author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    615 A.2d 109
    Timothy READ and Nancie Read, H/W v. Shunkai SHU and Mandarin Tang, III and Cynthia R. Cohen and English Sports Cars Limited. Appeal of Shunkai SHU and Mandarin Tang, III.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Oct. 22, 1992.

      John J. Gonzales, Feasterville, for appellants.
    Marc S. Rosenberg, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In this action to recover for personal injuries and damages resulting from an automobile accident, we have been ásked to review an order of the trial court which granted a new trial because of the inadequacy of the jury’s verdict. Because in such cases our review is limited, we affirm the order of the trial court.

On February 11,1988, Timothy Read was operating his 1985 Chevrolet Celebrity, in which his father, George Read, was a passenger. While the Read vehicle was stopped for a traffic light, a vehicle operated by Cynthia Cohen and owned by English Sports Cars Limited also came to a stop for the light. However, a 1979 Chevrolet Cavalier owned by Mandarin Tang, III and operated by an employee, Shunkai Shu, failed to stop and collided with the rear of the Cohen vehicle, forcing it into the rear of the Read vehicle with such force as to break the driver’s seat in the Read vehicle. After the accident and the necessary exchange of information, the Reads, who were painters, went to a job site to make an inspection and prepare an estimate. Two hours later, Timothy Read contacted a physician to complain of pain in his neck and back. He and his wife filed an action for his personal injuries and the property damage caused in the accident. Named as defendants were the owners and operators of the vehicles which struck the rear of his car. Cohen and English Sports Cars Limited were removed from the case prior to trial, and Shu and Tang admitted liability. Read testified at trial that he suffered constant discomfort of his neck and back after the accident. The jury awarded damages to the plaintiffs in the amount of $1,520. Three days later, the trial court sua sponte granted a new trial on grounds that the verdict was inadequate. The defendants appealed.

In Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), the Pennsylvania Supreme Court summarized the rules governing the grant of a new trial.

This Court has repeatedly emphasized that it is not only a trial court’s inherent fundamental and salutary power, but its duty to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice. Burchard v. Seber, 417 Pa. 431, 438, 207 A.2d 896, 899 (1965); Frisina v. Stanley, 409 Pa. 5, 7, 185 A.2d 580, 581 (1962); Kiser v. Schlosser, 389 Pa. 131, 133, 132 A.2d 344, 345 (1957). Although a new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion, a new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 265 A.2d 516 (1970).

Id., 507 Pa. at 598, 493 A.2d at 672.

The Thompson Court also stated the standard of appellate review in cases where a new trial has been granted on grounds that the verdict was against the weight of the evidence.

An appellate court by its nature stands on a different plane than a trial court. Whereas a trial court’s decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court’s review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge. Rather our court has consistently held that appellate review of the trial court’s grant of a new trial is to focus on whether the trial judge has palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the jury’s verdict. Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Anzelone v. Jesperson, 436 Pa. 28, 258 A.2d 510 (1969); Kiser, supra. In that regard the Superior Court must review a trial court’s decision to grant a new trial in the same manner as we have required review of the denial of a new trial. See Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984).
In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail. It is not the place of an appellate court to invade the trial judge’s discretion any more than a trial judge may invade the province of a jury, unless both or either have palpably abused their function.
To determine whether a trial court’s decision constituted a palpable abuse of discretion, an appellate court must “examine the record and assess the weight of the evidence; not, however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury.” Exner v. Gangewere, 397 Pa. 58, 60, 152 A.2d 458, 460 (1959). Where the record adequately supports the trial court, the trial court has acted within the limits of its judicial discretion.

Id., 507 Pa. at 599-600, 493 A.2d at 672-673.

In the present case, plaintiffs neurosurgeon, Dr. Cohen, testified without contradiction regarding plaintiffs neck and back injuries. He said:

Examination of his neck revealed significant right-sided tenderness accompanied by spasm, that is there was palpable cramping, muscle spasm in the muscles of the right side of his neck, and over the right trapezius muscle which is the major muscle over the right shoulder.

Plaintiff also suffered diminished sensation in two of the fingers of his right hand, which extended well beyond the wrist. A similar loss of sensation was present in his lateral thigh on the right side. These symptoms were diagnosed as a nerve root dysfunction. A subsequent MRI scan confirmed that several discs were out of place and were causing pressure on a nerve root. These findings, the evidence showed, were consistent with the plaintiffs ongoing neck pain, the muscle spasms in his neck, and the tingling or numbness occurring in his right arm and fingers. These conditions, Dr. Cohen testified, had been caused by the accident. Finally, Dr. Cohen gave a poor prognosis for plaintiffs injuries. He said that Read’s condition would become worse in the future.

The jury’s verdict of $1,520 included property damage of $520. The amount awarded for plaintiffs injuries, therefore, was only $1,000. Under these circumstances, we cannot say that the trial court’s award of a new trial was an abuse of discretion. The undisputed medical testimony was that the pain, numbness and muscle spasms from which the plaintiff suffers will continue indefinitely. It is true, as appellants point out, that plaintiff, although allegedly unable to continue working as a painter, has not sustained a substantial loss of earning capacity because he now works as a forklift operator. Still, in view of the uncontradicted medical testimony, we cannot say that the trial court abused its discretion when it found the verdict inadequate and contrary to the weight of the evidence.

Order affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur in the result reached by the majority; however, I write separately to elaborate on the proper focus of both the appellate court and the trial court when reviewing a jury’s verdict. Since a review of the record supports the majority’s holding that the trial judge did not abuse his discretion, I concur in the judgment.

I am puzzled by the statement in the beginning of the majority’s Opinion, “[b]ecause our review is limited, we affirm ...” In my view, an appellate court does not affirm a trial court’s grant of a new trial because its review is limited, it affirms because there are facts that exist on the record that support the trial court’s findings.

This distinction is important. We, as an appellate court, must be careful not to invade the trial judge’s discretion, but we must also ensure that the trial judge does not invade the fact finding province of the jury. Thompson v. City of Philadelphia, 507 Pa. 592, 599-601, 493 A.2d 669, 673 (1985). This is the purpose of our review, and we limit ourselves to that inquiry. The appellate court may not give absolute deference to the trial judge, as the majority’s statement intimates, but must search the record for identifiable facts that indicate that the trial judge has not palpably abused his discretion.

The trial judge may not grant a new trial, unless the verdict was so against the weight of the evidence that injustice “stands forth like a beacon,” or more commonly, where the verdict “shocks the conscience of the court.” Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). This standard is rigorous because the trial judge is not a factfinder. Rather, he is the impartial overseer of the trial. Situations where the trial judge may assert his limited discretion are those where the verdict appears to have resulted from

passion, prejudice, partiality or corruption, or that the jury disregarded the instructions of the court, or, in some instances where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff ...

Guidry v. Johns-Manville Corp., 377 Pa.Super. 308, 547 A.2d 382 (1988) (quoting Morris v. Peckyno, 202 Pa.Super. 490, 198 A.2d 396 (1964)).

This case falls into the factors above since the uncontradicted medical testimony presented to the jury demonstrated that defendant’s misfeasance caused plaintiffs injury. Accordingly, the trial judge could reasonably have found that the verdict had no reasonable relation to plaintiffs loss. The majority correctly noted this fact in holding that the trial judge did not abuse his discretion.

When the trial court grants a new trial, the court must support its decision to grant a new trial with “words of appropriate urgency and decisiveness.” Elza v. Chovan, 396 Pa. 112, 117, 152 A.2d 238, 241 (1959). Such expression by the trial court in its opinion helps the appellate court better discern if an actual miscarriage of justice occurred. I must note that in this case, however, the trial judge wrote in his opinion that he was “impressed” by the medical doctor’s “persuasive” testimony. Such credibility determinations, standing alone, are a shaky ground on which to award a new trial.

Normally, a low verdict alone will not suffice to grant a new trial. Guidry, 377 Pa.Super. at 313-15, 547 A.2d at 385. Our Supreme Court has held that where a verdict could have been the result of jury compromise, a new trial may not be awarded on the ground that a damage award was too low. Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). Thus, if there had been conflicting testimony regarding the amount of plaintiffs damages in this case, the painfully low verdict would withstand a motion for a new trial, regardless of how persuasive the judge viewed plaintiffs witnesses.

