author: BROSKY, Judge: BECK, Judge,

text:
    482 A.2d 1014
    COMMONWEALTH of Pennsylvania v. David COOPER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 18, 1983.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied Feb. 15, 1985.

      Leslie J. Carson, Jr., Philadelphia, for appellant.
    Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   OPINION

BROSKY, Judge:

Appellant, David Cooper, appeals from judgment of sentences of ten to twenty years imprisonment for robbery, five to ten years imprisonment for burglary, and ten years probation for criminal conspiracy, imposed by the Court of Common Pleas of Philadelphia upon a verdict of guilty entered after trial by jury. Appellant raises several issues on appeal. Having found that appellant’s sentence was improperly amended to require participation in a drug program as a condition of parole or probation, we vacate modification of judgment of sentence and reinstate the original sentence imposed by the trial court on November 9, 1981. As to all other issues, we affirm the trial court.

Appellant’s case has a rather long procedural history. On December 17, 1980, appellant was found guilty of Robbery, Recklessly Endangering Another Person, Possessing Instruments of a Crime, Burglary, and Theft by Unlawful Taking. On April 28, 1981, based on a finding that the jury could have reasonably inferred that the appellant had engaged in prior criminal activity because of excessive references to police photographs, the lower court granted appellant’s post-verdict motion for a new trial. Subsequently, on August 12, 1981, at new trial, appellant was again found guilty. On January 4, 1982, in absence of counsel, a hearing to reconsider sentence was held. On January 7, 1982, appellant’s sentence was amended to include drug therapy as a condition of any parole or probation.

As established at trial, on April 6, 1979, at about 8 p.m., appellant and another man entered the home of Mr. and Mrs. Rufus Frazier. The men threatened the Fraziers with a knife and took from them twenty-five dollars in cash, a television set, and a small radio. During the crime, while appellant’s accomplice searched the second floor, the appellant remained downstairs with the Fraziers, holding the knife to Mr. Frazier’s neck. The same evening, after looking through 500 to 800 photographs at the police station, Mrs. Frazier identified the appellant in one of the pictures. Subsequently, on May 2, 1980, appellant was arrested and thereafter identified by Mrs. Frazier at a lineup. Prior to the suppression hearing, however, all but 18 of the photographs were lost or misplaced.

Appellant first argues that the Commonwealth did not carry its burden of proving that the photographic identification procedure was not suggestive when it failed to produce several hundred photographs exhibited to the identification witnesses and produced only eighteen of those photographs for review. The appellant maintains, thus, that the case should be remanded for a new trial preceded by a hearing to determine whether the Commonwealth can show by clear and convincing evidence that any in-court or lineup identification following the photographic array had an origin wholly independent of the photographic identification. In support of his argument, appellant cites Common wealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974), and Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977). Appellant, however, in attempting to apply Jackson and Hodge to the instant case, fails to consider the difference in circumstances between Jackson and Hodge, and the instant case, and, thus, misinterprets their applicability.

In the instant case the Commonwealth made available for review 18 photographs from the original array (including that of the appellant) which were shown to the complainant. In contrast, in both Jackson and Hodge the Commonwealth produced none of the photographs viewed by the witnesses. Moreover, in the instant case, Detective Wojciechowski (the officer who presented the photographic array to Mrs. Frazier), testified that all of the photographs, including those which were missing, were standard police photographs of adult black males. Mrs. Frazier, too, testified, explaining that there were no other pictures of the appellant among the photographs that she looked through and, also, that she stopped looking at the photographs the instant she saw appellant’s photo, and that she immediately recognized him without any doubt as being the man who had robbed her.

Appellant, however, in opposition to any argument which attempts to distinguish Jackson and Hodge from the instant case, maintains that the issue is not whether a sufficient number of photos were displayed, but whether the failure to produce a portion of the photos made it impossible for the court to determine whether those missing photos were suggestive.

Appellant apparently argues that the holdings in both Jackson and Hodge when no photographs were produced for review can be expanded to act as precedent in cases when a portion of the photographs are presented for review, though the circumstances differ. At the core of appellant’s argument is the belief that when out-of-court photo identifications are made and a portion of the photographs used are unavailable for review, the out-of-court identification evidence and all subsequent in-court and lineup identification evidence must be suppressed. This court disagrees.

In neither Jackson nor Hodge does the court exclude a review of the circumstances in determining whether the failure to produce a portion of a photographic array requires the suppression of identification evidence. Rather, in Jackson, in explaining its holding that the Commonwealth’s failure to produce the pretrial photographic layout at the suppression hearing violated the defendant’s right to due process, the court emphasized:

“... [T]he original confrontation between the witness and the appellant was not conducive to a strong identification. Mrs. Jackson testified that she saw the appellant for only one second immediately after having been awakened by a clamor in the hallway. While the confrontation was face to face, the only source of illumination in the darkened apartment came from light above and behind the appellant. She also testified that it was only probable that she could have identified the appellant had she not seen his picture.” Jackson, supra 227 Pa.Super. at 11, 323 A.2d at 804.

Moreover, in Hodge, in granting suppression of testimony concerning the pretrial photographic identification, the court states:

“Such ruling was proper since the Commonwealth failed to retain the photographs which were utilized and this made it impossible under the circumstances to review the fairness of the procedures challenged.” Hodge, supra, 246 Pa.Super. at 76, 369 A.2d at 817. (Emphasis added).

As cited, in both Jackson and Hodge the court makes its holding in light of the circumstances (with special emphasis on whether it would be impossible under the circumstances to review the fairness of the procedures challenged). Appellant, thus, incorrectly maintains that this court should not consider the particular circumstances of the instant case.

Here, Mrs. Frazier viewed the intruder for approximately twenty minutes, at a distance of from two to five feet, and in a well-lighted room. She and the intruder conversed, and looked at each other continuously. As earlier stated, 18 of the photographs were available for review (including that of the appellant), and, as Detective Wojciechowski testified, the missing photographs were of adult black males and did not contain a second picture of the intruder. From the day of the incident to the present day, Mrs. Frazier has expressed no doubt that the appellant was in fact the intruder.

Similar to the present case is Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983) where the police, too, were not able to produce the exact array of photographs shown to the victim, the court also rejected appellant’s suppression claims. In Flynn the police displayed a book similar to the one that had been shown to the witness and which contained only sixteen of the original photographs. The court, in holding that the Commonwealth’s failure to produce the exact photographic array did not prejudice the appellant, explained that both the detective responsible for the presentation of the array and the complainant testified that no influence had been exerted to compel an identification and, moreover, the confrontation between the victim and appellant was conducive to strong identification. We find Flynn, supra, applicable to the instant case and that, under the circumstances, it is possible to review the fairness of the procedures challenged. Having found that the lower court could properly find the out-of-court identification admissible, we need not discuss whether the in-court identification or lineup identification had an independent basis. Appellant’s first assignment of error, thus, is without merit.

Appellant next argues that the trial court erred in advising the jury at the close of the Commonwealth’s case that the district attorney had located 19 additional photographs. Appellant maintains this unfairly prejudiced his defense since the only significant information was that he had been irreparably prejudiced when the police initially failed to produce the missing photographs. Given, however, our finding that the appellant was not irreparably prejudiced when the police failed to produce a portion of the photographs, we find appellant’s second argument moot.

In appellant’s third assignment of error, he maintains that the lower court erred when it permitted the amendment of information # 1674 charging appellant with having recklessly endangered another person to include Rufus Frazier as an additional victim. We disagree. An amendment of an information which changes the description of an offense is permissible so long as the amendment does not charge an additional or different offense. Pa.R.Crim.P. 229. In the instant case, Rufus Frazier is added as an additional victim, but no additional offense is charged. The appellant was charged, both, originally and subsequent to the amendment, with only one count of recklessly endangering another person.

Moreover, in the instant case, information 1674 was amended on December 11, 1980. Appellant did not proceed to retrial until August 10, 1981. Appellant, thus, had approximately eight months time to adequately prepare his case.

“The purpose of Rule 229 is to insure that a defendant is fully appraised [sic] of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed.” Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979). Surely, given the circumstances of this case, an eight month period allowed the appellant adequate time in order to prepare a responsible defense for trial. The Commonwealth did not add an additional or different charge when it amended the information. Moreover, no elements of the crime were changed, and the information as amended evolved out of the same factual situation as the original information. We find appellant hard-pressed not to have been on notice in regard to his criminal conduct. For the above reasons we hold appellant’s third argument to be without merit.

In his fourth argument, appellant maintains that trial counsel was ineffective. Appellant argues that counsel should not have brought out on cross-examination the photographic identification evidence since it necessarily implied that the appellant had a criminal record, and that counsel should have appealed from the denial of appellant’s motion in arrest of judgment after appellant’s first trial. We find no merit to appellant’s argument.

