author: WICKERSHAM, Judge:

text:
    468 A.2d 479
    COMMONWEALTH of Pennsylvania v. Philip S. TOOMEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1983.
    Filed Oct. 21, 1983.
    Reargument Denied Dec. 30, 1983.
    Petition for Allowance of Appeal Denied June 13, 1984.
    Richard Keith Renn, Assistant Public Defender, York, for appellant.

      Sheryl Ann Dorney, First Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WICKERSHAM, Judge:

A York County jury returned verdicts of guilty on charges of burglary and theft against Philip S. Toomey in a trial before the Honorable Emanuel A. Cassimatis. The principle evidence against Toomey was presented by Oscar Buckingham who had been employed as a truck driver for one Richard Kinard for approximately six years. On July 18, 1980, he arrived at his place of work at about ten minutes before 6:00 a.m. He testified:

A. I arrived and got out of the car right in front of the office door and I laid my briefcase on the hood of the car to get my keys out to open the office door. I noticed there was somebody in the office. I opened the door up and, at that time, the defendant came out of the inner office with a T-shirt in his hand. He hit the door to the garage with his right shoulder.
A. I seen the office was, there was papers on the floor and the filing cabinet drawers were out of the filing cabinet.
Q. Now, when did you first recognize this individual?
A. When he came through the office door, the inner office door into the outer office.

Record at 3-5.

Buckingham further testified that he had known Philip Toomey when Toomey had been employed for about five months as a maintenance garage worker for Kinard Trucking. Record at 11. He definitely identified the person that he observed in the office that morning as Mr. Toomey. Record at 12. He described the office area as having boxes, papers, and filing drawers on the floor. He called the police and his employer. He testified that calculators and other office equipment were missing from the various desks and later were found in a box on the floor just inside the office door. Record at 12-14.

Ray Wells testified that he is terminal manager for Richard L. Kinard and that, on July 18, 1980, he came to the office building in response to a call from Mr. Buckingham. He testified that when he came into the office area, he found “the outside door was jimmied, broke open.” Record at 20. He further testified that he found three calculators, a radio, and a bag full of change that came out of the Coke machine packed in a box. There was $101 missing from the cash box. Record at 21. Wells testified that when he left the terminal the preceding evening at 5:00 p.m., everything was in order and no one had permission to be in the office area at the time indicated. Record at 21-22.

Following Toomey’s jury conviction, post-verdict motions were filed, briefed, and on August 3, 1981, denied. On September 18, 1981, Judge Cassimatis sentenced Philip S. Toomey to undergo imprisonment for a period of not less than six nor more than twelve months, to pay the costs of prosecution, and to make restitution. This direct appeal followed with trial counsel appearing as appellate counsel as well. One issue has been presented for our consideration, as follows:.

Did the Lower Court err when it ruled that the Commonwealth could introduce Defendant’s prior record of burglaries to impeach Defendant?

Brief for Appellant at 4.

During the trial of the instant case, the Commonwealth sought to prove six burglary convictions in 1977 against the defendant. An extended colloquy took place among counsel for the Commonwealth, counsel for the defendant, and the court. Record at 36-45. Judge Cassimatis considered the test set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) where our supreme court held:

Although the statutory law of this jurisdiction expressly prohibits a defendant in a criminal case from being cross-examined as to other crimes he may have committed with two exceptions, our decisional law has made it clear that the Commonwealth may introduce in rebuttal evidence of prior convictions to attack the credibility of a defendant who has elected to testify in his own behalf.
While admittedly the state has a legitimate interest to serve in showing that a defendant-witness is not worthy of belief, we cannot be unmindful of the tendency of a normal juror to accept testimony of prior convictions as a basis for finding a predisposition to commit the crime charged. We attempt to avoid this prejudice first by allowing the defendant the election not to testify without adverse comment, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Davis, [452] Pa. [171], 305 A.2d 715 (1973) (decided May 23, 1973), and, in the event that he chooses to testify and such evidence is introduced, by making a cautionary instruction available to the defendant. I Wharton Criminal Evidence § 264 (13th Ed.1972). However, we recognize that even with such safeguards, the possibility of unfairness in a given case may still be present and it is to that situation that we now address ourselves.
Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant’s veracity generally as a witness, it is important to limit the convictions so used to crimes involving dishonesty or false statement.
However, there are other factors in addition to the nature of the crime involved which may bear upon the probative value of a prior conviction. In Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), the United States Court of Appeals for the District of Columbia Circuit spelled out some of these factors and permitted trial courts to exercise discretion in determining whether or not to admit prior convictions to impeach credibility. See also, Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269 (1969) and cases cited in the Appendix thereto.
Rather than make the admissibility of such evidence turn solely on the nature of the specific conviction, we agree with the approach advocated in Luck. Some of the considerations mentioned in Luck were: the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. 348 F.2d at 769. This last factor is of critical importance. Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions. Or, where the prior conviction is not critically important to the Commonwealth’s case — e.g., where other adequate means of attacking the defendant’s credibility are available — exclusion of prior convictions is strongly indicated.

Id., 452 Pa. at 562-567, 307 A.2d at 260, 262-63.

At the trial, Philip S. Toomey had taken the witness stand and testified that he was at a beer party given for his sister-in-law for her birthday. He said he arrived at the party around 10:00 o’clock in the evening on July 17, 1980 and that he was “drinking pretty heavy”. Record at 49. He said that he left the party with his brother, sister-in-law, and Terry Schrum. He went to his brother’s house, a block away. He did not wake up until the following morning “around dinner time.” Record at 51. The defense called several other witnesses, including Terry Schrum, to support Toomey’s alibi testimony.

During his direct testimony in defense, Philip Toomey admitted that he had “recently been charged with” six or eight burglaries in 1977 and that he plead guilty to those crimes. Record at 53-54. As of the time that Philip Toomey took the witness stand, Judge Cassimatis had already indicated that he would permit the Commonwealth to present the prior convictions in rebuttal.

Judge Cassimatis analyzed his ruling in the following language:

THE COURT: And, they’re all in 1977 when the defendant was eighteen years of age?
MR. RENN: That’s correct. The defendant is now twenty-two.
THE COURT: We hold that these prior offenses do reflect upon the varacity [sic] of the defendant witness. The second consideration is the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged rather than providing a legitimate reason for discrediting him as an untruthful person.
Now, in this case, the charge is burglary, and, so, as I consider this factor, there is a tendency that this would attack the character of the defendant and suggest a propensity to commit the crime rather than to provide a legitimate reason for discrediting him as an untruthful person. If this were the only consideration we were to consider, we would not admit the prior convictions, but, as we understand this rule or law, it’s just one of the several considerations and consideration No. 1 would lead us not to permit it.
However, for reasons before and hereafter stated, we believe that it should be admissible.
The third factor is the age and circumstances of the defendant. The defendant is now twenty-two years of age and these offenses occurred when he was eighteen. We do not view these ages as being significant one way or the other in terms of indicating we should or should not admit these prior convictions.
Fourth, which is one of the two mose [sic] significant factors we are considering, is the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the offense can be presented. It is already apparent from the testimony that has been introduced that the Commonwealth’s only identification of the defendant as the person who committed the burglary with which he is charged is a former co-employee of the defendant who served as a co-employee for approximately five months and estimated he saw the defendant during that five month period about twenty-five times. The Commonwealth witness said that he saw the defendant at the scene of the alleged burglary and as he was leaving on two occasions, once approximately ten feet away and the second time approximately four feet away. In each instance, there was ample light, and he has no doubt that it was the defendant whom he saw.
On the other hand, the defendant has already presented witnesses and has some more ... it that right?
MR. RENN: Yes.
THE COURT: Who would indicate that the defendant was not at the scene of the burglary but was someplace else, thus establishing an alibi defense. The thrust of the defendant’s alibi defense is that he was at a beer party for his sister-in-law’s birthday until about 3:00 o’clock in the morning; that he then went home with his sister-in-law and her husband, his brother, and slept on a couch in their living room until late the next morning, after 10:30 or so. So far, the testimony has placed the defendant at the party and on the couch at 4:00 a.m. and again at 10:30 a.m. The Commonwealth’s witness fixed the time of this burglary at 6:00 a.m. We understand from defense counsel that there is another witness for the defense who will testify that she saw the defendant on the couch in his brother’s home at about somewhere in the neighborhood of 7:00 a.m.
The defendant will take the stand and testify that he slept on the couch this entire time, from the time he laid down at about 4:00 a.m. until late in the morning, after 10:30 a.m. We also note that the testimony indicates that the defendant was intoxicated as he left the party and fell quickly into sleep as he laid down on the couch at his brother’s home after the party while his sister-in-law and brother were watching T.V.
In view of this critical issue of identification as to whether the defendant was the person the Commonwealth’s witness said he saw, and the number of alibi witnesses of the defendant, when we consider this factor, it, in our view, supports permitting the Commonwealth to present the prior convictions.
The last consideration we are to consider is the existence of alternative means of attacking the defendant’s credibility. Are there any prior admissions or statements or confessions by the defendant?
MR. RENN: No.
MR. BORTNER: Absolutely none.
THE COURT: There are no prior statements or admissions by the defendant. Are there any other ways you have of attacking his credibility other than this. Anyone see him on the street, for example, at this time?
MR. BORTNER: No. The only evidence we have is what we presented. I’m not holding anything back.
THE COURT: Nor are there any other witnesses known to the Commonwealth who could place him on the street or in the vicinity of the burglared premises at the time of the burglary.
MR. BORTNER: In other words, we have no witnesses who can dispute his alibi witnesses or contradict them of his alibi.
THE COURT: In applying the balance test under Bigham [sic], as further explained in the Roots case, we hold that the Commonwealth may introduce these prior convictions in the event the defendant takes the stand.
MR. RENN: Now, this is for the purpose only of attacking the credibility of the defendant. Is that correct?
THE COURT: Yes.
MR. RENN: Then we would request that an appropriate instruction be given that that be limited to that.
THE COURT: Sure.
MR. RENN: And, we ask for an exception to the Court’s ruling.
THE COURT: Certainly.

