and considering all the information in the presentence report as to your past activities and the way it seemed to not affect you at all, no remorse, considering what you did to this victim, in this particular case, and the future that she has ahead of her, the Court is going to have to levy the following sentence on you.
(N.T., Sentencing pp.-41-43)

After imposing the sentence the court concluded:

I think for your own safety and definitely for the safety of society that you have to be incarcerated for as long as possible.
(Id. at 46)

Section 1325 of the Sentencing Code authorizes the imposition of total confinement.

§ 1325. Total Confinement
The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

Such a sentence must be imposed for the minimum amount of time that is consistent with the gravity of the offense, the rehabilitative needs of the defendant and the protection of the public. The court must consider the defendant’s character and the particular circumstances of the crime. If the sentence complies with the above requirements, is within the statutory limits, and the reasons for such are stated on the record, this court will uphold the sentence. Commonwealth v. O’Brien, 282 Pa.Superior Ct. 193, 422 A.2d 894 (1980). While it is preferable that a court indicate on the record that it has considered the guidelines and applied them, when it is clear that such guidance was accepted, the court need not explicitly acknowledge its reliance of the Sentencing Code! Commonwealth v. Russo, 297 Pa.Superior Ct. 424, 444 A.2d 105 (1982); Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981). In other words, when a statement of reasons as a whole demonstrates that the sentencing court took into account the factors contained in the sentencing code, the statement is sufficient even though the statute or guidelines are not referred to. Commonwealth v. Doyle, 275 Pa.Superior Ct. 373, 418 A.2d 1336 (1979).

Here, the court below considered the crime, appellant’s history and as can reasonably be inferred from its comments concluded that: appellant was likely to commit further crimes as he had for fifteen years; rehabilitation had been and likely would be unsuccessful; and incarceration for a long period was deemed necessary. The court had before it the pre-sentencing investigation containing various reports on appellant’s mental attitude, which supports its findings. We find that the court met its obligation under Commonwealth v. Riggins, supra. Compare Walton, supra. (Statement inadequate); O’Brien, supra. (Statement inadequate); and Doyle, supra. (Statement sufficient).

In reviewing the imposition of a certain sentence, an appellate court should ordinarily defer to the trial court which was better able to weigh the various considerations. We will not replace the trial court’s judgment with our own unless the sentence demonstrates that the court below clearly abused its discretion. Commonwealth v. O’Brien, supra; see also Commonwealth v. Franklin, 301 Pa.Superior Ct. 17, 446 A.2d 1313 (1982). In light of the nature of the crimes and appellant’s criminal history and the unlikelihood of successful rehabilitation, we can find no abuse of the trial court’s discretion. Commonwealth v. Gunderman, 268 Pa.Superior Ct. 142, 407 A.2d 870 (1979).

4. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR PROCEEDING TO TRIAL WITHOUT FIRST INSURING THAT THE EXAMINING PSYCHIATRIST HAD REVIEWED RECORDS OF DEFENDANT’S MENTAL CONDITION.

Appellate counsel raises before this court for the first time trial counsel’s ineffectiveness. Trial counsel was associated with the Erie County Public Defender’s Office. One of the two co-counsel on appeal is also a member of that county’s Public Defender’s Office. It has become the rule in this Commonwealth, that where an appellant claims trial counsel was ineffective and such claim is not apparent on the record and on appeal, he or she is represented by counsel associated with trial counsel, this court will remand for the appointment of new counsel not associated with trial counsel or if appellant so chooses, to make an informed decision to proceed with current counsel. Commonwealth v. Quarles, 284 Pa.Superior Ct. 473, 426 A.2d 145 (1981); Commonwealth v. Jellots, 277 Pa.Superior Ct. 358, 419 A.2d 1184 (1980). However, this policy of remanding for new counsel should not be viewed as being absolute.

