author: BECK, Judge: TAMILIA, Judge,

text:
    563 A.2d 1252
    COMMONWEALTH of Pennsylvania, Appellant, v. Miguel REVIERA.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1989.
    Filed Sept. 8, 1989.

      Jeffrey R. Heilman, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Dennis H. Eisman, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   BECK, Judge:

This case involves the question of the legality of an anticipatory search warrant; i.e., whether the police properly obtained a warrant to search a house based upon reliable information that controlled substances would be delivered to the house shortly after the warrant was issued. The trial court suppressed evidence seized by the police on the grounds that a warrant may not be issued in anticipation of future criminal activity. After careful consideration, we reverse.

Our standard of appellate review is well established.

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. While we are bound by the lower court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case.

Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1351-54 (1988) (citations omitted). See also Commonwealth v. Toanone, 381 Pa.Super. 336, 340, 553 A.2d 998, 999 (1989).

The relevant facts are as follows. On September 11, 1986, an undercover police officer received a tip from an informant that a man known as Jose was storing and selling controlled substances at 3031 North Lawrence Street in Philadelphia. Prior information from the same informant had led to the arrest of three persons and the seizure of controlled substances within the past two months. Sometime after 5 P.M., the undercover officer arrived at 3031 North Lawrence Street, knocked on the door, and told Jose that he wished to buy an ounce of cocaine. Jose said that he was waiting for a delivery of cocaine that would take place at approximately 10 P.M. He directed the officer to return to the house after 10 P.M. at which time he could purchase cocaine for $1,300 an ounce. While Jose and the undercover agent were talking, several other persons approached Jose and asked him for cocaine; those persons were also told to return after 10 P.M. that evening.

Based upon this information, the officer swore out an affidavit of probable cause and requested a warrant to conduct a nighttime search for contraband on the premises at 3031 North Lawrence Street. This warrant was approved and issued by a bail commissioner at 9:50 P.M. Members of the Police Narcotics Unit arrived at the house at 10:20 P.M. and executed the warrant. While several policemen were searching the house, Officer Chavez kept watch over a crowd of people who had gathered across the street from the residence. Officer Chavez overheard appellee Miguel Reviera shouting to the crowd that the police had no right to search his brother’s house. Mr. Reviera was arrested and charged with violations of the Controlled Substance, Drug, Device, and Cosmetic Act. Pa.Stat.Ann. tit. 35 §§ 780-101 to 780-144 (Purdon 1977 & Supp.1988).

On February 8, 1988, the trial court granted a defense motion to suppress physical evidence seized during the search of the house. The court based its decision on the grounds that as of 9:50 P.M. on September 11, 1986, the moment that the warrant was issued, the package of controlled substances had not yet arrived at 3031 North Lawrence Street. The Commonwealth filed a timely appeal to this court. Since the Commonwealth has certified in good faith that the suppression order if given effect would substantially handicap or terminate its prosecution of the defendant, we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Slaton, 383 Pa.Super. 301, 308-309, 556 A.2d 1343, 1346 (1989) (en banc).

We must determine whether the trial court was correct in finding that the defendant’s rights were violated by the issuance of what is commonly referred to as an “anticipatory search warrant”. An anticipatory search warrant is “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 1 W.R. LaFave, Search and Seizure § 3.7(c) at 94 (2d ed. 1987). The validity of such warrants is a question of first impression for the appellate courts of Pennsylvania. However, the great majority of state and federal courts that have considered the issue have approved the practice of issuing such warrants. We agree that under appropriate circumstances the use of anticipatory search warrants is fully consistent with the constitutional protection against unreasonable searches and seizures.

The fourth amendment states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Probable cause has sometimes been defined as facts or circumstances that would warrant a man of reasonable caution to believe “that an offense has been or is being committed.” Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967) (emphasis added). See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948). In Commonwealth v. Baker, the Pennsylvania Supreme Court recently described probable cause in slightly broader terms: “Probable cause exists when the magistrate is presented with evidence which would cause a reasonable man to believe that a crime is being, or is about to be committed” 513 Pa. 23, 28, 518 A.2d 802, 805 (1986) (emphasis added). The conflict between these two standards for probable cause is more apparent than real. We interpret both definitions as indicating that a search warrant may be issued on the basis of reliable information that criminal activity is in progress and that after the warrant is issued the crime will be completed within the near future.

As the Pennsylvania Supreme Court noted in Commonwealth v. Shaw, “A search warrant is no general arm for ferreting out crime, but a special proceeding, based upon present cause ...” 444 Pa. 110, 114, 281 A.2d 897, 899 (1971) (quoting People v. Chippewa Circuit Judge, 226 Mich. 326, 328, 197 N.W. 539, 540 (1924)). We take this to mean that a warrant must be based on information concerning past or present criminal activity. This does not mean, however, that the police are obliged to wait until a criminal scheme is brought to fruition before requesting a warrant. Where magistrates are presented with reliable evidence that contraband will arrive at a specific location within a short period of time, they may conclude that a crime is in the process of being committed, and may issue the warrant despite the fact that the contraband has not yet arrived at its ultimate destination. Accord State v. Gutman, 670 P.2d 1166 (Alaska App.1983); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (1972). We caution that a warrant cannot properly be issued based upon mere speculation that a crime might occur at some future time.

In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), the Pennsylvania Supreme Court adopted the totality of the circumstances test for reviewing the issuance of search warrants. Under Gray:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id., 509 Pa. at 484, 503 A.2d at 925 (quoting Illinois v. Gates, 462 U.S. 213 at 238-239, 103 S.Ct. 2317 at 2332, 76 L.Ed.2d 527 at 533 (1983) (emphasis added). Gray implies that the magistrate must focus upon whether evidence of crime will be discovered when the search is conducted. Significantly, the Gray Court did not require a finding that evidence of crime be present at the place to be searched as of the moment that the warrant is signed. We hold that a magistrate has authority to issue a search warrant where she reasonably concludes that there is a fair probability that evidence of current or past criminal activity will be on the premises to be searched at the time the warrant is executed. Cf. United States v. McGriff, 678 F.Supp. 1010, 1014 (E.D.N.Y.1988) (similar reasoning).

In approving the use of anticipatory warrants, we recognize that “the entire thrust of the exclusionary rule and the cases that have applied it is to encourage the use of search warrants by law enforcement officials.” Alvidres v. Superior Court, 12 Cal.App.3d 575, 581, 90 Cal.Rptr. 682, 685 (1970). A search pursuant to a warrant is preferred over a warrantless search because in the former case it is a neutral magistrate who makes the critical determination of whether probable cause exists. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Commonwealth v. Gambit, 274 Pa.Super 571, 418 A.2d 554 (1980), aff'd 501 Pa. 453, 462 A.2d 211 (1983). When the police receive reliable information that a shipment of contraband will arrive at a specific location, they are faced with a fast moving situation requiring them to decide between conducting a warrantless search or risking the delay needed to secure a warrant at the last possible moment. Permitting the issuance of an anticipatory warrant allows the police a reasonable degree of flexibility in responding to crime, while ensuring the oversight of a neutral authority who can act to protect the constitutional rights of criminal suspects. Accord Alvidres v. Superior Court, supra; People v. Glen, supra.

At this juncture, an additional observation is in order. Implicit in the question of whether an anticipatory warrant is valid is the issue of whether the warrant allows for a sufficient degree of judicial control over the circumstances under which a search will be conducted. We emphasize that the issuing authority should retain control as to when an anticipatory search warrant is to be executed. Before permitting the issuance of a search warrant, the issuing authority must be assured that the warrant will not be executed prematurely, i.e., before contraband or evidence of crime arrives at the location to be searched. See United States ex rel. Beal v. Skaff, 418 F.2d 430 (7th Cir.1969); State v. Gutman, supra; People v. Glen, supra. Thus, where appropriate, the issuing authority should make the execution of the warrant contingent on the occurrence of specific events or the passage of a specific period of time. Alvidres v. Superior Court, 12 Cal.App.3d at 582, 90 Cal. Rptr. at 686. See Johnson v. State, 617 P.2d 1117, 1124 n. 11 (Alaska 1980). On the other hand, there is no need to specify contingencies in warrants where the facts before the issuing authority indicate that premature execution of the warrant is unlikely.