Record at 40-44.

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), the Pennsylvania Supreme Court, speaking through Mr. Justice Nix, pointed out that the burden is upon the prosecution to show that the need for this type of evidence overcomes its inherent potential for prejudice. Justice Nix said that an accused is entitled to a trial before an objective, dispassionate, and impartial trier of fact. The court said:

Where evidence is of a highly inflammatory potential, courts have traditionally recognized their responsibility to monitor its use: See Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034 (1978); Commonwealth v. Ross, 452 Pa. 500, 506, 307 A.2d 898, 901 (1973). When we consider the difficulty in limiting this type of evidence to the purpose for which it was introduced, the natural tendency for it to be interpreted as indicative of the defendant’s propensity to commit crime, and the ineffectiveness of cautionary instructions, it is apparent that the prosecution should be required to show that the state’s interest in its probative value outweighs the prejudice that will inure to the defendant.
In the instant case it is clear that the trial court employed an erroneous standard in exercising its discretion in ruling that the impeachment testimony would be permitted if the appellant elected to testify. Appellant avers that this ruling caused the defense at trial to decide that appellant should not testify. Moreover, the need to hear appellant’s version was compelling since the prosecution relied solely on his unexplained presence in the burglarized premises. In Bighum, supra, we stressed that, of ‘critical importance,’ is ‘the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.’ Id., 452 Pa. at 567, 307 A.2d at 263. The argument against the admission of the prior conviction is further bolstered by the availability of prior inconsistent statements of appellant, which should have provided an adequate alternative to the prosecution. It is difficult to understand how appellant’s oral admissions, which presumably would have contradicted his trial testimony, could be any less effective, for impeachment purposes, than a five-year-old unrelated robbery conviction. It seems indisputable that prior inconsistent statements relating to the alleged criminal behavior for which the accused is presently on trial must necessarily provide more insight as to his truthfulness in the matter than the fact that at some earlier point in time he was convicted of committing an unrelated criminal act. Finally, it is difficult to support a finding that this rebuttal evidence was essential to the success of the prosecution in a case where the defendant was apprehended virtually ‘redhanded.’
In view of all of these considerations it is apparent that viewed in light of the proper standard, it was an abuse of discretion to rule that this prior conviction was available to the prosecution for impeachment of the appellant in the event he had taken the stand as a witness in his own behalf. We further conclude in light of the critical nature of the ruling that the error can only be remedied by the award of a new trial.
Judgment of sentence reversed and a new trial is awarded.

Id.; 482 Pa. at 41-42, 393 A.2d at 368.

In Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980), a panel of our court (Cercone, President Judge, Wieand and Hoffman, JJ.), in a decision by Judge Wieand, reached a similar result and held that the trial court had abused its discretion when it determined during trial that four prior robbery convictions would be admitted to attack appellant’s credibility if he testified. The panel concluded that this ruling was an abuse of discretion, and reversed and remanded .for a new trial. In Williams, Judge Wieand conceded that “the question is a close one.” Id., 273 Pa.Superior Ct. at 392, 417 A.2d at 705.

We feel that, under the circumstances that confronted Judge Cassimatis, his exercise of discretion was proper and his decision legally correct. Clearly, the convictions were for a crime involving an element of dishonesty and which does tend to discredit a witness as being untruthful. Also, the appellant’s credibility was a significant issue for the jury to decide. Furthermore, the burglary convictions were recent. In addition, the only Commonwealth witness to link the defendant to the crime was witness Buckingham. It was a one-on-one identification with no supporting witnesses. There were no statements given by the defendant available for use by the Commonwealth. In addition, the defendant testified as to his alibi and called other witnesses to support his testimony.

Under all the circumstances, we believe Judge Cassimatis correctly applied the balancing test of Commonwealth v. Bighum, supra, and properly exercised his discretion in admitting prior convictions to impeach credibility.

Judgment of sentence affirmed.

       Act of March 15, 1911, P.L. 20, § 1, 19 P.S. § 711 provides:
      Hereafter any person charged with any crime, and called as a witness in his own behalf, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation; unless,—
      One. He shall have at such trial, personally or by his advocate, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or,
      Two. He shall have testified at such trial against a co-defendant, charged with the same offense.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    468 A.2d 485
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph LEE.
    Superior Court of Pennsylvania.
    Argued May 26, 1983.
    Filed Oct. 28, 1983.
    Reargument Denied Dec. 29, 1983.
    Petition for Allowance of Appeal Denied April 24, 1984.

      Harry A. Penich, Assistant District Attorney, Mercer, for Commonwealth, appellant.
    Frances S. Palmer, Hermitage, for appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CAVANAUGH, Judge:

The trial court, following a jury verdict which found appellee Joseph Lee guilty of rape, burglary and criminal trespass, granted Lee a new trial. The court found that trial counsel failed to adequately advise appellee of his constitutional and statutory rights to remain silent. We disagree with the conclusion reached by the trial court and reverse the grant of a new trial.

In order to place the issue in focus it is necessary that we review the evidence as presented by the Commonwealth. The alleged victim of the rape, Victoria Capitol, was present in the Colony Bar in Sharon, Pennsylvania on Saturday night, July 19, 1980. She came to the bar alone, her usual companion, Blaine Coleman, having gone out of town for the weekend. During the course of the evening Joseph Lee was also in the Colony Bar and had a conversation with Capitol. He asked if he could walk her home and she refused. After she left the bar he followed shortly thereafter and encountered her on the street. He stated that he wanted to use her bathroom and would pay her. She refused. Nevertheless, when Capitol saw a female friend on the street near her house and went to that person’s house Lee came along. Lee finally left and Capitol went home. She secured the doors of the house and fell asleep on the sofa after watching television. Sometime later she awakened to find Lee standing near her. She had placed a knife near her and picked it up. In an ensuing struggle Lee took the knife from her and eventually struck her, dragged her to the floor and held the knife to her throat. He raped her. Capitol later found a screen removed from a second story window above a porch roof. The next day she was reported by several witnesses to be upset, hysterical and crying, and disclosed the previous night’s episode to a co-worker. She was examined at the hospital where she was employed. . A vaginal test gave evidence that intercourse had taken place and scratches were found on the front of her neck, upper left arm, right arm and back. Lee was charged with the rape.

We have reviewed the Commonwealth’s evidence, not because the sufficiency of the evidence is attacked, but to summarize the evidence that Lee was met with at trial. In his defense Lee testified that after seeing Capitol at the bar he- walked her home, left later on, and in the early morning hours returned to her house. He stated that they had consensual intercourse; that they had done so “numerous” times previously, and that he had paid her.

Lee had had several disputes concerning his appointed counsel’s representation prior to trial and in a post-trial hearing alleged that he was never advised that he had the right not to testify at trial and was entitled to an instruction to the jury that no adverse inference could be drawn from his failure to testify. His court appointed attorney, Herman M. Rodgers, who was for over ten years a Common Pleas Judge in this Commonwealth agreed that he never made it known to Lee that if he did not testify his failure to testify could not be used against him or advise him of his rights not to testify.

