author: BECK, Judge: SPAETH, President Judge,

text:
    482 A.2d 1294
    COMMONWEALTH of Pennsylvania v. George BRITTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Granted Feb. 14, 1985.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRÍLLO, BECK, POPOVICH and HESTER, JJ., en banc.
   BECK, Judge:

Appellant was convicted of rape, robbery, burglary, and simple assault. His post verdict motions were denied and he was sentenced to ten to twenty years for rape, ten to twenty years for robbery, and ten to twenty years for burglary, to be served consecutively. Sentence was suspended on the simple assault bill. His direct appeal from the judgment of sentence is now before this court. We affirm the judgment of the trial court.

The Commonwealth produced evidence at trial that appellant entered the home of the victim, punched and robbed her, and forced her to submit to sexual intercourse. The appellant’s defense was based on misidentification and alibi.

Among other challenges to the conduct of the trial, appellant contends that the trial judge assumed the role of advocate for the Commonwealth. He asserts that the judge’s extensive and biased questioning of witnesses exhibited prejudice against him and denied him a fair trial. We disagree.

The standards guiding a judge in interrogating witnesses during trial are well established. Our Supreme Court in Commonwealth v. Myma, 278 Pa. 505, 507-508, 123 A. 486, 487 (1924) ruled:

A judge in a jury trial has a right to interrogate witnesses. It sometimes becomes his duty to do so, even to the point of recalling a witness to supply an omission of proof on a material point: Boggs v. Jewell Tea Co., 266 Pa. 428, 434 [106 A. 781]; State v. Jackson, 87 S.C. 407, 69 S.E. 883; Lycan v. People, 107 Ill. 423. But a judge may so conduct an examination as to make it an abuse of discretion, requiring a new trial.
Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination ... Judges should refrain from extended examination of witnesses; they should not, during the trial, indicate an opinion on the merits, a doubt as to the witnesses’s credibility, or do anything to indicate a leaning to one side or the other, without explaining to the jury that all these matters are for them.

Accord, Commonwealth v. Seabrook, 475 Pa. 38, 379 A.2d 564 (1977); Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970); Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980); Commonwealth v. Toombs, 269 Pa. Super. 256, 409 A.2d 876 (1979).

The American Bar Association’s Standards Relating to the Function of the Trial Judge have further elucidated the role of the judge as interrogator.

[I]t is appropriate for him [the trial judge] from time to time to intervene in the conduct of the case. Thus, when it clearly appears to him that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, he may be question to a witness elicit relevant and important facts. He may interrogate a witness after a cross-examination which appears to be misleading to the jury---- The judge should be aware that there may be greater risk of prejudice from over-intervention than from under-intervention. While he should not hesitate to exercise his authority when necessary, he should avoid trying the case for the lawyers. American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge, Approved Draft, 1972, Commentary, Section 1.1(a), P. 26-27. See: Commonwealth v. Seabrook, supra [475 Pa.] at 45, [379 A.2d at] 567.

Although the standard in these cases is well-settled, its application on appellate review is difficult because the appellate court applies the standard on a cold record.

It is impossible to record the demeanor of the judge when questions are asked by him. A hostile form of mind cannot be recorded unless the questions themselves disclose it; it is impossible to note either the inflection of the voice, the manner of the questioner, or what is generally termed the “atmosphere” of the trial.
Commonwealth v. Myma, supra, 278 Pa. at 510, 123 A. at 487.

In order to determine if the trial judge abused his discretion we have carefully evaluated the entire record with particular emphasis on the court’s participation in questioning witnesses.

Initially, we note that the judge’s opening remarks properly instructed the jury as to their role in the case; i.e. the jurors are the sole judge of the facts N.T. 52-53, and the credibility of witnesses, N.T. 54, 59. He specifically cautioned:

Now, I may question some of the witnesses myself during the course of the trial. The questions, if I do ask them, will not reflect any opinion on my part about the evidence or about the case. My only purpose would be to inquire into matters which have not been fully explored, or matters that I think need some clarification.
Again, a cautionary instruction to you, do not look to me to fill in all the little details of the case. That is not my role. I will only get involved in the questioning if it is something that I feel has not been fully explored and that is a proper area for me to get into or matters that require clarification.
N.T. 60-61.

The court repeated this cautionary instruction before questioning the victim and the appellant during the trial. N.T. 165, 446.

In its charge to the jury the court again acknowledged its limited role and the jury’s proper role. The court reminded the jury:

Again, as I said, it is your recollection of the evidence, ladies and gentlemen, both the direct and the circumstantial evidence and not mine or the lawyers on which you rely during your deliberations.
You are not bound by any opinion you might think the lawyers or I have expressed concerning the guilt or innocence, credibility of witnesses, weight of . evidence, facts proven by the evidence or inferences to be drawn from the facts.
N.T. 602.

In a four hundred and eighty seven page trial transcript, only a small portion, twelve pages, included questions that the court posed relating to police practices. The court directed questions at certain police officers to clarify police practices for the jury. The judge asked one police officer to define the term a “forty-eight”, N.T. 250; others to explain standard line-up procedures. N.T. 307, 316 and 401. The judge queried an investigating officer who had taken night-time photographs of the scene about the lighting conditions that existed when he took them. N.T. 268-269. The judge conducted this questioning in a neutral unbiased manner and clarified the subject matter under consideration. Counsel for the appellant was given an opportunity for recross-examination after the court completed its inquiry. N.T. 316. See Commonwealth v. Lanza, 228 Pa.Super. 300, 323 A.2d 178 (1974). The net result of this questioning was to enlighten the jury on police practices which were important for their understanding of the case.

The appellant especially complains about the court’s questioning the victim asserting that this questioning was unnecessary and that the questions were repetitious and served to highlight testimony favorable to the Commonwealth. N.T. 156-171. On the basis of the record we cannot conclude that the judge’s questions went beyond the permissible border.

The court questioned the victim about the circumstances surrounding several identifications she made of appellant. The victim and a witness positively identified the appellant at both the line-up and the preliminary hearing. The victim also identified him with certainty at trial during her direct testimony. However, a composite drawing made earlier by the police, based on the victim’s and a witness’ description, bore little resemblance to the appellant. N.T. 111-112; 145-149.

The victim’s ability to observe her assailant during the commission of the crime was therefore crucial but was not addressed thoroughly in direct and cross-examination. After counsel had completed their examinations, the court briefly questioned the victim, first giving the jury cautionary instructions. N.T. 165.

The court asked the victim to describe the opportunities she had to observe her assailant, N.T. 166-167; and to explain her inability to adequately describe the assailant to the artist making the composite. N.T. 168. These questions themselves were neutral in content, were not protracted, and did not indicate bias. Counsel for the appellant was given the opportunity to recross-examine the victim after the court completed its questions. N.T. 170-171. Taking all these factors into consideration, we conclude that the court did not abuse its discretion in questioning the victim.

The appellant next contends that the judge’s questioning of him was excessively extensive and indicated to the jury that the court did not believe his alibi defense. After a thorough study of the judge’s examination, we conclude that the trial court did not abuse its discretion in questioning appellant.

On direct examination, the appellant gave the following testimony regarding his alibi defense:

Q. Where were you on that day, that evening?
A. You mean from the beginning of the day?
Q. From 7 o’clock in the evening on where were you that day?
A. I was around 12th and Christian for a while. Then I went to 12th and Carpenter. Then around 11th Street until about 11:30. Then I went home.
Q. Were you with anybody at any of those times?
A. Some of my friends.
Q. When did you go out to visit your friends?
A. About 5 o’clock.
Q. Were you able to bring any of those friends today in court?
A. No.
Q. Were you able to find them?
A. No.
Q. Have you been in police custody since May 11th, 1979, when Officer Berren placed you in custody?
A. Yes.
Q. So, have you been able to go out on the street and find any of your friends that you were with that night?
A. Yes.
Q. Have you been able to go out on the street and find any of those friends?
A. No.
N.T. 414-415.

The assistant district attorney cross-examined appellant regarding the details of his alibi, including the names and addresses of his friends, the amount of time they spent at each location the night of the crime, and the efforts appellant made, through his attorney, to locate these friends so that they would testify for him.