We must now review the facts of the instant case in order to determine if the warrant was properly issued and the evidence legally seized. As we have noted, upon arriving at 8031 North Lawrence Street, an undercover officer attempted to purchase cocaine from a man who was a suspected participant in the drug selling operation. That man informed the officer, as well as others who were seeking to purchase cocaine, that a delivery of cocaine would be arriving at the premises at 10:00 P.M. that night. The officer then sought and obtained a warrant for a nighttime search of those premises. The warrant was signed by the issuing authority at 9:50 P.M. and executed at 10:20 P.M.

On these facts, we find that the evidence was sufficient to support the issuance of an anticipatory warrant. Here, the police were informed by a participant in the suspected crime that contraband would arrive at 10:00 P.M. that night. A statement by one who intends to participate in the crime that is the object of the search warrant ordinarily provides a sufficiently reliable basis for concluding that criminal activity will take place where and when he says it will. “Where a person is an admitted participant in a crime and police secure a search warrant upon information received from him, affiant-officers need not support their claim that the informant was credible or his information reliable since the individual’s admission of participation in the crime insures his reliability.” Commonwealth v. Stickle, 484 Pa. 89, 97-98, 398 A.2d 957, 962 (1979). Cf. United States v. McGriff supra (anticipatory warrant upheld where informant who was also participant in the crime told police that there would be a delivery of drugs at a specific address sometime later that evening).

We recognize that the warrant did not include any contingencies for its execution by police. There was no attempt to make the warrant contingent on surveillance by the police to corroborate in actual fact that drugs had arrived at 10:00 P.M. We find, however, that under the circumstances of this case the absence of such a contingency was not a fatal defect. As stated above, the issuing authority had strong evidence based upon statements made by a participant in the crime to an undercover officer that a delivery of cocaine would occur at 10 P.M. As the warrant was not issued until 9:50 P.M., there was little danger that the warrant would be executed prematurely. Cf. United States ex rel. Beal v. Skaff, 418 F.2d at 433 (no unreasonable danger of loss of judicial control over search where police could not have arrived at location to be searched in advance of scheduled delivery of contraband). We conclude that the warrant was properly approved and that the search conducted pursuant to the warrant was not illegal.

In his brief as appellee, Reviera also claims that he was arrested, solely because he had protested the fact the police were conducting a search of his brother’s house. Even assuming that the arrest was illegal, the evidence seized from 3031 North Lawrence Street could not be suppressed on this basis. Suppression of evidence is not available as a remedy for unlawful police conduct where the evidence was obtained by means independent of the unlawful police conduct. See Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985). Since the evidence was seized pursuant to a warrant that was issued before appellee was arrested, and since the record does not indicate that appellee assisted the search in any way, we cannot regard the seizure of the evidence as the fruit of an illegal arrest.

Order reversed and case remanded for trial.

TAMILIA, J., files concurring opinion.

TAMILIA, Judge,

concurring.

I join in the majority but write separately because I believe this case, though correctly decided, creates a void when considered in conjunction with Commonwealth v. Ogborne, 384 Pa.Super. 604, 559 A.2d 931 (1989). While I believe the majority in both cases would hold they can be distinguished, I view the underlying issues as being inseparable. Those issues may be simply stated in the following fashion:

Reviera Issue
May police who suspect a party of preparing to engage in criminal activity which has not culminated in the ultimate act be permitted to obtain a search warrant in anticipation of the act?
Yes, as answered by Reviera.
Ogborne Issue
When police arrest parties after a Terry stop resulting from surveillance which corroborates prior information which was insufficient to support an anticipatory search warrant, must the evidence obtained in the arrest be suppressed?
Yes, as answered by Ogborne.

In this case, the police received information from a reliable informant that appellant was dealing in drugs and based upon that information, an undercover agent approached appellant’s dwelling about 5:00 p.m. and was told drugs would be delivered for sale at about 10:00 p.m. that evening. Accordingly, a warrant was obtained and execution on the warrant after 10:00 p.m. resulted in appellant’s arrest. The evidence so acquired was suppressed by the trial court as no probable cause existed. This Court now holds the use of an anticipatory warrant is proper if the information is reliable and not merely speculative. We go on to say that precautions must be taken so there is no unreasonable danger of loss of judicial control over a search where police could not have arrived at the location to be searched in advance of delivery of contraband. I have no problem with the majority in this case but I do not take our holding to be authority for the proposition that an anticipatory search warrant must issue in every case where the police have reason to believe criminal activity is to take place in the immediate future. This holding is replete throughout with caution and warning that the basis for the warrant must be heavily documented and that its use may not anticipate the crime although its issuance may be in anticipation of the crime. It is for this reason that we have created for ourselves, the police and issuing authorities a gray area which should not exist when the facts pose circumstances less clear than those in this case, Reviera.

That type of situation is presented by the facts of Ogborne. In Ogborne, the officer received a call from an informant that appellant would arrive later that evening in a black Dodge automobile at the 100 block of Saude Avenue, Tinicain Township, and to his knowledge, he would have in his possession approximately ten bundles of the drug Phencyclidine (P.C.P.). The officer did not request a search warrant because he did not think he had probable cause. (In this regard, according to our analysis in Reviera, he was most likely correct.) After confirming the address, appellant’s identity and the presence of a black Dodge at that location through local police, a surveillance was set up and at approximately 11:20 p.m., police observed a black Dodge enter Saude Avenue and turn into a private drive at 115 Saude. Police identified appellant as the driver. Police surrounded the car and an officer tapped on the window after showing his badge. Appellant lowered the window and the officer smelled P.C.P. coming from the car. Appellant was directed to step out of the car and upon search, nine packets of P.C.P. were found on his person and a smaller amount found in the car. At trial, appellant’s motion to suppress the evidence was denied and he was convicted of possession and possession with intent to deliver. Upon appeal this Court reversed (Tamilia, J., dissenting) and reargument before the Court en banc was denied.

The Ogborne majority held that the officer’s reliance on a Terry investigation and search was impermissible and there was more than ample time to obtain a search warrant. What was lacking in Ogborne that was present in Reviera was the personal knowledge of the officer that drugs were being sold at the Reviera dwelling and the exact time the seller would have the drugs available for distribution. I believe this was crucial to our finding that an anticipatory warrant could issue and that it would not become a tool for a fishing expedition. Cases cited by Reviera in support of anticipatory warrants point out the need to make the execution of the warrant contingent on the occurrence of specific events or the passage of a specified period of time. Ogborne would have difficulty meeting this test. Also it is evident in Reviera that this is a case of first impression and the police officer in Ogborne did not have the benefit of our holding today that anticipatory warrants could be obtained. We reversed in Reviera because a learned trial judge believed the same.

Under these circumstances in Ogborne, the police did the best they could which was to set up a surveillance and when sufficient activity occurred to confirm their suspicions they acted to investigate further. An anticipatory search warrant which might have been obtained for the 100 block of Saude Avenue would not have been specific enough to search a car which pulled into a driveway at 115 Saude Avenue. Attempting to obtain a search warrant under the exigencies of these circumstances would likely have resulted in the disposal of the evidence. Drug trafficking is such a volatile and fast moving criminal activity that obtaining evidence is frequently frustrated by the more deliberate pace of legal requirements. Here, where there was time and sufficient probable cause to obtain an anticipatory warrant, it is the proper way to proceed. In Ogborne, when there was not sufficient probable cause, by the time probable cause was established there was insufficient time to obtain a warrant. However, there was sufficient probable cause to make a Terry stop, followed by a legal arrest.

This case and Ogborne should have been joined for argument as representing different points on the continuum of anticipatory search. Had this been done, I believe the Court en banc would have seen the need for a definitive statement which would permit issuance of both anticipatory warrants and the right to proceed as in Ogborne, when such a warrant is not viable.

      . Eg., United States v. Goodwin, 854 F.2d 33 (4th Cir.1988); United States v. Goff, 681 F.2d 1238 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193 (6th Cir). cert. denied 439 U.S. 869, 99 S.Ct. 198, 58 L.Ed.2d 180 (1978); United States ex rel. Beal v. Skaff, 418 F.2d 430 (7th Cir.1969); United States v. McGriff, 678 F.Supp. 1010 (E.D.N.Y.1988); Johnson v. State, 617 P.2d 1117 (Alaska 1980); State v. Cox, 110 Ariz. 603, 522 P.2d 29 (1974); Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682 (1974); Bernie v. State, 524 So.2d 988 (Fla.1988); Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221 (1981); State v. Mier, 147 N.J.Super. 17, 370 A.2d 515 (1977); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (1972); State v. Coker, 746 S.W.2d 167 (Tenn.1987). See generally 1 W.R. LaFave, Search and Seizure, § 3.7(c) at 94-100 (collecting cases).