It is beyond the need of citation to state that a defendant in a criminal case is under no compulsion to testify and that he is entitled to an instruction that no inference may be drawn against him by the factfinder as the result of his failure to testify.

The measure of counsel’s duty to his client is effective assistance. As often restated:

We cannot emphasize strongly enough, however that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

Thus we examine counsel’s stewardship. Unquestionably there is no reasonable basis for not advising a client that he has a constitutional right not to testify and is entitled to a charge that no adverse inference may be drawn from the exercise of this right. However, the failure to impart the full ramifications of the prerogative to remain silent should not occasion the grant of a new trial unless it had some adverse effect on the conduct of the trial. Otherwise we would elevate what may be mere inadvertence into ineffectiveness. As stated in Maroney “The issue is not counsel’s reputation or his ability, but his stewardship of the challenged trial” 235 A.2d 356.

Initially, we note that counsel recommended to Lee that he testify. Faced with the Commonwealth’s evidence, counsel’s stewardship in recommending to Lee that he testify cannot be said to be against his client’s interest. He knew there would be a positive identification and independent evidence that Lee had been in Capitol’s company on the night in question. There was physical evidence that intercourse had taken place and the victim would testify to a rape. Since Lee ultimately testified under oath that the intercourse had taken place consensually we must assume that counsel was so told. Under the circumstances the recommendation to Lee that he testify surely was designed to effectuate the client’s interest.

Moreover, it is clear that counsel did not impose his will on Lee concerning his testifying. Rather the facts as found by the trial judge following the post-trial hearing on counsel’s stewardship included the following:

(26) The attorney told the defendant that if he did testify that he had a chance of winning and perhaps a good chance. He informed the defendant that he wished to make an early opening; that he had to know what the facts were.
(27) The trial attorney, Rodgers, did not insist on the defendant testifying but always asked the defendant what he wanted to do. The sessions always ended up by the defendant saying he wanted to testify.
(28) Attorney Rodgers informed the defendant that the credibility of the persons testifying would be very important. He informed the defendant, ‘It’s up to you. You have to make the decision.’

Thus it is clear that the decision was Lee’s. Since Lee was aware of his option to testify or not, it cannot be seriously argued that Lee felt compelled to testify. Had there been compulsion the conversation concerning his decision to testify would have been meaningless. Therefore, our only concern is the failure to advise Lee of the appendage to his right not to testify — the “no adverse interest” charge to the jury. We have been cited no cases and our research does not disclose any concerning ineffectiveness in these circumstances; failure of counsel to advise the defendant that his right to remain silent at trial carries with it the companion right to instructions to the jury of no adverse inference.

Several compelling facts emerge: (1) counsel’s advice to testify was prudent; (2) Lee wanted to testify and made his own decision to do so; (3) Lee did testify in detail that the intercourse was consensual. As stated it would be a perversion of the record in this case to conclude that Lee felt compelled to testify. The court’s finding is that at all times he wanted to testify. The advice to him by experienced counsel was given with counsel’s full knowledge that he would receive the “no inference” charge if he did not testify. Under the facts of this case we see no reason to grant a new trial because counsel admittedly failed to impart to his client, a nuance of the privilege against self-incrimination especially as weighed against Lee’s continuing desire to testify.

Appellant after having sought and received a jury trial; after having willingly testified under oath before that jury in detail that the act of intercourse took place with Capitol’s consent, would now have us agree to the grant of a new trial presumably to give him an opportunity to submit the case to the jury without his testimony.

In cases where a defendant waives the right to counsel, waives a jury, or pleads guilty our courts have required an on-the-record colloquy to insure that the defendant is aware of his rights and makes a knowing, understanding and intelligent waiver of these rights. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Pa.R.Crim.P. 1101; 318; 319. There is no such on the record colloquy for defendants who elect to be tried before a judge and jury. This is so because such defendants exercise rather than surrender their basic constitutional rights, and to the extent that any rights may be waived the courts rely on counsel to secure his client’s waiver. Our courts have never required that the failure to explain each and every constitutional right would, ipso facto, entitle the unadvised defendant to a new trial. For example, a defendant has the right to confront and cross-examine witnesses yet we have not required counsel to secure his client’s waiver each and every time he enters into a stipulation of fact or decides not to cross-examine a witness. Even in cases where our courts have mandated a formal record waiver of rights, our Supreme Court has deviated from the formulistic approach and found from an examination of the total circumstances that a defendant who plead guilty understood the elements of the crime against him. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). This represents a reasoned digression from the rule which would automatically grant a new trial every time there is a departure from the precise incantation of the enshrined verbal exhortations. In a situation such as this where there is no mandated on-the-record colloquy and after a full jury trial, our courts should be even less willing to seize upon an omission of a refinement of constitutional advices to grant a new trial. The core issue is not whether there was a failure to advise but rather whether the defendant’s course of action was caused by this gap in advice. Commonwealth v. Williams, 496 Pa. 486, 437 A.2d 1144 (1981) (court found defendant plead guilty based on awareness of guilt and hope for leniency, not on lack of advice that testimony of accomplice might be held inadmissible). Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982), allocatur granted May 13, 1983 (court found defendant plead guilty to achieve a reduction of charges; not because he was not told that verdict must be unanimous).

So here, the trial court, in consideration of its findings, erred by concluding that the conceded absence of the advice merited the grant of a new trial. As noted above, the court found that Lee at all times wanted to testify and it is clear that his decision was in fact (based upon Lee’s version of consent) the most prudent course. The court is not bound by any post-verdict protestations that if he had known the judge would add a word of caution in his charge he would not have taken the stand.

We conclude that under the facts of this case the failure of counsel to advise his client of the implications of his fifth amendment rights does not entitle him to a new trial and we reverse the grant of a new trial. The trial court did not reach other points raised by counsel in the post-trial motions and we therefore remand so that they may be considered.

Reversed and remanded with instructions. We do not retain jurisdiction.

      . See, for example, Commonwealth v. Lincoln, 270 Pa.Super. 489, 411 A.2d 824 (1979).


author: POPOVICH, Judge:

text:
    468 A.2d 488
    COMMONWEALTH of Pennsylvania v. Albert SANTANA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 6, 1983.
    Filed Nov. 4, 1983.
    Petition for Allowance of Appeal Denied March 20, 1984.

      Joseph N. Bongiovanni, III, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence by the appellant, Albert Santana, for receiving stolen property entered by the Court of Common Pleas of Philadelphia County. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, consist of the following: At approximately 8:30 p.m. on July 8, 1977, Officers Schmidt and Dzara, of the Philadelphia police department, were patrolling the 900 block of Marshall Street when they heard a burglar alarm going off. They parked their vehicle and began checking the stores in the immediate vicinity. During this search, the officers received a call over the portable radio they were carrying. As a result of that radio call, the officers looked over to 6th Street, which is next to Marshall, and observed at a distance of about 100 feet “three Spanish males coming from a vacant lot, carrying air conditioners.” (N.T. 16) Appellant was in possession of one unit while the two others, his brothers, were each holding an end of another air conditioner. The officers did not proceed after these individuals. Rather, following the receipt of a second radio call, the officers drove around to 921 North 6th Street, which is right next to the vacant lot, and saw that the front door to the Hahnemann Medical Center, which was shut down for repairs caused by fire damage, was broken. The lock was hanging and the door jam was apart.

After observing the front of the building, Officer Schmidt walked along the side of the structure, through the vacant lot and towards the rear. At this time, he observed three windows which were covered by a large metal screen. Holes were cut in the windows and alongside of the metal screen were parts of broken air conditioner vents hanging from the window frames. All of the windows were on the first floor, street level. Following this, Officer Schmidt and his partner walked over to and knocked on the door at 917 6th Street, which is the house next to the vacant lot and the place where the officers noticed that the appellant was carrying the unit he was holding. The door was opened by a small child and the officers could see from their vantage point an air conditioner lying on the floor of the hallway. The officers identified themselves and appellant’s brother, Efran, who was standing next to the unit and was observed earlier assisting, his brother Richard hauling it across the lot, ran upstairs. Officer Dzara pursued Efran upstairs and arrested him along with the appellant, who was about to take a bath in the second floor bathroom. Also, a second air conditioner was located upstairs and confiscated by the police. During this time, Officer Schmidt checked the first floor restroom and found Richard washing his hands. He also was arrested.