Recently, a panel of this court held “that where it is apparent to the appellate court that there is no arguable merit to [such] claim of ineffectiveness ... the appellate court need not remand____” Commonwealth v. Bossick, 305 Pa.Superior Ct. 196, 451 A.2d 489, 492 (1982). See also Commonwealth v. Stiefel, 286 Pa.Superior Ct. 259, 428 A.2d 981 (1981) (Dissenting Opinion by Van der Voort, J.); and Commonwealth v. Viall, 278 Pa.Superior Ct. 613, 420 A.2d 710 (1980) (Dissenting Opinion by Wickersham, J.) Appellant’s specific complaint here is that trial counsel should have delayed the trial to allow Dr. Paul, a psychiatrist, additional time to review appellant’s prior mental health records. This, appellant would have us infer, would have resulted in a diagnosis more amenable to an insanity defense. We disagree, we clearly find from the record that' such would not have been the case.

Prior to trial, Dr. Paul, in a report dated January 23, 1981, indicated he found that appellant did not suffer from psychosis. He did indicate that his opinion did not consider certain prior hospital records which he had not received at that time. Subsequent to appellant’s plea, Dr. Paul, in a letter dated March 24, 1981, indicated that in light of the previously unavailable records, showing appellant had been previously diagnosed as paranoid schizophrenic, he believed further testing was necessary for a proper diagnosis. By order of court, appellant was placed in Warren State Hospital for further diagnostic observation and testing. By a report dated July 22, 1981, prior to sentencing, the staff of Warren State Hospital found insufficient evidence to justify a diagnosis of schizophrenia.

As was the case in Bossick, supra, the claim here of ineffectiveness lacks any arguable merit. The only effect of delaying trial would have been to reconfirm appellant’s competence; this would not have been to appellant’s benefit.

Review of trial counsel’s ineffectiveness is especially appropriate in light of the present circumstances. Here trial counsel, A, is associated with appellate co-counsel, B, but appellate co-counsel, C, is not associated with A or B. We find that A’s ineffectiveness may be argued on this appeal. We find no need to remand for the appointment of additional counsel. The purpose behind remanding for new counsel is to provide zealous advocacy to a claim of ineffectiveness. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). While our research has failed to reveal any case in this Commonwealth addressing the current situation, we find that the interest of Fox is adequately protected here. We are confident that co-counsel, B & C, are capable of and did zealously promote their client’s interests.

Order and judgment of sentence affirmed.

      . The three remaining counts were nol prossed: kidnapping, possession of instruments of crime; and tampering with a witness.

      . The Commonwealth expressed concern over the effect upon the victim of testifying again (she testified at the preliminary hearing); The victim wished to relocate to start a new life. (N.T. 8/14/82, pp. 17-18).

      . The current situation should not be confused with the facts in Fox where trial co-counsel in subsequent proceedings attempted to argue his trial co-counsel’s ineffectiveness. There this court feared that counsel would be unable to admit his own ineffectiveness and would attempt to place blame on co-counsel.

      . We must not overlook the point that this controversy could have been avoided by appointment of a single attorney not associated with trial counsel.


author: PER CURIAM:

text:
    456 A.2d 647
    In the Interest of LAWRENCE J. Appeal of LAWRENCE J. In the Interest of ROBERT J. Appeal of ROBERT J.
    Superior Court of Pennsylvania.
    Submitted Sept. 8, 1982.
    Filed Feb. 11, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellants.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, participating party.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   PER CURIAM:

Lawrence J. and Robert J. (appellants), were arrested on April 30, 1979 and charged with attempted rape, indecent exposure, indecent assault, aggravated assault, simple assault and recklessly endangering another person as the result of two (2) separate incidents involving the same victim, Michelle D. The appellants are brothers. The first incident occurred about December 24 or 25, 1978 and involved Lawrence J. who was then 15 years, 11 months old. The second incident occurred December 31, 1978 and involved Robert J. who was then 13 years, 4V2 months old. The victim in December 1978 was 9 years old. Both incidents occurred in appellants’ home.

Following a consolidated hearing before the juvenile branch of the trial court, appellants were each adjudicated delinquent on the charges of indecent assault and indecent exposure, and were adjudged not guilty of the other charges. Appellants’ direct appeals to this Court were consolidated for argument.