      . We decline to adopt a per se rule concerning how far in advance of an anticipated arrival of contraband a warrant may be obtained. However, under Pennsylvania law, the issuing authority must “[d]irect that the search be executed within a specified period of time, not to exceed two (2) days from the time of issuance....” Pa.R.Crim.P. 2005(d). See Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283 (1973).

      . A police officer testified at the suppression hearing that the police attempted to maintain surveillance at 3031 North Lawrence Street, but that it became known to the police that there were lookouts on the street. The police then withdrew surveillance in order to avoid compromising the drug bust.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    563 A.2d 1259
    COMMONWEALTH of Pennsylvania v. Aram CORTINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 17, 1989.
    Filed Sept. 12, 1989.

      Richard H. Pratt, Doylestown, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.
    Before TAMILIA, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order below denying appellant’s petition to withdraw his pleas of guilt on separate sets of charges for possession of a controlled substance, 35 Pa.C.S.A. § 780-113, and possession of a controlled substance with intent to deliver, id. Appellant contends that he should be allowed to withdraw his guilty pleas because (1) they were unlawfully induced by ineffective acts of his trial counsel, and (2) his second plea was not entered voluntarily, knowingly or intelligently. For the reasons that follow, we disagree, and accordingly, affirm the order below.

On February 20, 1985, appellant entered a guilty plea before the Honorable William Hart Rufe, III, to charges of possession and possession with intent to deliver a controlled substance. Sentence was deferred pending a pre-sentence investigation. Pursuant to a plea bargain arrangement, on March 26, 1985, appellant entered a guilty plea before the Honorable Kenneth G. Biehn on charges of possession and possession with intent to deliver a controlled substance. Those charges were unrelated to those heard by Judge Rufe. On this date, after a colloquy, Judge Biehn imposed sentence on both sets of charges. The aggregate sentence was five-to-ten years imprisonment.

On April 8, 1985, appellant filed a motion to challenge his guilty pleas. Judge Biehn having recused himself, the Honorable Isaac S. Garb presided over the hearing on appellant’s motion, which he then denied on May 31, 1985. Subsequently, appellant filed his pro se petition for relief under the Post Conviction Hearing Act (“PCHA”). 42 Pa.C.S.A. §§ 9541-9551 (repealed). A hearing on the petition was held on January 5, 1989, before Judge Biehn. Trial counsel testified at the hearing, and relief was denied by Order dated January 27, 1989. This appeal followed.

Appellant first contends that his counsel was ineffective because he induced appellant to plead guilty. Specifically, appellant alleges that counsel was ineffective in “condoning or acquiescing in an agreement for [appellant] to accept culpability that did nothing to advance his client’s interests but only served to advance a co-defendant’s interest, to [appellant’s] detriment.” Appellant’s Brief at 8. When confronted with a claim of ineffectiveness of counsel, a reviewing court must consider three factors:

We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant in this case claims that trial counsel was ineffective because he recommended that appellant enter into a plea bargain arrangement by which appellant pleaded guilty and was sentenced to concurrent sentences of five to ten years. For purposes of this appeal we will assume, without deciding, that appellant’s claim possesses arguable merit. A review of the PCHA hearing reveals, however, that counsel had a reasonable basis for recommending that appellant enter the plea.

Appellant had an extensive prior criminal record. Not only was he caught in the act of attempting to sell narcotics to an undercover officer in this case, but in a separate case he confessed to having committed similar crimes scarcely a month before. Standard sentencing guidelines would have placed him in the aggravated range and he could well have received consecutive sentences. Moreover, trial counsel testified that appellant gave him inconsistent accounts of the facts of the case, thereby making it difficult to prepare a coherent defense. Counsel also testified that, in light of the fact that the appellant was in possession of a key that opened a strongbox that contained drugs, it would be difficult to defend against the charge of constructive possession. In addition, counsel testified that he believed that appellant did not make a good impression on Judge Rufe. Finally, we note that the PCHA court specifically found counsel’s testimony to be credible. Based upon these facts, we agree with the PCHA court that counsel had a reasonable basis for recommending that appellant accept the plea bargain.

Appellant also contends that “his plea was not voluntarily, knowingly or intelligently entered, and induced only by fear and confusion.” Appellant’s Brief at 8. Specifically, he claims that (a) trial counsel’s belief that appellant would receive a harsh sentence in the case before Judge Rufe was a matter of pure conjecture, (b) the plea bargain entered into was nothing but an attempt to benefit a co-defendant at appellant’s expense, (c) trial counsel’s involvement in an agreement to help exonerate the co-defendant did nothing but prejudice appellant and (d) appellant’s answers during the colloquy were not knowing and voluntary answers, but simply those he believed were expected from him as a matter of form. The Commonwealth, on the other hand, contends that trial counsel acted reasonably in handling appellant’s case and that the record indicates that appellant was in complete control of his faculties and understood the significance of the colloquy in which he entered the guilty plea.

Pa.R.Crim.P. 319 (“the Rule”) states that:

(a) Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept unless he determines after inquiry of the defendant that the plea is voluntarily and understanding^ tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant’s behalf.
(b) Plea agreements
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement. (8) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw the plea.

The Comment to the Rule states that, at a minimum, inquiry should be made into the following six areas:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until proven guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Thus, the Rule requires that the trial court be satisfied that the defendant understands the nature of the charges and the effect of the plea, and is willing to act on his understanding.

This Court has heard claims similar to the one at issue in this case, and based on the appellant’s conduct during the colloquy, affirmed the denial of a petition to withdraw a guilty plea. In Commonwealth v. Long, 310 Pa.Super. 339, 456 A.2d 641 (1983), a full and complete colloquy had taken place. The trial court denied the appellant’s motion to withdraw a guilty plea, reasoning that the court could assess for itself the appellant’s mental state at the time of the colloquy, and at that time there was no indication that the plea was not freely and knowingly entered. Id., 310 Pa.Superior Ct. at 346, 456 A.2d at 645. The court noted that “the record did not support his [the appellant’s] position.” Id. Moreover, in Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983), we specifically held that “a criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We can not permit a defendant to postpone the final disposition of his case by lying to the court.” Id., 317 Pa. at 552, 464 A.2d at 460 (quoting Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976)).

Applying those standards to the case at bar, we are satisfied that appellant entered his plea voluntarily, knowingly and intelligently. Appellant alleges no deficiency in the form and content of the colloquy, and we find none. His responses during the colloquy show that the appellant was attentive, coherent and responsive during the entire procedure. He was asked on two separate occasions whether or not he was under the influence of drugs or alcohol, and he stated that he was not. His responses to the other questions during the procedure were all appropriate. In short, the record indicates that appellant was well aware of the significance of the proceedings, and understood them fully. As we held in Edrington and Brown, appellant’s assertion that he lied during the colloquy, merely giving those responses which he considered to be appropriate as a matter of form, cannot, by itself, act to postpone the final disposition of this case. We find appellant’s claim to be meritless because, like the claim in Edrington, it is completely unsupported by the record.

For the foregoing reasons, we conclude the appellant’s claims that his guilty pleas were unlawfully induced by ineffective acts of his trial counsel and were not entered into voluntarily, knowingly and intelligently are meritless. Accordingly, we affirm the order denying appellant’s petition.

Order affirmed.

      . On April 8, 1985, an Order was entered denying appellant’s motion for reconsideration of sentence on the first charges.

      . The PCHA has been modified in part, repealed in part, and remained the Post Conviction Relief Act (PCRA) by the Act of April 13, 1988, 42 Pa.C.S.A. §§ 9541-9546. The new provision applies to all actions for collateral relief filed on or after the effective date. Because the instant petition was filed before the effective date of the PCRA, it must be evaluated under the former act.


text:
    563 A.2d 1262
    COMMONWEALTH of Pennsylvania v. Steven TURNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 17, 1989.
    Filed Sept. 15, 1989.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before TAMILIA, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a judgment of sentence for robbery, criminal conspiracy, and possession of a prohibited offensive weapon. Appellant contends that his trial counsel was ineffective for failing to (1) move to suppress appellant’s confession; (2) object to a comment made by the prosecutor during his summation; and (3) move for a new jury when co-defendant was granted a severance. Appellant also contends that his post trial counsel was ineffective for failing to preserve these issues for appeal. For the reasons that follow we disagree and, accordingly, affirm the judgment of sentence.