To begin, in examining a claim of ineffectiveness of counsel, a two-step analysis is required. Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983). The court must first determine whether the issue underlying the charge is of arguable merit, and second, if the charge does have merit, inquiry shifts to whether the course chosen by counsel had some reasonable basis aimed at promoting the client’s interest. Golson, supra. In making this assessment, however, the court will not employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, but will look to whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979).

Here, as to appellant’s first allegation of ineffectiveness of trial counsel, the Commonwealth counter-argues that counsel had a reasonable basis for eliciting testimony regarding the photographic identification procedure. The Commonwealth reasons that counsel competently sought to attack the victim’s identification of appellant by trying to show the in-court and lineup identification resulted from an initially suggestive photographic identification. We agree.

The key issue in the instant case was the reliability of the identification by Mrs. Frazier of the appellant. The outcome of the case was greatly dependent on the correctness of that identification. As the Commonwealth argues, it was reasonable for trial counsel to attack the reliability of the victim’s out-of-court photographic identification in the hope of persuading the jury that all the victim’s identifications were tainted. The tactical decision was trial counsel’s to make. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

As to appellant’s second allegation of ineffectiveness of counsel resulting from counsel’s failure to appeal the denial of appellant’s motion in arrest of judgment, appellant maintains that in post-verdict motions following the first trial, trial counsel raised a number of issues that would have justified arresting the judgment. Appellant argues there could have been no tactical or other reason for counsel to have waived that right of appeal and failure to so appeal was ineffective representation. We find appellant’s assertion that counsel had waived appellant’s right of appeal incorrect.

In the instant case following appellant’s first trial, appellant was granted a new trial on post-verdict motions. Appellant's motion in arrest of judgment, however, was denied. As appellant argues, denial of that motion was then appealable. Rule 311 of the Rules of Appellate Procedure states:

(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
# * * ■}: >k s[<
(5) New trials. An order ..., or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the lower court committed an error of law.

Appellant, however, in asserting that trial counsel’s failure to appeal constituted ineffective representation, incorrectly bases his argument on the premise that counsel had therefore waived that right of appeal. Appellant’s right of appeal, in fact, had not been waived. Rule 311 of the Rules of Appellate Procedure also states:

Where an interlocutory order is immediately appealable under this rule, failure to appeal under subdivision (a) ... shall not constitute a waiver of the objection to the order and the objection may be raised on any subsequent appeal in the matter from a determination on the merits.

For the above reasons we find appellant’s second allegation that trial counsel was ineffective without merit.

Lastly, appellant argues that amendment of his sentence to require participation in a drug program as a condition of probation or parole was unlawful given that the amended sentence was imposed more than 30 days after sentencing and that an appeal had been filed. We agree.

Following the second trial, sentence was imposed on November 9, 1981. Subsequently, on January 7, 1982, 59 days after imposition of sentence and after sentence had been appealed, appellant’s sentence was amended to require participation in a drug program under the supervision of the State Board of Probation or Parole.

On January 7, 1982, however, the trial court was without jurisdiction to alter sentence and, thus, any action taken was null and void. Section 5505 of the Judicial Code provides:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of a term of court, if no appeal from such order has been taken or allowed. 42 Pa.C.S.A. § 5505.

In view of the fact that appellant had already filed a notice of appeal, and more than 30 days had elapsed since sentencing, the attempt to modify sentence was a nullity. Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982). We find, therefore, that appellant’s sentence was improperly amended on January 7, 1982.

The trial court maintains, however, in response to appellant’s post-verdict motions, that the court inadvertently omitted drug therapy as a condition of parole, and that the omission was in fact an obvious error. Given the trial court’s response, we feel it is necessary to address the issue.

A trial court has the inherent power to correct obvious and patent mistakes even after the term of the court has expired. See Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). In Cole, supra, the expiration of the 30 day period did not eliminate the power of the court to correct an original order granting both a new trial and an arrest of judgment. The court explained that because the grant of a new trial and the grant of a motion in arrest of judgment were clearly antagonistic, the original order was patently erroneous. Id., 437 Pa. at 292, 263 A.2d at 341.

In contrast, however, in the instant case, the omission of drug therapy from the original sentence was not patently erroneous. Though the trial court noted at the sentencing hearing that the presentence report recommended that the appellant’s parole be supervised by the drug or alcohol unit of the Pennsylvania Board of Probation and Parole (and also that the appellant’s attorney recommended in-patient rehabilitation), the record does not indicate that the trial judge expressly intended to impose participation in a drug and alcohol program as a condition of parole. Moreover, unlike Cole, the original sentence in the instant case was not unlawful. In light of the circumstances, it does not appear likely that the omission of drug therapy as a condition of parole was an obvious or patent mistake.

For all of the above reasons stated, we find, thus, that the trial court improperly modified appellant’s sentence on January 7, 1982. Modification of judgment of sentence is vacated, and the original sentence as imposed on November 9, 1981, reinstated. We affirm the trial court on all other issues.

BECK, J., filed a concurring opinion.

BECK, Judge,

concurring:

The majority finds that it is able to decide that a photographic identification was not impermissibly suggestive although the Commonwealth produced for review only nineteen of approximately 700 photographs which were shown to the victim who identified appellant as the perpetrator. While I concur in that result in this particular case, I write separately out of a concern that this Court does not thereby inadvertently enunciate a rule which affords too much flexibility to the police in conducting photo identifications.

The ultimate standard by which all identification evidence is to be assessed is one of reliability. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Photographic identification evidence should be suppressed if the identification procedure “is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

In Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974), we held that the Commonwealth’s failure to produce the photo array at the suppression hearing violated the defendant’s rights to due process of law, because it deprived the defendant of the opportunity to challenge the identification procedure effectively.

More recently, this Court in Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983), held that Jackson did not compel the suppression of a photographic identification where the Commonwealth produced at the hearing only a portion of the photo array shown to the victim, especially considering that the victim in Flynn had a much better opportunity to observe at the scene of the crime than , the victim in Jackson.

I agree with the majority that the instant case is closer to Flynn than to Jackson. However, I caution that Flynn should not be read as a holding that it always sufficient for the Commonwealth to produce some selected portion of the photo array at the suppression hearing. Rather, the inquiry should be whether sufficient evidence has been made available to defense counsel and to the court by which to evaluate the identification procedure. Facilitating a fair evaluation of the identification procedure is, after all, the underlying rationale for the requirement to produce any photographs. See Jackson.

In the instant case, the Commonwealth produced at the hearing only nineteen out of the several hundred photographs shown to the witness. The Commonwealth argues that it has complied with the spirit of Jackson, and that the court is entitled to conclude the identification procedure was proper, regardless of the nature of the several hundred other photos, because the victim “still had to pass over eighteen non-suggestive photographs before identifying defendant’s photograph” (Commonwealth’s Brief at 8). I believe we must state clearly that this is not the case. The pertinent question is whether the array as a whole was unduly suggestive, not whether certain photographs were suggestive.

In the instant case, the suppression court had available for review only a tiny fraction of the several hundred photos which were originally displayed in forty-three separate folders. In this situation, the nature of the missing photographs and the patterns and sequences in which they were displayed are crucial. Appellant’s photograph could have been conspicuously placed in a prominent position among a group of very dissimilar pictures, while the eighteen “non-suggestive photographs” were tucked away elsewhere in the array. Under such circumstances, the identification procedure could be suspect.

In Flynn, on the other hand, the police produced sixteen of the twenty-five photos shown to the victim. Twenty-five photos is a small enough number to be spread out on a table and viewed as a single array. In Flynn the court was safe in concluding that the sixteen-photo array was not suggestive, and that the production of nine additional photos was highly unlikely to make the twenty-five-photo array as a whole impermissibly suggestive.

I do not suggest that the Court can or should state a mathematical rule providing that a certain minimum fraction of the photo array be produced at the suppression hearing. Rather, I suggest that when the photo array is only partially reproduced in the courtroom, the possibility exists that the portion reproduced is not representative of the array as a whole, and that that possibility increases as the relative number of photographs produced decreases.

When only a small portion of the array is produced, the requirements of Jackson and Flynn are satisfied only if there is adequate evidence presented to the suppression court that the sample is in fact reasonably representative of the array as a whole. This evidence will most commonly consist of testimony by the identifying witness and the police officers involved that the missing photographs were similar in character to those produced at the suppression hearing.

In the instant case, there is sufficient evidence in the record for the suppression court to conclude that the nineteen photographs produced are adequately representative of the array as a whole. I therefore agree with the majority that Mrs. Frazier’s photographic identification of appellant was properly admitted, noting further that Mrs. Frazier, like the victim in Flynn, had an excellent opportunity to view appellant under good conditions at close range. I agree with the majority’s disposition of the other issues raised by appellant, and I therefore join the majority’s excellent opinion in all other respects.

      . Appellant received lesser concurrent sentences of one to two years imprisonment for recklessly endangering another person and two and one half to five years imprisonment for possessing instruments of a crime.

      . On January 7, 1982, fifty-nine days after imposition of sentence and after sentence had been appealed, appellant’s sentence was amended to require participation in a drug program under the supervision of the State Board of Probation or Parole as a condition of any probation or parole.