However, the question of whether his incarceration inhibited or prevented him from pursuing alibi witnesses to testify for him was not fully explored on direct, cross or redirect examination of appellant. After both counsel had completed their questioning of appellant, the court queried the appellant in general terms about his access to his attorney while he was incarcerated, to inform the jury about availability of counsel to prisoners in general and appellant in particular.

Before he began his questions, the judge issued cautionary instruction. N.T. 446. The judge, leading up to the subject of availability of communication between the appellant and his attorney, asked appellant:

BY THE COURT:
Q. I want to clarify some things with respect to these people that you mentioned and that you have known all of your life, or most of them all of your life and that you have been unable to get a hold of.
Q. Now, have you had an attorney appointed for you since the very day of your arrest?
A. Yes.
Q. And since the day of your arrest and up through and including today have you had access to an attorney at any time that you needed one to discuss and prepare this case?
A. When he comes to see me.
Q. Speak to the jury.
A. Yes.
Q. Now, when did you give your attorney the names of these people that you mentioned from the stand today that know you were with them between 7:00 and 11 o’clock on May 9th 1979?
When did you give your attorney the names of those people?
A. I believe it was a couple of weeks, three, four weeks ago, I believe. I can’t say exactly what day it was.
Q. Three or four weeks ago?
A. Somewhere in that vicinity.
Q. From today?
A. Yes.
Q. Is that the first time you gave your attorney the names of these people you say were with you between 7:00 and 11 o’clock that night?
A. Yes, I believe so.
Q. Had you had discussions with the attorneys that were involved in this case on your behalf prior to three weeks from today since your arrest?
A. Yes.
Q. They visited you at the prison from time to time?
A. Yes.
Q. Are you permitted to make calls from the prison?
A.. You’re permitted to make one call. Like it’s hard to explain. I mean if you get a call at all. You know, they give you a phone call sometime. I mean it’s not like you can go make a phone call.
Q. Isn’t it true that you are allowed to make phone calls? You correct me if I am wrong.
A. You’re allowed to make phone calls, but that don’t say you going to get one.
Q. Well, you are allowed to make phone calls out, you have that right and privilege?
A. You have it, but that don’t mean you’re going to get it, you understand.
Q. Now, were you at any time prevented from contacting your attorneys?
A. Just like I said, Your Honor, they give you a phone call—
Q. Were you ever at any time prevented from contacting your attorneys?
A. That’s what I’m trying to explain to you, how the situation is.
Q. I am familiar with it.
A. Well, no.
Q. You can explain. Go ahead.
A. They supposed to be social workers. I guess that’s what they call them. You go to them with a problem. They send you to someone else. Then they send you to this person. You don’t get nothing done.
He comes to see me as often as he can, and when he comes to see me I tells him my problems. Then, other than that I can’t do nothing.
Q. Thank you very much for the explanation.
Since May 9th you have had an attorney appointed for you, correct?
A. Yes.
Q. And those attorneys visit the prison almost every day, don’t they?
A. Those attorneys?
Q. From his office.
A. From his office?
Q. Yes.
A. I guess so. I don’t know.
Q. Well, you know other people who are there who are represented by attorneys from his office?
A. Probably so.
Q. You also can write out to your attorneys at any time you want, is that correct?
A. Yes.
Q. So, my specific question to you is, to clarify this matter, were you at any time ever prevented by anyone and, if so, you give us the names, from contacting your attorneys?
A. By phone?
Q. By phone, by letter or by making a request.
A. Sure. I can give several names____
N.T. 448-456.

The dialogue recited above constitutes the essence of the interchange between the judge and the appellant although the actual dialogue covered 8 pages of transcript. N.T. 448-456. We conclude however based on the above line of questioning that the trial court did not abuse its discretion or reveal manifest bias to the jury. The content of the questions was neutral. Although repetitious the questions were not asked in a hostile, badgering or challenging manner. The appellant did not answer some of the questions directly. The court showed patience with appellant’s answers and allowed him full opportunity to explain them. The questions did not show hostility toward the appellant.

In support of his position that a new trial should be granted appellant cites Commonwealth v. Williams, 468 Pa. 453, 364 A.2d 281 (1976); Commonwealth v. Toombs, 269 Pa.Super. 256, 409 A.2d 876 (1979); Commonwealth v. Elmore, 241 Pa.Super. 470, 362 A.2d 348 (1976); and Commonwealth v. Ramirez, 269 Pa.Super. 601, 410 A.2d 863 (1979). In each of these cases, the trial court’s participation clearly went beyond the limits of proper questioning and each is clearly distinguishable from the case sub judice.

Appellant also contends that the trial court repeatedly directed critical and denigrating remarks at appellant’s counsel in front of the jury, and that these unfairly influenced the jury’s opinion of appellant’s case. It is axiomatic that absolute impartiality in the conduct of the trial is expected of the trial judge, as he occupies an exalted position. He is the one person to whom the jury looks for guidance, and from whom the litigants expect impartiality. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Myma. However,

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. (Citations omitted)
Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973), quoting from Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957). See also, Commonwealth v. Palmer, 463 Pa. 26, 35-36, 342 A.2d 387, 392 (1975). (Emphasis in original).

We have carefully reviewed the entire record and examined those comments raised by appellant. We conclude that these comments do not require the granting of a new trial.

Appellant contends that the court committed error when it interrupted him during his closing remarks as he (counsel) began to explain to the jury the meaning of “reasonable doubt.” The court correctly curtailed the attorney’s remarks explaining to the jury that it was his role to instruct as to the law. N.T. 536. It is the duty of the trial judge to instruct the jury as to the applicable law, and it is not error for the judge to interrupt counsel and correct a possibly misleading statement of the law. Commonwealth v. Coleman, 235 Pa.Super. 379, 341 A.2d 528 (1975).

Appellant also complains of other specific exchanges between trial counsel and the court in which he alleges that the trial judge was disrespectful or his comments showed partiality. Counsel’s objections are without merit, although the interchanges in some instances were caustic, they did not deprive appellant of a fair and impartial trial. N.T. 162, 309, 365, 452-453, 550; See: Commonwealth v. England, 474 Pa. at 17, 375 A.2d at 1300.

The appellant raises several additional claims relating to error made by the court.

Appellant contends that a mistrial should have been granted because the jury was informed of his arrest in another criminal matter. If a testimonial reference indicates to the jury that the accused was involved in unrelated criminal activity, reversible error has been committed except in certain circumstances. Commonwealth v. Nichols, 485 Pa. 1, 400 A.2d 1281 (1979); Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978); Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973). “[T]he controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972); Commonwealth v. Irwin, 475 Pa. 616, 381 A.2d 444 (1977).

Appellant was initially arrested for an unrelated matter, and was subsequently held in this case after he was identified by the victim in the line-up. Although the district attorney did question an officer about that arrest, no reference was made to the unrelated criminal activity. The only reasonable conclusion the jury could have reached from this testimony was that appellant was arrested at that time for the crime for which he was being tried. N.T. 73, 272-273.

Appellant also points to a remark made earlier by the victim, during direct examination. The victim was asked if anyone had suggested to her that her assailant would be present at the line up. She answered:

No, they just said they had picked up a suspect in a different case. N.T. 114.

We do not believe that the jury could have concluded from this remark, which did not even refer to appellant specifically, that appellant had been involved in unrelated criminal activity.

In order to bolster his misidentification defense, appellant attempted to show that police officials conducting the investigation were biased against appellant and improperly motivated to solve this crime quickly. To support this, appellant attempted to introduce the testimony of two reporters for the Welcomat newspaper. They would have testified that sources at the Philadelphia Police Department’s Central Detective’s office intentionally and untruthfully told them that appellant had committed another rape in center city Philadelphia. The reporters did not know the names of their sources. We conclude that the trial court properly excluded this testimony as irrelevant and as hearsay. See: Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981).

The appellant also claims it was error for the trial court to refuse to allow him to call two witnesses for the purpose of introducing prior inconsistent statements of one of the defense witnesses. Counsel did not plead surprise at trial. The in-court statements of the witness he sought to impeach were not inconsistent with those he attempted to introduce, but were merely not as favorable to the appellant as he might have preferred. Considering the factors outlined in Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982), the court did not abuse its discretion in this regard.