Appellant was arrested on October 14, 1985 pursuant to a warrant based upon information collected during an investigation of a series of bar robberies. Robbery victims had positively identified appellant and an accomplice had named appellant as a participant in several robberies. Appellant was interviewed by a police detective and, after waiving his rights, gave an oral statement in which he admitted committing several of the robberies. The detective prepared a list of robberies to which appellant had confessed and, on October 17, 1985, he reviewed this list with appellant. Subsequently, at appellant’s request, on October 22, 1985, a formal written statement of confession was taken. Prior to trial, appellant moved to suppress this statement. On January 28, 1987, the trial court denied the motion and the case went to trial. Appellant’s trial began as a joint trial with co-defendant Joseph Bowie. After jury selection was completed, but prior to the presentation of evidence, appellant’s trial was sevtered from his co-defendant. On January 29, 1987, the jury found appellant guilty of three counts of robbery, and single counts of criminal conspiracy and possession of a prohibited offensive weapon. New counsel filed post verdict motions, which were denied. On October 22, 1987, the trial court sentenced appellant to a total of thirty-five to seventy years imprisonment. Present counsel was appointed to replace post trial motions counsel and this timely appeal ensued.

Appellant’s contentions are based upon prior counsels’ alleged ineffectiveness. When confronted with a claim of ineffective assistance of counsel, a reviewing court must consider three things:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

The issue underlying appellant’s first claim of ineffectiveness is that his confession should not have been ruled admissible because it was not voluntarily and freely given. When reviewing the trial court’s ruling on the admissibility of a confession, we must

determine whether the factual findings are supported by the record. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error....

Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976). See also Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 695 (1986). Appellant specifically contends that his confession should not have been admitted because Detective Rago induced him to make it with a promise of a “deal” from the District Attorney. In order for a confession to be admissible it must be freely and voluntarily given. Commonwealth v. Taylor, 494 Pa. 399, 403, 431 A.2d 915 (1981). A confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 186-187, 42 L.Ed. 568 (1892)).

At the suppression hearing, Detective Rago testified to the events surrounding appellant’s arrest and subsequent confession. Appellant was arrested on October 14, 1985. After appellant was taken into custody, he was read his rights at which point he made a statement to Detective Rago. On October 22, 1985, at appellant’s request, Detective Rago along with another officer returned to take a formal typewritten statement from appellant. N.T. January 21, 1987 at 243-251. Detective Rago denied that he had offered appellant a “deal” in exchange for his statement. The detective further testified that the reference to appellant’s cooperation was included in his written statement only because appellant himself insisted that it be mentioned. Id. at 265-266. The trial court held appellant’s confessions to be “knowingly, intelligently and willingly” given. N.T. January 28,1987 at 10. A careful review of the record does not contradict this finding. Because his underlying claim lacks merit, appellant’s derivative claim of ineffective assistance must necessarily fail.

Appellant’s second claim of ineffectiveness arises from trial counsel’s failure to object to a statement made by the prosecutor in summation. Appellant’s objection is based upon the following statement:

You were selected on this jury because the attorneys felt that you could be fair and impartial and you would be true to your oath, and regardless of the evidence you would return a verdict based upon what you thought to be the truth.

N.T. January 29, 1989 at 62 (emphasis supplied). Our Supreme Court has noted that:

even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render. a true verdict.” The effect of such remarks depends upon the atmosphere at trial.

Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975) (citations omitted). See also Commonwealth v. Graham, 522 Pa. 115, 560 A.2d 129 (1989). Here, although the prosecutor’s comment was inaccurate, we are satisfied that it was not of such a moment as to render the jury incapable of rendering a true verdict. After the statement, the court instructed the jurors that they must consider the evidence and that “it’s your recollection of the evidence that is controlling.” N.T. January 29, 1987 at 84. Later, the court stated:

Now, [mjembers of the jury, this case must be decided solely on the evidence and the various inferences that can be drawn from the evidence. You’re not to speculate and you’re not to guess, but you must base your decision on the evidence or lack of evidence.

Id. at 86 (emphasis added). Thus throughout the trial the jury was reminded to keep an open mind and to consider the evidence in reaching their verdict. In light of the court’s emphasis, we are satisfied that the prosecutor’s isolated reference did not render the jury incapable of understanding their duty and rendering a true verdict. Because appellant’s claim based upon the prosecutor’s statement lacks arguable merit, his claim of ineffective assistance of counsel must fail.

Finally, appellant alleges that counsel was ineffective for failing to move for a new jury after his trial was severed from that of his co-defendant. Under the rules of criminal procedure, appellant would have been entitled to seven peremptory challenges had he gone to trial alone. Pa.R.Crim.P. 1126(a)(2). Appellant contends that because the jury was selected jointly, he was deprived of three of his peremptory challenges. Appellant has failed to show how he was prejudiced by being deprived of an opportunity to exclude three more jurors.

At trial, the following exchange occurred regarding the motion to sever:

The Court: Now what’s your objection to the severance at this time?
Mr. Fulton [appellant’s counsel]: Well, [appellant] believes first of all, that in view of the fact or the jury that we have selected right now was selected along with Mr. Bowie that for us to proceed with a jury that he has not selected himself since that’s what we would be doing at this time is going to trial by himself that he was forced to share peremptory strikes with Mr. Bowie that there was some decision making made during the course of selection which involved Mr. Bowie and that the panel doesn’t or that the jury as has been selected, doesn’t actually reflect or necessarily reflect the type of jury he would have selected had he chosen it himself if we had been here by ourselves.
The Court: I’m going to deny that. He participated in the jury selection and as a matter of fact, as I recall, all four. I watched you, Mr. Booker and the two defendants, and all participated in all eight strikes. I think that is a fair statement to say[.] I think you will have to agree with me.
Mr. Fulton: I think that part of the problem, Judge that in the normal course of affairs he would have been entitled to seven strikes on his own.
The Court: I’m aware of that.
Mr. Fulton: And as a result of the selection of the jury between himself and Mr. Booker he in essence only received four strikes.
The Court: I know but I watched during the jury selection and all four that’s you, the two attorneys and the two defendants cooperated on the selection on the exercise of all eight strikes.
Isn’t that fair? '
Mr. Fulton: There was cooperation. I would say that yes we discussed during the choosing.

N.T. January 28, 1989 at 5-7 (emphasis supplied). As the above excerpt reveals, appellant cooperated with his co-defendant in the decision of which jurors to strike. Appellant has failed to allege any specific prejudice that he suffered through the joint selection of his jury. Moreover, appellant makes no specific allegations regarding which of the remaining jurors he would have stricken had he been given the opportunity. Our Supreme Court has noted that:

[assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Because appellant has failed to show how he was prejudiced by the trial being severed after jury selection we must conclude that his final claim of ineffective assistance of counsel must fail.

For the foregoing reasons we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Appellant’s claims were not raised in post trial motions. Because present counsel replaced post trial counsel after appellant was sentenced, the ineffectiveness claims, raised at the first opportunity, may now be considered by this Court. Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978).

        . Appellant also contends that post trial motions counsel was ineffective for failing to preserve this issue for appeal.

      . Actually, appellant contends that he was deprived of four peremptory challenges. Because appellant and his co-defendant shared eight challenges, appellant was entitled to exercise four challenges. Had he gone to trial alone, he would only have received another three challenges.


author: MONTEMURO, Judge:

text:
    563 A.2d 1266
    Esper NASIM, Appellant, v. SHAMROCK WELDING SUPPLY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 24, 1989.
    Filed Sept. 15, 1989.

      Joseph M. Maurizi, Pittsburgh, for appellant.

      Shelly B. Campbell, Pittsburgh, for appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

The appellant, Esper Nasim, appeals from an order of the Court of Common Pleas of Allegheny County denying his motion for a new trial after a jury returned a verdict in favor of the appellee, Shamrock Welding Supply Company, Inc. For the following reasons, we reverse and remand.

On July 20, 1983, the appellant filed a complaint in trespass against the appellee. In his complaint, the appellant, a welder, claimed that he had been injured while working with a defective propane torch assembly allegedly sold by the appellee. In its response, the appellee denied that it sold the appellant’s employer the allegedly defective product. Subsequently, the appellee filed a Petition for Leave to Join an Additional Defendant. In its petition, the appellee alleged the potential liability of two additional parties, Scovill, Inc. and Bering Sales, Inc., as manufacturer and intermediate distributor, respectively, of this product. The appellee’s petition also admitted the appellee’s involvement as the direct supplier of this propane torch assembly to the appellant’s employer. The appellee’s petition was granted. However, prior to trial, the court released both Scovill and Bering Sales as defendants in this action. Subsequently, at trial, the appellant read into evidence the appellee’s Petition for Leave to Join an Additional Defendant. The appellee, however, presented evidence refuting any purported admissions contained in its petition. On March 14, 1988, the jury returned a verdict for the appellee. Timely post-trial motions were filed and denied. Judgment was entered on the verdict, and this timely appeal followed.