        . Motion in Arrest of Judgment was denied.

      . The Fraziers were married between the time of the crime and appellant’s trial.

      . The Commonwealth maintains that appellant in his brief provides absolutely no citation to where in the record the alleged error occurred or where defendant timely objected to the complained of charge and we should therefore not consider this aspect of the appeal. Although appellant did fail to include specific references to the record in his argument section of his brief, contrary to Pa.R.A.P. 2119(c), and in his statement of the case, as requested by Pa.R.A.P. 2117(a)(4), he did state in both the argument section of his brief and in his statement of the case that the error occurred "at the close of the Commonwealth’s case.” Brief for appellant at 6, 14. It is certainly better practice to include specific references, as the rules require, but we shall not quash an appeal where a reference is made and we can (though with some effort) review the merits of appellant’s allegation.

      . See, also, Commonwealth v. King, 287 Pa.Super. 105, 110, 429 A.2d 1121, 1124 (1981).

      . Appellant originally proceeded to trial on December 15, 1980, and following a verdict of guilty was awarded a new trial on post-verdict motions.

      . Nor do we find merit to the issues appellant might have raised after the first trial. We have elsewhere in this opinion discussed appellant’s allegation of error in the amending of information # 1674 and have denied his claim. Additionally, we have found the identification evidence admissible and we therefore reject Mr. Cooper's insufficiency claim which is básed on the premise that the identification should be excluded.
      The remaining issue that appellant argues should have been advanced on appeal following his first trial is that the charges should have been dismissed due to pre-arrest delay. Rule 1100 does provide that trial is to be commenced within 180 days of the filing of the complaint. The period between the issuance of the complaint and warrant on April 8, 1979 and the date of appellant's arrest on May 2, 1980 is excludable, however, from the 180-day limitation if the Commonwealth establishes, by a preponderance of the evidence, that the police exercised due diligence in trying to locate and arrest appellant. See Pa.R.Crim.P. 1100(d)(1).
      There is no requirement that the Commonwealth exhaust every conceivable method of locating a defendant. Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978). The standard of due diligence requires only that reasonable efforts be made to locate and apprehend a defendant. Commonwealth v. Hinton, 269 Pa.Super. 43, 409 A.2d 54 (1979).
      As established in the Rule 1100 Hearing, in attempting to locate and apprehend appellant, the police (1) placed David Cooper’s name in the National Crime Computer (NCIC) as wanted for charges stipulated on the warrant; (2) contacted a parole officer when the NCIC computer revealed that defendant was wanted for a parole violation; (3) went to two addresses thought to be that of the defendant on several occasions; (4) searched these neighborhoods and surrounding bars for defendant’s presence; (5) periodically contacted the police in these neighborhoods; (6) posted a photograph in the district police station; (7) checked with the Bureau of Motor Vehicles to see if the defendant had changed the address in the event that he should renew his driver’s license; (8) learned that the defendant had been at the Coatsville Hospital prior to the crime and unsuccessfully sought a forwarding address and (9) contacted the Postal Inspector to see if there was record of defendant’s forwarding address. (N.T. 1100 9/5/80 9-21, 34-35, 40, 47, 67).
      Thus, although some of the Commonwealth’s efforts may not have been fruitful in helping to locate the appellant, the investigation included several steps taken by police officers which demonstrated due diligence.

      . Appellant also argues that the amended sentence was unlawful because it increased appellant’s sentence and was imposed in absence of counsel. Because we find that the amended sentence was unlawful given that it was imposed more than 30 days after sentencing and that an appeal had been filed, we do not discuss appellant’s other arguments.

      . Notice of appeal was filed to this court on November 19, 1981.

      . The Commonwealth states in its brief to this court that although it finds it remarkable that the appellant no longer wishes free professional care for his drug and alcohol problems, it does not oppose the vacation of drug therapy as a condition of appellant’s parole or probation.

      . Appellant also argues that his hearing on his motion to modify sentences held on January 4, 1982, should not have been conducted in the absence of counsel. Appellant maintains that this error nullified the order denying that motion. Because the trial court was without authority to act, we find that any error in the denial of appellant’s rights at the hearing on January 4, 1982, was manifestly harmless. See Commonwealth v. Lynch, supra; Commonwealth v. Canady, supra.


source: Caselaw Access Project

author: BROSKY, Judge: CIRILLO, Judge,

license: Public Domain

text:
    482 A.2d 1023
    COMMONWEALTH of Pennsylvania v. James GILLESPIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1983.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Granted for Commonwealth March 8, 1985.
    Petition for Allowance of Appeal Denied for Appellant March 8, 1985.

      John J. Cerra, Carbondale, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   BROSKY, Judge:

This is an appeal from the order of the court below denying appellant’s petition under the Post Conviction Hearing Act (PCHA). Although appellant states only three questions in his statement of questions presented, he raises twenty-one grounds for relief, including a claim that the sentencing court placed him twice in jeopardy by imposing a consecutive sentence for robbery together with a life sentence for murder when the murder verdict could have been predicated on the felony murder doctrine. We find that appellant has waived all but his double jeopardy claim, but find merit to that claim and accordingly vacate the sentence imposed for robbery.

In 1969, appellant robbed a gas station, taking $130.41 in cash. He then abducted the gas station attendant and drove him twelve miles to an isolated area, where he shot the attendant to death.

On June 28, 1972, a jury found appellant guilty of first-degree murder and armed robbery and set the punishment for murder at life imprisonment. Post-verdict motions were filed and denied and appellant was sentenced to five to ten years for robbery, to run consecutively to the life term for murder. Appellant appealed to the Pennsylvania Supreme Court which affirmed the convictions per curiam.

Appellant subsequently filed a habeas corpus petition in the United States District Court for the Middle District of Pennsylvania. The federal court appointed counsel to represent appellant on the petition and on October 21, 1976 denied the petition without a hearing. The United States Court of Appeals for the Third Circuit affirmed without opinion and the United States Supreme Court denied appellant’s petition for certiorari.

On June 13, 1979 appellant filed a PCHA petition and was appointed counsel by the PCHA court. After a hearing, the court denied the petition. This timely appeal followed.

Appellant’s petition to the PCHA court alleged thirty-one grounds for relief of which twenty-one are pursued in this appeal. The Commonwealth argues that, under § 1180-4 of the PCHA, appellant has waived all of these issues by failing to present them either in the original proceedings before the Pennsylvania courts or in the federal habeas corpus proceedings. However, we need not resolve this issue because we find that appellant has waived twenty of his claims due to the inadequacy of his presentation of those claims for our review and that his challenge to the sentence cannot be waived.

As to the twenty claims we find waived, we note that Pa.R.A.P. 2116(a) requires that a brief contain a statement of questions involved and further provides as follows:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby ...

Appellant’s brief presented the following as his third question of his statement of questions involved:

Whether or Not Various Matters Raised at the Insistance [sic] and Behest of Appellant Require the Court to Grant Relief to Appellant In this Case.

This question defines no specific issue for appellate review or determination.

Pa.R.A.P. 2118 requires that the brief contain a summary of argument as follows:

The summary of argument shall be a concise summary of the argument of the party in the case, suitably paragraphed. The summary of argument should not exceed one page and should never exceed two pages. The summary of argument should not be a mere repetition of the statement of questions presented. The summary should be a succinct, although accurate and clear picture of the argument actually made in the brief concerning the questions.
Appellant’s summary of argument with respect to the above question is as follows: Appellant asserts that the Court erred as regards various matters which are now raised at Appellant’s behest and insistance. [sic]

This summary amounts to nothing more than a repetition of the above question.

Finally, appellant’s argument with respect to the above question consists essentially of twenty numbered paragraphs, few longer than one sentence long, containing what amount to bald assertions of trial counsel’s ineffectiveness or court error.

When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982); see Commonwealth v. Jackson, 494 Pa. 457, 481 A.2d 944 (1981).

We find appellant’s brief to be completely inadequate as to the twenty claims raised by his third question, and, therefore, will not reach its merits.

However, appellant’s double jeopardy claim is properly raised and developed in his brief. Moreover, such a claim raises the issue of the lawfulness of the sentence imposed upon his convictions. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Since claims of illegality of sentence cannot be waived, this issue is properly before us, whether or not it would otherwise be considered waived under the PCHA. Commonwealth v. Albertson, 269 Pa.Super. 505, 410 A.2d 815 (1979).

Appellant bases his claim on the cases of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) and Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). In Tarver, the Pennsylvania Supreme Court held that the Double Jeopardy Clause of the United States Constitution, in its protection against multiple punishments for the same offense, prohibits the imposition of consecutive sentences for felony murder and its underlying felony. According to the Tarver Court, felony murder and its underlying felony are the same offense for sentencing purposes.

Both Tarver and appellant were convicted of first degree murder under the Act of June 24, 1939, P.L. 872 § 701, which provided

All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.