The heart of my concern was expressed in my recent concurrence in Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991). There, I was of the view that an appellate court is not properly situated to review challenges to the weight of the evidence in a criminal trial. Respect and deference for the factfinder are equally applicable to a trial judge sitting in a civil trial where the jury is put to the task of placing a price tag on otherwise intangible damages. The trial judge in this case instructed the jury that there “is no mathematical formula for me to impart to you [regarding pain and suffering damages] during these instructions.” (R.R. p. 53.) Since there is no such formula, trial judges and appellate judges alike must take extreme caution when disturbing a jury’s verdict. Our review is designed to ensure that trial judges are as protective of the jury’s province as we are of their’s.

A permissive interpretation of the majority’s statement is that trial judges’ decisions are subject to perfunctory review. I am concerned that such an interpretation might open a Pandora’s box for trial judges to grant new trials when they do not agree with the verdict. That course of action is abhorrent to the jury’s function, and is contrary to our law. A’ judge may not substitute his judgment for the jury’s, but only grant a new trial when the verdict shocks one’s sense of justice. Unless the “shock the conscience” standard is subject to thorough, albeit limited, review, our own efforts defeat our entire purpose of ensuring that proper deference is accorded to those who rightfully, and legally, deserve it.

Since I find that the trial judge did not abuse his discretion in granting a new trial, I concur in the judgment.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    615 A.2d 342
    Ernest RIVELLO, Appellant, v. NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION and Electronic Data Systems.
    Superior Court of Pennsylvania.
    Argued July 30, 1992.
    Filed Sept. 16, 1992.
    Reargument Denied Nov. 17, 1992.

      Allen L. Feingold, Philadelphia, for appellant.
    Dennis Yeneziale, Philadelphia, for appellees.
    Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order granting appellee’s preliminary objections, and dismissing appellant’s complaint on grounds that Pennsylvania has no jurisdiction over the matter in question.

On February 27, 1991, appellant filed suit in the court of Common Pleas of Philadelphia County to recover damages to his vehicle under a policy of automobile insurance issued by appellee Educational Data Systems (EDS), the servicing agent for appellee New Jersey Automobile Full Insurance Underwriting Association (JUA). The accident had occurred in Philadelphia, and according to the complaint, appellees improperly refused to honor appellant’s claim, thereby subjecting themselves to a corollary claim for punitive damages due to fraudulent, outrageous, etc., action in denying coverage. Appellees filed prehminary objections to the complaint arguing that since all parties were residents of New Jersey, and the policy was issued under the authority of New Jersey law, there had been alleged no connection with Pennsylvania sufficient to allow the Commonwealth’s courts to acquire in person-am jurisdiction. The trial court agreed, and this appeal followed, presenting the sole claim that the trial court erred in its decision to grant appellees’ preliminary objections.

When preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases that are clear and free from doubt.... Moreover, when deciding a motion to dismiss for lack of personal jurisdiction, the court must consider the evidence in the light most favorable to the nonmoving party.
Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989) (citations omitted); see also Dela ware Valley Underwriting v. Williams & Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986). We also note that, once the defendant properly raises the issue of jurisdiction, the plaintiff has the burden of proving that jurisdiction is proper. Whalen v. Disney World Co., 274 Pa.Super. 246, 252 n. 3, 418 A.2d 389, 392 n. 3 (1980).

Derman v. Wilair Services, Inc., 404 Pa.Super. 136, 140, 590 A.2d 317, 319 (1991), alloc. dn. 529 Pa. 621, 600 A.2d 537.

The principal points raised by appellees’ preliminary objections were that all parties are residents of New Jersey, that the applicable policy of insurance was issued in New Jersey pursuant to New Jersey statutes, and that the JUA is an agent of the state of New Jersey (N.J.S.A. §§ 17:30E-1 to 17:30E-7e). Appellant’s response admitted these particular facts but alleged that since the accident had occurred in Pennsylvania, and that he himself had “frequent and substantial,” albeit unspecified contacts with Pennsylvania, suit was proper here.

As appellees point out, even if there were jurisdiction over EDS, it, as a servicing carrier, has no liability for claims or policies written by JUA. See, Damico v. Royal Insurance Company, 383 Pa.Super. 239, 243, 556 A.2d 886, 888 (1989), citing Bidnick v. Hanover Insurance Company, 230 N.J.Super. 111, 114 n. 1, 552 A.2d 1023, 1024 n. 1 (1989). Therefore, the critical inquiry must be whether jurisdiction is proper over JUA, which appellant concedes to be an agent of the state of New Jersey.

JUA is a statutory creature of the New Jersey legislature which created it to provide automobile insurance to those New Jersey citizens unable to obtain coverage from private carriers. This court has already held that a similar state agency of Maryland, the Maryland Automobile Insurance Fund (MAIF) did not have the minimum contacts with Pennsylvania to subject it to the personal jurisdiction of the Pennsylvania courts. Colmon v. Maryland Automobile Insurance Fund, 393 Pa.Super. 313, 574 A.2d 628 (1990). In Colmon, the accident had occurred in Pennsylvania when the Maryland resident who had insured the car with the MAIF permitted a Pennsylvania resident to operate it. The complaint was dismissed on the basis that the connection established with the Commonwealth through the residency of the driver did not suffice to meet the minimum contacts requirement for jurisdiction in Pennsylvania.

As appellant has alleged no activity on the part of JUA which would establish the baseline minimum contacts necessary to confer jurisdiction, he has failed to meet his burden of proving that jurisdiction is proper here. Accordingly, We find the Colmon conclusion dispositive.

Order affirmed.


author: WIEAND, Judge:

text:
    615 A.2d 343
    COMMONWEALTH of Pennsylvania v. Shawn MUNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1992.
    Filed Sept. 28, 1992.

      Daniel Silverman, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

Shawn Munson entered a plea of guilty to a charge of participating in a corrupt organization in violation of 18 Pa. C.S. § 911. He was thereafter sentenced to serve a term of imprisonment for not less than eight (8) years nor more than twenty (20) years. Munson made no attempt to withdraw his plea of guilty, but he did file a motion for reconsideration of sentence. When this motion was denied, Munson filed this appeal in which he alleges that the sentence imposed was manifestly excessive. He also contends that his guilty plea counsel was constitutionally ineffective because: (1) counsel failed to file a motion to withdraw his plea of guilty; and (2) counsel continued to represent him despite the existence of actual conflicts of interest.

Appellant has complied with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) by including within his brief a concise statement of the reasons relied upon for allowance of an appeal from the discretionary aspects of sentencing. His precise challenge to the sentence is stated as follows:

THE LOWER COURT MANIFESTLY ABUSED ITS DISCRETION IN IMPOSING A SENTENCE THAT EXCEEDED THE EXTREME END OF THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES BY OVER 500%; THAT FOCUSED SOLELY ON THE PERCEIVED SERIOUSNESS OF THE CRIME; AND THAT FAILED TO ADEQUATELY CONSIDER APPELLANT’S. LACK OF ANY CRIMINAL HISTORY, THE EXPRESSION OF REMORSE AS PRESENTED BY THE GUILTY PLEA, AND THE LIKELIHOOD OF A SUCCESSFUL REHABILITATION ENGENDERED BY A SENTENCE MORE CONSISTENT WITH THE SENTENCING GUIDELINES.

Because we deem this a substantial challenge to the appropriateness of appellant’s sentence, we will review the discretionary aspects of sentencing.

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion.” Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). When the sentence imposed is outside the sentencing guidelines, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b). This requirement “is satisfied when the judge states his reasons for the sentence on the record and in the defendant’s presence.” Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d 836, 838 (1987).

When imposing sentence, a court is required to consider “the particular circumstances of the offense and the character of the defendant.” Commonwealth v. Frazier, 347 Pa.Super. 64, 67, 500 A.2d 158, 159 (1985). “It must be demonstrated that the court considered the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines.” Commonwealth v. Hainsey, 379 Pa.Super. 376, 382, 550 A.2d 207, 209 (1988). Additionally, the court must impose a sentence which is “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” Commonwealth v. Frazier, supra. Where the sentencing judge had the benefit of a pre-sentence report, however, it will be presumed that he “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). “Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.” Id., 519 Pa. at 102, 546 A.2d at 18.