On appeal, the appellant maintains that the trial court erred in allowing the appellee to present evidence refuting the averments contained in its Petition to Join an Additional Defendant. Specifically, the appellant contends that the appellee’s admission in its petition that it was the distributor of this product is a judicial admission which cannot subsequently be rebutted by the appellee. We agree.

It is well established that a judicial admission is an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of trial, the truth of the admission. Jewelcor Jewelers & Distributors, Inc. v. Corr, 373 Pa.Super. 536, 542, 542 A.2d 72, 75 (1988). It has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the statement was made is not allowed to disprove it. Jewelcor Jewelers, supra, 373 Pa.Superior Ct. at 542, 542 A.2d at 75. A principal element of a judicial admission is that the fact has been admitted for the advantage of the admitting party, and consequently, a judicial admission cannot be subsequently contradicted by the party that made it. Jewelcor Jewelers, supra, 373 Pa.Superior Ct. at 543, 542 A.2d at 76. As our Supreme Court stated:

Pennsylvania has followed this rule since Wills v Kane, 2 Grant 60, 63 (Pa. 1853), where the court insisted: “Where a man alleges a fact in a court of justice, for his advantage, he shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice.”

Jewelcor Jewelers, supra, 373 Pa.Superior Ct. at 542, 542 A.2d at 75 (quoting Tops Apparel Mfg. Co. v Rothman, 430 Pa. 583, 587-88 n. 8, 244 A.2d 436, 438 n. 8 (1968)) (emphasis added).

In the present case, we find that the averments of fact contained in the appellee’s Petition to Join Additional Defendant/Defendants constitute a judicial admission on the part of the appellee, and therefore, the trial court erred in permitting the appellee to introduce evidence contravening the averments contained in their petition. In pertinent part, the appellee’s petition asserts the following:

1. On July 20, 1983, Plaintiff brought suit against the original Defendant. The date of service was August 24, 1983.
2. Following institution of suit, the Defendant attempted to locate and review its records in order to determine where it purchased the product in question.
3. It was determined that the product was purchased from Bering Sales Inc., P.O. Box 20837, Dallas, Texas 75220.
4. A meeting was held between counsel for Defendant and counsel for the Plaintiff wherein the product was inspected and it was determined that the product was manufactured by Scovill, Inc.

(R.R. 19a) (emphasis added). In their petition, the appellee unequivocally admitted their role as retail distributor of this product, and attempted to impose liability for the appellant’s injuries on two additional parties, Scovill, Inc. and Bering Sales, as manufacturer and intermediate distributor, respectfully of the allegedly defective propane torch assembly. Clearly, the averments contained in the petition were admitted for the appellee’s advantage. " The appellee was attempting to distribute its potential liability to two other parties, Scovill, Inc. and Bering Sales. The fact that the two additional defendants were dismissed prior to trial does not now allow the appellee to recant its prior admission that it was the retail distributor of this product. It is exactly this type of “double dealing” which this rule of evidence was intended to protect against. See Jewelcor Jewelers, supra

The appellee contends that the averments contained in their petition were not judicial admissions because a Petition to Join an Additional Defendant is not a pleading. In part, the appellee’s contention is correct. A Petition to Join an Additional Defendant is not a pleading. Equibank v Duboy, 367 Pa.Super. 261, 264, 532 A.2d 889, 890 (1987). However, there is no requirement that a judicial admission must be contained in a pleading. It is well settled that judicial admissions may be contained in pleadings, stipulations and other like documents. See Tops, supra, 430 Pa. at 587, 244 A.2d at 438. As we have already stated, the key element of a judicial admission is that a fact which has been admitted for the advantage of the admitting party cannot subsequently be refuted by that party. Accordingly, we find that the trial court erred in allowing the appellee to present evidence contradicting the averments of fact contained in their Petition to Join an Additional Defendant/Defendants.

Reversed and Remanded. Jurisdiction Relinquished.


author: MONTGOMERY, Judge:

text:
    563 A.2d 1268
    William F. CONFORTI and Sue Ann Conforti, His Wife, Appellants, v. Richard N. McGARVEY, Walter N. Wilson, and William F. Sweeney, as Individuals and as Partners Trading as McGarvey, Wilson and Sweeney, and Forbes Health System, a/k/a Forbes Hospital System, a/k/a East Suburban Health Center, a Non-Profit Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued April 13, 1989.
    Filed Sept. 13, 1989.

      Edward J. Osterman, Pittsburgh, for appellants.
    Robert W. Murdoch, Pittsburgh, for Forbes Health System, appellee.
    John W. Jordan, IV, Pittsburgh, for McGarvey, Wilson and Sweeney, appellees.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an Order entered by the trial court granting defense Motions for Summary Judgment. The action was instituted by Plaintiff-Appellants William F. and Sue Ann Conforti against the Defendant-Appellee physicians and hospital after a stillborn child was delivered by the Appellant wife. In their Complaint and Amended Complaint, both Plaintiffs sought to recover damages for alleged negligent infliction of emotional distress and the loss of consortium of the child. Further the Plaintiff wife sought to recover for pain and suffering, and the husband claimed a right to recover for loss of his wife’s consortium. The Appellants offer five arguments in support of their claim that the trial court erred in granting summary judgment. After a review of the record, we find that the Appellants have waived all such contentions.

The record shows that after the Plaintiffs filed their Amended Complaint, the Defendants were compelled to seek the assistance of the trial court to require the Plaintiffs to properly respond to discovery efforts. A court order mandated that the Plaintiffs appear for depositions. After the depositions were taken, the Defendants all filed Motions for Summary Judgment. The Plaintiffs failed to file any brief in opposition to the Motions, and did not appear at the oral argument on the Motions which was scheduled by the trial court.

After the trial court granted summary judgment, the Plaintiffs instituted the instant appeal. They also submitted a Motion for Reconsideration in the trial court, which was denied. The trial court thereafter entered an Order, pursuant to Pa.R.A.P. 1925(b), requiring the Plaintiffs to file a concise statement of the matters complained of on their appeal. The Plaintiffs ignored this Order and never filed such a statement. Thereafter, the Plaintiffs failed to adhere to the briefing schedule of this Court, and their appeal was dismissed. They filed a Motion for Reconsideration with our Court, and their appeal was reinstated.

The application of Pa.R.A.P. 1925(b) sanctions, to consider that an appellant has waived arguments because of a failure to properly respond to an Order of the trial court to file a statement of matters complained of on appeal, is clearly discretionary. Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). In the exercise of this discretion, we must act with great care, and examine the failure to comply with Rule 1925 in the context of the entire case. Commonwealth v. Johnson, 309 Pa.Super. 367, 455 A.2d 654 (1982). The inquiry is equitable in nature. Id. An essential question in such situations is whether the failure to file the statement, or the omission of an issue from a statement, defeats effective appellate review. Commonwealth v. Silver, supra.

Consideration of all of these factors convinces us that it is appropriate to find such a waiver in this case. The Appellants’ conduct does not justify excusing the default on any equitable ground. Moreover, we are convinced that their failure to file a Rule 1925(b) statement has made effective appellate review impossible.

The record demonstrates that the Appellants have repeatedly ignored the rules applicable to them as litigants. They scorned their responsibility to respond to reasonable discovery requests until the trial court ordered them to do so. When the Motions for Summary Judgment were submitted by the Appellees, the Appellants neither filed opposing briefs nor appeared for oral argument, which deprived the trial court of information regarding the basis for their opposition to such motions. Not only was the trial court’s subsequent Rule 1925(b) Order ignored, but the Appellants also failed to comply with the applicable briefing schedule of this Court. This record does not support a conclusion that the Appellants deserve relief on any equitable basis.