The appellant alleges that the court committed reversible error in defining reasonable doubt in its charge:

It is not a mere hesitation. A mere hesitation in and of itself is not a reasonable doubt. But a hesitation concerning the guilt of the defendant may become a reasonable doubt when and if that hesitation becomes a restraint and would then cause you to be restrained from acting in a matter of the highest importance in your own life.
N.T. 641.

Appellant contends that this constituted reversible error as the Supreme Court has defined reasonable doubt as a doubt that would cause “hesitation” in matters of the highest importance. Formulations of reasonable doubt using “hesitate” and “restraint” have both been approved by the Supreme Court. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). This court has held that a trial court may properly choose one and explicitly reject the other in its instructions to the jury. Commonwealth v. Moore, 271 Pa.Super. 494, 414 A.2d 362 (1979). Affording the trial court this choice is not error. It is not at all clear that one instruction is more favorable to the accused than the other. Commonwealth v. Boone, 287 Pa.Super. 1, 429 A.2d 689 (1981). Therefore appellant’s claim is meritless.

Appellant also claims that a new trial should be granted because the trial court allowed the assistant district attorney to cross-examine him by using an out of court statement of another party. N.T. 439-440. Clearly this statement was hearsay and was not admissible as substantive evidence, or for the purpose of impeaching credibility. Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981). However, the trial court’s clear and proper curative instruction was sufficient, and we conclude that the trial court did not commit reversible error. See: Commonwealth v. Hill, 237 Pa.Super. 543, 353 A.2d 870, 879 (1975).

The trial court properly instructed the jury regarding the adverse inference that may be drawn in certain circumstances if witnesses are not called. In so doing, the court used several examples from the evidence that had been presented.- Appellant alleges that the trial court erred when it explained that a potential witness, who had seen the line up but was unable to identify him, was available to both sides, and no adverse inference should be drawn from the Commonwealth’s failure to produce her at trial. We find no error in this instruction as it was an appropriate example and a correct statement of the law. Commonwealth v. Brown, 267 Pa.Super. 530, 407 A.2d 36 (1979).

Neither was reversible error committed when the court permitted the assistant district attorney to argue from a statement which had been read into evidence, although she inadvertantly added a word. After appellant’s objection, the court properly instructed the jury that its own recollection of the testimony was controlling, not that of counsel. See: Commonwealth v. Mathis, 227 Pa.Super. 464, 324 A.2d 407 (1974).

We also conclude that appellant’s allegation that a new trial is required for prosecutorial misconduct in closing argument is without merit. Although the remarks regarding appellant’s trial strategy were improper, Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975), the trial court immediately sustained appellant’s objection and properly and adequately instructed the jury to disregard those remarks.

Appellant also argues without merit that the trial court erred in refusing his request to charge the jury on robbery under 18 Pa.C.S.A. 3701(a)(v), (third degree felony) as well as 18 Pa.C.S.A. 3701(a)(iv) (second degree felony). A trial court need not instruct the jury on a lesser offense unless there is support for that instruction in the evidence. Commonwealth v. Franklin, 248 Pa.Super. 145, 374 A.2d 1360 (1977); Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 358 A.2d 98 (1976); accord, Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980). Under the evidence presented in this case, the trial court’s refusal of appellant’s proposed instruction was proper.

Finally appellant has asserted that the court erred by imposing an illegal sentence on the robbery bill. Although this issue was not raised below, it is well-settled that the illegality of a sentence is not a waivable matter. Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. Fulton, 315 Pa.Super. 420, 462 A.2d 265 (1983). We agree that the sentence imposed was illegal.

The trial court charged the jury only on robbery as provided by 18 Pa.C.S.A. § 3701(a)(iv). This is a felony of the second degree. 18 Pa.C.S.A. § 3701(b). The maximum sentence for a felony of the second degree as provided by 18 P.S.A. § 1103(2) is not more than ten years. Therefore, the sentence of ten to twenty years imposed by the trial court exceeded the statutory maximum and was illegal.

Once it has determined that a sentence is illegal, this court may either remand for resentencing or vacate and amend the sentence directly. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). The trial court sentenced appellant to the maximum time permissible on all the bills for which he was sentenced. The court also provided that these sentences were to be served consecutively, and explained its reasons on the record at sentencing N.T. 3/18/80, 22-28. The court clearly intended that appellant serve the maximum permissible period of incarceration. Therefore we are not substituting our judgment for that of the trial court by amending appellant’s sentence on the robbery bill to the statutory maximum, five to ten years, to be served consecutively to his sentences on the other two bills for which he was sentenced. See: Commonwealth v. Lovett, 218 Pa.Super. 201, 275 A.2d 835 (1971).

As Amended, the Judgment of Sentence is Affirmed.

POPOVICH, J., dissented.

SPAETH, President Judge, filed dissenting opinion.

BROSKY, J., joined in SPAETH’s, President Judge, dissenting opinion.

SPAETH, President Judge,

dissenting:

I believe that the trial judge’s questioning of appellant constituted an abuse of discretion, and that the judgment of sentence should be reversed and the case remanded for a new trial.

Appellant’s defense was alibi and misidentification. On direct examination he testified that on the evening of the crime he was with some of his friends: “I was around 12th and Christian for a while. Then I went to 12th and Carpenter. Then around 11th Street until about 11:30. Then I went home.” Id. Appellant’s testimony implied that he was not able to bring any of these friends to court to testify in his defense because he had been in custody since his arrest and had not been able to go out and find any of the friends that he was with that night. Id. On cross-examination the assistant district attorney questioned appellant extensively regarding the identifies of the friends he had been with that night and the efforts that he and his attorney had made to locate them. N.T. 423-37. Nevertheless, the trial judge then also proceeded to question appellant extensively regarding appellant’s efforts and ability to locate these friends through the use of his attorney while he was in prison. N.T. 448-456.

The majority quotes at pages 213 through 216 of its opinion approximately four pages of the judge’s questioning of appellant and states that this constitutes “the essence of the interchange.” Majority Op. at 216. However, the judge’s questioning covered approximately eight pages of the trial transcript, and it is necessary to consider all of it in order to determine whether the judge abused his discretion. The judge’s questioning continued, after the questions quoted by the majority, as follows:

A. Sure. I can give you several names.
MR. BACHMANN: Objection Your Honor.
THE COURT: Objection to what?
MR. BACHMANN: Your Honor’s question.
THE COURT: Overruled.
MR. BACHMANN: Sidebar?
THE COURT: Not necessary.
MR. BACHMANN: Commonwealth vs. To[o]mbs, Your Honor.
THE COURT: This is Commonwealth v. Britton.
MR. BACHMANN: I am aware, Judge.
THE COURT: Fine. I don’t think we need to throw out cases in front of the jury after I have denied your request for sidebar, do you understand that?
MR. BACHMANN: Yes, Your Honor. May I re-ask my request for sidebar, Your Honor?
THE COURT: Denied.
BY THE COURT:
Q. You have been in the Philadelphia Detention Center Since May 9th, this is what I am trying to clear up, and during that time you have had opportunities to discuss the case? You can answer that yes or no and then you can explain. Because we are not getting the yes or no answers, we are getting the explanations. I really do need to clarify something, and if there is anything you do not understand just stop me there. You have worked with your attorneys in the preparation of this case, is that a correct statement?
A. Yes.
Q. You told the jury, as I understand it, that you first gave the names of these people to your attorney three weeks ago?
A. Somewhere around there.
Q. Did you give him the addresses of these people?
A. No.
Q. Have you ever visited their homes, these people you have known all your life?
A. They’re my age, 22, 23.
Q. Have you ever visited their homes?
A. Some of them.
Q. Now, did you give your attorney the addresses of those people whose homes you visited that you have known all your life?
A. No, sir.
Q. Why not?
A. Because I was incarcerated. And when I came home, people move, and people don’t usually give you their addresses. I mean you see them but they don’t usually, you know give up their addresses.
Q. Mr. Britton, what I am trying to clarify here—
MR. BACHMANN: Request for sidebar, Your Honor?
THE COURT: Denied.
BY THE COURT:
Q. What I am trying to clarify, Mr. Britton, is I thought I understood you to say that you knew these people all your life, you knew their addresses. I am asking you did you give those addresses to your attorney?
A. No.
Q. Why not?
A. Because I didn’t have but maybe one dude that I knew the address. That’s about it.
Q. Did you give him that address?
A. No.
Q. What day did you get out of this hospital or leave?
A. March something, 1st, 2nd, 3rd.
Q. I think maybe you are confused. I think you said April earlier.
A. Yes, April.
Q. I don’t want you to make a mistake.
Sometime in April?
A. Yes, I believe so. In April, somewhere in that vicinity-
THE COURT: No further questions.
Do you have any questions as a result of the Court’s questions, counsel?
MR. BACHMANN: No, sir.
THE COURT: Thank you. Step down.
N.T. 452-56.