A review of the record in the instant case discloses that the sentencing court had the benefit of and considered a presentence report before imposing sentence upon appellant. Therefore, we must presume that the court was aware of and considered the relevant mitigating circumstances set forth therein. At the time of sentencing, the court further set forth its reasons for imposing a sentence outside the sentencing guideline ranges, stating as follows:

THE COURT: The lectures that come from this bench as to drug selling are all too frequent. Continually I see abusers coming before me selling drugs and others coming before me selling drugs who are mandated under the law one to two and three to six and are nowhere near the level that Mr. Munson was involved in. No matter what they were involved in as to the amounts involved in, it is clear to me that Mr. Munson was actually involved in large scale drug selling. I do not think that the guidelines are appropriate. I think that they are way too low under the circumstances. I believe they are way too low under the circumstances for one of the reasons Mr. Rosen mentioned, which is the type of organization that is, in fact, involved and for the amounts involved.
I do take into consideration Mr. Munson’s plea of guilty as I have always taken into consideration and his admittance of guilt. However, I do believe that this is a situation that demands that I go above the aggravated range.

N.T. 9/20/91 at pp. 52-53.

After careful review, we are satisfied that the sentencing court did not abuse its discretion in the instant case. Although appellant’s minimum sentence of eight years exceeded that recommended by the sentencing guidelines, the extensive nature of appellant’s involvement in a large scale drug selling organization amply justified the sentence imposed. Indeed, the facts recited in support of appellant’s guilty plea were that he personally was involved in sales of several kilograms of cocaine per week. Additionally, he was involved in at least one drug related shooting and an attempt to bribe a potential Commonwealth witness. His heavy involvement in a large, unlawful, drug trafficking enterprise warranted a sentence in excess of the guideline ranges. The sentencing court neither abused its discretion nor imposed a manifestly excessive sentence.

We next address appellant’s contention that his guilty plea counsel was ineffective because he was burdened by several conflicts of interest. Specifically, appellant asserts that counsel had formerly represented, in prior, unrelated criminal cases, two potential Commonwealth witnesses and two of appellant’s co-defendants. He contends that counsel’s former representation of Commonwealth witnesses and co-defendants created actual conflicts of interest which rendered counsel’s representation of appellant constitutionally ineffective.

In addressing claims of ineffective assistance of counsel based upon alleged conflicts of interest, we utilize the following approach:

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986). To meet this burden appellant must plead and prove that:
1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, [158-160], 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).
Commonwealth v. House, supra. See also: Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Harner, 377 Pa.Super. 229, 243, 546 A.2d 1241, 1247 (1988); Commonwealth v. Riggins, 374 Pa.Super. 243, 248-249, 542 A.2d 1004, 1007 (1988). When the claim of ineffective assistance of counsel is based upon an alleged conflict of interest, however, prejudice will be presumed where counsel is shown to have been burdened by an actual conflict of interest. See: Commonwealth v. Buehl, 510 Pa. 363, 379, 508 A.2d 1167, 1175 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988); Commonwealth v. Smith, 380 Pa.Super. 619, 629-630, 552 A.2d 1053, 1059 (1988). To prevail in the instant case, it was necessary for appellant to “demonstrate[ ] that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Commonwealth v. Buehl, supra, quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333, 346-347 (1980). See also: Commonwealth v. Smith, supra; In re Saladin, 359 Pa.Super. 326, 331, 518 A.2d 1258, 1261 (1986). The showing of a mere possibility of a conflict of interest “is insufficient to impugn a criminal conviction.” Cuyler v. Sullivan, supra [446 U.S.] at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348.

Commonwealth v. McCloy, 393 Pa.Super. 217, 223-224, 574 A.2d 86, 89-90 (1990).

It is important to note that appellant’s allegations concern past representations by counsel of witnesses and co-defendants in cases which were unrelated to the corrupt organization charge to which appellant entered his plea of guilty. Of such alleged conflicts of interest, it has been observed:

Of course, the absence of simultaneous representation is not determinative. In some circumstances, a defense lawyer’s prior representation of a witness can give[ ] rise to an actual conflict of interest. See, e.g., United States v. Martinez, 630 F.2d 361, 362 (5th Cir.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981); [Commonwealth v.] Porter, 805 F.2d [930] at 939-41. [ (11th Cir.1986) ]. But the absence of simultaneous representation is a significant factor; generally, it is more difficult to prove that successive representation caused an actual conflict of interest than that simultaneous representation did so.

Smith v. White, 815 F.2d 1401, 1405 (11th Cir.1987), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). See also: Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir.1988), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).

In cases where a conflict of interest has been alleged because of counsel’s prior representation of another party or witness, the approach generally followed by the courts has been summarized by the United States Court of Appeals for the Seventh Circuit in the following manner:

In cases in which the alleged conflict of interest is based on the prior representation of a prosecution witness by defense counsel, the courts have examined the particular circumstances to determine whether counsel’s undivided loyalties reside with his current client. In such cases there are two factors that arguably may interfere with effective cross-examination and, therefore, the effective assistance of counsel. First is concern that the lawyer’s pecuniary interest in possible future business may cause him to avoid vigorous cross-examination which might be embarrassing or offensive to the witness. The second is the possibility that privileged information obtained from the witness might be relevant to the cross-examination.

United States v. Jeffers, 520 F.2d 1256, 1264-1265 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976) (footnotes omitted). Similar observations were more recently made by the Ninth Circuit Court of Appeals, which said:

In successive representation, “conflicts of interest may arise if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties.” Mannhalt, 847 F.2d at 580. Among the dangers in a successive representation situation is that the attorney who has obtained privileged information from the former client may fail to conduct a rigorous cross-examination for fear of misusing that confidential information. United States v. Agosto, 675 F.2d 965, 971 (8th Cir.1982).

Fitzpatrick v. McCormick, 869 F.2d 1247, 1252 (9th Cir.1989), cert. denied, 493 U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). See also: United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.1987), aff'd, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (“In successive representation, conflicts of interest arise if an attorney reveals privileged communications of the former client, or otherwise divides his loyalties so that he is incapable of diligently representing his client.”).

Instantly, appellant has not asserted that the prior criminal cases in which counsel represented potential witnesses and co-defendants were in any way related to the corrupt organization charge for which counsel represented appellant in this case. On the contrary, it is conceded that none of the cases are related. Further, no specific allegation has been made that counsel possessed confidential information as a result of prior representations which affected his ability to zealously and effectively cross-examine witnesses who would have appeared against appellant if the instant case had gone to trial. Under such circumstances, we will not speculate whether guilty plea counsel’s former associations might in some way have affected adversely appellant’s interests if the case had gone to trial.

The Supreme Court has held that a defendant making allegations of ineffective assistance of counsel must allege sufficient facts, which if proven, would demonstrate that relief was warranted. Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). Absent a sufficient offer of proof, claims of ineffective assistance of counsel will not be considered in a vacuum. See: Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Pettus, 492 Pa. 558, 563-564, 424 A.2d 1332, 1335 (1981). Instantly, appellant has offered nothing more than an allegation that his guilty plea counsel in prior, unrelated criminal cases, had represented potential Commonwealth witnesses as well as two co-defendants. This is an insufficient factual predicate to demonstrate arguable merit in the claim that counsel was ineffective because of divided loyalties.

Appellant also argues that his guilty plea counsel was ineffective for failing to file a motion to withdraw the plea of guilty on grounds that appellant did not voluntarily enter the plea. His guilty plea was not voluntarily entered, appellant contends, because he was not specifically informed of the possibility that he might receive a minimum sentence which exceeded that recommended by the sentencing guidelines. As we shall see, however, appellant’s claim of an involuntary guilty plea is belied by the record and provides no basis for a finding that his guilty plea counsel rendered ineffective assistance.

In Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991), the Superior Court, sitting en banc, extensively reviewed the applicable law which governs post-sentencing attempts to withdraw pleas of guilty. The Court said:

“In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant.” Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). See also: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Muller, 334 Pa.Super. 228, 233-234, 482 A.2d 1307, 1310 (1984). “To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge.” Commonwealth v. Fenton, 388 Pa.Super. 538, 542, 566 A.2d 260, 262 (1989). See also: Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 895 (1989); Commonwealth v. Campbell, 309 Pa.Super. 214, 219, 455 A.2d 126, 128 (1983). However, “[o]nce a defendant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him.” Commonwealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Phillips, 374 Pa.Super. 219, 222, 542 A.2d 575, 576 (1988); Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).
“Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden [of demonstrating manifest injustice] because of the recognition that a plea withdrawal can be used as a sentence-testing device.” Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982). See also: Commonwealth v. Starr, 450 Pa. 485, 489, 301 A.2d 592, 594 (1973); Commonwealth v. Vance, supra. “It is axiomatic that a disappointed expectation regarding a sentence does not constitute grounds for withdrawing a guilty plea.” Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983). See also: Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. West, supra [336 Pa.Super.] at 185, 485 A.2d at 493. “If a plea of guilty could be retracted with ease after sentencing, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.” Commonwealth v. Shaffer, supra.
Pursuant to Pa.R.Crim.P. 319(a), a trial judge “shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.” Regarding the entry of a guilty plea, it has been said:
Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered. See: Pa.R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986).
Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206-207 (1989). See also: Commonwealth v. Alston, 387 Pa.Super. 393, 397, 564 A.2d 235, 237 (1989); Commonwealth v. Cortino, 387 Pa.Super. 210, 215-216, 563 A.2d 1259, 1261-1262 (1989).

Id., 403 Pa.Super. at 469-471, 589 A.2d at 707-708. It has also been observed that:

‘[T]he decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.’

Commonwealth v. Braxton, 410 Pa.Super. 391, 395, 600 A.2d 198, 199-200 (1991), quoting Commonwealth v. Kulp, 476 Pa. 358, 361, 382 A.2d 1209, 1211 (1978).

Instantly, a full and complete guilty plea colloquy was conducted which established conclusively that appellant’s plea of guilty was entered knowingly, intelligently and voluntarily. As part of the colloquy, appellant was specifically informed— and indicated that he understood — that he faced a possible sentence of up to twenty years imprisonment. Therefore, appellant cannot now credibly contend that he was unaware of the permissible range of the sentence which he faced. Moreover, his disappointment with the length of the sentence which he actually received is not an adequate basis on which to file a motion to withdraw a guilty plea. Accordingly, guilty plea counsel cannot be deemed ineffective for failing to file an obviously meritless motion. See: Commonwealth v. Thomas, 372 Pa.Super. 349, 353, 539 A.2d 829, 831-832 (1988).

The judgment of sentence is affirmed.

      . The guideline ranges applicable in the instant case recommended minimum sentences of the following lengths:
      mitigated range — 4-8 months;
      standard range — 8-12 months;
      aggravated range — 12-18 months.

      . In his statement of matters complained of on appeal, appellant asserted only that guilty plea counsel had formerly represented a single Commonwealth witness in an unrelated criminal case.


author: OLSZEWSKI, Judge:

text:
    615 A.2d 350
    COMMONWEALTH of Pennsylvania v. Steven SCHWARTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Oct. 20, 1992.

      Steven A. Schwartz, pro se.
    Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Com., appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered on December 8, 1987, by the Court of Common Pleas of Montgomery County. Subsequent to a jury trial, appellant was convicted of one count of criminal trespass, two counts of disorderly conduct and resisting arrest. On November 12, 1987, post-trial motions were denied with respect to criminal trespass and disorderly conduct, but granted with respect to resisting arrest. Appellant then received the following sentence on December 8, 1987: a two-year term of probation and a $1,000 fíne on the charge of criminal trespass and a concurrent one-year term of probation on the charge of disorderly conduct.

The docket entries indicate that appellant filed a notice of appeal on December 31, 1987. In response to appellant’s motion for a new trial and brief in support of such motion, the trial court filed an opinion on March 18, 1988. Appellant’s counsel then filed a brief with this Court on May 6, 1988. Thereafter, on August 28, 1988, this Court granted Marc R. Steinberg’s motion to withdraw as counsel for appellant. When appellant did not advise the Court of the name of his new counsel nor indicated he was proceeding pro se, we dismissed the case by per curiam order of February 15, 1989, for failure to file a brief.

On April 5,1989, appellant filed an appeal to the Pennsylvania Supreme Court whieh was denied. Then, on December 8, 1989, appellant filed a pro se motion for reversal of convictions which was also denied. Appellant next filed a petition for post-conviction relief (PCRA). The Commonwealth successfully moved to dismiss appellant’s PCRA petition and this Court affirmed the dismissal of appellant’s PCRA petition by memorandum decision, No. 2299 Phila.1990, filed February 26, 1991. Finally, on October 30, 1991, this Court entered a per curiam order reinstating appellant’s original appeal.

In addition to seeking reinstatement of his appeal, appellant also moved to reinstate the original appellate brief filed by Attorney Steinberg. On February 10, 1992, such motion was granted.

We now have before us on appellant’s behalf: the original appellate brief filed May 7, 1988, which is incorporated by reference into the pro se briefs; one pro se brief dated December 23, 1991; another pro se brief dated January 9, 1992; and a pro se reply brief dated February 24, 1992.

We will consider both the original appellate brief and the pro se briefs since this is not a case of hybrid appellate representation. Where an appellant is represented by counsel, this Court has refused to entertain pro se briefs because of the administrative burdens and the likelihood for procedural delay and confusion. Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc), appeal granted 528 Pa. 636, 598 A.2d 992 (1991). We held,

[ w]e will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues.

Id., 398 Pa.Super. at 550, 581 A.2d at 600. Normally, the prothonotary would send the pro se brief to appellant’s counsel who should petition this Court to remand the case for evidentiary hearing if appellant alleges ineffectiveness of counsel or an affirmative desire to be heard pro se. Id., 398 Pa.Super. at 550, 581 A.2d at 600-601.

Instantly, however, this case differs since appellant’s counsel was allowed to withdraw after the initial appellate process commenced; although we possess a counseled brief, appellant is not currently represented on appeal. Here, threat of double-filing and confusion of issues and arguments are absent since such decisions reside solely with appellant. Because we are not presented with the burdens and dangers that guided our decision in Ellis, we are not forced to follow the Ellis rule and, so, can entertain appellant’s pro se briefs.

In addition, the issues that appellant raised in his pro se briefs are repetitive of those in the original appellate brief. Moreover, our decision in Ellis is currently being reviewed by the Supreme Court. We find, therefore, that it would be in the best interest of appellant and this Court to consider the issues in both the pro se and counseled briefs. Finally, we will address each of appellant’s arguments despite his failure to brief all the issues included in the “Statement of Questions Involved” sections in his pro se briefs. This decision is based on appellant’s attempt to incorporate the original appellate brief in his pro se briefs and the order of February 10, 1992, reinstating the original brief.

Appellant raises the following issues in his counseled brief and pro se briefs:

1. Whether the trial court erred by denying appellant’s motion for discovery to examine the Jenkintown Borough Facilities.
2. Whether the trial court erred by allowing testimony regarding appellant’s prior bad acts.
3. Whether the trial court erred by refusing to remedy a violation of Sequestration by Commonwealth witnesses.
4. Whether the trial court erred by refusing the admission of appellant’s photographs.
5. Whether the trial court erred by refusing to remedy prejudicial remarks by the prosecutor.
6. Whether the trial court erred by allowing a door to be admitted into evidence and then allowing the door to go out with the jury.
7. Whether the trial court erred by improperly instructing the jury.
8. Whether the trial court erred by its determination that the evidence was sufficient to sustain the verdict, in conformity with the evidence, the weight of the evidence and the law.