Further, it is clear that effective appellate review has been handicapped by the Appellants’ conduct. Because they submitted no arguments to the trial court in opposition to the Motions for Summary Judgment, by brief or in oral argument, the trial court and our Court can only guess what the contentions of the Appellants may have been on the issues presented. It is evident that none of the contentions raised by the Appellants in support of their appeal were ever addressed to the trial court. See Matter of Harrison Square, Inc., 470 Pa. 246, 368 A.2d 285 (1977); Cucchi v. Rollins Protective Services Company, 377 Pa. Super. 9, 546 A.2d 1131 (1988). It is well-established that our Court may not properly consider a contention, theory, or position which differs from that raised by the party before the trial court. Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982). The Appellants’ failure to comply with the trial court’s Rule 1925(b) directive, in this setting, prevents our Court from ascertaining the grounds for the Appellants’ opposition at the trial court level to the defense requests for summary judgment. It also gave the trial court no basis for knowledge of the specific issues which it should have addressed in its Opinion. Effective review is obviously frustrated. Accordingly, it is clear that the failure of the Appellants to comply with Rule 1925 requires us to hold that there has been a waiver of all objections to the trial court’s Order.

The Order of the trial court is affirmed.

      . Rule 1925(b) provides:
      (b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.


author: CERCONE, Judge.

text:
    563 A.2d 1270
    COMMONWEALTH of Pennsylvania v. Ricky L. SHAFFER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1989.
    Filed Sept. 22, 1989.

      Mark H. Lemon, Miffinburg, for appellant.
    John T. Robinson, Dist. Atty., Selinsgrove, for Com.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence. After a jury trial, appellant, Ricky L. Shaffer was convicted of felony retail theft. Appellant’s motion for new trial and in arrest of. judgment was denied after a hearing. He was sentenced to incarceration for not less than three (3) nor more than six (6) years. Appellant filed a timely motion to modify sentence which was denied without a hearing. This prompt appeal followed. We affirm.

The procedural facts underlying this case are as follows. On August 31, 1987 a complaint was filed charging appellant with felony retail theft. From August 1987 to October 30, 1987, appellant’s whereabouts were unknown and his location was sought. The police officer in charge of the investigation relayed the appellant’s name to his state police counterparts in York, Pennsylvania because he had received information regarding appellant’s residential address from the York police.

Sometime in October, 1987, appellant was located in Clinton County jail as an inmate, but the police officer did not receive personal knowledge until mid-November after a training session in Hershey. In the officer’s absence, and upon receipt of the information about appellant’s whereabouts, a duplicate warrant was obtained and filed as a detainer against the appellant in Clinton County. On January 14, 1988, appellant was arrested for the charges in the instant case. He remained incarcerated and was not released on bond. On January 25,1988, a preliminary hearing was scheduled and had to be continued due to the unavailability of the police officer. On January 27, 1988, the rescheduled preliminary hearing needed to be postponed again to allow the appellant time to secure counsel. On February 9, 1988, when the preliminary hearing was ultimately heard, the appellant was held for court. He was arraigned on March 30, 1988. Voir dire was conducted on May 16, 1988 and appellant was convicted on May 27, 1988.

Appellant’s contention on appeal is that the Commonwealth failed to exercise due diligence in bringing him to trial within the time period allotted by the mandates of Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A., since appellant’s trial was not held until two hundred fifty-seven (257) days after the filing of the criminal complaint. On December 31, 1987, after the complaint in the instant case had been signed and before one hundred eighty (180) days had expired, Rule 1100 was amended by our supreme court. The amended rule became effective immediately. In Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989) we held that the amended speedy trial rule would not violate statutory proscription against retroactive application. The facts underlying Palmer are strikingly similar to the facts in the instant case.

In Palmer, on October 2, 1987, a criminal complaint had been signed in which the defendant was charged with drug-related offenses. Before 180 days had expired, Rule 1100 was amended by our supreme court on December 31, 1987 and effective immediately. Under these circumstances, we held that the amended rule was applicable to the prosecution against Palmer and that the trial court erred in dismissing the charges against the defendant because the time allowed for trial by the amended rule had not expired. Therefore, utilizing the same rationale as we set forth in Palmer, we will apply Rule 1100 as amended to the instant casé.

Amended Rule 1100 provides in pertinent part that:

(a) ...
(2) Trial in a court case in which a written complaint is filed against the defendant where the defendant is incarcerated, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
(e) No defendant shall be held in pre-trial incarceration for a period exceeding one hundred eighty (180) days excluding time described in subsection (c) above. Any defendant held in excess of one hundred eighty (180) days is entitled upon petition to immediate release on nominal bail.
(g) For defendants on bail after the expiration of three hundred sixty-five (365) days, at any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated____

In Commonwealth v. Saccol, 384 Pa.Super. 161, 557 A.2d 1095 (1989), we recently reiterated the proper approach to statutory interpretation as follows:

In interpreting the statute before us, our goal is to ascertain and effectuate the intention of the legislature. In so doing we are called upon to use a common sense approach in which words and phrases are examined according to established rules of grammar and according to their common usage. We are guided by the presumptions that the legislature did not intend a result that is absurd, unreasonable or impossible of execution.

Id. 384 Pa.Super. at 169, 557 A.2d at 1099 (quoting Commonwealth v. Bigelow, 484 Pa. 476, 481-482, 399 A.2d 392, 394 (1979) (citations omitted)).

Utilizing this approach in the instant case, we find as more specifically discussed below, that the lower court did not err in denying appellant’s post verdict motions. The lower court contends in a footnote that amended Rule 1100 may be applicable in the instant case, but nonetheless resolves the case on other grounds. We, however, affirm the decision of the lower court based on our interpretation of the amended rule. See Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989) (wherein we held that an appellate court could affirm a trial court order on a basis other than that relied upon by the trial court).

In the instant case, appellant concedes that he was tried within two hundred fifty-seven (257) days after the filing of the criminal complaint. As more specifically set forth above, Rule 1100 provides that a person who is incarcerated must be tried within one hundred eighty days or upon petition he is entitled to immediate release on nominal bail. Rule 1100(a)(2) and (e). It is only after three hundred sixty-five days have passed that appellant is entitled to apply to the court for an order dismissing the charges with prejudice on the ground that his right to a speedy trial had been violated. Rule 1100(g). Since it is uncontested that appellant was brought to trial well within the three hundred sixty-five days required by amended Rule 1100, we find that his right to a speedy trial was not violated.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3929(a)(1). Since this was appellant’s eighth offense, it is properly classified as a felony. Id. § 3929(b)(1)(iv).

      . Appellant's determination of this time period does not take into consideration intervals that are excludable under Rule 1100(c). However, in light of our disposition of this case and appellant's concession that he was tried within two hundred fifty-seven (257) days, it is not necessary for us to apply Rule 1100(c) to calculate the time within which appellant was brought to trial for the purposes of determining whether appellant’s right to a speedy trial was violated.


author: OLSZEWSKI, Judge:

text:
    563 A.2d 1273
    COMMONWEALTH of Pennsylvania v. Luis M. Felix VELASQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 30, 1989.
    Filed Sept. 21, 1989.

      Michelle A. Fox, Harrisburg, for appellant.
    Richard A. Lewis, Dist. Atty., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Dauphin County dismissing appellant’s Post Conviction Relief Act (PCRA) petition, filed on September 8, 1988. Appellant alleges that the PCRA court erred in dismissing his petition without a hearing because: (1) his guilty pleas were unlawfully induced by the promise of a lighter sentence; (2) trial counsel was ineffective for advising him to plead guilty; and (3) trial counsel was ineffective for failing to file a motion to withdraw the pleas or an appeal regarding the voluntariness of same. For the following reasons, we affirm.

On January 26, 1987, appellant pleaded guilty to seven counts of unlawful delivery of a controlled substance, stemming from seven separate sales of cocaine to undercover police officers. On March 23, 1987, after reviewing appellant’s presentence report, the trial court imposed a sentence totaling twelve to twenty-four years imprisonment. A motion for reduction of sentence was filed and denied. On appeal to this Court, we affirmed.

Thereafter, on September 8, 1988, appellant filed a pro se petition under the Post Conviction Relief Act. New counsel was appointed, and on October 8, 1988, filed an amended petition. The PGRA court, on November 14, 1988, denied appellant’s petition without a hearing. Appellant then filed the instant appeal.

Appellant contends that his guilty plea was unlawfully induced, that prior counsel was ineffective in advising him to plead guilty, and that counsel was ineffective in failing to withdraw his guilty plea. He claims that prior counsel represented to him that he would receive a sentence of five to ten years rather than the twelve to twenty-four year sentence actually imposed. Pointing to case law handed down under the former PCHA, appellant claims that, at a minimum, he should have been granted a hearing to demonstrate his claims. We disagree.