The majority states that the judge’s questions were “neutral,” “did not reveal manifest bias,” and were not asked in a “hostile” or “challenging” manner. Majority Op. at 216. I am unable to join in these statements. I submit that no one on the jury could have had the least doubt that the judge regarded appellant’s testimony with incredulity and disdain.

English judges may, and often do, manifest their disbelief of a witness’s testimony, including the defendant’s. See Wigmore on Evidence §§ 784, 2551, 2551a (Chadbourn Revision 1970). But, partly because of the colonists’ experience with His Majesty’s judges, id., our tradition is different.

Thus our Supreme Court has said:

Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination. The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table. To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence. Judges should refrain from extended examination of witnesses; they should not, during the trial, indicate an opinion on the merits, a doubt as to the witnesses’s credibility, or do anything to indicate a leaning to one side or the other, without explaining to the jury that all these matters are for them.
Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486, 487 (1924).

Moreover, “[t]he fact that it was the defendant himself in the present case who was the target of the judge’s incredulity serves only to magnify the potential harmful effect upon the jury.” Commonwealth v. Williams, 468 Pa. 453, 464, 364 A.2d 281, 287 (1976). See also Commonwealth v. Ramirez, 269 Pa.Super. 601, 410 A.2d 863 (1979) (trial counsel ineffective for not pursuing claim in post-verdict motions where trial judge’s questions to defendant manifested disbelief of defendant’s testimony regarding self-defense); Commonwealth v. Toombs, 269 Pa.Super. 256, 409 A.2d 876 (1979) (defendant entitled to new trial where judge’s remarks concerning defense witness’s testimony manifested disbelief of testimony and prejudice was confirmed by judge’s questioning of alibi witness and of defendant that also manifested disbelief of their testimony).

The majority relies on the fact that the judge gave a cautionary instruction before he began questioning appellant. Majority Op. at 213. Before questioning appellant, the judge stated:

THE COURT: I have a few questions. Again, ladies and gentlemen of the jury, my questions do not reflect any opinion on my part about the guilt or innocence of the defendant or any other disputed question. They are simply asked for the purpose of clarifying some matters that have been injected into this case at this particular stage.
N.T. 446.

Whatever effect this remark may have had was undone by what followed. The majority’s acknowledgment that the judge’s questions were “repetitious”, Majority Op. at 1301, is, I submit, inadequate. The questions were not simply repetitious; by doing no more than cover ground already thoroughly explored by the assistant district attorney’s extensive cross-examination of appellant, the questions served only to reemphasize the weaknesses in appellant’s testimony; they “clarified]” nothing except the judge’s attitude towards appellant’s defense.

Nor may it be maintained that the judge’s “departure] from the clear line of duty”, Commonwealth v. Myma, supra, was harmless. One can have no doubt that the judge’s manifestation of disbelief of appellant’s testimony was “quickly reflected in the jury box.” Id. And see Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

I should reverse the judgment of sentence and remand for a new trial.

BROSKY, J., joined in this dissenting opinion.

      . 18 Pa.C.S. §§ 3121, 3701, 3502, 2701.

      . We affirm the trial court with the exception of its imposition of maximum sentence on the robbery conviction. We have modified the sentence for robbery in accordance with 18 Pa.C.S. § 1103(2). See at p. 222.

      . For an explanation of those circumstances, none of which are present here. See Commonwealth v. Nichols, supra.

      . Because I believe that appellant is entitled to a new trial solely on the ground that the judge’s questioning of appellant constituted an abuse of discretion, I express no view on the remainder of appellant’s arguments.


source: Caselaw Access Project

author: JOHNSON, Judge: WIEAND, Judge,

license: Public Domain

text:
    482 A.2d 1307
    COMMONWEALTH of Pennsylvania v. Jeffrey MULLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed Oct. 12, 1984.

      Suzanne B. Ercole, Pottstown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   JOHNSON, Judge:

Appellant appeals from the order which denied his motion to withdraw his guilty pleas nunc pro tunc and amended the previously imposed sentences on two forgery counts. We affirm.

Appellant pled guilty to seven counts each of forgery, theft by deception and receiving stolen property. He was sentenced to concurrent terms of four to ten years on two of the forgery counts and five years concurrent probation on two other forgery counts. Appellant then filed a pro se notice of appeal to this court and counsel was appointed to represent him. Counsel discontinued the appeal and filed a Motion to Vacate Illegal Sentence and/or Motion to Withdraw Guilty Plea Nunc Pro Tunc, correctly alleging that the pleas on the forgery counts were properly of the third degree and not the second degree, as set forth in the guilty plea colloquy. As a result, appellant’s four to ten year sentences were reduced to three and one-half to seven years. The remaining sentences were not altered and appellant’s request to withdraw the pleas was denied. Following the denial of a motion to modify sentence, this appeal followed.

Three issues are raised on appeal: (1) whether the guilty pleas were knowingly, intelligently and voluntarily entered when appellant was incorrectly advised of the grade of the forgery charges, (2) whether the sentence was excessive, and (3) whether sentencing counsel was ineffective for failing to produce certain mental health reports and recommendations at the original sentencing hearing.

Regarding the first issue, appellant did not challenge the validity of his pleas prior to sentence, pursuant to Pa.R.Crim.P. 320, nor did he file a timely post-sentence motion to withdraw his pleas, as required by Pa.R.Crim.P. 321(a). Generally, the failure to file such a post-sentence motion is considered a waiver of the right to challenge the validity of the plea on appeal, provided the court has informed him of his right to file said motion. Commonwealth v. Cavanaugh, 500 Pa. 313, 456 A.2d 145 (1983). In the instant case, appellant was fully informed of this right at the plea colloquy. However, Pa.R.Crim.P. 1405(c)(2) and (3) require the sentencing judge, at time of sentence, to inform the defendant of his right to file motions challenging the validity of his guilty plea and of the ten-day time limit in which to file the motions. Instantly, the sentencing court failed to so advise appellant. While appellant had actual knowledge of the necessity and time limitations surrounding the filing of a post-sentence motion to withdraw his pleas, the language in Rule 1405(c) makes clear that informing a defendant of the motion requirements is mandatory.

Hence, appellant did not waive his right to file his withdrawal motion nunc pro tunc. See Commonwealth v. Vigue, 279 Pa.Super. 46, 420 A.2d 736 (1980); see also Commonwealth v. Warner, 306 Pa.Super. 73, 452 A.2d 9 (1982).

Appellant contends that the trial court erred in refusing to allow withdrawal of his guilty pleas, as the pleas were not knowingly, intelligently or voluntarily entered. This argument is based on the fact that appellant was misinformed as to the correct grade of the crime and statutory penalties for forgery.

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly authorized. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). A defendant incurs manifest injustice upon the court’s denial of his motion to withdraw where the pleas were entered involuntarily or without knowledge of the charge. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d 126 (1983). Therefore, the defendant must make some demonstration that the plea was not voluntary or was entered without knowledge of the charge. Commonwealth v. Shaffer, supra. See also Commonwealth v. Johnson, 273 Pa.Super. 488, 417 A.2d 753 (1979) (burden on defendant to prove plea involuntary so as to warrant post-sentence withdrawal). The determination as to whether the guilty plea was entered involuntarily or without knowledge of the charges is made by an analysis of the totality of the circumstances surrounding the plea. Commonwealth v. Shaffer, supra.

It is undisputed that appellant was misinformed, at the plea colloquy, as to the grade of the forgery charges and the maximum penalties which could be imposed. The forgery charges were based on appellant’s utilization of stolen bank checks. 18 Pa.C.S. § 4101(c), the grading provision of the forgery statute states:

(c) Grading. — Forgery is a felony of the second degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments issued by the government, or part of an issue of stock, bonds or other instruments representing interests in or claims against any property or enterprise. Forgery is a felony of the third degree if the writing is or purports to be a will, deed, contract, release, commercial instrument, or other document evidencing, creating, transferring, altering, terminating or otherwise affecting legal relations. Otherwise forgery is a misdemeanor of the first degree.