The 1939 Act identified two distinct categories of first degree murder: murder accomplished by “willful, deliberate, and premeditated killing,” and murder “committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping.” The latter category is commonly known as “felony murder.”

Tarver clearly was convicted of first degree murder of the felony murder variety. In the course of a bank robbery involving Tarver and two co-felons, a customer was shot and killed. Tarver pled guilty to murder and, at a degree-of-guilt hearing was adjudged guilty of first degree murder based on a finding the killing was perpetrated in the course and in furtherance of the robbery. He ultimately received a life sentence for the conviction. He also was tried and convicted on other charges, including robbery and was sentenced to ten to twenty years on the robbery count, to be served consecutively to the life term. On appeal, the Supreme Court then vacated the robbery sentence as violative of the Double Jeopardy Clause.

Instantly, appellant argues that the jury’s verdict was possibly based on the felony murder doctrine and that this possibility brings his case within the Tarver rule. This possibility was injected into the case by the trial court’s charge to the jury:

If you find, beyond a reasonable doubt, that the defendant, James Gillespie, while in the perpetration, or an attempt to perpetrate a robbery, as I have defined it, did violence to the person of William Gilmour by firing bullets into his body, thereby causing his death, then you should return a verdict of murder in the first degree. If you find, beyond a reasonable doubt, that the defendant, James Gillespie, regardless of whether a robbery was perpetrated, or attempted, did willfully, deliberately, and with premeditation, as defined by the court, shoot and kill William Gilmour, then you should return a verdict of murder in the first degree.

The jury returned a general verdict of guilty of first degree murder without specifying upon which of the alternative charges they had relied. Thus, there is no way of knowing on which theory the jury proceeded.

Tarver, however, is not necessarily alone dispositive of the instant case since there it was certain that the conviction of first degree murder was based on the felony murder doctrine. The question before us is whether the Tarver rule applies where there is only a possibility that the verdict was predicated on the felony murder doctrine.

We believe that the case of Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977) compels us to answer this question in the affirmative. In Sparrow, the Supreme Court, faced with the same type of jury instructions and verdict as appear instantly, stated:

There was ample evidence in the case (such, for example, as Sparrow’s announced purpose, “I’m going to get me a homicide”) from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premeditated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant’s contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable.

Sparrow, 471 Pa. at 502, 370 A.2d at 720. However, the Sparrow court went on to hold that the imposition of a consecutive sentence for robbery, even if it lay behind the murder verdict, did not violate the doctrine of merger or the Double Jeopardy Clause. Thus, if the instant case were governed by Sparrow, appellant would not prevail.

However, Tarver, in holding that felony murder and its underlying felony are the same offense for sentencing purposes, expressly overruled Sparrow’s contrary holding. We conclude, therefore, that a consideration of Sparrow and Tarver together produces the following rule: if there is no way of knowing on which theory (felony murder or willful, deliberate and premeditated murder) the jury based its verdict of first degree murder, a sentence may not be imposed both for the murder conviction and for the felony that would be the underlying offense were the murder conviction considered to be based on a theory of felony murder.

However, since Tarver was decided after appellant’s conviction had become final, the preceding rule would not apply unless Tarver is to be given full retroactive effect. This question is one of first impression.

In Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969), our Supreme Court adopted the standards to be followed in determining whether to retroactively apply a decision in a criminal case. The court relying upon Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) required a number of factors to be considered. The court must review the purpose of the standard, the reliance place upon prior decisions, and the effect upon the administration of justice.

Commonwealth v. Parrott, 287 Pa.Super. 83, 87, 429 A.2d 731, 733 (1981).

We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated.
Linkletter indicated, for instance, that only those procedural rules affecting “the very integrity of the factfinding process” would be given retrospective effect. 381 U.S. at 639 [85 S.Ct. at 1743], 14 L.Ed.2d 601. In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding' process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E.g., Walker v. Georgia, 408 U.S. 936, 92 S.Ct. 2845, 33 L.Ed.2d 753 [ (1972) ].
The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases.
The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.

Robinson v. Neil, 409 U.S. 505, 507-508, 93 S.Ct. 876, 877-8, 35 L.Ed.2d 29, 32-33 (1973).

This holding was put in a broader perspective in the case of United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). There the Court stated the following:

... the Court has recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place. The Court has invalidated inconsistent prior judgments where its reading of a particular constitutional guarantee ... serves “to prevent [his] trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of [that] trial,” Robinson v. Neil, 409 U.S., at 509, 93 S.Ct., at 878 (double jeopardy). In such cases, the Court has relied less on the technique of retroactive application than on the notion that the prior inconsistent judgments or sentences were void ab initio.

Id., at 550, 102 S.Ct. at 2587-88, 73 L.Ed.2d at 214.

The principles of Robinson and Johnson were recognized by this court in Commonwealth v. Beam, 227 Pa.Super. 293, 324 A.2d 549 (1974), where we stated that:

The cases in which double jeopardy principles have been given retroactive application have involved situations wherein a second prosecution or punishment was deemed to constitute jeopardy for the same offense. Retroactive application of these decisions was required in order to enforce the traditional Fifth Amendment ban on double punishment and successive prosecutions for the same offense.

Id., 227 Pa.Superior Ct. at 300, 324 A.2d at 553 (emphasis added) (citations omitted).

As noted earlier, the Tarver court’s decision was that the double jeopardy clause, in its protection against multiple punishments for the same offense, prohibits the imposition of consecutive sentences for felony murder and its underlying felony. We believe that the preceding discussion makes it abundantly clear that such a decision must be given full retroactive effect.

Since the instant case thus falls within the rule prescribed above, we must vacate the sentence of five to ten years on the robbery conviction. It is so ordered.

Order of the PCHA court affirmed in part and reversed in part. Jurisdiction relinquished.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting:

I dissent from the vacation of appellant’s robbery sentence. The double jeopardy rule of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), should not be extended to this case.

In Tarver the Pennsylvania Supreme Court held that the Fifth Amendment guarantee against multiple punishments for the same offense protects a defendant from receiving consecutive sentences for felony-murder and the underlying felony. The Court found that the nature of felony-murder as developed under common law and by statute compelled the conclusion that felony-murder and its underlying felony were the “same offense” for double jeopardy purposes.

Under the common law, murder was distinguished from other types of homicide by the element of malice. In the case of felony-murder the necessary malice was not express, but implied. The common law felony-murder rule permitted the factfinder, in the case of a killing occurring during a felony, to “constructively infer” the essential element of malice from the actual malice accompanying perpetration of the underlying felony. Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970).

The statute under which appellant and Tarver were convicted did not alter the common law definition of murder, but divided the crime into two degrees. Murder of the first degree encompassed two subcategories: “willful, deliberate and premeditated” killing, and felony-murder. Any murder not falling into either of these categories was murder of the second degree. Act of June 24, 1939, P.L. 872, § 701.

Tarver was convicted after a degree-of-guilt hearing at which a three-judge court specifically found him guilty of felony-murder. Later he was convicted and sentenced consecutively for the underlying robbery. On appeal from the sentence for robbery the Supreme Court reasoned that the robbery had supplied not only the malice essential to make the accompanying killing murder, but also the aggravating factor necessary to raise the murder to murder of the first degree. Thus unable to separate first-degree felony-murder from its underlying felony, the Court found a constitutional prohibition against consecutive punishments for each crime.

Appellant’s case diverges quite markedly from Tarver, both on the facts and in analysis.

Appellant robbed a gas station at gunpoint, stole the cash register containing $130 in cash, abducted twenty-year-old Billy Gilmour, the gas station attendant, and drove him twelve miles to an isolated area. There, despite repeated pleas by young Gilmour for his life, appellant fired six bullets into Gilmour’s head and body. When Gilmour continued to writhe, appellant beat him over the head with a tire iron, then kicked Gilmour’s body over an embankment.

The only direct testimony as to the brutal and merciless manner in which appellant killed Gilmour came from Edward Zigga, a trusty at the county prison where appellant was incarcerated. According to Zigga appellant not only related to him the sordid details of the crimes, but also solicited Zigga’s help in having appellant’s wife killed because of her knowledge about the crimes. Zigga’s story of how the killing occurred was fully borne out by the medical, physical, and photographic evidence introduced at trial to prove the cause of Gilmour’s death and the condition and location of his body when found.

Clearly the evidence at appellant’s trial established beyond any conscionable doubt that whoever killed Gilmour specifically intended to kill him. In other words, that the killing was willful, deliberate, and premeditated. Commonwealth v. Davis, 308 Pa.Super. 204, 454 A.2d 92 (1982). The majority now allows that, nevertheless, the jury may have ignored the plain evidence of intent and pronounced appellant guilty of first-degree murder solely on a felony-murder theory. Consistently with the Tarver analysis, then, what the majority is saying is that we must consider Gilmour’s murder as the “same offense” as robbery because the jury might have chosen to “constructively infer” that the killing was malicious from the evidence that appellant robbed a gas station twelve miles down the road from the murder scene. I see no need to give appellant the benefit of such an unreasonable and phantom doubt as to what the jury found.