Before we can address appellant’s issues, we must first determine whether they are properly before this Court. In order to challenge the validity of a guilty plea, a motion to withdraw the plea must be filed within ten days after imposition of sentence. Pa.R.Crim.P., Rule 321(a), 42 Pa.C. S.A. Under the former PCHA, absent extraordinary circumstances, the failure to file a timely motion constituted a bar to any issues raised concerning the validity of the plea. Commonwealth v. Martinez, 372 Pa. Super. 202, 539 A.2d 399 (1988); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). The most common “extraordinary circumstance” under the old Act was an allegation of ineffective assistance of counsel. Commonwealth v. Moore, supra.

The statute governing appellant’s claims is the amended 42 Pa.C.S.A. § 9543(a) which lists four factors a petitioner must plead and prove before becoming eligible for relief. It provides in pertinent part:

(a) General Rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(1) That the person has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(2) That the conviction or sentence resulted from one or more of the following:
* * * * #
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
* * * * * *
(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.
(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.

42 Pa.C.S.A. § 9543(a)

Instantly, appellant has raised a cognizable claim by alleging that prior counsel unlawfully induced him to plead guilty on the promise of a lighter sentence. Turning to section 9543(a)(3), it is clear that appellant’s claims have not been finally litigated but they have been waived. This, however, does not end our inquiry for the requirements of that section will be met if any of the three stated conditions are present. While appellant has not pleaded innocence, there still remains for our determination whether appellant’s waiver constitutes a state procedural default barring federal habeas corpus relief.

In Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court of the United States enunciated the standard to determine whether a petitioner’s state procedural default would bar a pending federal habeas corpus claim. Dubbed the “cause and prejudice” test, it mandated that those petitioners whose claims were defaulted at the state level show cause for the procedural default and prejudice attributable thereto in order to obtain review of their claims in the federal courts. Though not elaborating on the parameters of this requirement, the Court did imply that a tactical decision on the part of counsel would, in the absence of extraordinary circumstances, bar a petitioner from habeas corpus relief. More recent decisions have expanded the concept of “cause.” Thus, in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court posited that “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 478, 106 S.Ct. at 2640, 91 L.Ed.2d at 408. In so reasoning, the Court held that ineffective assistance of counsel under the Sixth Amendment would constitute cause for a procedural default.

Under the above analysis, it would appear that a sufficient allegation of ineffectiveness on the part of prior counsel would satisfy the requirements of section 9543(a)(3)(iii). Instantly, one of appellant’s claims is that counsel was ineffective in failing to file a motion to withdraw his plea. On reviewing appellant’s petition, the supplemental petition filed by new counsel, and appellant's brief on appeal, nowhere is it indicated that prior counsel was instructed to file a motion or an appeal within the requisite time period. To properly allege that his counsel was ineffective, appellant had to claim at a minimum that he instructed his counsel to file the requisite motion or appeal. Claims of ineffectiveness are not sufficient when presented in a vacuum, Commonwealth v. Rogers, 385 Pa.Super. 130, 137, 483 A.2d 990, 994 (1984); nor can counsel be deemed ineffective for failing to do what he was not requested to do. Commonwealth v. Hudson, 336 Pa. Super. 174, 485 A.2d 487 (1984); Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981). Because we find appellant’s claim insufficient, the requirements of section 9543(a)(3) have not been met and we are therefore precluded from addressing its merits.

A different result is required for appellant’s remaining allegations. Similar allegations that counsel was ineffective by inducing appellant to plead guilty on the promise of a lighter sentence have been found sufficient under the old Act to preserve issues in collateral proceedings. See Commonwealth v. Martinez, supra. Having found no appreciable difference between the PCHA and the PCRA in this regard, we turn to the merits.

In dismissing appellant’s petition, the PCRA court relied solely on the written guilty plea colloquy form and the oral colloquy in which appellant indicated that no promises, agreements or inducements had been made, that he understood the maximum penalties for each crime charged, and that he was satisfied with the representation of his counsel. Citing this approach as error, appellant relies on our decision in Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1985). In Paige, this Court, in addressing similar issues, found that the proper approach would have been to hold an evidentiary hearing to determine the validity of the petitioner’s claims. Relying solely on the analysis in Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978), we noted that even where a petitioner states at the guilty plea colloquy that the plea was not induced and that counsel’s representation was satisfactory, where the record cannot clearly refute a petitioner’s claims of unlawful inducement, an evidentiary hearing is warranted. The question then becomes whether this same reasoning mandates a similar result in the instant case. We think not.

In Strader we were faced with more than a mere assertion of a promised lighter sentence. There, unlike the instant case, it was also alleged that the plea of guilt was induced by counsel’s failure to conduct an appropriate investigation, counsel’s failure to prepare an adequate defense, counsel’s failure to move to suppress a suggestive identification, and counsel’s advice to plead guilty for pragmatic reasons rather than grounds of innocence or guilt. Because the panel could not find support on the record for all of the varied claims, the case was remanded for an evidentiary hearing.

We are not faced with this particular set of circumstances in the case sub judice. Here, appellant’s claim is only that his counsel promised him a lighter sentence than actually received, a claim belied by the record. While we recognize that the panel in Paige reached the opposite result, we find that the record in the present case clearly refutes appellant’s contentions of inducement. To hold otherwise and grant appellant his requested relief on the grounds that he lied at his guilty plea colloquy would make a mockery of the judicial system as well as circumvent the purpose of the PCRA — to correct a fundamentally unfair conviction. Because we are unwilling to reach, this result, we reject appellant’s claims.

Having found no basis upon which to grant the relief requested by appellant, we have no alternative but to uphold the decision of the PCRA court.

Order affirmed.

BECK, J., concurs in the result.

      . The Post Conviction Hearing Act has been modified in part, repealed in part, and renamed the Post Conviction Relief Act by Act of April 13, 1988, No. 47, §§ 3-4, 1988 Pa.Legis.Srv. 227, 229-232. Since appellant’s petition was filed after the effective date, it is controlled by the provisions of the PCRA.

      . New section 9544(b) defines waiver of an issue as follows:
      (b) Issues waived. — For purposes of this subchapter, an issue is waived if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
      42 Pa.C.S.A. § 9544(b). Here, none of appellant’s claims were raised before the trial court, nor were they raised on direct appeal. Thus, they have been waived. Under former section 9544, a finding of waiver constituted a bar to relief. This procedural flaw could be excused, however, upon a showing of "extraordinary circumstances," Commonwealth v. Strader, 262 Pa.Super. 166, 173, 396 A.2d 697, 702 (1978). This exception has been deleted from the new Act, however, and a finding of waiver alone does not bar recovery if any of the other conditions of section 9543(a)(3) are met.

      . In Commonwealth v. Rogers, 335 Pa.Super. 130, 483 A.2d 990 (1984), the appellant claimed that his guilty plea was induced by counsel’s assurance that he would serve only ten to twelve years of a mandatory life sentence. This claim was alleged despite appellant’s assertions at his guilty plea colloquy that he understood the consequence of the mandatory life sentence and that no inducements of leniency were made with respect to his plea. In addressing this claim, we stated:
      Appellant is essentially contending that he lied during the colloquy so that his plea would be accepted and counsel’s alleged promises fulfilled. Defendants are obligated to respond truthfully to the court’s inquiries during a guilty plea colloquy. A guilty plea will not be withdrawn where the defendant lies during the colloquy and subsequently alleges that his lies were improperly induced by counsel. (Citations omitted).
      Id., 335 Pa.Superior Ct. at 136, 483 A.2d at 993. While in Rogers we note that the appellant was also provided with a hearing on his claim, the logic of that panel’s statements should not be overlooked.


author: DEL SOLE, Judge: KELLY, Judge,

text:
    564 A.2d 162
    Kristy L. WAGNER, Appellee, v. David C. WAGNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1989.
    Filed July 19, 1989.
    Reargument Denied Oct. 2, 1989.

      Vincent J. Quinn, Asst. Public Defender, Lancaster, for appellant.
    Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   DEL SOLE, Judge:

David C. Wagner, Appellant, was found in indirect criminal contempt and sentenced to six months imprisonment. Wagner appeals from the final order of the trial court raising whether the trial court was required to imposed a minimum sentence of one-half the maximum. We find this issue meritless and affirm the order of the trial court.

David Wagner was prohibited by court order from threatening, abusing or harassing, physically or verbally, his wife, Kristy Wagner. He was also excluded from her residence. This order was entered pursuant to the Protection From Abuse Act, 35 Pa.S.A. § 10181 — 10190. Less than three months after this order was entered, David Wagner came into Kristy Wagner’s residence and physically and verbally harassed her. David Wagner was arrested and charged with indirect criminal contempt in violation on 35 P.S. § 10181. Wagner was convicted of indirect criminal contempt and the trial court ordered him to serve six months in prison. Wagner appeals from this final order.