We believe it safe to conclude, absent any case law, that a bank check would be considered a commercial instrument under this section. See 13 Pa.C.S. § 3104(b), (c) (defining check as instrument). Appellant’s forgery of bank checks amounted to only a third degree felony, not a second degree felony as was stated. It is also undisputed that appellant’s initial sentence was illegal as exceeding the maximum penalty for a third degree felony. See 18 Pa.C.S. § 1103.

However, the substantive portion of the forgery statute, which sets forth the elements of the crime, is the same for all grades of forgery. The distinctions in the grading provision of the statute go only to the type of writing involved. Appellant was correctly advised as to all elements of the crime of forgery and his counsel admitted the propriety of the colloquy, other than the grading of the offense and description of the maximum penalties, at the hearing on the motion to withdraw the pleas.

Our review reveals no manifest injustice requiring the drastic result of a withdrawal of the pleas in the instant case. Appellant fails to set forth any argument regarding manifest injustice other than his statement that “[a] plea of guilty that is induced by fear of imposition of a greater sentence than what could be properly imposed is a guilty plea that is obtained in violation of the rationale of Commonwealth v. Kulp, [476 Pa. 358, 382 A.2d 1209 (1978)] and Rule 319 of Pa.R.Cr.P.” Appellant’s Brief at 11. In Kulp, the supreme court held appellant’s guilty plea colloquy inadequate in regard to informing appellant of the possible range of sentences and/or fines for the offenses charged. The trial court in Kulp asked only if appellant understood what the sentences could be.

In the instant case, appellant was informed of the range of sentences (and fines) which could be imposed for a second degree forgery plea of guilty. While clearly in error, the discrepancy between the range about which appellant was informed (five to ten years imprisonment and/or a twenty-five thousand dollar fine on each count) and the proper range (three and one-half to seven years and/or a fifteen thousand dollar fine) does not constitute such a manifest injustice as to require withdrawal of the plea, where the imposition of an invalid sentence is subsequently corrected.

The only error in the entry of the guilty pleas to forgery in the instant case was advising appellant that the grade and maximum penalties for the forgeries amounted to second degree felonies, rather than third degree felonies. The sentences initially imposed were subsequently amended to comply with the sentencing requirements for third degree felony convictions. There can be no finding of manifest injustice in such circumstances. Therefore, the trial court did not err in refusing appellant’s post-sentence motion to withdraw the forgery pleas.

Appellant’s second issue alleges that the sentences of three and one-half to seven years imprisonment for forgery were manifestly excessive. We disagree.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Plank, 498 Pa. 144, 445 A.2d 491 (1982); Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983). Our review of the sentencing transcript convinces us that the trial court carefully considered the sentence it imposed, following the mandate of the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and set forth adequate reasons for sentence on the record, as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). We find no merit in appellant’s arguments that the trial court failed to properly take into account the alternatives to total confinement, based its decision solely on the serious nature of the crimes, and failed to consider the mitigating evidence submitted on appellant’s behalf.

Lastly, appellant alleges his counsel at the original sentencing hearing was ineffective for failing to produce the report and recommendation of the prison psychiatrist who evaluated and treated appellant for drug dependency.

Our examination of a claim of ineffectiveness of counsel involves a two-step analysis:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

Commonwealth v. Golson, 310 Pa.Super. 532, 535, 456 A.2d 1063, 1065 (1983).

At the time of imposition of the original sentences, appellant’s counsel indicated the failure of the pre-sentence report to discuss the report of the prison psychiatrist. Appellant’s counsel then questioned appellant, inter alia, regarding his therapy with the prison psychiatrist. Further direct and cross-examination revealed appellant’s history of drug abuse and criminal activity. Prior to submitting his guilty pleas, a court study unit report ordered by the trial court had been submitted recommending that appellant be involved in rehabilitation rather than be prosecuted on these charges. This recommendation was considered and refused by the trial court. Hence, the trial court was well aware of evaluations recommending that appellant not be incarcerated with regard to these charges.

Our review convinces us that the trial court was supplied with more than adequate information as to appellant’s drug dependency and to the relative merits of incarceration, as opposed to rehabilitation in a treatment facility. Sentencing counsel adequately informed the court of appellant’s apparent need for rehabilitative treatment. As the report of the prison psychiatrist would have been cumulative at best, counsel was not ineffective. See Commonwealth v. Smillie, 316 Pa.Super. 83, 462 A.2d 804 (1983).

Order affirmed.

WIEAND, J. filed a dissenting opinion.

WIEAND, Judge,

dissenting:

If an accused enters a plea of guilty to and is sentenced for a criminal offense defined during the guilty plea colloquy, may he subsequently withdraw his plea of guilty after it has been determined that the guilty plea colloquy was erroneous and that as a consequence he was sentenced for an offense which he did not commit and with which he was not charged? The majority holds that such a plea cannot be withdrawn. I respectfully dissent.

Jeffrey Muller entered pleas of guilty to seven counts of forgery, theft by deception and theft by receiving stolen property. The charges arose from seven incidents in which Muller allegedly had used forged checks to purchase merchandise at retail stores in Montgomery County. The informations charging forgery did not recite the grades of the crimes. Muller entered pleas of guilty, and during the guilty plea colloquy he was told that his forgeries were felonies of the second degree, punishable by a maximum of ten years in prison. Muller was thereafter sentenced to serve concurrent terms of not less than four nor more than ten years on two counts of forgery. On two other counts he was sentenced to serve concurrent terms of probation for five years, to be served after completion of the prison sentences. Without filing post-sentencing motions, Muller filed a direct appeal to the Superior Court. Upon the advice of newly appointed counsel, this appeal was withdrawn in favor of a motion filed in the trial court to withdraw the guilty pleas. This motion was filed four months after sentencing. It was premised upon the fact that appellant’s forgeries were in fact felonies of the third degree, not felonies of the second degree. After hearing, the trial court denied the motion to withdraw the pleas of guilty. It attempted to remedy the resulting injustice, however, by reducing the sentences of imprisonment to concurrent terms of not less than three and one-half nor more than seven years. The sentences of probation were not altered. Muller appealed from the order denying his motion to withdraw the pleas of guilty.

The majority has correctly observed that the invalidity of Muller’s guilty pleas was not waived by his failure to file a timely motion to withdraw the pleas. In the first place, Muller’s guilty plea counsel was clearly ineffective. Not only did counsel fail to advise his client correctly about the offenses with which he had been charged, but he also allowed him to be sentenced for offenses which he had not committed. Muller was never advised prior to the appointment of present counsel that he had erroneously been sentenced for offenses which he did not commit and with which the Commonwealth had not charged him. Under these circumstances, it cannot be said that he knowingly waived the invalidity of his plea by failing to file a timely withdrawal motion. See: Commonwealth v. Pulling, 323 Pa.Super. 142, 145, 470 A.2d 170, 172 (1983); Commonwealth v. Cofield, 310 Pa.Super. 356, 362, 456 A.2d 650, 653 (1983); Commonwealth v. McCall, 267 Pa.Super. 351, 353, 406 A.2d 1077, 1078 (1979). Moreover, the sentencing court failed to advise Muller at the time of sentencing, as required by Pa.R.Crim.P. 1405(c)(3), that a motion challenging the validity of his guilty pleas could be filed within ten days thereafter.