The majority conjures its doubt from the trial court’s alternative first-degree murder instructions, which told the jury they could convict appellant if they found either that he fired the killing bullets “while in the perpetration” of a robbery, or that he killed Gilmour willfully, deliberately, and with premeditation. These “alternative” legal theories, however, in this case had a single factual theory to which they could apply. Gilmour was shot six times from behind in the head and body and also clubbed over the head with a tire iron. If the jury in finding appellant guilty placed any reliance on the felony-murder theory, under the charge they had to attribute at least the shooting to him. As the Supreme Court said in Commonwealth v. Green, 294 Pa. 573, 584, 144 A. 743, 747 (1929), “We can imagine no act more strongly indicative of an intent to kill than the deliberate shooting of a bullet into another’s head. From such circumstances without qualifying facts the presumption of fact that the slayer intended to take life must arise in a reasoning mind. . . .” The factual presumption of intent logically increases sixfold in this case, where the killer used six bullets instead of one. See also Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532 (1947); Commonwealth v. Drum, 58 Pa. 9 (1868); but see Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); cf. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977) (evidence of brutality of killing probative of specific intent to kill).

Even assuming, then, that appellant’s jury found guilt on the theory that he killed “in the perpetration of a robbery,” is it conceivable that they scrupulously avoided the question whether appellant, while pumping six bullets into Gilmour, intended the boy’s death? Such a conceit is, I believe, a chimera, and a flimsy ground for dissolving a serious felony sentence. An intentional homicide committed in the course of a felony is nonetheless first-degree murder of the willful, deliberate, and premeditated variety, see Commonwealth v. Davis, supra; Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983), and that is the variety of murder we are dealing with here.

The majority believes that Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977), compels us to doubt that appellant’s jury found intent to kill. I disagree. In Sparrow the trial court gave an alternative first-degree murder charge similar to the one given in this case. But Sparrow killed his victim with one shot while holding him up on the street. The Supreme Court pointed out that while there was ample evidence in the case to support a finding of willful, deliberate, and premeditated slaying, the Court could not rule out that the jury had based its verdict solely on the felony-murder doctrine. Of course, the evidence in Sparrow could rationally and legitimately support a finding that the defendant did not specifically intend the death of his victim. That is emphatically not the case here, as even appellant’s counsel in his closing statement to the jury conceded:

I’m sure there’s not one of you in the jury box ... that will disagree with the opening statement that Mr. Brooks made to you people when this trial began a week ago yesterday, when he talked about what a horrible crime it was, what an execution it was, and we completely and totally agree, to that extent, with the district attorney. There can be no question in anyone’s mind that this was a horrible, horrible, ruthless, cold-blooded murder, the killing of young Billy Gilmour.

(Emphasis mine). It was not felony-murder but willful, deliberate, premeditated murder for which appellant was convicted, and I cannot subscribe to any legal argument that would characterize it as the “same offense” as robbery.

In addition, the majority ignores a sound jurisprudential reason why the Tarver double jeopardy rule should not be extended to this case. By giving the benefit of the rule to appellant, the majority has decided that the rule will be available to any petitioner regardless whether his conviction was final at the time Tarver was announced. Although this Court has held that relief on Tarver grounds must be afforded to prisoners whose cases were on direct appeal when Tarver came down, Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1982), such relief heretofore has not been applied retroactively beyond the Tarver case itself. My reading of recent Supreme Court pronouncements on the retroactive effect of decisions changing prior law convinces me that the Tarver rule should not apply to judgments of sentence final at the time of the Tarver decision (as Gillespie’s was). See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (opinion by Larsen, J.; dissenting opinion by Nix, J.); Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982) (plurality opinion by Nix, J.); Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981). See also United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); cf. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (double jeopardy rule given full retrospective application where prior constitutional decision did not depart from prevailing law, so that convictions obtained in violation of decision were void ab initio).

Chief Justice Bell, dissenting in Commonwealth ex rel. Smith v. Myers, supra, quoted Justice Cardozo from The Nature of the Judicial Process, 66-67: “When they [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance ... The final cause of law is the welfare of society ...” 438 Pa. at 248, 261 A.2d at 565. I can conceive of no way in which the welfare of society might be served by today’s extension of the Tarver rule. Under the 1939 Crimes Code the degrees and penalties for intentional murder and felony-murder were identical, so there rarely was any reason for a jury deciding to convict a defendant on combined murder-felony counts to specify whether the defendant acted with intent to kill. Now all defendants convicted by means of such unspecific verdicts are ipso facto felony-murderers, regardless whether the jury would have labelled them intentional killers had they foreseen the legal loophole now available. Scores of premeditated murderers can now expect to walk through the loophole to have their consecutive felony sentences expunged in Post Conviction Hearing Act proceedings.

Of course, all these murderers are left, along with appellant, serving mandatory life sentences. But their newfound blanket categorization as felony-murderers is not a distinction without a difference. It is well known among sentencing judges that one reason for adding a consecutive felony sentence to a life sentence is to increase the time served by a defendant before he comes up for parole. See Commonwealth v. McClendon, 495 Pa. 467 n. 3, 434 A.2d 1185 n. 3 (1981) (dissenting opinion by Roberts, J., and cases there cited). I take it on eminent, albeit second-hand, authority that “ ‘As the Court well knows a life sentence in Pennsylvania at the present time carries an average sentence in the neighborhood of fifteen years.’ ” Spaeth, J., dissenting in Commonwealth v. Burno, 310 Pa.Super. 564, 568, 456 A.2d 1080, 1081-82 (1983) (quoting an unnamed assistant district attorney). I am troubled by the prospect that the enormity of acts like Mr. Gillespie’s might be forgotten in the passage of time, and that today’s decision could help such a cold-hearted young man and others similarly situated to reach the street after many hard-bitten years in the state penitentiary, but sooner than their sentences intended.

      . 19 P.S. § 1180-1 et seq., reenacted as 42 Pa.C.S.A. § 9541 et seq.

      . Appellant’s statement of questions presented is as follows:

        Issue I — Whether or Not Appellant Has Waived His Right to Raise Certain Issues By Way of A Petition Under the Post Conviction Hearing Action, 19 P.S. 1180-1 et seq.

        Issue II — Whether or Not the Sentencing Court Violated the Double Jeopardy Provision of the United States Constitution By Imposing a Consecutive Sentence for the Armed Robbery Conviction.

        Issue III — Whether or Not Various Matters Raised at the Insistance [sic] and Behest of Appellant Require the Court to Grant Relief to Appellant In this Case.

      . Section 1180-4, now section 9544 of the PCHA provides in relevant part that:
      (b) for purposes of this act, an issue is waived if: (1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other, proceeding actually conducted, or in a prior proceeding actually initiated under this act; and (2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
      (c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

      . For example, in paragraph 10, appellant states the following:
      10. Trial counsel failed to object and move for a mistrial as regards the charge of the jury on the issue of flight and the prosecutor’s remarks as regards flight of Appellant.
      This statement constitutes the entire argument on the issue raised in it.

      . U.S. Const. Amend V.

      . See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

      . Felony murder is presently classified as murder of the second degree. 18 Pa.C.S.A. § 2502(b).

      . The Commonwealth itself concedes in its brief that it "is impossible to decipher whether the jury relied on the court’s first or second charge concerning a finding of Murder in the First Degree.

      . In Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1982), Tarver was made retroactive to the extent that it was held to apply to cases on direct appeal at the time it was decided.

      . While, instantly, a different aspect of double jeopardy is at issue— that of the prohibition against multiple punishments for the same offense — its practical result is still not to prescribe procedural rules that govern the conduct of a trial.

      . Unlike the case at bar, the Pennsylvania Supreme Court cases relied on by the dissent in support of its position that Tarver should not be applied retroactively involve procedural rule changes. Thus, they are clearly inapposite to the instant case.

      . The dissent would distinguish Sparrow on the basis that there the evidence could rationally and legitimately support a finding that the defendant did not specifically intend the death of his victim while here it could not. We believe this is a false distinction.
      The dissent’s argument misses the point that no matter how great the quantum of evidence may be to support such a finding, a contrary finding by the jury would always be legitimate, for it is solely the jury’s province to determine the quality of that evidence. We do not, as the dissent mistakenly believes, refer here to the jury’s traditional power to exercise mercy, but to its basic and exclusive function of assessing the credibility of the testimony. A jury is free to believe all, part or none of the evidence. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). Thus, no matter how unequivocally the dissent believes the evidence proved premeditated murder, it was within the province of the jury to disbelieve evidence that the appellant specifically intended the death of his victim. Essentially, the dissent would have us weigh the evidence and determine that the jury either must have or should have found that appellant was guilty of wilful, deliberate premeditated murder. This we cannot do.
      On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. Commonwealth v. Woodhouse, 401 Pa. 242, 261, 164 A.2d 98 (1960). To do so would require an assessment of the credibility of the testimony and that is clearly not our function. Commonwealth v. Sullivan, 436 Pa. 450, 456, 263 A.2d 734 (1970) cert. denied, 400 U.S. 882, 91 S.Ct. 127, 27 L.Ed.2d 120; Commonwealth v. Schuck, 401 Pa. 222, 228, 164 A.2d 13 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961).

        Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). Thus, as in Sparrow, we are left unable to rule out the possibility that the jury based its verdict of first-degree murder solely on the felony-murder doctrine.
      We also fear that the dissent greatly exaggerates the import of our decision. Certainly, the dissent concedes that, under Sparrow, the rule of Tarver would apply to unspecified verdicts where it would determine that the evidence could legitimately support a finding that the defendant did not intend the death of the deceased. Our decision would extend that rule only to what must certainly be the much smaller number of cases involving unspecified verdicts in which the dissent would determine that the evidence could not support such a finding.
      It would seem, therefore, that the dissent’s quarrel is more with the Supreme Court decisions of Sparrow and Tarver than with us. Moreover, we believe the welfare of society is, perhaps, better served when our decisions are based on precedent and Constitutional guarantees rather than on an unnamed assistant district attorney’s statements as to parole policy. However, in an effort to further allay the dissent’s fears we note that a parole board in making its decision must investigate and inform itself of the circumstances of the offense and must consider the recommendations of, inter alia, the trial judge and the district attorney. 61 P.S. § 331.19.

      . The majority misses the point when it says in footnote 12 of its opinion that a jury finding of felony-murder "would always be legitimate.” Nobody is denying that a jury is empowered to return any verdict it sees fit if circumstances warrant. For example, a jury may exercise uncontrolled leniency to lessen the degree of the crime proven, or even acquit the defendant, although the verdict be manifestly inconsistent with the evidence. See Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974); Commonwealth v. Staples, 324 Pa.Super. 296, 471 A.2d 847 (1984); but see Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) (McDermott, J., concurring). However, ordinarily we require that a jury’s verdict of guilty be rationally based in the evidence. See Commonwealth v. Moore, 463 Pa. 317, 325-29 & n. 7, 344 A.2d 850, 855-56 & n. 7 (1975) (Roberts, J., concurring). Here there simply is no reason to suppose that the jury might have found appellant guilty of felony-murder. Besides the fact that the evidence unequivocally proved premeditated murder, the inherent, arbitrary powers of a jury to find a lesser crime or exercise mercy simply were not in play, since premeditated murder and felony-murder at the time were both first-degree and carried identical penalties. Compare, e.g., Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970) (power of jury to return voluntary manslaughter verdict on murder indictment).
      I am not attempting in the least to arrogate the jury’s prerogative to “weigh the evidence." I am stating the plain and commonsensical fact that there is not the slightest possibility the jury relied exclusively on a felony-murder theory in reaching its verdict. The majority, by saying the jury might have relied on the theory anyway, is importing unwarranted irrationality to a facially sound verdict. I disagree with the majority because its application of a constitutional rule of law turns on an irrational possibility it has manufactured. I do not, as the majority suggests, shrink from my judicial responsibility to apply the rule in Tarver, as my opinions applying the rule attest. Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982).

      . In belittling our reliance on the wisdom of an unnamed assistant district attorney, the majority also slights an important point: that nobody really knows how much time a defendant sentenced to life imprisonment will have to serve. It is probably common knowledge that a sentence of life imprisonment does not necessarily spell life in prison for the defendant; certainly it is common for juries in murder cases to inquire about the actual length of a life term. See Commonwealth v. Johnson, 368 Pa. 139, 81 A.2d 569 (1951); see also Commonwealth v. Rogozinski, 387 Pa. 399, 128 A.2d 28 (1956); Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 (1956); Commonwealth v. Bibalo, 375 Pa. 257, 100 A.2d 45 (1953); cf. Commonwealth v. Chapasco, 436 Pa. 143, 258 A.2d 638 (1969) (jury recommended parole not be considered); Commonwealth v. Celijewski, 324 Pa.Super. 185, 471 A.2d 525 (1984) (semble). Despite the concern jurors often display about what will happen if they sentence someone to life, it is improper for trial judges or district attorneys to discuss with them the possibilities of commutation and parole. Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966); Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572 (1944). See generally Annot., 16 A.L.R.3d 1137 (1967).
      Given the general confusion about the meaning of a life term, some Pennsylvanians might be surprised to learn that there are no statutory guidelines governing decisions to parole life prisoners. The answer to the question "How much time will a lifer serve?” falls somewhere in the gray area among the bailiwicks of various policy-making officials in the administrative branch of government. In the first instance, before a life prisoner may be paroled the Governor must commute his minimum sentence to a term of years. This the Governor may do only on the recommendation of the Board of Pardons. Pa. Const, art. 4, § 9; The Administrative Code of 1929, § 909, as amended by Act of July 31, 1968, P.L. 769, No. 240, art. VI, § 609(8), 71 P.S. § 299. Next, after expiration of the term of years as commuted, the Board of Parole must exercise its discretion whether to parole the prisoner, subject, however, to the authority of the Board of Pardons to order parole if the Board of Parole does not. Act of Aug. 6, 1941, P.L. 861, § 21; as amended, 61 P.S. § 331.21. Of course, in deciding whether to grant parole the Parole Board must consider any recommendations made by the judge who heard the case and who may even have imposed the original sentence. But the final decision on how much time a life prisoner will serve remains purely an administrative matter.
      Although my statistics are not completely up to date, they indicate that parole is a looming possibility for a life prisoner. For the years 1967-1980, the Board of Pardons heard 1251 applications by life prisoners for commutations of sentence, and in 379 (30%) of these cases recommended to the Governor that sentence be commuted. Analyses of the Action of the Board of Pardons Sessions for the Calendar Years 1967-1980. And according to tables prepared for the Parole Board, over the years 1962-1971 inclusive 180 life prisoners were released after having served an average of 19 years, 7 months in prison; for the years 1971-1980 inclusive 219 were released after an average of 17.7 years served. (Figures for the year 1971 are different in the two tables I have access to, "Lifers Released on Parole During the Past Ten Years [1962-1971],” and "Time Served by Commuted Lifers 1971 to 1980").
      Of course, averages are only averages, and who is to say what they will mean when the Governor and Boards of Pardon and Parole come to assess Mr. Gillespie’s case? Maybe our unnamed assistant district attorney’s estimate “in the neighborhood of fifteen years” will prove inaccurate, and Gillespie will stay in jail much longer than that. On the other hand, there have been quite a few life prisoners who have won their freedom well before serving fifteen years. See, e.g., Pennsylvania Board of Parole, A Report of Special Commutation Cases, Table 3 (of 29 first-degree murderers released during period 12/7/52-6/21/54, 23 had served less than 15 years; of these, 7 had served less than 10 years). Whatever eventually happens in Mr. Gillespie’s case, he moves one step closer to the prospect of release with his victory in Court today.


author:
BROSKY, Judge:
      DEL SOLE, Judge,

text:
    482 A.2d 1033
    In re Patrick J. WOOD. Appeal of Patrick J. WOOD.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied Jan. 17, 1985.

      H. David Rothman, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for participating party.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the order denying approval of private criminal complaints. Appellant contends that: (1) he has standing to appeal the decision of the court below; and (2) the lower court erred in refusing to approve the criminal complaints after he had presented a prima facie case. We agree that appellant has standing, but disagree that the court below erred. Accordingly, we affirm the order of the lower court.

On December 17, 1982, appellant was arrested and charged with aggravated assault, simple assault, resisting arrest, public intoxication, and disorderly conduct. Thereafter, appellant attempted to file private criminal complaints against the two arresting officers, charging them with criminal conspiracy, aggravated assault, recklessly endangering another person and official oppression. The District Attorney declined prosecution. Appellant then filed the proposed complaints with the Court of Common Pleas for approval. The court refused to approve the complaints, concluding that appellant’s injuries were the result of the necessary use of force by the police to control his violent behavior. The court further noted that in view of the amount of alcohol he had consumed, it doubted appellant’s ability to recall what had actually happened. This appeal timely followed.

The first issue we address is whether appellant has standing to appeal the order of the lower court. Under Pa.R.Crim.P. 133(B)(3)(ii), if the attorney for the Commonwealth disapproves a private criminal complaint, “the affiant may file the complaint with a judge of the Court of Common Pleas for approval or disapproval.” The question before us is whether the affiant may appeal an adverse decision of the Common Pleas judge.

In Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980), this court affirmed the disapproval of a private complaint by the district attorney and a Common Pleas Court judge. However, neither party had addressed the standing issue and the court simply assumed without deciding that appellate review is available from decisions by the District Attorney and a trial judge who refuse to approve a private, criminal complaint.