Both officers testified to having an unobstructed view of the trio as they made their way across the vacant lot with air conditioners in hand. In fact, Officers Schmidt and Dzara gave a detailed description of what the three were wearing when they first saw them. From the verdict rendered it is obvious that the trier of fact discounted appellant’s testimony denying the presence of the air conditioners (Fedders models) in the home when seized. The court also was presented with evidence that the Administrative Coordinator for the hospital identified the Fedders air conditioners as belonging to the institution. Additionally, the manager of the hospital testified that he gave no one permission to enter and remove the air conditioners from the premises. To reiterate, from the verdict, it is apparent that the judge did not believe appellant’s testimony that he had not left the premises 15 to 20 minutes prior to his arrest. In fact, appellant stated that he had remained home all day.

Appellant’s version of what had occurred was not persuasive and he, along with his brother Richard, were found guilty of receiving stolen property. See note 1, supra. Efran, being a juvenile, was not tried as an adult.

Following the denial of a portion of appellant’s post-trial motions, sentence was imposed and this appeal was filed. The issues presented for our review by the appellant appear in his brief to this Court in the “Statement of Questions” section and consist of:

I WAS THERE SUFFICIENT EVIDENCE PRESENTED TO WARRANT THE TRIAL JUDGE IN ASSUMING THAT [THE] VALUE OF THE AIR-CONDITIONERS EXCEEDED] $50?
II DID THE MOTION JUDGE ERR IN FAILING TO QUASH THE ARREST AND/OR SUPPRESS THE SEARCH AND SEIZURE OF A WARRANTLESS AND CONSTITUTIONALLY INFIRM ARREST AND SEARCH AND SEIZURE?

Before addressing the merits of appellant’s claims, we need to respond to the Commonwealth’s argument that neither of the issues raised has been “properly preserved for appellate review.” For as it sees the question, “[although the Commonwealth does have a copy of ‘boilerplate’ motions filed by the co-defendant [Richard Santana], there is no record of any such motions being filed by this deferidant[-appellant].” (Commonwealth’s Brief at 4) In support of its position, the Commonwealth cites us to Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) and Pa.R.Crim.P. 1123(a).

Initially, we note the inapplicability of Gravely, which required the submission of specific, written post-trial motions to preserve any issue for trial and appellate review, since its effective date (September 4, 1979) occurred after the alleged post-trial motions were filed on behalf of the appellant here, i.e., in January of 1979. See Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982). Thus, we must look to the guide posts created prior to Gravely to determine whether appellant’s claims have been preserved for our consideration.

At the outset, it needs to be mentioned that the standard in effect prior to Gravely has been roundly criticized as a patch-work of remedial law that gave little, if any, direction to the bench and/or bar in assessing when and if an issue was or was not preserved for review. See Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978) (NIX, J., Concurring Opinion); Commonwealth v. Lennox, 270 Pa.Super. 254, 411 A.2d 514 (1979); Commonwealth v. Roberson, 258 Pa.Super. 471, 393 A.2d 455 (1978); see also Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Notwithstanding such a fact, we must decide if appellant’s claims have been preserved under the pre-Gravely standard. See Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982).

In deciding what standard we are to look to in determining the question of “waiver,” we note that the seemingly unequivocal statement in Commonwealth v. Blair, 460 Pa. 31, 33 n. 1, 331 A.2d 213, 214 n. 1 (1975), that, “[henceforth, issues not presented in compliance with ... [Rjule [1123(a), Pa.R.Crim.P.,] will not be considered by our trial and appellate courts[,]” was short-lived. For instance, in several cases our Supreme Court refused to adhere to Blair, granting appellate review of an issue that had not been presented in a written post-verdict motion so long as it had been briefed to the lower court and the court had considered it on the merits. See Commonwealth v. Holmes, supra (citing cases).

What can be gleaned from the post-Blair and pre-Gravely line of cases is that an issue will be considered preserved, despite the failure by an accused to present it in written form to the trial court (e.g., a Motion For a New Trial and/or in Arrest of Judgment), if a memorandum of law (Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977)) raising the issue is filed and the trial court “acceptfs] and considers] the merit of the[ ] assignment ] of error without objection.” Commonwealth v. Grace, supra, 473 Pa. at 546, 375 A.2d at 723. Accord Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980) (citing cases); Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977). In applying this requirement of filing to the case at bar, we start by remarking that a document in any criminal matter must be filed in the office of the clerk of courts, 42 Pa.C.S.A. § 2756(a), who in Philadelphia is designated the Clerk of Quarter Sessions. 42 Pa.C.S.A. § 2751(c). Our review of the “Docket Entries” for the Court of Common Pleas of Philadelphia, Trial Division — Criminal Section, discloses the receipt and recording of the following matters pertaining to appellant’s case:

COMMONWEALTH VS. ALBERT SANTANA
1977 - JULY
636 - BURGLARY:
THEFT BY UNLAWFUL TAKING OR DISPOSITION; THEFT BY RECEIVING STOLEN PROPERTY.
July 28,1977 - Application to suppress evidence filed.
November 3,1977 - Application to suppress evidence filed.
December 8,1977 - Courtroom 676
Motion to suppress physical evidence and identification evidence, on grounds of lack of probable cause for arrest and illegal search is DENIED.
(Findings of fact and conclusions of law are incorporated in the record.) Rule 1100 waived until January 16,1978.
Gafni, J.
February 8,1978 - Petition for extension under Rule 1100(c) filed.
March 7,1978 - Courtroom 613
Commonwealth’s petition to extend time of trial under Rule 1100 is GRANTED. New date is March 29,1978.
Marshall J.
March 8,1978 - Courtroom 676
Presiding Hon. Marvin R. Halbert
Defendant present with his counsel, Abraham Needleman, Esquire
Upon being arraigned, Defendant pleads not guilty. Jury tria} is waived. Continued to April 5, 1978, Room 676, for further testimony.
April 4,1978 - Courtroom 676
ADJUDGED:
636 - guilty
Sentence deferred pending filing of post trial motions, presentence investigation, drug evaluation, and psychiatric examination. Same bail to stand.
Halbert, J.
January 3,1979 - Courtroom 676
Adjudication of April 5, 1978 is corrected to show Defendant guilty of Theft by Receiving Stolen Property only. Not guilty of burglary and theft by unlawful taking or disposition.
- Motion for new trial and/or arrest of judgment heard and DENIED.
AND NOW SENTENCE:
636 - not less than two (2) months nor more than twenty-three (23) months in the House of Correction. Defendant to have any drug therapy available while in custody, to continue with an out-patient program when on parole.
Halbert, J.
January 30,1979 - Notice of appeal to Superior Court filed.
(#282 October 1979)
Dec. 13,1982 - Opinion filed.
Halbert, J.
Notes to Testimony - 12-8-77,3-8-78,4-5-78,1-3-79.
THIS IS TO CERTIFY THAT THE ABOVE IS A TRUE AND CORRECT COPY OF THE DOCKET ENTRIES.
/s/ Mark A----
C.P. APPEALS CLERK
LIST OF DOCUMENTS IN THE FILE
1. Application to suppress evidence dated July 28, 1977
2. Application to suppress evidence dated November 3, 1977
3. Petition for extension under Rule 1100(c)
4. Bills of Information # 636, 637, July, 1977
5. Notice of appeal to Superior Court # 282 October— 1979
6. Certified Docket Entries.
(Emphasis added in part)

An examination of the January 3, 1979 post-trial hearing reveals that appellant and his co-defendant brother (Richard) were present and counsel for appellant’s brother (Attorney Mazzola) made a statement germane to the case here; viz.:

There is in existence in the Quarter Sessions file written post-verdict motions going to the nature and weight of the evidence, generally filed as boilerplate, as to new trial and arrest of judgment. (N.T. 5)

No similar statement was made by appellant’s attorney (Kenneth Mirsky). In fact, the Commonwéalth, in its brief to this Court, concedes the submission of such post-trial motions on behalf of appellant’s brother Richard, but it specifically disputes the filing of equivalent motions by counsel for the appellant. (Commonwealth’s Brief at 4) Nowhere in appellant’s brief is this statement controverted. Furthermore, as is evident from the reproduced “Docket Entires” supra and our thorough review of the record submitted by the prothonotary to this Court, “no copy of these motions is included in the record certified to this [C]ourt under Rule of Appellate Procedure 1921.” Commonwealth v. Lynch, supra, 304 Pa.Super. at 251, 450 A.2d at 666. Accord Commonwealth v. Allen, 478 Pa. 342, 345 n. 1, 386 A.2d 964, 965 n. 1 (1978) (NIX, J., Opinion in Support of Affirmance); see also Commonwealth v. Cargo, 498 Pa. 5, 16, 444 A.2d 639, 645 (1982). Thus, even if we were to admit for the sake of argument to the existence of the post-trial motions, they were never filed within the meaning of Rule 1921 and, therefore, did not become part of the record as defined by that Rule for purposes of avoiding a finding of waiver. See Commonwealth v. Lynch, supra. The same result would obtain even if we were to consider the issues to have been raised orally. See Commonwealth v. James, 482 Pa. 463, 393 A.2d 1199 (1978); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). And the fact that the trial court considered appellant’s issues and reached the merits in its Opinion filed in compliance with Pa.R.App.P. 1925(b) is not sufficient to rectify the deficiency in the record. See Commonwealth v. Davenport, supra, 307 Pa.Super. at 111, 452 A.2d at 1063 (“Moreover, although the issues were considered by the court presiding over appellant’s post-verdict motion, ‘there is no assertion or indication of record that these issues were raised in a brief presented to that court.’ Commonwealth v. Burton, 491 Pa. 13, 17 n. 1, 417 A.2d 611, 613 n. 1 (1980).”).