In order to withdraw a plea of guilty after sentence has been imposed, a defendant must show prejudice in the nature of manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). The law is clear, however, that manifest injustice occurs when a plea of guilty is entered involuntarily or without knowledge of the offense charged. Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982); Commonwealth v. Campbell, 309 Pa.Super. 214, 219, 455 A.2d 126, 128 (1983). A guilty plea, to be knowingly and intelligently entered, must be preceded by a colloquy which demonstrates that the accused is fully cognizant of the nature and elements of the offense charged. Commonwealth v. Ingram, 455 Pa. 198, 203-204, 316 A.2d 77, 80 (1974). See: Commonwealth v. Reed, 488 Pa. 221, 227, 412 A.2d 477, 480 (1980); Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979); Commonwealth v. Tabb, 477 Pa. 115, 119-120, 383 A.2d 849, 851 (1978); Commonwealth v. Belleman, 300 Pa.Super. 209, 213, 446 A.2d 304, 306 (1982). The accused must also be informed accurately of the permissible range of the sentence which may be imposed for an offense charged. See: Commonwealth v. Kulp, 476 Pa. 358, 361, 382 A.2d 1209, 1211 (1978); Commonwealth v. Fay, 294 Pa.Super. 332, 336-337, 439 A.2d 1227, 1229 (1982). Adherence to the guidelines set out in the Comments to Pa.R.Crim.P. 319 is a minimum requirement. Failure to satisfy those requirements will, in most cases, require that a defendant be permitted to withdraw a plea of guilty. Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 827 (1976). Accord: Commonwealth v. Willis, 471 Pa. 50, 52, 369 A.2d 1189, 1190 (1977). Compare: Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984). During the colloquy in this case, appellant’s offense was incorrectly defined as a felony of the second degree and the permissible range of the sentence was erroneously stated.

The existence of manifest injustice in the instant case is clear. It is undisputed that Muller entered pleas of guilty after being told that his offenses were felonies of the second degree. His offenses, however, were felonies of the third degree. The difference between forgery which is a felony of the second degree and forgery which is a felony of the third degree is not merely one of degree. The two offenses are separate and distinct. They are defined at 18 Pa.C.S. § 4101(c) as follows:

(c) Grading. — Forgery is a felony of the second degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments issued by the government, or part of an issue of stock, bonds or other instruments representing interests in or claims against any property or enterprise. Forgery is a felony of the third degree if the writing is or purports to be a will, deed, contract, release, commercial instrument, or other document evidencing, creating, transferring, altering, terminating or otherwise affecting legal relations....

Thus, it is incorrect to say, as the majority does, that the substantive elements of the two grades of forgery are the same. The offenses with which Muller was charged were forgeries of commercial instruments. These offenses were felonies of the third degree. He entered pleas of guilty, however, to felonies of the second degree, which are forgeries of “money, securities, postage or revenue stamps, or other instruments issued by the government, or part of an issue of stock, bonds or other instruments representing interests in or claims against any property or enterprise.” This offense he did not commit. Such a scenario, it seems to me, demonstrates unequivocally the existence of prejudice in the nature of manifest injustice which may be corrected by a post-sentencing withdrawal of guilty pleas.

Despite the fact that Muller unknowingly entered pleas of guilty to offenses which he did not commit and with which he was not charged, the majority refuses to allow him to withdraw the pleas of guilty. His invalid pleas, the majority says, must stand. The prejudice can be corrected by reducing the illegal sentences of imprisonment imposed on two counts of forgery so that they will conform to the statutory maximum for felonies of the third degree. As a result, Muller’s defective guilty pleas remain. They appear as admissions of guilt to felonies of the second degree, which he did not commit. In the remaining cases, the sentences imposed by the court for felonies of the second degree have not been altered because when imposed they did not exceed the statutory maximum for felonies of the third degree.

The majority is persuaded that this result is reasonable. I am not. Therefore, I dissent. I would permit appellant to withdraw his pleas of guilty and remand for a new trial.

      . 18 Pa.C.S. § 4101.

      . Id. § 3922.

      . Id. § 3925.

      . Rule 1405. Sentencing Proceeding
      At the time of sentencing, the judge shall:

      (c) advise the defendant on the record:
      (2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);
      (3) of the ten (10) day time limit within which such motions must be filed;
      (emphasis added)

      . Had appellant submitted his request to withdraw the pleas prior to sentencing, a less burdensome standard would be applicable, as pre-sentence requests to withdraw pleas require only the averment of a fair and just reason for withdrawing the plea. Such requests are to be liberally allowed unless withdrawal would substantially prejudice the Commonwealth because of its reliance on the plea. See e.g. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Although the issue of voluntariness presented here involves the initial imposition of illegal sentences, the validity of those initial sentences does not affect the standard to be applied to a request to withdraw a guilty plea. See Commonwealth ex rel. Winkler v. Claudy, 174 Pa.Super. 239, 101 A.2d 430 (1953), U.S. cert. den., 347 U.S. 992, 74 S.Ct. 856, 98 L.Ed. 1125 (1954) (initial imposition of sentences which were illegal does not render them void, but only subject to correction); see also Commonwealth v. Schreiber, 319 Pa.Super. 367, 466 A.2d 203 (1983) (post-sentence withdrawal petition reviewed by manifest injustice standard where sentencing court imposed sentence on count as a felony, when grading provision indicated count amounted only to misdemeanor).

      . The theft convictions merged in the forgery convictions for sentencing purposes.


author: POPOVICH, Judge:

text:
    482 A.2d 1315
    COMMONWEALTH of Pennsylvania v. Gregory TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Granted March 6, 1985.

      James H. Rowland, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Dauphin County against Gregory Taylor, appellant. On March 15, 1983, appellant was sentenced to pay a fine of $500.00 and undergo imprisonment in the Dauphin County Prison for not less than six nor more than twenty-three months for the crime of carrying a firearm without a license.

The sole issue raised by appellant is whether the trial court erred in failing to grant appellant’s motion to dismiss this charge as being violative of 18 Pa.C.S.A. § 110 which is entitled “When Prosecution Barred by Former Prosecution for Different Offense.”

The circumstances which led to appellant’s conviction occurred on April 6, 1982, at approximately 7:10 p.m. Officer Robert Klotzbeecher of the Harrisburg Police Department received a radio transmission concerning a domestic disturbance involving a pistol at 124 Baum Street. Appellant was reportedly involved. A sergeant of the Harrisburg Police Department responded to the call; and Officer Klotzbeecher immediately drove to an address supplied by radio, 438 Boas Street, which was subsequently determined to be the address of appellant’s girlfriend. He knocked on the door and received no response. He then stationed himself at a vantage point from which he could view the house. After approximately 15 to 20 minutes, Officer Klotzbeecher observed a man who fit the description he had received leave the house and begin to walk down the street. The officer called to appellant, and appellant responded by turning and removing a pistol. The officer removed his service revolver, aimed it at appellant and twice ordered appellant to drop his pistol. Appellant obeyed and was immediately arrested. Officer Klotzbeecher charged appellant with carrying a concealed firearm in violation of 18 Pa.C.S.A. § 6106. As a result of the domestic disturbance, appellant Was charged with simple assault; however, at the preliminary hearing, the district justice reduced the charge to harassment. Appellant was found guilty on that charge and subsequently fined $250.00 plus costs. The preliminary hearing on the assault charges was scheduled for April 14, 1982, and the preliminary hearing for the violation of firearms charge was scheduled for the next day.

Section 110 of the Crimes Code reads as follows: Although a prosecution is for a violation of a different provision of the statute than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in Section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for: ...
(ii) Any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or ...

We hold that the subsequent prosecution for the firearms charge was barred by Section 110.

The necessity to consider the double jeopardy complaints will only arise if it is determined that the statutory provision does not require the grant of the relief requested. Here we find that Section 110 does, in fact, require a ruling that the second prosecution on the drug charges should have been barred and, therefore, we will not in this opinion discuss the constitutional claims.

Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983).

... In defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered____ In ascertaining whether a number of statutory offenses are “logically related” to one another, the court should initially inquire as to whether there is a substantial duplication of factual, and/or legal issues presented by the offenses. If there is duplication, then the offenses are logically related and must be prosecuted at one trial. The mere fact that the additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode since the logical relationship test does not require an “absolute identity of factual backgrounds.”

Id., 500 Pa. at 491, 458 A.2d at 181.

The radio transmission initially received by Officer Klotzbeecher specified that a pistol was involved in the domestic disturbance at issue. Fifteen minutes elapsed between the domestic disturbance and Officer Klotzbeecher’s confrontation with the appellant. There was no “break” in appellant’s criminal activity. Commonwealth v. Lee, 291 Pa.Super. 164, 435 A.2d 620 (1981). Other officers immediately charged appellant with assault by menace with a gun as a result of the domestic disturbance. It is manifest that the sole reason for Officer Klotzbeecher’s interest in appellant that day and at that time and place was appellant’s suspected involvement in the domestic disturbance, which involved a weapon.