Appellee, the Commonwealth, contends, however, that the case of Commonwealth v. Malloy, 304 Pa.Super. 543, 450 A.2d 689 (1982), is dispositive of this issue. In Malloy, private complaints had been approved by the District Attorney, but the trial court, after hearing the defendant’s habeas corpus petition, had dismissed the complaints on the basis that a prima facie case had not been established. When the District Attorney declined to take an appeal from this dismissal, the private complainants filed notices of appeal which the District Attorney moved to quash. This court held that the private complainants were not parties to the criminal action and, thus, that they had no standing to appeal.

This decision was in accord with Pa.R.A.P. 501 which provides as follows:

Any Aggrieved Party May Appeal
Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom, (emphasis added).

Thus, the conclusion that the complainants in Malloy had no standing to appeal was inevitable once the court had found that the complainants were not parties to the criminal action.

The question we must resolve, in the instant case therefore becomes whether appellant was a party to the proceedings below. 42 Pa.C.S.A. § 102 defines the term “party” as “[a] person who commences or against whom relief is sought in a matter.” See Pa.R.A.P. 102 (comment). Under this definition, we believe that appellant, who commenced the matter below by filing his private complaint in the Court of Common Pleas, must be considered a party to the action below. In other words, we find Malloy distinguishable because the order of the court below from which appellant appeals did not dismiss a criminal action to which appellant was not a party, but dismissed a matter brought by appellant pursuant to Pa.R.Crim.P. 133(B)(3)(ii). Thus, we conclude that a private prosecutor does have a right of appeal from the order of the trial judge disapproving his criminal complaint.

Having found that appellant has standing to appeal the disapproval of his private complaints, we turn to the merits of his appeal. Appellant contends that the Common Pleas Court judge’s function was essentially that of a district justice and, thus, that the trial judge should not have evaluated the credibility of the witnesses, but should have only determined whether appellant presented sufficient evidence to establish a prima facie case. He argues that the judge erred in failing to approve the complaints because he had presented such evidence.

We believe appellant fundamentally misapprehends the role of a Common Pleas Court judge conducting a Rule 133(B) review of the District Attorney’s disapproval of a private complaint. A Rule 133(B) hearing, if provided, is not the functional equivalent of a preliminary hearing, nor is the Rule 133(B) judge acting as a district justice. Rule 133(B) merely gives the complainant the opportunity to obtain a judge’s independent review of the complaint. Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980); Petition of Piscanio, 235 Pa.Super. 490, 344 A.2d 658 (1975).

As explained in Eisemann, supra

[w]hether to charge a person with a criminal offense depends upon the exercise of prosecutorial discretion. This discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence or nonexistence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the District Attorney in the exercise of his discretion in controlling criminal prosecutions. United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965) cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. See also: A.B.A. Standards Relating to the Prosecution Function and the Defense Function § 3.4.
... [therefore, ... a court should not interfere with the exercise of prosecutorial discretion under Rule 133 unless there has been a gross abuse of discretion.

Id., 276 Pa.Superior Ct. at 545-47, 419 A.2d at 592-93.

Instantly, the Deputy District Attorney, in setting forth the reasons for the Commonwealth’s disapproval of the complaints stated:

Very briefly, basically because our evidence indicates clearly that Mr. Wood was taken to the cell block and checked in there and at that time a fracas between he and Officer Trosky took place and at that time he was injured. Mr. Wood doesn’t even remember being there. However, again, the records indicate that he was in the cell block and checked in. And also due to the fact of the amount of alcohol that Mr. Wood consumed makes his story somewhat incredible.
For those reasons, the Commonwealth declined prosecution.

After considering the testimony given at the Rule 133(B) hearing and at appellant’s preliminary hearing, the Common Pleas Court judge agreed stating that:

[tjhe injuries caused to [appellant] were the direct result of the necessary use of force by police officers to combat the uncontrollable Wood. A review of the preliminary hearing transcript leads this Court to doubt [appellant’s] capacity to accurately recall what actually transpired on the date in question.

We agree with the Eisemann court that:

In the instant case, both the District Attorney and [the Common Pleas Court judge] were of the opinion that the Commonwealth would not be able to achieve a conviction on the criminal complaint offered by appellant.[] Each had an obligation to achieve justice; each had a responsibility to prevent the misuse of judicial and prosecutorial personnel in the pursuit of futile convictions. Appellant has not demonstrated that these decisions involved an abuse of discretion by the District Attorney or by [the Common Pleas Court judge]. The decision to disapprove a private criminal complaint, therefore, must be affirmed.

Id,., 276 Pa.Superior Ct. at 546-47, 419 A.2d at 593.

Order affirmed.

DEL SOLE, J., filed a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent.

In Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982), this Court held that a victim-complainant has no standing to appeal the dismissal of private criminal complaints. I do not believe the fact that the Malloy case had proceeded to the preliminary hearing stage before dismissal makes any difference in Appellant’s standing to appeal to this Court.

Pa.R.Crim.P. 133(B) gives a victim-complainant the right to seek approval from the Court of Common Pleas of a private criminal complaint which has been disapproved by the district attorney. However, that rule of court does not make the victim-complainant a party to the action.

Criminal prosecutions are not to settle private grievances, but are to rectify the injury done to the Commonwealth. The individual who is the victim of a crime only has recourse to a civil action for damages. Commonwealth v. Malloy, supra, 304 Pa.Superior Ct. at 301, 450 A.2d at 691. The court in Malloy cited with approval the language of the United States Supreme Court in Linda R.S. v. Richard C. & Texas, et al., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973), that "... a citizen lacks standing to contest the policies of the prosecuting attorney when he himself is neither prosecuted nor threatened with prosecution ... (I)n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”.

The state is the party-plaintiff in a criminal prosecution. The victim-complainant is not a party to the proceeding. The victim acts only as a prosecuting witness, even in the case of a private criminal complaint. Commonwealth v. Malloy, supra, 304 Pa.Super. at 306, 450 A.2d at 689. Therefore, the victim-complainant has no standing to appeal from the disapproval of private criminal complaints.

I would quash the appeal.

      . We note that in a second Eisemann case, Commonwealth v. Eisemann, 308 Pa.Super. 16, 453 A.2d 1045 (1982), this court again assumed without deciding that appellate review was available in the instant type of case. Although the second Eisemann case was filed three months, after Malloy, Malloy was not cited in the opinion.

      . We note that in the case of Sandutch v. Farrell, 319 Pa.Super. 589, 466 A.2d 701 (1983), this court reviewed an appeal by a private complainant from an order in which the court below quashed proceedings under Rule 133(B)(3)(ii). While the court ruled that such an appeal was not interlocutory, it did not discuss the issue of standing.

      . As the court has stated, "a Common Pleas Court judge is not required by ... [Pa.R.Crim.P. 133(B)(3)(ii) ] to grant a hearing; the additional procedures merely gives the private prosecutor the opportunity to have his complaint reviewed following an adverse decision by the district attorney.” Eisemann, supra, 276 Pa.Superior Ct. at 545 n. 4, 419 A.2d at 592 n. 4, quoting Petition of Piscanio, 235 Pa.Super. 490, 495-96 n. 5. 344 A.2d 658, 661 n. 5 (1975).

      . Of course, it is not necessary that the District Attorney and the Common Pleas Court judge be so convinced. As stated earlier, a decision to prosecute may depend on policy matters wholly independent of the existence of probable cause. As stated in Standard 3-3-9 of the American Bar Association Standards for Criminal Justice (Approved Draft, 1979),
      The Prosecution Function
      (b) The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction....


author: ROWLEY, Judge:

text:
    482 A.2d 1037
    UNITED STATES NATIONAL BANK IN JOHNSTOWN, a National Banking Association v. ROBEL CONSTRUCTION, INC., and Johnstown Housing Authority. Appeal of JOHNSTOWN HOUSING AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Aug. 2, 1984.
    Filed Oct. 5, 1984.

      James R. DiFrancesco, Johnstown, for appellant.
    David J. Kaltenbaugh, Johnstown, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

The issue presented in this appeal is whether the appellant, Johnstown Housing Authority (Authority), garnishee in an execution proceeding initiated by the appellee, United States National Bank In Johnstown (Bank), “unreasonably delayed” in seeking to interplead a third party claimant (Shearer). Both Shearer and the Bank assert claims against a fund retained by the Authority pursuant to a contract between it and the defendant, Robel Construction, Inc. (Robel). The Authority filed its petition to interplead Shearer fifty-three days after it was served with the writ of execution and interrogatories. The trial court held that the Authority had unduly delayed in presenting the petition and denied the interpleader. We have determined that, on the basis of the record before us, appellant did not unreasonably delay in seeking interpleader and, therefore, reverse the order of the trial court.

The record discloses the following facts. On November 4, 1981, the Bank confessed judgment on a judgment note given to it by the defendant Robel. A writ of execution was issued naming the Authority as garnishee, and the writ, together with interrogatories, was served on the Authority on November 13, 1981. On November 30, 1981, the Authority filed an Answer and New Matter to the Bank’s interrogatories. The Authority admitted that it had approximately $37,000.00 that was being claimed by Robel, the defendant, as well as by Shearer, the third party claimant.