Based on the preceding, we conclude that where, as here, there are no post-verdict motions in the record, i.e., filed with the clerk of courts, we must find the appellant’s contentions waived, even if the motions were orally argued to the trial judge before the effective date of Gravely. See Commonwealth v. Lynch, supra.

Judgment of sentence affirmed.

      . At trial appellant was found not guilty of burglary and theft by unlawful taking. Also, the trial court sustained a motion for an arrest of judgment of the conspiracy conviction.

      . In actuality, the Commonwealth’s brief identifies the two issues for review to be: 1) a challenge to the suppression court’s ruling; and 2) a challenge to the sentence imposed. There is no mention of the sufficiency of the evidence question being preserved by the appellant for our scrutiny. Nonetheless, the question of “waiver" is a subject that can be raised by an appellate court sua sponte. Thus, we will examine all of the issues presented by the appellant in his brief with the “waiver” doctrine in mind. Cf. Commonwealth v. Lewis, 288 Pa.Super. 198, 201, 431 A.2d 357, 358 (1981) ("Albeit neither party has specifically raised the question of jurisdiction, 'it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction.’ Marcus v. Diulus, 242 Pa.Super. 151, 157, 363 A.2d 1205, 1208 (1976) (citation omitted); accord Turner v. May Corp., [285] Pa.Super. [241], [245] & n. 2, 427 A.2d 203, 204 & n. 2 (1981); see also Cohen v. Schofield, 299 Pa. 496, 502, 149 A. 710, 712 (1930).”).

      . The remaining letters in the Appeals Clerk’s last name are undecipherable.

      . After Attorney Mirsky was elevated to the bench, new (private) counsel was appointed to assist the appellant. However, there is no allegation made by appellate counsel that prior counsel was ineffective for not complying with the dictates of Blair. The opportunity for assailing prior counsel’s stewardship being when new counsel was appointed, the fact that it was not raised results in the matter being waived. See Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978).

      . As Judge Price so aptly stated in his majority opinion in Commonwealth v. Roberson, 258 Pa.Super. 471, 457-476, 393 A.2d 455, 457 (1978):
      Although abide by the supreme court’s decisions we must, we simply do not read [Commonwealth v.] Jones [, 478 Pa. 172, 386 A.2d 495 (1978) ] to place upon this court the obligation of expending time, effort and man power to scout around the prothonotaries’ offices in fifty-nine courts of common pleas to unearth briefs that may have been "presented” to the courts, but not made part of the records, in an effort to find defendants’ assertions of error preserved. We interpret Jones to require that if a defendant presents a memorandum or brief to the post-trial motions court, and, whether filed with the clerk or not, it is included in the record certified to us, then we are constrained to find his assertions preserved and to rule upon them. Absent that, we do not feel compelled to exert this court’s energies engaging in a hunting expedition. Until mandated to do so, we will not. (Footnote omitted) (Quoted with approval in Commonwealth v. Lynch, 304 Pa.Super. 248, 254, 450 A.2d 664, 667 (1982).)
      Instantly, since there is nothing on the record, or otherwise properly before this Court, indicating appellant preserved his claims in writing, we have no reservations in finding them waived. See Commonwealth v. Twiggs, 485 Pa. 481, 483, 402 A.2d 1374, 1376 (1979).

      . We note that appellant cannot complain that he was not advised of the consequences of failing to comply with the specific requirements set forth in Pa.R.Crim.P. 1123. (See N.T. 3/8/78 and 4/5/78 at 136-140) Commonwealth v. Stump, 281 Pa.Super. 317, 318, 422 A.2d 187, 188 (1980) (“Since no post-trial motions were filed, [appellant’s] ... issue is clearly not preserved for our review. Moreover, appellant does not advance any argument alleging a failure to comply with Pa.R.Crim.P. 1123(c) (duty of court to advise defendant of right to file post-verdict motions and consequences of failure to so file).” (Citations omitted)). In the case at bar, the trial court made sure that appellant and his brother were both informed of the consequences of failing to adhere to Rule 1123.


author: WIEAND, Judge:

text:
    468 A.2d 493
    COMMONWEALTH of Pennsylvania v. Andre HOGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 12, 1983.
    Filed Nov. 10, 1983.

      Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
    Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, CAVANAUGH, WICKERSHAM, ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether evidence of the unexplained operation of a motor vehicle by an unlicensed person twenty-eight days after the vehicle had been stolen was sufficient to sustain a conviction of that person for unauthorized use of the vehicle.

On May 1, 1981, a 1973 Oldsmobile owned by Harry Sherman was stolen in Elkins Park, Montgomery County. On May 29, 1981, Andre S. Hogan was stopped by Officer Dale Braun when Hogan drove the stolen Oldsmobile through a red traffic signal at Limekiln Pike and Haines Road in Philadelphia. When requested to do so by the arresting officer, Hogan was unable to produce the owner’s card or a driver’s license. An official inquiry disclosed that the vehicle had been stolen, and Hogan was arrested and charged with theft by receiving stolen property and unauthorized use of a vehicle. The owner did not know Hogan and had not granted him permission to use the vehicle. Hogan was tried before a court sitting without a jury, and on the basis of such evidence was found guilty of unauthorized use of an automobile. Post-trial motions were denied, and a fine and sentence of probation were imposed. Hogan appealed. We affirm.

“ ‘The test of sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.’ ” Commonwealth v. Minoske, 295 Pa.Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983); Commonwealth v. Wilcox, 310 Pa.Super. 331, 336, 456 A.2d 637, 639 (Í983). In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict in the trial court. Commonwealth v. Durrant, 501 Pa. 147, 151, 460 A.2d 732, 733 (1983); Commonwealth v. Bachert, 499 Pa. 398, 402-03, 453 A.2d 931, 933 (1982); Commonwealth v. Kennedy, 499 Pa. 389, 392-93, 453 A.2d 927, 928 (1982).

The offense of unauthorized use of an automobile is defined at 18 Pa.C.S. § 3928 as follows:

(a) Offense defined. — A person is guilty of a misdemeanor of the second degree if he operates the automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle of another without consent of the owner.
(b) Defense. — It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he known of it.

This section was derived from Section 223.9 of the Model Penal Code and was intended to meet a "... need for á nonfelony sanction against the disturbing and dangerous practice of driving off a motor vehicle belonging to another. Such joyriding jeopardizes the vehicle itself, a considerable amount of temptingly mobile property, and, since the circumstances are conducive to irresponsible behavior in the operation of the vehicle, jeopardizes the lives of the riders and others.” American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments, 1980) § 223.9, Comment 1, p. 271.

Ordinarily, criminal intent or guilty knowledge is an essential element of a criminal offense, although the legislature may define a crime so that proof of criminal intent or guilty knowledge is unnecessary. Commonwealth v. Koczwara, 397 Pa. 575, 582, 155 A.2d 825, 828 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960); Commonwealth v. Grant, 235 Pa.Super. 357, 364-365, 341 A.2d 511, 515 (1975). The section of the Crimes Code which defines the offense of unauthorized use of an automobile does not define the kind of culpability which is essential to convict. However, the legislature has provided at 18 Pa.C.S. § 302(c) that in such event the mental element or mens rea will be established by proof that a person has acted intentionally, knowingly or recklessly. See: Commonwealth v. Utter, 279 Pa.Super. 557, 559, 421 A.2d 339, 340 (1980). To the extent that language in prior decisions of this Court can be read as interpreting the statute to require proof of guilty “knowledge,” such language is expressly disapproved. Recklessness is the minimum culpability necessary with respect to the lack of the owner’s consent. A person acts recklessly with respect to such lack of consent if he consciously disregards a substantial and unjustifiable risk that the owner has not consented. See: 18 Pa.C.S. § 302(b)(3). A mistake as to whether the owner has actually consented is a defense only if the mistake operates to eliminate the element of recklessness. See: American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments, 1980) § 223.9, Comment 3, p. 274.