Factually, this case centers around an occurrence at the residence of Susan and Bill Focht and Joanne Kalin on the night of September 20, 1986. As Mrs. Focht and Ms. Kalin were preparing to leave their home at 416 West Avenue in Jenkintown, Mrs. Focht unlocked the rear door. As Mrs. Focht waited for Ms. Kalin in the living room, she heard a loud “bang” on the metal part of the back door. Mrs. Focht then looked out the side window and she saw appellant Schwartz. By the time she got to the back door, appellant had opened it, had his foot inside and was yelling at Mrs. Focht to get Ms. Kalin. Mrs. Focht struggled against appellant and was finally able to close and bolt the door. Appellant then hit one of the panes of glass in the door and broke it. Mrs. Focht then called the police. When the police arrived, they found appellant sitting on a railing by the back door. After Mrs. Focht told the police that appellant was causing a disturbance and explained that he broke the door, one of the police officers attempted to handcuff him. Appellant struggled with the police and yelled obscenities at Mrs. Focht, but he was eventually cuffed and placed in a patrol car where he continued to scream. Appellant was then taken to the Jenkintown Borough Police Station where he began kicking the cell door. Thereafter, he was taken to the Montgomery County Correctional Facility where a medical technician evaluated his condition and took photographs of appellant. The technician referred him to Sacred Heart Hospital to receive medical clearance in order to enter the prison. Upon receiving clearance, appellant returned to the prison. Subsequently he was charged with criminal trespass, terroristic threats, loitering and prowling at nighttime, resisting arrest and disorderly conduct.

Appellant first contends that the trial court erred by denying his discovery request to inspect, photograph and videotape the offices and jail cells of the Jenkintown Borough Facilities. Rule 305(B)(2) of the Pennsylvania Rules of Criminal Procedure states that,

[ T]he Court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon showing that they are material to the preparation of the defendant, and that the request is reasonable: ... (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

Pa.R.Crim.P., Rule 305(B)(2), 42 Pa.C.S.A.

The statute bestows discretion upon the trial court to decide whether discovery should be allowed to further the interests of justice. Absent an abuse of such discretion, we will not disturb the lower court’s ruling.

Appellant specifically identified the evidence that he sought to inspect as being the Jenkintown Borough Facilities; however, in the trial court’s opinion, he did not establish that the inspection would be in the interests of justice. We agree.

In his counseled brief, appellant stated that he sought to show the bias of the police officers and their motivation for testifying that appellant resisted arrest. Accordingly, the trial judge permitted appellant to testify at length on direct and cross-examination about the alleged brutality at the scene of the arrest. Additionally, cross-examination of one of the police officers regarding events at the police station was allowed because the testimony was a potential credibility issue. The lower court, however, correctly held that the layout of the station facilities did not go to the credibility of appellant or of the police officers.

Further, the trial court opined that the premises were not at issue. The statute limits the court to discovering items that are material to preparation of the defense. Since the facilities were not at issue, inspection of them certainly was not material to appellant’s case. Thus, the trial court was well within its discretion to refuse the discovery request.

Appellant next argues that the trial judge erred when he let in testimony of prior bad acts committed by appellant. Pennsylvania has established that the trial court has broad discretion in admitting or excluding evidence and such decision will only be overturned if there was abuse of that discretion. Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989). Here, the trial court did not abuse its discretion in admitting evidence that showed that appellant made repeated harassing phone calls to Ms. Joanne Kalin for over a month prior to breaking into her house, the event upon which the charges were brought. Generally, evidence of prior bad acts is inadmissible unless it is a recognized exception and the need for it outweighs the potential prejudice. Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981). The recognized exceptions justifying admission of prior bad acts are those that tend to establish motive; intent; absence of mistake or accident; a common scheme, plan or design; or the identity of the person charged with the commission of the crime. Id.

In the case sub judice, the lower court stated, “the most compelling reason for the admission of the testimony ... is that it proves Defendant’s motive ... in going to the Focht/Kalin residence and the reasons behind his conduct there.” (Trial court opinion at 9-10.) Thus, we will address this exception to prior bad acts evidence.

In order to be admissible under the motive exception, evidence of the prior bad acts “must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts or circumstances.” Commonwealth v. Mitchell, 314 Pa.Super. 364, 367, 460 A.2d 1182, 1184 (1983), quoting Commonwealth v. Schwartz, 445 Pa. 515, 522, 285 A.2d 154, 158 (1971). Apparently, as appellant became angrier and more determined to contact Ms. Kalin, the more he realized that his attempts and threats were futile. The calls tended to show escalating anger of such intensity that would make somebody act and were admissible as tending to prove motive. See Commonwealth v. Pacell, 345 Pa.Super. 203, 208, 497 A.2d 1375, 1378 (1985). Thus, the earlier harassment did have probative value and was not, as appellant contends, “used to solely besmirch appellant’s character.” (Appellant’s brief, 1/09/92, at 14.)

However, even if evidence is arguably admissible under the motive exception, the court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Mitchell, 314 Pa.Super. at 367, 460 A.2d at 1184 (citations omitted). In balancing the need for the evidence against the possible prejudice to the jury, the court is to look to the actual need for evidence of prior bad acts in light of the issues, the other evidence available to the prosecution and the strength or weakness of the prior bad acts evidence in supporting the issue. Id.

The trial court found that “[t]he prejudicial effect on the jury was minimal compared to the overwhelming value of this evidence to the jury in explaining Defendant’s motive ... on the evening [in question].” (Trial court opinion, at 11.) Applying the Mitchell test, the lower court stated that the evidence of the earlier harassment was probative of appellant’s motive for going to Ms. Kalin’s home and strongly supported the Commonwealth’s contention that appellant intentionally broke into the residence. Thus, the decision to admit the evidence was not an abuse of discretion.

Appellant’s next assignment of error is that his request for a mistrial based on a violation of a sequestration order was improperly denied. Prior to opening statements, appellant was granted an order of sequestration which prohibited Mrs. Focht and Ms. Kalin from discussing their testimony with anyone else. Ms. Kalin admitted that this order was violated when Mrs. Focht discussed her testimony with Ms. Kalin for approximately twenty minutes. Defendant moved for a mistrial, but the trial court denied the motion.

Absent a clear abuse of discretion, we will not disturb a sequestration decision. Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986). Since we find no such abuse here, we affirm the lower court’s holding on this matter.

Once a sequestration order is in effect and a possible violation is brought to the court’s attention, the trial court must determine, as a question of fact, whether there has been a violation and, if so, the remedy required. Commonwealth v. Stinnett, 356 Pa.Super. 83, 514 A.2d 154 (1986). In deciding whether to allow a witness who violates a sequestration order to testify, the trial court should consider the seriousness of the violation, its impact on the testimony of the witness, the probable impact on the outcome of the trial, whether the witness intentionally disobeyed the order, and whether the party calling the witness procured the disobedience. Commonwealth v. Mokluk, 298 Pa.Super. 360, 444 A.2d 1214 (1982).

Following this procedure and taking these factors into consideration, the lower court conducted an in camera hearing of Ms. Kalin’s statements regarding her discussion with Mrs. Focht about the latter’s testimony. The trial court found that the violation was unintentional, resulting from Mrs. Focht’s surprise that she was questioned about Ms. Kalin’s relationship with appellant. Thus, the court below concluded that Mrs. Focht was not attempting to color Ms. Kalin’s testimony. Moreover, they reasoned that Ms. Kalin’s testimony could not have been affected since she must have already realized that she would be questioned about her relationship with appellant. Finally, the court held that this did not impact the outcome of the trial since the jury was informed of the violation. The lower court’s decision regarding the sequestration violation was thorough and well-reasoned and we affirm.

The fourth assignment of error concerns the trial court’s refusal to admit photographs taken by the medical technician at the Montgomery County Correctional Facility. Admission of photographs is within the sound discretion of the trial court. Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985). As such, these decisions will not be overturned absent abuse of discretion. Commonwealth v. Gorby, 527 Pa. 98, 110, 588 A.2d 902, 908 (1991) (citations omitted).

Photos will only be admitted if a proper foundation is laid. This can be done by having a witness testify that the pictures accurately and fairly depict what they purport to show. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). Here, the medical technician who took the photographs explicitly stated that the photos in question did not “show the injuries that I saw.” (N.T., 4/15/87, at 272.) At that point the trial court correctly refused to admit the photographs since appellant could not lay a proper foundation for them.