Two issues are raised by appellants: 1) Did the trial court err in finding the victim competent to testify?; and 2).Did the trial court err in prohibiting testimony concerning the victim’s reputation for truth and veracity?

Appellants’ first argument is without merit. The determination of the competency of witnesses is left to the sound discretion of the trial judge and will not be reversed absent a “flagrant” abuse of discretion. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980). The determination is based on three criteria. The witness must possess 1) the capacity to communicate, including both an ability to understand questions and to frame and express intelligent answers, 2) the mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about, and 3) a consciousness of the duty to speak the truth. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). Our review of the record shows that the question of the victim’s competency to testify was fully explored during the hearing. The trial court did not err in determining that the victim was competent to testify.

Appellants next argue■ that the trial court erred in prohibiting testimony by a defense witness concerning the victim’s reputation for truth and veracity. We agree.

Appellants’ counsel attempted to present testimony from Charlayne J. (appellants’ sister) on the issue of the victim’s credibility. The following exchange occurred:

MR. GREEN: Charlayne, do you know other people in the neighborhood that know Michelle [victim]?
A: Yes.
Q: Among the people who' know Michelle, what is her reputation with reference to truth-telling?
MRS. NEW: Objection, your honor.
THE COURT: Sustained. You are trying to use a character witness against the girl.
MR. GREEN: Yes.
THE COURT: You can’t do that. You have to use sights, incidents, and places and people. You have to lay the groundwork.
MR. GREEN: Okay. Who do you know in the community that knows Michelle?
A: Everyone.
Q: Does she live in your neighborhood?
A: Yes.
Q: Have you talked to people about her?
A: No.
Q: Have people told you anything about her?
A: Yes.
Q: Have people in the community told you anything about their opinion of her reputation for veracity, that is for telling the truth?
MRS. NEW: Objection.
THE COURT: Sustained.

Section 3106 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 3106, requires that the credibility of an alleged rape victim “be determined by the. same standard” that is applied to the victim of any other crime. One of the ways to attack a party’s credibility is through testimony concerning the party’s bad reputation in the community for truth and veracity. Commonwealth v. Smith, 240 Pa.Super. 212, 361 A.2d 862 (1976); 2 Henry, Pennsylvania Evidence § 804 (4th ed. 1953). The inquiry is limited, however, to the general speech of the community on the subject. The reputation witness can not be asked questions or give answers regarding specific acts, as distinguished from what she has heard in the neighborhood. Commonwealth v. Hansell, 185 Pa.Super. 443, 137 A.2d 816 (1958).

From the record it appears that appellants’ counsel was attempting to introduce evidence of the victim’s reputation in the community for truth and veracity to impeach her credibility. The court therefore erred in sustaining the Commonwealth’s objection to the testimony. The Commonwealth’s argument on appeal, although couched in terms of “admissibility”, is in fact directed to the unreliability of Charlayne’s testimony because she is appellants’ sister. Such an argument attacks the weight to be given such testimony,'but not its admissibility.

Not all error that is committed during a trial is harmful. However, an appellate court in reviewing the record must be convinced beyond a reasonable doubt that the error did not contribute to the verdict or adjudication before it can be determined that the error was harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). We cannot say that the trial court’s erroneous ruling in these cases did not contribute to the adjudications of delinquency. The only direct evidence against appellants was the testimony of the victim which.was denied by appellants. Therefore, the issue of her credibility was crucial. The fact that there was a delay of some 3 and k months in filing the charges against appellants, and that there was evidence of record that the victim allegedly admitted to appellants’ sister, Charlayne, that the charges were false, made the victim’s credibility a critical issue. The rejected portion of Charlayne’s testimony may have been sufficient to create a reasonable doubt of the appellants’ guilt in the fact finder’s mind. The exclusion of Charlayne’s testimony, therefore, resulted in the denial of a fair trial to appellants. For that reason, appellants are entitled to a new hearing at which the rejected evidence should be received.

Orders reversed and cases remanded for a new adjudicatory hearing. Jurisdiction is relinquished.


text:
    456 A.2d 650
    COMMONWEALTH of Pennsylvania v. Jerry Joseph COFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1982.
    Filed Feb. 11, 1983.