The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created ____ Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and a separate trial would involve substantial duplication and waste of judicial resources.

Commonwealth v. Hude, 500 Pa. at 494, 458 A.2d at 183.

In Commonwealth v. Beam, 227 Pa.Super. 293, 324 A.2d 549 (1974) this court noted that where a suspect was arrested for an instance of behavior constituting disorderly conduct and he proceeded to assault the arresting officer and resist the attempted arrest, all the charges brought against the suspect arose from the same incident or transaction, despite the time period during which they occurred or any slight change in locale.

Commonwealth v. Green, 232 Pa.Super. 134, 140, 335 A.2d 493, 496 (1975). Similarly, in Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979), two parcels were unlawfully removed from a UPS truck. An eye-witness described the men involved, and shortly thereafter, an officer observed occupants of a car acting suspiciously although he had not yet heard of the theft. That officer, during his surveillance of the automobile, received a radio message describing the car in question. He then ordered the vehicle to halt and recovered the packages. Appellant supplied a false identification. He was subsequently charged with unsworn falsification to authorities and pleaded guilty. He was later brought to trial with his co-defendants and charged with criminal conspiracy, theft by unlawful taking, and theft by receiving stolen property. The Commonwealth averred that the unsworn falsification charge was not part of the same criminal episode as the other charges because it occurred at a time and place removed from the scene of the theft.

... Appellant’s attempts to mislead the police occurred within one-half hour of the alleged offenses, and while he was still in the company of his accomplices making their “getaway”. And, finally, appellant’s false statements were relevant evidence against him in his trial for the principal offenses; his actions in misleading the police reflected a guilty state of mind. One of the more important considerations in determining whether criminal offenses may and should be joined for trial is whether proof of one offense is relevant to proving the other.

Id,. 264 Pa.Super. at 228-29, 399 A.2d at 750.

Appellant testified that after he left the site of the domestic disturbance, he went to his girlfriend’s house and attempted to leave the gun with her. He was apparently concerned that police would be looking for him. After he left her house, he attempted to find a place to “stash” the gun or hide it during which time he was necessarily “carrying” the aforesaid weapon. This attempt was successfully blocked by Officer Klotzbeecher’s confrontation with appellant.

In many instances one offense is a necessary step in the accomplishment of a given objective; in other instances the commission of an additional offense may result from the attempt to secure the benefit of a previous offense or to conceal its commission____

Id., 264 Pa.Super. at 228, 399 A.2d at 750 (1979). (Emphasis added)

Although both charges arose on the same day and the Commonwealth was aware of them, the Commonwealth offers no reason behind its failure to consolidate.

The prosecution has a clear responsibility to assist in furthering judicial administration and economy.

Commonwealth v. Holmes, 480 Pa. 536, 542, 391 A.2d 1015, 1018 (1978).

It is clear under Pennsylvania law that defendant is not required to move to consolidate in order to preserve his double jeopardy contention. That remains the Commonwealth’s burden.

Commonwealth v. Dickerson, 303 Pa.Super. 46, 49, 449 A.2d 570, 572 (1982).

Accordingly, we vacate the judgment of sentence.

      . 18 Pa.C.S.A. § 6106. 1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973. As amended, 1973, Oct. 12, P.L. 283, No. 81, § 1, eff. June 6, 1973.

      . 1972, December 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.


author: HOFFMAN, Judge:

text:
    482 A.2d 1318
    COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellant, v. Carl L. PALMER.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Oct. 12, 1984.

      Andrew H. Cline, Harrisburg, for Commonwealth, appellant.
    John B. Mancke, Harrisburg, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   OPINION

HOFFMAN, Judge:

On appeal, the Commonwealth contends that the lower court erred in dismissing the charges against appellee. We agree and, accordingly, reverse the order below.

On August 30, 1982, appellee, the defendant below, drove his tractor-trailer over a stone-arch bridge which had a posted ten-ton weight restriction. Because the vehicle was determined to be over the weight limit, he was issued a citation by the state trooper for violation of § 4902(a) of the Vehicle Code. See 75 Pa.C.S.A. § 4902(a). On October 8, 1982, at the hearing before the District Justice of the Peace, the Commonwealth moved to amend the citation to allege a violation of § 4902(g)(1) of the Vehicle Code. Over appellee’s objection, the motion to amend was granted. The District Justice offered appellee a continuance which his counsel declined. Appellee was then found guilty of violating § 4902(g)(1). On appeal de novo from this summary conviction, the lower court, upon appellee’s motion to quash, dismissed the case on January 31, 1983, finding that the amendment was improper. This Commonwealth appeal followed.

The Commonwealth argues that the lower court erred in dismissing the case because appellee was not actually prejudiced by the amendment to the citation. We agree. Pa.R.Crim.P. 52 A.l.(e) requires that every citation contain “a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged[.]” The rationale for Rule 52 A.l.(e)’s requirements is to give the defendant fair notice of the nature of the unlawful act for which he is charged. Hill v. Commonwealth, 68 Pa. Commonwealth Ct. 71, 448 A.2d 106 (1982). Where the citation contains defects, we must look to Rule 70 for the consequences. Pa.R.Crim.P. 52 comment. Rule 70 provides that:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the proceedings of this Chapter, unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 70 (emphasis added). “As a condition of relief regardless of whether the defect is in form, content, or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant.” Pa.R.Crim.P. 70 comment.

In the instant case, appellee was initially issued a citation for violating subsection (a) of § 4902, which provides that:

... —The Commonwealth and local authorities with respect to highways and bridges under their jurisdictions may prohibit the operation of vehicles and may impose restrictions as to the weight or size of vehicles operated upon highway or bridge whenever they determine that the highway or bridge may be damaged or destroyed unless use by vehicles is prohibited or the permissible size or weight of vehicles is reduced. School buses, emergency vehicles and vehicles making local deliveries or pickups may be exempted from restrictions on the use of highways imposed under this subsection.

75 Pa.C.S.A. § 4902(a). Upon amendment, the citation alleged a violation of subsection (g)(1) of the same statutory section as follows:

(1) Any person operating a vehicle or combination upon a highway or bridge in violation of a prohibition or restriction imposed under subsection (a) is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $75, except that any person convicted of operating a vehicle with a gross weight in excess of a posted weight shall, upon conviction, be sentenced to pay a fine of $150 plus $150 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum allowable weight.

75 Pa.C.S.A. § 4902(g)(1). In view of the above subsections, we fail to see how appellee was prejudiced by the amendment; particularly in light of the fact that appellee was offered a continuance but refused it. Both the original citation and the amended citation gave appellee adequate notice of the nature of the offense charged.

Commonwealth v. Stanley, 265 Pa.Superior Ct. 194, 401 A.2d 1166 (1979), aff'd, 498 Pa. 326, 446 A.2d 583 (1982), is analogous. In that case, the defendant was initially charged with violating 18 Pa.C.S.A. §§ 6105 (possession of firearm by former convict) and 6106 (carrying firearms without a license). Following a municipal court trial, he was found guilty under § 6105, with the § 6106 charge having been dismissed earlier. Upon appeal de novo to the common pleas court, the prosecutor, in drawing the information, inadvertently charged the defendant with violating §§ 6106 and 6108 (carrying firearms in public). Therefore, the Commonwealth made a pre-trial motion to amend the information to delete the §§ 6106 and 6108 charges and to substitute § 6105. On appeal to this Court, we held that the substitution was permissible under Pa.R.Crim.P. 229, which allows amendment of a defective information provided an additional or different offense is not charged. In interpreting Rule 229, this Court stated:

The purpose of Rule 229 is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed .... In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crimes originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Id., 265 Pa.Superior Ct. at 212-13, 401 A.2d at 1175 (citations and footnotes omitted). Similarly, here, a different or additional crime has not been alleged by the amended citation. Rather, the same criminal conduct was involved. Moreover, contrary to appellee’s assertion, the original citation was sufficient to allege a crime. See Commonwealth v. Geise, 314 Pa.Superior Ct. 24, 460 A.2d 354 (1983) (violation of 75 Pa.C.S.A. § 4902(a) constitutes a summary offense involving vehicle weight restrictions); Commonwealth v. Saddle, 22 D. & C.3d 208 (Delaware Co.1981) (citation can and should show § 4902 both for the violation and the penalty). This is not to say, however, that the amended citation in the instant case is grounds for discharge because § 4902(g)(1) describes both the offense and the penalty. Accordingly, we hold that both the original citation and amended citation were sufficient to give notice of the offense charged because they described the same criminal act.