Appellant next asserts that a new trial was required because the prosecution made a prejudicial remark during the course of examining appellant’s investigator. The investigator went to the Focht/Kalin home and examined the door in question. The prosecution stated that he trespassed in doing so. Appellant argues that this statement cast him in a bad light before the jury; the remark suggested that he instructed the investigator to trespass or, at the least, condoned the action. Not every intemperate remark, however, will result in the granting of a new trial. Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985). This is especially true when, as here, the effect of the remark is neutralized by the court striking the remark and cautioning the jury to disregard the comment. Only remarks that unavoidably prejudice the jury by making them biased and hostile toward the defendant to the point that they cannot objectively render a fair verdict justify the grant of a new trial. Id. Since that was not the case below, we affirm the denial of a new trial.

Appellant alleges that the lower court also erred when it denied appellant’s motion for a mistrial that was prompted by the prosecution introducing as evidence the 416 West Avenue door which appellant broke. The trial court allowed the door to go out with the jury.

Appellant filed a motion for discovery, pursuant to Rule 305(B)(1), prior to the listing of the case for trial. This section, governing mandatory disclosures by the Commonwealth, states:

(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable permit the defendant’s attorney to inspect and copy or photograph such items.
* * * * * *
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence;

Pa.R.Crim.P., Rule 305(B)(1)(f), 42 Pa.C.S.A. The prosecution’s failure to disclose the door, appellant argues, was grounds for a mistrial. We disagree.

Although appellant correctly discusses this Court’s decision in Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983), the instant case so differs that the same result is not warranted. As we opined in Thiel, the Pennsylvania Supreme Court sought to expand discovery in criminal cases by passing the liberalized Criminal Procedure Rule 305. This codified the increasing realization that disclosure of relevant materials promotes proper administration of justice. Id. Generally, then, the Commonwealth should exercise the utmost good faith to disclose to defendant all material evidence in its possession when faced with a mandatory discovery request. Id.

The Court went on to state that “in cases where the prosecutor can reasonably predict possible defense strategies and evidence, he must also be held to reasonable anticipation of what evidence in his possession might be material in rebuttal.” It noted, however, that the Commonwealth could not be expected to anticipate the materiality of all possible rebuttal evidence. Id., 323 Pa.Super. at 97, 470 A.2d at 148. Presently, that is the precise situation before us. When the trial court asked the prosecutor why he did not list the door in the discovery request, he replied that “this was in no way planned to be an exhibit until after the testimony of the defense private investigator.” (R. at 424a, N.T. at 411.) Prosecution obviously did not anticipate that the defense would put the condition of the door at issue and argue that the panes broke when appellant merely knocked on the door.

In Commonwealth v. Moose, 529 Pa. 218, 236, 602 A.2d 1265, 1274 (1992), the Court articulated the concerns behind the criminal discovery rules when it held that “[t]rial by ambush is contrary to the spirit and letter of [Rule 305(B)(1) ] and cannot be condoned.” The Thiel Court stated that “our court has condemned such gamesmanship in criminal prosecution.” Thiel, 323 Pa.Super. at 100, 470 A.2d at 149. Instantly, the prosecution did not engage in any such gamesmanship and so, the trial court properly refused appellant’s request for a mistrial.

Additionally, the trial court relied on our holding in Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984), which said that when the defense and the prosecution have equal access to information, the Commonwealth will not be required to provide discovery of the information. See also Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983) cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984); Commonwealth v. Ryan, 300 Pa.Super. 156, 446 A.2d 277 (1982) and Commonwealth v. Gibson, 271 Pa.Super. 499, 414 A.2d 364 (1979). Appellant, as the trial court noted, certainly had access to the door since his private investigator examined the door and then testified as to its condition. (Trial court opinion at 20.) We affirm the lower court’s refusal to declare a mistrial.

Appellant also asserts that it was prejudicial error to allow the door to go out with the jury because the size of the door and the jingling bell on it accentuated its importance. Admission and/or exclusion is a matter squarely within the discretion of the trial court. Commonwealth v. Moore, 389 Pa.Super. 473, 567 A.2d 701 (1989), citing Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). A trial court’s ruling on admissibility will not be overturned absent an abuse of discretion. Commonwealth v. Ferri, 410 Pa.Super. 67, 78, 599 A.2d 208, 214 (1991), citing Commonwealth v. Foy, 394 Pa.Super. 442, 576 A.2d 366 (1990). In determining admissibility, the trial court should decide whether the evidence is relevant and, if so, whether its probative value is outweighed by its prejudicial impact. Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). As we have stated,

[ e]vidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.

Id., 324 Pa.Super. at 462-463, 471 A.2d at 1249 (1984) (citations omitted). The trial court here found that the evidence was probative of the defense’s claim that when he merely rapped on the door, the glass pane broke. Further, appellant’s private investigator testified that the glass in the door vibrated easily when touched because the frames were loose. Because of this testimony, the court below allowed the door to go out with the jury, so that they could examine it firsthand and make a more informed credibility decision.

In his reply brief, appellant suggests that no proper foundation was laid for this piece of physical evidence. Appellant apparently is trying to argue, although without citation to any supporting law, that the door was not authenticated. Real evidence is sufficiently authenticated if “evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remained unimpaired until it was surrendered to the trial court.” Commonwealth v. Hudson, 489 Pa. 620, 632, 414 A.2d 1381, 1387 (1980) (emphasis in the original.) This can be accomplished by establishing a continuous chain of custody. See Commonwealth v. Melendez, 326 Pa.Super. 531, 474 A.2d 617 (1984).

On rebuttal, the prosecution put Mrs. Focht on the stand. She testified that the door in question was the back door to the 416 West Avenue residence and that the only work ever done on the door was to repair the pane that appellant broke. (N.T., 4/16/87, at 407.) It was well within the trial court’s discretion to accept this testimony as authenticating the evidence. Thus, there is no merit to any of appellant’s arguments regarding the admission of the door and we affirm the lower court’s holding on this issue.

Appellant also takes issue with the trial court’s charge to the jury. First, he points out that the judge refused to instruct the jury on justification as a defense to the crimes of criminal trespass and disorderly conduct. Appellant acknowledges, however, that this was correct with respect to criminal trespass since no evidence of justification was presented. Moreover, it was irrelevant with respect to resisting arrest, for which it was mainly proposed, because the court granted arrest of that judgment. Despite his acknowledgement, appellant persists in arguing that the court erred when it instructed the jury that “breaking into, if in fact you find that’s what happened or any other effort to collect a debt other than through suits and so forth, is not a license to enter” (N.T., 4/16/87, at 470), but refused to read appellant’s proposed charge on the defense of justification.

The Pennsylvania legislature has specifically defined the justification defense. 18 Pa.C.S.A § 503. In order to be entitled to an instruction on justification as a defense to the crime charged, the actor must first offer evidence that he was faced with clear and imminent harm; that the actor could reasonably expect that his actions would be ineffective in avoiding greater harm; that there was no legal alternative which would be effective in abating the harm; and that the legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Commonwealth v. Capitolo, 508 Pa. 372, 378, 498 A.2d 806, 809 (1985). Since appellant did not offer any such evidence, the lower court correctly refused his proposed instruction on justification.

The instruction given simply expanded upon the license element of the crime. A trial judge may express an issue in his own form, as long as the issue is fully and accurately presented to the jury for their consideration. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). The trial judge’s instruction on license to enter met this standard and we affirm.

Next, appellant contends that the court’s definition of entry took the question of intent away from the jury. The court informed the jury that, “[a] defendant breaks into a place if he gains entry by force, breaking, intimidation, unauthorized opening not designed for human access. Passing an arm through a window is an entry under the law.” (N.T., 4/16/87, at 470.) Indeed, this is the law in Pennsylvania. The first sentence of the charge comes from the statutory definition set forth at 18 Pa.S.C.A. § 3503. The second part is from this Court’s holding in Commonwealth v. Myers, 223 Pa.Super. 75, 297 A.2d 151 (1972). This portion of the charge does not negate the court’s earlier instruction that the jury must find that, “the Defendant broke in knowing he lacked a license or privilege, that is, permission or other lawful authority to do so.” (N.T., 4/16/86, at 469.) In determining whether a jury instruction was sufficient, the charge should be viewed in its entirety. Ohle, 503 Pa. 566, 470 A.2d 61. When read as a whole it is clear that the jury was adequately instructed on the mens rea element of license. Appellant, however, argues that the trial judge informed the jury that they could not find a license in this case. In part of his twenty-four page charge the judge addresses the third element of criminal trespass, whether appellant broke into an occupied structure. He told the jury that,

You must also keep into account that ... the occupied structure was not abandoned. You must keep into account that the premises were not at the time open to members of the public and that the Defendant did not reasonably believe that the owner of the premises would have permitted him to enter or to remain.