The necessary knowledge or recklessness may be demonstrated by circumstantial evidence. See: Commonwealth v. Doman, 490 Pa. 355, 358, 416 A.2d 507, 509 (1980); Commonwealth v. Randall, 287 Pa.Super. 479, 482, 430 A.2d 991, 993 (1981); Commonwealth v. Utter, supra, 279 Pa.Super. at 559, 421 A.2d at 341. See also: Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Shaffer, 447 Pa. 91,105-106, 288 A.2d 727, 735-736 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Wilcox, supra, 310 Pa.Super. at 337, 456 A.2d at 640; Commonwealth v. Lloyd, 239 Pa.Super. 273, 361 A.2d 430 (1976); State v. Costello, 546 S.W.2d 22, 23 (Mo.App.1976); Banks v. State, 2 Md.App. 373, 376-77, 234 A.2d 798, 800 (1967).

An inference of guilty knowledge, the decided cases have held, may be drawn from the unexplained possession of recently stolen goods. Commonwealth v. Williams, supra 468 Pa. at 365-366, 362 A.2d at 248-249; Commonwealth v. Thomas, 305 Pa.Super. 158, 164-65, 451 A.2d 470, 473 (1982); Commonwealth v. Randall, supra, 287 Pa.Super. at 482, 430 A.2d at 993. See also: Barnes v. United States, 412 U.S. 837,- 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Commonwealth v. Jones, 314 Pa.Super. 515, 519, 461 A.2d 276, 278 (1983); Commonwealth v. Wilson, 312 Pa.Super. 77, 80, 458 A.2d 244, 245 (1983). “The strength of the underlying evidence, in cases where the inference is drawn from unexplained possession of recently stolen goods, is dependent on whether possession is recent and how recent the possession is, as well as, an understanding of what is meant by unexplained.” Commonwealth v. Williams, supra 468 Pa. at 366, 362 A.2d at 248-249. With respect to the inference, the Supreme Court said further:

“Recent” is a relative term. Whether possession is recent, and how recent it is, are normally questions of fact for the trier of fact, Barnes v. United States, supra, 412 U.S. at 840, n. 3, 93 S.Ct. at 2360, n. 3; Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, 790 (1969) cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 and require that the trier of fact consider the nature and kind of goods involved, the quantity of goods, the lapse of time from theft and possession, and the ease with which such goods can be assimilated into trade channels, as well as other circumstances relevant in any given case. Commonwealth v. McFarland, supra [452 Pa. 435, 308 A.2d 592 (1973)]; Commonwealth v. Shaffer, supra; Commonwealth v. Turner, supra [456 Pa. 116, 317 A.2d 298 (1974)].
So too, whether possession of goods is unexplained is also a question of fact. This is so because normally the Commonwealth will not offer an explanation for the accused’s possession; but even if the accused fails to offer evidence, the trier of fact may still consider the circumstances of possession as presented by the Commonwealth as suggesting an explanation for the possession. But if the trier of fact does not so consider the circumstances, he may then consider the possession as unexplained where the accused offers no evidence of explanation. This is not an infringement on the accused’s right against self-incrimination, Barnes v. United States, supra, and while the practical effect of allowing the inference from unexplained possession may in many cases be to shift the burden of coming forward with the evidence, at least as to receiving stolen goods and the' inference of guilty knowledge, it is permissible so long as the inference is considered in accordance with the burden on the Commonwealth to establish every element of the crime beyond a reasonable doubt. Barnes v. United States, supra, 412 U.S. at 846, n. 11, 93 S.Ct. at 2363, n. 11. Moreover, even if the accused offers an explanation, the trier of fact may consider the possession as unexplained if he determines the explanation is unsatisfactory. Barnes v. United States, supra [412 U.S.] at 845, n. 9, 93 S.Ct. at 2362, n. 9.
Finally, other circumstances involved in any given case may also be considered by the trier of fact in determining if the inference may properly be drawn from the unexplained possession. Amongst such circumstances are the accused’s conduct at arrest and his conduct while in possession of the goods, as well as, the accused’s relationship, if any, with the victim of the theft. Commonwealth v. Henderson, supra [451 Pa. 452, 304 A.2d 154 (1973)]; Commonwealth v. Shaffer, supra.
Once the inference is properly drawn by the trier of fact and pursuant to the understanding that it cannot be drawn unless he is convinced that the unexplained possession is so recent as to convince him of the inferred fact beyond a reasonable doubt and his conviction of the same is not weakened below this standard by other circumstances, an appellate court may not reverse unless, after considering the evidence, it believes a juror or judge, acting in a reasonable and rationale manner, could not have been convinced beyond a reasonable doubt.

Id. 468 Pa. at 366-368, 362 A.2d at 249. Accord: Commonwealth v. Randall, supra 287 Pa.Super. at 482-483, 430 A.2d at 993.

If the unexplained possession of recently stolen property will support an inference of guilty knowledge of its theft, will it not support with even greater strength an inference of recklessness with respect to the owner’s lack of consent to operate a recently stolen automobile? The answer is obvious, and so this Court has held. See: Commonwealth v. Randall, supra; Commonwealth v. Utter, supra. See also: State v. Costello, supra at 24. The likelihood of innocent, non-reckless use of a vehicle which has been recently stolen is minimal, and in the rare instance in which it is, possession can easily be explained. Therefore, it is not unreasonable, and it does not infringe upon an accused’s privilege against self-incrimination to require him to come forward with such evidence, so long as the burden of proving each and every element of the offense beyond a reasonable doubt remains permanently on the Commonwealth. Barnes v. United States, supra; Commonwealth v. Williams, supra 468 Pa. at 365-366, 362 A.2d at 249. See also: People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136 (1969).

In the instant case, appellant was stopped for violating a traffic signal while driving a vehicle which had been stolen four weeks previously. Not only was he unable to produce an owner’s card, but he had no operator’s license. Under these circumstances, it was not irrational to infer that he knew or should have known that he did not have the owner’s consent to operate the vehicle. It was not unreasonable to expect that appellant, if an explanation for his fortuitous possession of the stolen car had been available, would communicate that explanation when he was accused of unauthorized use. In the absence of any explanation, the trier of the facts could reasonably infer that appellant knew that he did not have the owner’s consent or, at the very least, that he had recklessly disregarded the probability that he did not have the owner’s consent. See: State v. Couet, 71 Wash.2d 773, 775-77, 430 P.2d 974, 976 (1967).

Appellant contends that his possession of the vehicle four weeks after its theft was too distant to permit a legitimate inference of culpability. However, this was a question of fact for the trier of facts. See and compare: Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965); Commonwealth v. Thomas, supra 305 Pa.Super. at 164-65, 451 A.2d at 473; Commonwealth v. Randall, supra 287 Pa.Super. at 484, 430 A.2d at 993. We cannot say that as a matter of law a period of four weeks was so great as to render impermissible the inference of guilty knowledge or recklessness. See: United States v. Wolfenbarger, 426 F.2d 992 (6th Cir.1970) (two months); Hale v. United States, 410 F.2d 147 (5th Cir.1969), cert. denied, 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969) (six months). See also and compare: Commonwealth v. Doman, supra (twenty days sufficiently recent to sustain conviction for unauthorized use of vehicle based on unexplained possession); Commonwealth v. Randall, supra (three weeks sufficiently recent to permit inference of mens rea in conviction for unauthorized use of vehicle); State v. Costello, supra (twenty days sufficiently recent to support inference that appellant was aware of lack of owner’s consent); State v. Couet, supra (evidence that appellant was in possession of car stolen three weeks earlier was sufficient to support inference that defendant was aware of the owner’s lack of consent).

Appellant also, argues that an inference of guilty knowledge or recklessness was improper because he did not attempt to flee the arresting officer and because the vehicle was not in a damaged condition. Appellant’s conduct when stopped for a traffic violation, although a relevant circumstance, did not preclude an inference of guilty knowledge or recklessness. The weight to be given to the evidence was for the trier of fact. Similarly, the undamaged condition of the vehicle had little, if any, probative value regarding the state of mind of the operator and did not militate against an otherwise proper inference of guilty knowledge or reckless indifference regarding the absence of the owner’s consent.