      Jeffery M. Cook, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County imposed upon appellant, Jerry Cofield. The appellant pleaded guilty to robbery and was sentenced to three (3) to ten (10) years imprisonment. No motion to withdraw the guilty plea nor petition to modify sentence was filed.

Appellant raises several claims of ineffectiveness of trial counsel, including; (1) failure to file a motion to dismiss pursuant to Pa.R.Crim.P. 1100, (2) failure to adequately prepare appellant’s case, (3) continuing to represent appellant despite a conflict of interest, and (4) failure to file either a motion to withdraw appellant’s guilty plea or a petition to modify sentence. In connection with the final claim, appellant asserts that his guilty plea was not voluntary in that it was induced by a promise by defense counsel that appellant would receive a sentence of one and one-half (IV2) to five (5) years imprisonment. Since we are without sufficient record to make a determination on this final contention, we shall remand the case for an evidentiary hearing.

The facts relevant to this appeal are as follows: On September 17, 1979, appellant and two other men robbed a convenience store in Harrisburg. One of the robbers was armed, although it is disputed whether: appellant or one of the others held the gun. Upon leaving the store, appellant was accidentally shot in the foot. He was apprehended the same day and a criminal complaint was filed charging him with robbery.

Appellant pleaded not guilty and trial was set for February 11, 1980. On February 7, 1980, appellant’s court appointed counsel filed a motion for a continuance alleging that he was unable to locate or contact appellant after attempts to ascertain appellant’s whereabouts. The appellant failed to appear for trial on February 11, 1980 and a warrant was issued for his arrest. The appellant was eventually arrested on March 3, 1981. Trial was scheduled for March 23, 1981, at which time appellant appeared and entered a plea of guilty after a thorough and extensive colloquy. As previously stated, no motions were filed. This appeal followed.

In Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), our Supreme Court stated:

Appellant’s claims of ineffectiveness must be evaluated in the context of his guilty plea. Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976).

Id. 482 Pa. at 640-641, 394 A.2d at 504-05. See also Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980).

Counsel will be deemed effective if the court determines that the course of action chosen by counsel had some. reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, it is only when the claim is of arguable merit that we must make an inquiry into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant initially contends that counsel was ineffective in failing to file a motion to dismiss under Pa.R.Crim.P. 1100. Since a Rule 1100 defense, if valid, would certainly affect the voluntariness of appellant’s guilty plea, we will address this claim. Appellant was arrested and a criminal complaint was filed on September 17, 1979. He was originally scheduled to commence trial on February 11, 1980, an interval of one hundred forty-seven days. Appellant did not appear for trial and in fact absented himself until March 3, 1981 when he was again apprehended. The appellant’s guilty plea was entered on March 23, 1981, twenty days after his capture. Rule 1100(d) requires us to exclude the period attributable to appellant’s absence. Therefore, appellant’s guilty plea was entered one hundred sixty-seven includable days after the filing of the complaint—well within the parameters of the Rule 1100. Thus we find no merit in this claim.

Appellant also contends that counsel was ineffective in failing to adequately prepare appellant’s case. More specifically, he asserts that counsel did not communicate with him until the day of his scheduled court appearance. We assume that appellant’s contention is that this circumstance nullified the voluntariness of appellant’s plea.

The mere fact that counsel had but a short time to confer with a client does not conclusively establish ineffectiveness. The length of time counsel spent conferring with his client is “... but one of the factors which we must evaluate in light of the nature of the charge, the issues presented, the availability of witnesses, etc., to determine whether the course chosen by counsel had any reasonable basis when compared with the alternatives available.” Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 609, 235 A.2d at 355. Furthermore, appellant must establish prejudice as a result of the shortness of time spent conferring with counsel prior to the entering of a guilty plea. Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977).