(N.T., 4/16/87, at 470.) Bearing in mind that the instructions should be read in their entirety, Id., we do not find error. Previously, the lower court had charged the jury that they could only find appellant guilty if they determined that he broke into the premises, knowing that he lacked license to do so. The overall charge was detailed. It clearly outlined the jury’s duties and the governing law, including the necessity of finding a knowing lack of license.

Appellant’s final argument is that the evidence is insufficient to sustain the verdict and that the verdict is against the weight of the evidence. The standard of review in challenges to the sufficiency of the evidence is well settled in Pennsylvania.

In evaluating this contention [i.e., the defendant’s challenge to the sufficiency of evidence], we [must] view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Carbone, 524 Pa. 551, 553-4, 574 A.2d 584, 585 (1990). See also Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. D’Angelo, 401 Pa.Super. 409, 585 A.2d 525 (1991). With this as our standard of review, we find that appellant’s arguments regarding the sufficiency of the evidence are without merit.

Appellant contends that the Commonwealth did not present any valid evidence to support an intent to enter. No evidence was presented that shows he smashed the window and thrust his arm through the broken pane, appellant argues. Evidence of this nature did not have to be presented to support a conviction of criminal trespass.

A person commits an offense [of criminal trespass] if, knowing that he is not licensed or privileged to do so, he: (i) enters, gains entry by subterfuge or surreptitiously remains in any occupied structure or separately secured or occupied portion thereof; or (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.

18 Pa.C.S.A. § 3503.

The evidence, viewed in the light most favorable to the Commonwealth, showed a lack of license and an entry. Mrs. Focht testified that appellant was not invited to their residence on the evening in question, either by herself or Ms. Kalin. (N.T., 4/13/87, at 58.) This testimony is sufficient to show lack of permission to enter the premises. See Commonwealth v. Tate, 299 Pa.Super. 518, 445 A.2d 1250 (1982).

Mrs. Focht also stated that appellant punched the pane, causing the glass to fall on her. (N.T., 4/13/87, at 57.) We have defined entry to include passing an arm through a window. Commonwealth v. Myers, 223 Pa.Super. 75, 297 A.2d 151 (1972). Thus, the evidence certainly supported a conclusion that the appellant entered the premises without permission. Accordingly, we affirm the criminal trespass verdict.

In his original appellate brief, appellant stated that the evidence was insufficient to sustain a conviction of disorderly conduct as a misdemeanor of the third degree. Although he concedes that the evidence would have supported a summary offense, he says the evidence did not show that he intended to cause substantial harm or serious inconvenience, a requirement for a misdemeanor conviction. Appellant conveniently neglected the part of the disorderly conduct statute which states that a person is guilty of a misdemeanor where he persists in disorderly conduct after reasonable warning or request to desist. 18 Pa.C.S.A. § 5503

When the police arrived at the 416 West Avenue residence, appellant was screaming at Mrs. Focht, using obscenities and calling her a liar. When the officers informed appellant he was under arrest, appellant began screaming at the police and continued yelling at Mrs. Focht. One of the officers testified that he warned appellant to be quiet, but appellant persisted in screaming. (N.T., 4/14/87, at 159-160.) This testimony was evidence that could sustain a conviction of disorderly conduct pursuant to the statute.

Although appellant claims that the verdict was against the weight of the evidence, he does not address this in the argument section of his brief. Thus, we deem the argument waived.

Even if this claim had not been waived, it is without merit. The decision to grant a new trial based on a challenge to the weight of the evidence is within the sound discretion of the trial court. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985); Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991). It is well established that where a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, then the trial court should award a new trial on the basis that a verdict is against the weight of the evidence. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152, 1155-56 (1986); Murray, 408 Pa.Super. at 438, 597 A.2d at 113. An appellate court may review the trial court’s decision to determine whether there was an abuse of discretion, but may not substitute its judgment for that of the lower court. Thompson, 507 Pa. at 592, 493 A.2d at 669.

In appellant’s case, we do not find an abuse of discretion that warrants the grant of a new trial. At trial, the Commonwealth elicited reliable and more than adequate evidence to prove that appellant entered the Focht/Kalin residence without permission and that he was guilty of disorderly conduct. Mrs. Focht, owner of the 416 West Avenue residence and an eyewitness to the incident, testified that he was there without permission and that he broke the glass pane in the door. The police officers, as well as Mrs. Focht, testified that appellant was screaming at them and using obscenities. Therefore, we find that it was not an abuse of discretion to refuse appellant a new trial on the basis that the verdict was against the weight of the evidence required for criminal trespass and disorderly conduct.

For the reasons stated above, we affirm the judgment of sentence.

WIEAND, J., concurs in the result.

      . Appellant asserts that he was subjected to police brutality at the scene of the arrest and at the Jenkintown Facilities.

        . The trial court also held that the testimony met the requirements of the intent and common plan exceptions to prior bad acts.

      . In Murray, this Court affirmed its right and duty to review a trial court’s refusal to grant a new trial on the basis that the verdict is against the weight of the evidence. Contra, Murray, concurring and dissenting opinion by Olszewski, J. (appellate review of weight of the evidence challenges is at variance with the fact-finding province of the jury and not properly the subject of appellate review).


author: ROWLEY, President Judge.

text:
    615 A.2d 362
    COMMONWEALTH of Pennsylvania v. Russell G. CLUTTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1992.
    Filed Oct. 20, 1992.

      John A. Roth, Latrobe, for appellant.
    Lawrence W. Koenig, Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.
   ROWLEY, President Judge.

Appellant Russell G. Clutter, who is incarcerated under a sentence imposed in Pennsylvania, filed, through counsel, a petition for a writ of habeas corpus. In the petition, he averred the following: he is currently serving a two and one-half to five year term of imprisonment at the State Correctional Institution at Greensburg; on December 18, 1990, that institution received a detainer from authorities in Garrett County, Maryland to be lodged against appellant; no action has been taken on the detainer; neither the authorities in Garrett County nor the Westmoreland County District Attorney’s Office have completed the extradition process within the ninety days specified in the Uniform Interstate Agreement on Detainers (Agreement), 42 Pa.C.S. § 9101 et seq; and the detainer prevents appellant from achieving a different security classification and from participating in various rehabilitation programs. Finally, appellant requested that the detainer be dismissed for failure of authorities to comply with the Agreement.

A hearing on appellant’s petition for the writ was held. From the record before us, it appears that the only issue presented to and decided by the trial court at the hearing was whether appellant waived extradition as a condition of his probation imposed in the State of Maryland. Appellant contends that the trial court erred in deciding this question because he was not challenging extradition, but rather was attempting to seek prompt disposition of the detainer filed against him by Maryland authorities.

As evidenced by documents included in the original record, appellant received correspondence from an investigator for the State’s Attorney of Garrett County, Maryland, which included the following statement:

I am advising you again that the proper procedure for disposition of the detainer is to file Form II of the Interstate Agreement on Detainers. This form is a request for speedy trial and final disposition of your detainer. Should you fail to file this form, the detainer will remain in effect until such time as you are released from prison. The State of Maryland will then proceed with extraditing you back to Maryland.

In an attempt to comply with the suggested procedure, appellant requested Form II from prison authorities at Greensburg. However, other documents included in the record reveal that the Pennsylvania authorities denied appellant’s request on the ground that the Agreement does not apply where, as here, a detainer is based on a probation violation, see Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985), a fact of which Maryland authorities were apparently unaware.

Although appellant mailed copies of these documents to his attorney, they were not presented to the trial court at the hearing. The only documents provided to the trial court at the hearing were an affidavit submitted by appellant’s Maryland probation officer and a document entitled “Agreement of Applicant When Permitted to Go to Another State,” pursuant to which appellant allegedly waived extradition. After reviewing those documents, the trial court denied appellant’s petition on the ground that appellant waived extradition as a condition of his probation with Maryland. The trial court also ordered that appellant “be placed in the hands of the individuals who will complete the extradition.” Hearing Transcript, 12/18/91, at 10. Appellant filed a timely appeal from the trial court’s order. He is now represented by new counsel.