Wagner’s sole issue is that his sentence was illegal. He argues that because indirect criminal contempt is a crime, those convicted of it must be sentenced under the Sentencing Code. The Sentencing Code provides that “the court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence.” 42 Pa.C.S.A. § 9756(b). The Protection From Abuse (PFA) Statute provides that “notwithstanding any provision of the law to the contrary any sentence for this contempt may include imprisonment up to six months or a fine not to exceed $1000 or both ...” 35 P.S. § 10190(b). According to Wagner, he should have received a minimum sentence to go along with his maximum sentence of six months. Because the trial court failed to give him a minimum sentence, he claims his sentence was illegal and he should be resentenced.

We first note that this appeal is the first time that Wagner has challenged the legality of his sentence. A challenge to the legality of a sentence is an issue which cannot be waived. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). We will therefore consider Wagner’s issue on its merits.

Wagner is correct in arguing that the indirect criminal contempt proceeding is criminal in nature. The Pennsylvania Supreme Court has held that finding an individual in contempt of a PFA order involved a proceeding that was criminal in nature and had double jeopardy implications. Commonwealth v. Allen 506 Pa. 500, 486 A.2d 363 (1984). But the court also wrote that because the PFA Act “has its roots in equity and is essentially civil, we hold that a court’s use of its inherent power to enforce its orders under the Act through contempt does not preclude a later criminal prosecution to protect the Commonwealth’s interest in preventing crime.” 506 Pa. at 503-504, 486 A.2d 363.

In requiring a defendant be found in contempt and punished under the PFA Act, “the legislature did not in anyway attempt to alter or circumvent the rights of a defendant in criminal contempt proceedings.” Vito v. Vito, 380 Pa.Super. 258, 551 A.2d 573, 576 (1988). And while the legislature has enshrouded this criminal procedure with appropriate safeguards, the contemnor under the PFA Act has no right to a preliminary hearing. Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979).

The contemnor under the PFA Act also has no right to a jury trial. Eichenlaub v. Eichenlaub 340 Pa.Super. 552, 490 A.2d 918 (1985). In Eichenlaub, the contemnor challenged the constitutionality of the PFA Act on the grounds that the provision allowing the imposition of a sentence of six months imprisonment and/or a $1000 fine makes the offense a serious offense. Because the PFA Act would allow the fine and the imprisonment to be imposed without a jury trial it violated the contemnor’s Sixth Amendment rights. The contemnor argued that there is a bright line between petty and serious offenses. Petty offenses are not punished by more than six months imprisonment and there is no right to a jury trial. Serious offenses are punished by anything more than six months, whether by time in prison or fine, and there is a right to a jury trial.

This Court held:

Our legislature has not enacted a statutory definition drawing a bright line between petty and serious offenses. A summary offense is one punishable by ninety days imprisonment, or a $300 fine, or both. This definition, however, is irrelevant to the determination of an accused’s right to a jury trial, for an offense may be more serious than a summary offense without being so serious to require a jury trial.
There can be no question regarding the nature of the risk the legislature sought to meet in enacting the Protection From Abuse Act. We have described the Act as a ‘vanguard measure dealing with the problems of wife and child abuse.’ The legislature recognized that existing legal means were inadequate to address these problems. The primary goal of the Act was therefore not retrospective punishment, but rather ‘advance prevention of physical and sexual abuse.’
490 A.2d at 920-922 (Citations omitted)

This court concluded that summary disposition is essential to the effectiveness of the Act and that the Act did not violate the contemnor’s constitutional rights.

It has long been recognized that “the power to impose sanctions for contempt of court, which existed at common law, is a part of the judicial authority granted to courts of general jurisdiction. The right to punish for contempt of court is inherent, only the manner of its exercise is regulated by the legislature.” Woodruff v. Township of Lower Southhampton, 68 Pa.Cmwlth. 171, 448 A.2d 692, 694 (1982). See Marco Industries v. United Steel Workers of America, 401 Pa. 299, 164 A.2d 205 (1960).

The legislature has limited the sanction a court can impose for indirect criminal contempt to 15 days imprisonment and/or a $100 fine in cases where the contempt is the violation of a restraining order or an injunction issued by a court, “except as otherwise provided in this title or in statute hereafter enacted.” 42 Pa.C.S.A. § 4135(b). See Bruzzi v. Bruzzi, 332 Pa.Super. 346, 481 A.2d 648 (1984). The legislature then enacted the PFA Act which limited a court to imposing sanctions of no more than six months imprisonment and/or a $1000 fine on those in contempt of a restraining order under the Act.

In Wagner’s case, the court imposed a straight six month sentence which was no greater than the maximum allowed by statute. We find that the sentence was legal. We have found no cases, nor has Wagner offered any cases, which would require a court to give a contemnor a minimum as well as a maximum sentence. While a PFA proceeding is criminal in nature, it does not receive all of the protections that regular criminal proceedings receive. While criminal contempt is a crime, the sanctions imposed because of it are best left to the discretion of the offended court limited by only a few legislative restrictions. The PFA Act was enacted as specific remedial legislation and for this court to require that contemnors under this Act receive minimum as well as maximum sentences would only weaken the effectiveness of the Act. Had the legislature intended that minimum and maximum sentencing requirements be part of the sanctions for indirect criminal contempt under the PFA, it would have included such language in the Act.

Order of the trial court is affirmed. Jurisdiction relinquished.

KELLY, J., files a dissenting statement.

KELLY, Judge,

dissenting.

I respectfully dissent. Appellant was convicted of indirect criminal contempt and sentenced to a term of six months imprisonment pursuant to the Protection From Abuse Act which provides in pertinent part:

(b) Notwithstanding any provision of the law to the contrary any sentence for this contempt may include imprisonment up to six months or a fine not to exceed $1,000 or both and the defendant shall not have a right to a jury trial on such a charge.

35 Pa.C.S.A. § 10190(b) (emphasis added). On appeal, appellant contends that the trial court imposed an illegal sentence upon him by failing to sentence him in accordance with the Sentencing Code which provides in pertinent part:

(b) Minimum sentence — The Court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.

42 Pa.C.S.A. § 9756(b) (emphasis added).

I agree with the majority that an indirect criminal contempt proceeding is criminal in nature. My difference with the majority is purely one of statutory construction.

The two statutes in the instant case must be read together. If the legislature intended that a minimum sentence should not be imposed, it could have easily specifically stated that the mandate of 42 Pa.C.S.A. § 9756(b) did not apply. Cf. Commonwealth v. Ohlinger, 337 Pa.Super. 437, 487 A.2d 25 (1985) (the former Youth Offenders Act specifically prohibited imposition of minimum sentence); accord Commonwealth v. Ferguson, 381 Pa.Super. 23, 552 A.2d 1075 (1988) (noting that unlike ordinary restitution orders limited by the restrictions of 18 Pa.C.S.A. § 1106(c)(2), restitution for welfare fraud was expressly exempted from those limitations, 62 Pa.S.A. § 481(c)). Because the legislature has not specifically exempted sentences for criminal contempt under the Protection From Abuse Act from the general mandate that all sentences must have a minimum and a maximum, I would not imply such an exemption. Cf. Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987). Rather, in absence of an express exemption I am of the opinion that we must enforce the provisions of the sentencing code, including the requirement of both a minimum and a maximum term for imprisonment. Commonwealth v. Ferrara, 487 Pa. 392, 402, 409 A.2d 407, 412 (1979) (Roberts, J., dissenting) (sentencing court failed to comply with sentencing code in sentencing defendants who had been convicted of criminal contempt); Commonwealth v. Falkenhan, 306 Pa.Super. 330, 452 A.2d 750 (1982) (defendant convicted of direct criminal contempt must have sentence imposed as required by sentencing code).

Hence, I dissent.

       42 Pa.C.S.A. § 4135 Criminal Contempt was enacted 1976, July 9, P.L. 586, No. 142, § 2 effective June 27, 1978. As amended 1978, April 28, P.L. 202, No. 53, § 10(53), effective June 27, 1978. 35 P.S. § 10181 et seq. Protection From Abuse 1976, October 7, P.L. 1090, No. 218, As amended 1978, June 23, P.L. 513, No. 81 § 1, effective August 23, 1978.