Having reviewed the record, as well as the arguments advanced by appellant, we are unable to say that the trial court’s finding of guilt was irrational or unsupported by circumstantial evidence produced by the Commonwealth. The court’s finding of guilty, therefore, will not disturbed.

The judgment of sentence is affirmed.

      . A demurrer was sustained to a charge of theft by receiving stolen property. The propriety thereof is not before this Court for review.

      . The issue of sufficiency of the evidence was preserved by oral post-verdict motions made at the conclusion of the trial pursuant to Pa.R.Crim.P. 1123(b). See: Commonwealth v. Von Aczel, 295 Pa.Super. 242, 245 n. 1, 441 A.2d 750, 751 n. 1 (1981).

      . See, e.g., Commonwealth v. Williams, 284 Pa.Super. 244, 425 A.2d 795 (1981) and Commonwealth v. Randall, 287 Pa.Super. 479, 430 A.2d 991 (1981).


text:
    468 A.2d 498
    COMMONWEALTH of Pennsylvania v. Stephen Roger WILSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed Nov. 25, 1983.

      Nancy Ann Duffield, Assistant Public Defender, Union-town, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   WICKERSHAM, Judge:

On December 17, 1980, appellant was arrested on a charge of receiving stolen property. A preliminary hearing was held February 5, 1981, before District Justice Paul Shenal at which time it was determined a prima facie case had been established. On February 18, 1981, an Information at No. 76 of 1980, theft by receiving stolen property, was approved by the District Attorney. On May 4, 1981, appellant, accompanied by his Attorney Vincent J. Roskovensky, II., appeared before the Honorable William J. Franks for the trial of his case. On May 5, 1981, the jury found appellant guilty as charged. On May 11, 1981, appellant’s counsél filed, on his behalf, a motion for new trial and in arrest of judgment. On August 24, 1981, said motions were denied and appellant was directed to present himself for sentencing. On November 6, 1981, appellant appeared before Judge Franks and was sentenced to pay the costs, to pay $10.00 to the State Treasurer, make restitution if owing, forfeit $300.00, and undergo a term of imprisonment of not less than two (2) years nor more than four (4) years. On December 4, 1981, this appeal was taken to the superior court from the judgment of sentence. Appellant raises the following issues:

1. Whether the Commonwealth failed to prove the element of “possession” for the crime of receiving stolen goods?
2. Whether the court erred in permitting the prosecution witness to testify concerning inventories and stolen property when the same were available and not utilized by the Commonwealth?
3. Whether the court erred in permitting the witness, John Skupien, to testify about rules of evidence and the admission of hearsay evidence over the objection of counsel?
4. Whether trial counsel was ineffective in failing to call the appellant’s only alibi witness in light of the fact that the sole defense in the case was an alibi defense?
5. Whether substantial after-discovered evidence tending to exculpate the convicted appellant may warrant the granting of a new trial?

Brief for Appellant at 2-3.

We have carefully reviewed the first three issues raised by appellant and we find them to be without merit.

The fifth issue relates to alleged after-discovered evidence. This averment is not properly before this Court. As we said in Commonwealth v. Fink, 317 Pa.Super. 171, 463 A.2d 1140 (1983) (Opinion by Wieand, J.):

The averment of newly discovered evidence in the form of an eyewitness who was present and would allegedly testify that the neighbor was injured when pulled by her dog and not by appellant’s truck is not properly before this Court. Appellant has never presented this after-discovered evidence to the trial court and has never requested the trial court to grant a new trial for this reason. A motion requesting a new trial on grounds of after-discovered evidence must be filed in writing in the trial court. Pa.R.Crim.P. 1123(d). Compare: Commonwealth v. Savage, 270 Pa.Super. 388, 390, 411 A.2d 774, 775 (1979). This Court will not entertain such a motion in the first instance.

Id., 317 Pa.Superior Ct. at 173, 463 A.2d at 1141.

The fourth issue on appeal relates to alleged ineffectiveness of trial counsel. We cannot determine this issue without an evidentiary hearing.

Appellant’s averments that trial counsel was ineffective, made for the first time on appeal by new counsel, cannot be determined without an evidentiary hearing. Appellant contends that trial counsel had in his possession certain weather reports regarding rainfall which, if used, would have demonstrated that she could not have driven a truck across her neighbor’s lawn, as the neighbor testified, without leaving tire marks on the lawn. She also contends that counsel was ineffective for failing to call as a witness a mechanic who had testified at the preliminary hearing and who, allegedly, would have testified at trial that appellant’s truck was in such condition that it could not have traversed the ornamental railroad ties in the neighbor’s yard without sustaining serious damage. “The problem in this case, as in most cases where the claim of ineffective assistance of counsel is raised on direct appeal, is that we have before us no record of any hearing at which is delineated trial counsel’s reasons for taking the steps later challenged. Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then or course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where, on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken____ A finding of ineffectiveness of counsel cannot be made ‘unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.’ ” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnotes omitted), quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967).
Such is the case here. Not only is the unutilized evidence not a matter of record but appellant’s trial counsel has not had an opportunity to explain his decision not to use the weather reports or the testimony of the truck mechanic. Therefore, we must remand for an evidentiary hearing.

Fink, supra, 317 Pa.Superior Ct. at 174, 463 A.2d at 1141. (footnotes omitted).

The judgment of sentence is vacated, and the case is remanded for an evidentiary hearing on appellant’s averments that trial counsel was ineffective. If the trial court finds that counsel was ineffective, a new trial must be granted. Otherwise, the sentence shall be reinstated. Meanwhile, the jurisdiction of this court is relinquished.

      . Upon remand, appellant may, if he chooses to do so, file a motion for new trial on the grounds of after-discovered evidence.


text:
    468 A.2d 500
    COMMONWEALTH of Pennsylvania v. Dennis O’NEAL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 31, 1983.
    Filed Nov. 25, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Dennis O’Neal was convicted of robbery, theft by unlawful taking and possession of an offensive weapon following a bench trial before the Honorable Leonard A. Ivanoski. On direct appeal from the judgment of sentence, O’Neal argues that the stolen money, the gun used in the robbery and other physical evidence, as well as his on-the-scene identification by the victim, should have been suppressed as products of an unlawful arrest. There is no merit in this contention; and, therefore, we affirm the judgment of sentence.

Officer Francis Regan, while on routine patrol at 6:10 a.m. on April 11, 1980, was approached by two persons who had emerged from the WaWa store at 3925 Walnut Street in Philadelphia. One of them said that the store had just been robbed. The other said that the robber was wearing a white cap, was armed with a shotgun, and had run north on Fortieth Street. He suggested that Regan could catch him if he hurried. Regan observed a man running north on Fortieth Street in the vicinity of Market Street. The man was uncovered but was the only person on the street at that hour. Regan pursued, with dome light flashing but without siren, and observed the running male turn west on to Filbert Street. When Regan also turned into Filbert Street, he found that the person being pursued had stopped, with hands up, and “paper money flying in the air like snow.” Regan placed the man under arrest, recovered $98 in paper currency, and took the man back to the store where he was immediately identified by the store clerk as the robber. That man was Dennis O’Neal. Also identified by the clerk was a peanut butter Tastykake which was in appellant’s possession at the time of his arrest and which had been purchased by the robber just prior to the holdup. Officer Charles Mullen, who arrived as backup in response to a call for assistance from Regan, searched the area in which appellant had been arrested and recovered from a vacant lot on Filbert Street a long barreled pistol, referred to during trial as a sawed-off shotgun. It was identified by the victim as being similar to the gun used in the holdup. In the pocket of appellant’s dark blue jacket was found a tan cap.

Appellant cannot complain that the police seized currency and a gun which he had abandoned. In Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979), we said:

The issue is not abandonment in the strict property-right sense, but whether appellant voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it____ Abandoned property may be obtained and used for evidentiary purposes by the police. The evidence must be suppressed only if the abandonment has been coerced by unlawful police action.

Id., 269 Pa.Superior Ct. at 547, 410 A.2d at 836 (citations omitted). See also: Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Hines, 230 Pa.Super. 290, 326 A.2d 485 (1974).

Here, there was no unlawful police conduct. Assuming, for purposes of argument, that Regan did not have probable cause to arrest the only person running on Fortieth Street after he learned of the robbery, he could nevertheless approach him for purposes of investigating appellant’s possible involvement. “[T]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response____ A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972) (citations omitted). See also: Commonwealth v. Webster, 291 Pa.Super. 271, 435 A.2d 1217 (1981); Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977).