Before reaching the merits of appellant’s arguments on appeal, we must consider the Commonwealth’s contention that Pennsylvania courts are without jurisdiction in this case. The Commonwealth argues that under the Uniform Act for Out-of-State Supervision of Parolees, 61 P.S. § 321 et seq., Pennsylvania cannot review Maryland’s decision to take appellant back to Maryland to answer the probation violation charges. The Commonwealth raises the applicability of that statute for the first time in its appellate brief. Moreover, we need not decide the effect of the Uniform Act for Out-of-State Supervision of Parolees because it does not appear that Maryland has attempted to take appellant back to Maryland. To the contrary, appellant alleges that he filed his petition because Maryland refused to proceed until he acted pursuant to the procedures set forth in the Agreement, even though the Agreement is not available to him. An appeal from an order denying a petition for the writ of habeas corpus is an appeal from a final order over which this Court has jurisdiction. See 42 Pa.C.S. § 742.

On appeal, appellant initially contends that the trial court erred by applying the provisions of the Uniform Criminal Extradition Act (UCEA) because it does not apply to persons presently incarcerated, and because Maryland authorities failed to comply with the requirements of the UCEA with respect to necessary documentation. Appellant also contends that his counsel at the hearing was ineffective for failing to object to application of the UCEA.

Because it appears from the record before us that Maryland authorities never instituted extradition proceedings, we are at a loss to understand why the only issue considered at the hearing was whether appellant waived extradition. Unfortunately, our resolution of this matter is hampered by the fact that we are without the benefit of a trial court opinion. However, we need not decide at this time whether the UCEA is applicable to sentenced prisoners or whether counsel-was ineffective for failing to argue against application of the UCEA. Because Maryland did not initiate extradition proceedings, the trial court should not have decided that appellant waived extradition and should not have ordered that he “be placed in the hands of the individuals who will complete the extradition.” For reasons discussed below, however, we conclude that appellant is not entitled to relief, and we therefore affirm the order denying his petition.

On appeal, appellant claims that he is entitled to relief because the restrictions on his institutional liberties are violative of his due process rights under the United States Constitution and his rights under Article I, section 11 of the Pennsylvania Constitution. Appellant argues that his due process rights are violated because neither the UCEA nor the Agreement applies to his situation. Therefore, the detainer will remain lodged against him and the charges upon which the detainer is based will remain unsettled, causing his institutional liberties to continue to be restricted. He also argues that counsel was ineffective for failing to argue this constitutional claim at the hearing. However, this argument has already been decided adversely to appellant’s position by the United States Supreme Court.

In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Court held that a parolee imprisoned for a crime committed while on parole is not constitutionally entitled to a prompt revocation hearing on a parole violator warrant lodged as a detainer with the institution in which the parolee is confined. See also Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977) (due process not violated by postponement of parole revocation hearing until after parolee has completed sentence for conviction which constitutes parole violation). Although the detainer in Moody was lodged by the federal parole board with a federal institution, Moody has been followed where one state lodges a detainer against a parolee imprisoned in another state’s institution. See Wheway v. Warden, State Prison, 215 Conn. 418, 576 A.2d 494 (1990). In addition, the Court in Moody itself noted that where, as here, “two autonomous jurisdictions are involved, ... a detainer is a matter of comity.” Moody, 429 U.S. at 80 n. 2, 97 S.Ct. at 275 n. 2.

Our disposition of this matter receives further support from the Supreme Court’s decision in Carchman v. Nash, supra. In Carchman, the Court held that the Agreement, which provides procedures by which a prisoner against whom a detainer has been lodged can himself initiate the disposition of the pending charges, is not applicable when the detainer is based on a probation or parole violation. The Court recognized that a detainer may have adverse consequences for the prisoner against whom it is lodged, such as the restrictions on his institutional liberties which appellant challenges. However, in concluding that “the abuses that in part motivated adoption of the Agreement generally do not occur in the context of probation-violation detainers”, Carchman, 473 U.S. at 731, 105 S.Ct. at 3409, the Court stated the following:

[ I]n general, the factual issue of guilt of the probation violation is conclusively established by the convictions leading to incarceration in the sending State. Disposition of the probation-violation charge underlying the detainer therefore often will result in probation being revoked and in the probationer’s being resentenced to imprisonment in the receiving State. The ultimate consequence is that the detainer based on the probation-violation charge merely will be replaced by a detainer based on the reimposed sentence, with similar adverse effects on the prisoner’s treatment and rehabilitation.

Id. at 732, 105 S.Ct. at 3409. For these reasons, we conclude that appellant’s due process rights under the federal constitution are not violated by the postponement of the disposition of the probation-violation charges underlying the detainer lodged against him. Similarly, appellant’s due process rights under our state constitution are also not violated as our state constitution provides no greater due process protection than the federal constitution. Coades v. Board of Probation and Parole, 84 Pa.Commw. 484, 480 A.2d 1298 (1984).

Appellant also contends that counsel was ineffective for failing to argue that his rights under Article I, section 11 of the Pennsylvania Constitution are violated. That section provides the following:

All courts shall be open; and every man for an injury done to him in his land, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

Pa. Const, art. I, § 11. Appellant argues that this provision affords him protections similar to due process as a matter of state constitutional law. He contends that because “he is unable to invoke either [the Agreement or the UCEA] to obtain timely relief from [the] deprivation of liberty prior to the expiration of his present Pennsylvania sentence^] ... he is without a means of seeking relief for injury to his personal liberty in the courts of Pennsylvania.” Appellant’s Brief at 18.

As mentioned above, we need not decide at this time whether the UCEA applies to sentenced prisoners. However, we note that even if the UCEA applies, it does not provide a means of relief for appellant as Maryland must initiate proceedings under that statute. Unlike the Agreement, the UCEA does not provide a procedure whereby a person against whom a detainer is lodged can himself initiate proceedings. Accordingly, appellant’s complaint is essentially that his rights under section 11 are violated by his inability to proceed under the Agreement. However, we conclude that the postponement of the disposition of the charges upon which the detainer is based does not violate appellant’s right to timely access to Pennsylvania courts. In fact, appellant’s complaint is that he is being denied access to Maryland courts. Pennsylvania courts have no authority to dispose of the charges pending against appellant, nor can our courts compel Maryland authorities to initiate extradition proceedings. The restriction on appellant’s activities is a proper response to the detainer lodged against him. Appellant provides no reasons why the detainer itself is unlawful. Rather, he asserts that the delay in disposition of the charges upon which it is based is unconstitutional. Under these circumstances, appellant’s complaint, if any, is with the authorities in Maryland, rather than those in Pennsylvania.

Because appellant’s petition for the writ does not set forth a claim upon which relief can be granted, we affirm the order denying his petition. However, we do so on a basis other than that relied upon by the trial court.

Order affirmed.

      . It is not clear whether appellant intended to rely on the Agreement or the Uniform Criminal Extradition Act, 42 Pa.C.S. § 9121 et seq. A second petition which cites to the Extradition Act is included in the record, although it is not clear whether that petition was filed. In addition, the ninety day limitation is provided for by the Extradition Act rather than the Agreement.

      . A copy of the letter from appellant to his attorney and copies of the attached documents were also sent to the Clerk of Courts and are included in the original record.

      . Those documents are not included in the record.

      . After the Commonwealth’s first motion for an extension of time to file a brief was granted, its brief was due on July 25, 1992. Although the Commonwealth’s second motion for an extension of time was denied, its brief was not filed until September 4, 1992, after the case was submitted to a panel of this Court. Notwithstanding the Commonwealth’s failure to comply with the briefing schedule, we have considered the argument it raises in its brief.

      . In the present case the detainer is based on a probation violation rather than a parole violation as in Moody. This difference is immaterial with respect to the issue involved, however.

      . The authorities in Maryland who informed appellant that he had to proceed under the Agreement in order to secure the speedy disposition of the charges upon which the detainer was based were apparently unaware of the Supreme Court’s holding in Carehman.

      . We may affirm for a reason other than that relied upon by the trial court. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987).