The Authority had entered into a series of contracts with the defendant Robel, culminating in a final contract of March 6, 1978, for the repair and restoration of certain facilities owned by the Authority which were damaged during the Johnstown Flood of 1977. Shearer was a subcontractor for the defendant Robel who was the general contractor. Shearer performed some of the repair and restoration work. The fund held by the Authority constituted a portion of the contract price that had been retained by the Authority pursuant to provisions of the contract between it and Robel.

In its answer and new matter, the Authority set forth that the claim of the defendant Robel to the fund was disputed by it and that other claims had been made against the fund by some of the subcontractors who had performed work for the defendant Robel. It was averred in the Answer and New Matter that Robel refused to provide the Authority with a certificate of completion and an affidavit that all subcontractors had been paid, both of which were necessary for him to be entitled to final payment. In addition, it was averred that the claimant Shearer is an unpaid subcontractor and had asserted a claim against the fund in the Authority’s possession.

On December 8, 1981, the Bank filed a document entitled “Petition for Supplementary Relief in Aid of Execution”. On December 23, 1981, the Authority filed an answer to the Bank’s “Petition” in which it reiterated its own defense to Robel’s claim as well as the fact that Shearer had made a claim to be paid from the money retained by the Authority. Finally, the pleadings [See Pa.R.C.P. 3145] between the Bank and the Authority were completed when the Bank, on July 20, 1982, filed its “Reply” to the Authority’s “New Matter” that had been filed November 30, 1981.

In the meantime, on January 5, 1982, the Authority, pursuant to Pa.R.C.P. 2302, filed a petition to interplead the claimant Shearer. In the Bank’s answer to the Authority’s petition to interplead Shearer, it asserted a series of denials based upon the allegation that the information pled by the Authority was unknown to it and was within the exclusive control of the Authority and/or Shearer. On October 21, 1982, the trial court entered an order denying the petition to interplead Shearer and this appeal was timely filed by the Authority.

The Bank correctly points out that the grant or refusal of a petition for interpleader is within the sound discretion of the trial court. However, it should be noted that in the case cited by appellee in support of that proposition, Maxwell v. Philadelphia Fire Department Relief Association, 138 Pa.Super.Ct. 356, 10 A.2d 857 (1940), this Court reversed an order of the trial court denying a petition for interpleader and described the court’s decision there as an “abuse of judicial discretion.” Also in Maxwell, the Court noted that in considering a petition to interplead a third party claimant the trial court is not to inquire into the merits of the respective claims asserted against a particular fund other than to assure itself that such claims are not “frivolous or collusive.” There has been no assertion on the part of any party in this case that Shearer’s claim is either frivolous or collusive. Here, as in Maxwell, the record before us shows that there are bona fide claims being made against the fund in the Authority’s possession by rival claimants, to wit, Robel and Shearer.

Pennsylvania Rule of Civil Procedure 2306(a)(1) provides that the court may deny a petition for interpleader if the party presenting it has “unreasonably delayed in filing the petition” (emphasis added). Thus, the critical time period is that between the date the party seeking the interpleader (Authority) is made a party to the action (November 13, 1981) and the date the petition for interpleader is filed with the court (January 5, 1982). The provision relating to an unreasonable delay was intended to protect a plaintiff where interpleader is sought after the action “had proceeded well past its initial stages”. 8 Goodrich Amram 2d § 2306(a):2. Interpleader may be sought at any time during the time the action is pending. Thus, a party may seek interpleader “from the commencement of the action until the record is removed from the [trial] court upon appeal.” 8 Goodrich Amram 2d § 2302:5. There is no specific time limit on when interpleader may be sought. The only limitation is that the party seeking interpleader shall not have unreasonably delayed. Our review of the record in this case discloses that there was no delay on the part of the Authority between November 13, 1981 and January 5, 1982.

The Authority timely filed, within seventeen days, its answer to interrogatories setting forth not only its own defense to Robel’s claim against the fund but also asserting that there was a third party claimant, Shearer, who had asserted a claim against the fund that was adverse to Robel’s claim. The Bank, eight days later, petitioned for “Supplementary Relief”. The court directed that the Authority answer the Bank’s petition by December 28, 1981. Again the Authority’s answer to the petition was filed timely, that is, on December 23, 1981. Given that the Authority’s petition to interplead Shearer was filed only thirteen days later, and considering the intervention of the Christmas Holidays, the filing by the Authority of its petition for interpleader cannot accurately be described as the result of delay on its part. The record shows that there was no further action taken to complete the pleadings between the Bank and the Authority until July 20, 1982, when counsel for the Bank filed a “Reply” to the Authority’s Answer and New Matter which had been filed on November 30, 1981. Not only did the Authority file its petition for interpleader within fifty-three days after it was served, it did so six and one-half months before the pleadings between the Bank and the Authority were closed. The record shows that the Authority timely filed every responsive pleading required of it. On the other hand, the Bank’s Reply was not filed until seven months after it was due. Thus, the matter was not ready for trial on the issues raised by the pleadings until after July 20, 1982. Certainly, this action had not “proceeded well past its initial stages” at the time the Authority filed its petition for interpleader. The record is devoid of any evidence that the Authority was guilty of any delay in seeking interpleader in this case.

The trial court pointed out that there were a series of delays subsequent to the filing of the Authority’s petition for interpleader but as already noted the critical date in determining whether there has been an “unreasonable delay” is the date that interpleader is sought, not when a final determination is made whether it should be granted or refused. Moreover, a review of the record shows that none of the delays that occurred following the filing of the Authority’s petition can fairly be charged to it. The docket entries show that on January 15, 1982, an answer was filed by the Bank to the Authority’s petition for interpleader. Subsequently, on February 2, 1982, the deposition of the Executive Director of the Authority was taken by the parties. Also at that time, certain exhibits consisting of agreements, a memorandum of understanding, and a letter were made a part of the record. Counsel for the Bank filed a brief on July 26, 1982 and on August 17, 1982, the Authority filed a reply brief. On August 26, 1982, the case was argued before the court. Also during that summer, Shearer sought to intervene and the Bank opposed his request.

Finally, the record does not disclose that anything had occurred, or that the positions of the parties had changed between November 13, 1981 and January 5, 1982, that could in any way be considered to have prejudiced the Bank. Not only was there no delay during that period of time, there was no prejudice created during the fifty-three day period involved in this case. Thus, the court erred in holding that the Authority had unduly delayed in seeking interpleader only fifty-three days after it was served with the writ of execution and interrogatories and at least more than six months prior to the time the pleadings between the Authority and the Bank were completed.

The Bank argues, however, that the Authority had an opportunity in prior proceedings in 1981 to interplead the rival claimants to the fund and that its failure to do so then constituted an unreasonable delay which bars interpleader. One of those prior proceedings was an assumpsit action commenced by praecipe on May 29, 1981, by Robel against the Authority. However, Robel never filed a complaint in that case and a default judgment was entered against it on August 10, 1981. Shearer also commenced two actions against the Authority. One action was filed in the United States District Court for the Western District of Pennsylvania. Simultaneously, an action in assumpsit was commenced in Cambria County by filing a praecipe against the Authority. Subsequently, the Authority’s motion to dismiss the federal case was granted without prejudice. On the other hand, in the action filed in Cambria County, Shearer’s complaint was not filed until December 28, 1981, after the Authority had already filed its response to the Bank’s petition for supplementary relief. The Bank, of course, was not a party in any of those proceedings. Thus, the Bank is not in a position to complain about the Authority’s failure to seek interpleader in any of the other three actions. Moreover, it is difficult to determine what prejudice the Bank may have suffered by the Authority’s failure to successfully interplead either Robel or Shearer in any of the three prior actions. Had such an interpleader been successful in any of those actions, the fund would no longer have been in the Authority’s possession on November 13, 1981, when the Bank’s writ of execution and interrogatories were served on it. The Bank, on the contrary, would have been required to seek intervention in those suits as an additional claimant. Even had that been accomplished, the Bank would then be in the same position it will be in in this case if the Authority is permitted to interplead Shearer as a claimant against the fund.

Therefore, we hold that the trial court erred in holding that the Authority had unreasonably delayed in seeking interpleader and for that reason the trial court’s order denying interpleader is reversed and the case is remanded to the trial court with directions that the petition for inter-pleader be granted.

Jurisdiction is relinquished.

      . During the summer of 1982, Shearer filed a petition to intervene in the execution proceeding. That petition was likewise denied by the trial court in the same order in which it denied the Authority's petition to interplead Shearer. However, Shearer has not filed an appeal from the trial court’s order, and therefore, the denial of Shearer’s petition to intervene is not before us, although that question is addressed in appellee’s Brief.

      . In this connection, although not an issue before us, it is interesting to note that in its answer and new matter to Shearer’s petition for intervention the Bank averred, inter alia, that the "interest of Edward C. Shearer, Jr., t/d/b/a Shearer and Company, petitioner herein is already adequately represented, namely, by the interpleader filed by Johnstown Housing Authority, defendant herein.”