Appellee argues, however, that the Commonwealth cannot amend a citation which fails to allege a crime after the statute of limitations has expired. Under 42 Pa.C.S.A. § 5553(a), proceedings for summary offenses involving vehicles must be commenced within thirty days after the commission of the alleged offense. Commonwealth v. Larson, 299 Pa.Superior Ct. 252, 445 A.2d 550 (1982). Section 5554 provides that the period of limitation does not run during any time when “(2) a prosecution against the accused for the same conduct is pending in this Commonwealth.” 42 Pa.C.S.A. § 5554(2). Cf. Commonwealth ex rel. Kolodziejski v. Tancredi, 222 Pa.Superior Ct. 436, 295 A.2d 174 (1972) (statute of limitations in criminal cases will be tolled by indictment). Here, the alleged offense occurred on August 30, 1982, and the citation was amended on October 8, 1982, more than thirty days later. We find that this amendment did not implicate the statute of limitations. See Pa.R.Crim.P. 70 comment (“A complaint, citation, summons, or warrant may be amended at any time so as to remedy any defect in form or content that is not prejudicial to the right of the defendant. Nothing in this rule shall prevént the filing of a new complaint or citation and the reissuance of process. Any new complaint must be filed within the time permitted by the applicable statute of limitations.”). The original citation was not quashed and, therefore, the amendment did not commence a new proceeding. Both the original and amended citations referred to the same conduct, namely, appellee’s driving an overweight vehicle on August 30. Therefore, we hold that the instant case falls under § 5554 because, at the time of the amendment, appellee was being prosecuted for the same conduct.

Accordingly, we reverse the lower court’s order dismissing the case and remand for proceedings consistent with this opinion.

Reversed and remanded.

Jurisdiction is not retained.

      . In this respect, Commonwealth v, Messerschmidt, 68 D. & C.2d 558 (Bucks Co. 1975), is distinguishable. In that case, the court held that a citation to § 903(b) of the Vehicle Code was insufficient to give the defendant notice of a § 903(c) violation because § 903(c) related to overweight combination vehicles whereas § 903(b) related to overweight commercial vehicles.

        United States v. Milestone, 626 F.2d 264 (3d Cir.1980), and Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), cited by appellee, are also distinguishable because they involved federal law and procedures, namely, indictment by grand jury which therefore required amendment by grand jury.

      . Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972), cited by appellee, is distinguishable because it involved grand jury indictments which were quashed for lack of notice and later resubmitted after the expiration of the two-year statute of limitations period for misdemeanors. Here, however, the original citation was not quashed, but merely amended, and appellee received sufficient notice of the offense charged.


author: HESTER, Judge:

text:
    482 A.2d 1322
    COMMONWEALTH of Pennsylvania v. Francis X. BALLEM, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Denied Feb. 21, 1985.

      Francis X. Ballem, in propria persona.
    John A. Reilly, District Attorney, Media, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the order of the Court of Common Pleas of Delaware County entered on June 21, 1982, denying appellant’s petition for notes of testimony for all prior proceedings. Appellant argues that the trial court abused its discretion in refusing to grant his petition. We disagree and affirm.

Appellant has been incarcerated for the last 30 years following his conviction of murder in the first degree. On April 29, 1954, appellant and the victim had been drinking heavily in appellant’s home, when appellant shot and killed him. In an attempt to dispose of the body, appellant first poured lye on the face and hands, then burned it, and ultimately dismembered it. Parts of the body were hidden in a suitcase in appellant’s attic, other pieces discarded in a nearby stream.

Appellant was eventually arrested and charged with murder. Subsequent to a pronouncement of appellant’s fit mental condition, he was tried by jury. On January 27, 1955, he was found guilty of murder in the first degree.

On February 4, 1955, motions for a new trial and in arrest of judgment were filed. Notes of trial testimony were filed February 28, 1955. Post-trial motions were denied on December 13, 1955. On December 30, 1955, the court imposed the death sentence, which was affirmed on appeal to the Pennsylvania Supreme Court. Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 (1956), cert. denied Ballem v. Pennsylvania, 352 U.S. 932, 77 S.Ct. 235, 1 L.Ed.2d 167 (1956). The Pennsylvania Supreme Court affirmed on March 17, 1958 the lower court’s denial of appellant’s petition to be committed to a mental institution. Commonwealth v. Ballem, 391 Pa. 626, 139 A.2d 534 (1958).

On May 25, 1983, appellant filed a petition requesting production of the notes of testimony of all previous proceedings, including copies of docket entries, information, indictments, and pre-trial motions. This petition was denied on June 21, 1983, and appellant thereafter filed this appeal.

It is well-established that constitutional due process and equal protection require that a criminal defendant be afforded copies of his trial transcripts in order to effectively prosecute an appeal. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Our Supreme Court has long upheld this procedural right and has attributed to the state the responsibility of providing a defendant with copies of the necessary proceedings so that appellate rights might be actively pursued. See Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973); Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Smith, 285 Pa.Super. 460, 427 A.2d 1378 (1981).

This right was formerly embodied within the Act of May, 1907, P.L. 135 as amended, 17 P.S. § 1802. Pursuant to this statute, in all cases tried before the courts of oyer and terminer and general jail delivery, the defendant was entitled to a copy of the notes of testimony if the same was requested within 90 days from the date of verdict. Commonwealth v. Bear, 283 Pa.Super. 174, 423 A.2d 1045 (1980). After the 90-day period, the request was granted at the discretion of the court.

This statute was repealed on April 28, 1978, P.L. 202 effective June 27, 1980, pursuant to the Judiciary Act Repealer Act (JARA). Since then, no general rules have been prescribed to replace the repealed statute. In order to provide for this contingency, the legislature established that the practice and procedure under the repealed statute continues in full force and effect as part of the common law of the Commonwealth until the time that general rules are promulgated. 42 Pa.C.S.A. § 20003(b); Commonwealth v. Kelly, 319 Pa.Super. 204, 209, 465 A.2d 1301, 1303-1304 (1983).

In the instant case, since no new rules have been prescribed regulating appellant’s request, we will review the lower court’s decision in light of the standards enunciated by § 1802.

In those instances where an application under § 1802 is untimely and invokes the discretion of the court, the petitioner must allege some basis which would justify its exercise. See Commonwealth v. ex rel. Haines V. Banmiller, 393 Pa. 439, 143 A.2d 661 (1958) (petition denied where issues sought to be raised did not require production of requested documents); Commonwealth v. Smith, 285 Pa.Super. 460, 427 A.2d 1378 (1981) (petition granted when record was necessary in order to effectively pursue meritorious claims.)

Herein, appellant attempts to raise several arguments of ineffective assistance of counsel, and in fact, asserts the need for these documents in order to pursue relief under the Post Conviction Hearing Act. However, no such action is currently pending. Consequently, the lower court, confronted only with the instant petition, was in no position to assess appellant’s claims to determine whether they constituted compelling reasons warranting a grant of his petition. In such a case, and until a proceeding to question the record is commenced, we find no abuse of the lower court’s discretion in denying appellant’s request.

Order affirmed.

      . This right has been extended to post-conviction proceedings as well. Commonwealth v. Richardson, 213 Pa.Super. 726, 244 A.2d 794 (1968); Commonwealth v. Lawson, 213 Pa.Super. 718, 244 A.2d 793 (1968).

      . In U.S. ex rel. Hansler v. Pennsylvania, 294 F.Supp. 542 (ED.Pa 1968), an indigent prisoner petitioned for writ of habeas corpus and mandamus after the Pennsylvania Courts refused his request for copies of all relevant documents. The Federal Court ruled there was no need to furnish free transcripts merely for "perusal or curiosity" in the absence of a pending appeal or post-conviction proceeding. To do so would severely tax the judicial system by encouraging such petitions from those with little better to do than second-guess their day in court.

      . 19 Pa.S.A. § 1180-1 et seq; reenacted in Pa.R.Crim.P. 1501 et seq.