Herein, appellant faced a charge of robbery. The Commonwealth had two eyewitnesses ready to testify to the appellant’s participation. Appellant was injured by a gunshot in the robbery. Prior to appellant’s first scheduled trial, appellant’s counsel attempted to contact appellant, but was unable to do so because appellant had made secret his whereabouts. Upon appellant’s recapture, counsel did not confer with appellant until the day of his scheduled court appearance. However, the record does not disclose any apparent defenses, which counsel failed to consider, nor does appellant suggest any, save the Rule 1100 claim which we have determined to be without merit. Appellant has failed to establish any prejudice from the short conferral period. Furthermore, in light of the eyewitnesses’ testimony we find there was a reasonable basis for counsel’s advice to appellant to plead guilty. We find no ineffectiveness. '

Appellant next contends that counsel was ineffective in that he continued to represent appellant despite a conflict of interest. The alleged conflict was that counsel was convicted of mail fraud several months after appellant’s guilty plea. Appellant alleges no further facts, nor develops any further argument to elucidate why this constitutes ineffectiveness. We find this claim to be frivolous and without merit.

The final issue before us is whether counsel was ineffective in failing to file a motion to withdraw appellant’s guilty plea where appellant alleges the plea was involuntary due to its inducement by defense counsel’s guarantee of a less severe penalty. Initially we find that the appellant’s challenge to the validity of the guilty plea has not been waived by the failure to challenge it by motion in the lower court. A claim of ineffectiveness is an extraordinary circumstance which prevents waiver of claims. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). Here the alleged promise and the failure to file a motion to withdraw are both sufficient allegations of ineffectiveness to prevent waiver.

The issue has been dealt with extensively by this court. In Commonwealth v. Farnwalt, 286 Pa.Super. 559, 561, 429 A.2d 664, 665 (1981), we said:

In Commonwealth v. McCall [267 Pa.Super. 351, 406 A.2d 1077 (1979) ], supra, the petitioner alleged that his trial counsel promised the petitioner that if he pleaded guilty he would get a sentence of two and one-half to five years, rather than the three to ten year sentence he did receive. In McCall, the PCHA hearing court denied the petition at issue without a hearing. This court reversed and remanded for an evidentiary hearing. In our McCall opinion, we quoted at length from our earlier opinion in Commonwealth v. Strader, 262 Pa.Super. [166] at 174, 396 A.2d [697] at 702, in which we wrote,
The petition alleges, inter alia that appellant’s plea was unlawfully induced because counsel failed to . conduct an appropriate investigation or prepare an adequate defense to the charge of rape, counsel failed to move to suppress an identification procured in a suggestive manner, and counsel persistently advised petitioner that a deal for “3 to 8 was better than 10 to 20” and that he should enter a guilty plea on pragmatic grounds rather than on grounds of innocence or guilty. Upon examination of the record before us, we cannot say that appellant’s claims are patently frivolous or without support on the record. Even though the Commonwealth disputes appellant’s allegations and even though appellant stated at his guilty plea colloquy that his plea was not induced by anything other than the sentence agreement and that he was. satisfied with the representation he received from his counsel, the record does not clearly refute appellant’s claim that his plea was unlawfully induced. See Commonwealth v. Knapp, 212 Pa.Super. 560, 562, 243 A.2d 179, 180 (1968).. Our courts have previously determined that in borderline cases petitioners are to be given “every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.” Commonwealth v. Nahodil, 212 Pa.Super. 77, 79, 239 A.2d 840 (1968). See also Commonwealth v. Laboy, 460 Pa. 466, 470, 333 A.2d 868, 870 (1975). (footnote omitted), (emphasis added)
As we said in McCall, if at the hearing appellant can prove the existence of the alleged guarantee, then his guilty plea would not have been intelligently entered. On the other hand, if at the evidentiary hearing the PCHA court finds that no such guarantee was made by counsel, then appellant’s petition should be denied. Accordingly, we reverse and remand for an evidentiary hearing.

See also Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982).

We find that the prior decisions of this court require us to remand the case for an evidentiary hearing to determine if any promises or guarantees improperly induced appellant’s guilty plea.

Remanded. Jurisdiction is not retained.

      . 18 Pa.C.S.A. § 3701.

      . Certiorari denied 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979).