Both Terry and Adams involved frisks of defendants on less than probable cause. With respect to the currency and gun in the instant case, there was no intrusion of appellant’s person, for these items had been abandoned before Officer Regan was able to overtake and approach the running appellant. Regan’s approach of appellant was neither unreasonable nor unlawful. He had reason to believe that a robbery had occurred and that the robber was running north on Fortieth Street. He looked and observed that the street was empty except for a male person running north in the vicinity of Market Street, two blocks away. He pursued in his police vehicle, using his dome light but not the siren, in order to alert possible motorists as he crossed Chestnut and Market Streets. We reject as absurd the contention that Regan’s haste in overtaking O’Neal rendered the policeman’s action unreasonable. Under the circumstances of this case, anything less would have rendered it impractical, if not impossible, for Regan to overtake and approach the running figure in order to conduct the investigation which he was authorized to make.

When Regan turned the corner of Filbert Street and observed appellant with hands up and currency floating to earth about him, Regan had probable cause to believe that appellant was the robber. Therefore, he could properly effect an arrest without warrant. See and compare: Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982); Commonwealth v. Webster, supra; Commonwealth v. Everett, 234 Pa.Super. 249, 338 A.2d 662 (1975); Commonwealth v. Hines, supra.

Appellant argues that Regan could not properly rely upon information supplied by persons at the scene of the crime. This Court has previously held, however, that police may quite properly rely upon information given by disinterested observers. See: Commonwealth v. McCain, 275 Pa.Super. 192, 418 A.2d 677 (1980); Commonwealth v. Montgomery, 246 Pa.Super. 371, 371 A.2d 885 (1977). We are satisfied that the information imparted to Officer Regan by the disinterested third persons provided him with ample reason to take prompt action.

The currency and gun, having been abandoned by appellant, could be seized by the police and used for evidentiary purposes. Similarly, the Tastykake and tan cap could be used as evidence because they were seized by the police as incidents of a lawful arrest. See: Commonwealth v. Holzer, 480 Pa. 93, 102 n. 5, 389 A.2d 101, 106 n. 5 (1978); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 9, 449 A.2d 47, 51 (1982).

Finally, it is now settled that prompt on-the-scene identifications are generally reliable and, in the absence of some special element of unfairness, are not subject to suppression on constitutional grounds. Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974); Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1978); Commonwealth v. Santiago, 229 Pa.Super. 74, 323 A.2d 826 (1974).

The police conduct was not unlawful or unreasonable, and the trial court properly refused to suppress the inculpatory evidence which police obtained as a result of the stopping of appellant following the robbery.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 908.

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


text:
    468 A.2d 503
    COMMONWEALTH of Pennsylvania v. George Peter WEST, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Nov. 25, 1983.
    Petition for Allowance of Appeal Denied March 22, 1984.

      Timothy W. Misner, Waynesboro, for appellant.
    David W. Rahauser, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

George West was tried by jury and found guilty of burglary; post trial motions were denied, and a sentence of imprisonment was imposed. On direct appeal, West contends that the trial court erred in allowing Theresa Corbett, a defense witness, to refuse to testify on grounds that her answers would tend to incriminate her. We find no error in the trial court’s ruling and affirm the judgment of sentence.

“It is clear that under both our state and federal constitutions, a criminal defendant has a right of compulsory process to obtain witnesses in his favor. Pa. Const. art. I § 9. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, this right is qualified to the extent of existing testimonial privileges of witnesses, including the privilege against self incrimination----” Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 624, 627 (1983).

The standard against which a privilege under the Fifth Amendment can be claimed has been set forth in Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967), as follows:

When an individual ... is called to testify ... in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency]!]

Id., 424 Pa. at 553-554, 227 A.2d at 629 (emphasis in original) (citation omitted). See also: Commonwealth v. Allen, supra 501 Pa. at 530, 462 A.2d at 627; Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979); Commonwealth v. Weaver, 274 Pa.Super. 593, 418 A.2d 565 (1980); Commonwealth v. Cooke, 267 Pa.Super. 34, 405 A.2d 1290 (1979). It is not necessary that a real danger of prosecution exist. An individual may exercise the privilege if he or she possesses “reasonable cause to apprehend danger of prosecution.” Commonwealth v. Allen, supra 501 Pa. at 531, 462 A.2d at 627; Commonwealth v. Hawthorne, 428 Pa. 260, 236 A.2d 519 (1968); Commonwealth v. Nacrelli, 280 Pa.Super. 338, 421 A.2d 752 (1980). Moreover, the privilege extends not only to the disclosure of facts which would in themselves establish guilt, but also to any fact which might constitute an essential link in a chain of evidence by which guilt can be established. Commonwealth v. Allen, supra; In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Super. 43, 379 A.2d 323 (1977).

Whether a person may invoke a privilege against testifying is a question within the sound discretion of the trial judge. Commonwealth v. Rolon, supra; In re Grand Jury, April Term, 1977, Wayne County, supra. In appraising the claim of privilege the trial judge “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Commonwealth v. Allen, supra 501 Pa. at 531, 462 A.2d at 627, quoting Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

The charges against appellant arose from an alleged breaking and entering of a bar in Chambersburg, Franklin County, and the theft therefrom of ale and whiskey. There was evidence that after the burglary had been committed, appellant and an accomplice returned to the apartment of appellant’s sister where several persons, including appellant’s girl friend, Theresa Corbett, participated in drinking the stolen alcoholic beverages. There was also testimony that Theresa Corbett, when she consumed the beverages, was aware that the same had been stolen. Under these circumstances, the trial judge did not err when he concluded that the testimony of the witness, Theresa Corbett, would have a tendency to incriminate her in criminal activity. Permitting the witness to assert the privilege against self-incrimination, therefore, was proper. A contrary ruling was not required merely because the witness at some time prior to trial had spoken to appellant’s counsel and had corroborated appellant’s version that he and the witness had retired early to a bedroom in the apartment of appellant’s sister, where they remained at the time the burglary was committed.

The judgment of sentence is affirmed.


author: JOHNSON, Judge:

text:
    468 A.2d 505
    COMMONWEALTH of Pennsylvania v. Howard N. HUNTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1983.
    Filed Nov. 25, 1983.

      Bruce Alan Herald, West Chester, for appellant.
    James R. Freeman, District Attorney and F. Ned Hand, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

This is a consolidated appeal from judgment of sentence imposed following the revocation of a term of probation being served by appellant, Howard Hunter. We now affirm the appeal taken at 340 Philadelphia 1982, and dismiss the appeal taken at 1710 Philadelphia, 1982.

On September 29, 1976, appellant received a ten (10) year term of probation. Following the imposition of this probation, appellant was subsequently convicted of a second unrelated offense. On May 15, 1978, his probation was revoked and he was resentenced to serve a term of five (5) to ten (10) years imprisonment. However, on June 13,1978, the court vacated judgment of sentence imposed on May 15th. On November 20, 1978, appellant’s original probation was reinstated by the sentencing court. In October of 1981 appellant was convicted of a third unrelated offense. On the 9th of October, appellant’s probation was revoked a second time and a sentence of five (5) to ten (10) years imprisonment was imposed. This appeal followed.

The sole issue presented on appeal is whether the imposition of the five (5) to ten (10) year sentence of confinement on October 9th, following the revocation of appellant’s probation, violated the Double Jeopardy Clause. Citing Commonwealth v. Johnson, 269 Pa.Super. 122, 409 A.2d 94 (1979), appellant argues that the “[rjeimposition of five (5) to ten (10) year sentence after suspending that sentence and imposing the lesser sentence of probation constituted double jeopardy.” It is apparently appellant’s position that the imposition of probation prevents the sentencing court from reimposing a sentence of confinement upon revocation of the probation.

It is axiomatic that the Double Jeopardy Clause of the Fifth Amendment of the Constitution protects against the imposition of multiple punishments for the same offense in the form of an increase in the sentence. See Commonwealth v. Silverman, 422 Pa. 211, 275 A.2d 308 (1971). For purposes of double jeopardy analysis, probation is a punishment, Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967), and a judgment of sentence, Commonwealth v. Nance, 290 Pa.Super. 312, 320 n. 7, 434 A.2d 769, 773 n. 7 (1981). While probation is a final sentence that will provoke double jeopardy consequences, the very nature of probation is that it is a conditional sentence subject to revocation and the imposition of a further sentence upon breach of any of the conditions placed upon the grant or maintenance of probation. Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978). The resentencing of an offender upon revocation of probation does not constitute a second punishment for the offense giving rise to the probation, but is an integral element of the original conditional sentence of probation. See Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Commonwealth v. Colding, supra; Commonwealth v. Vivian, supra. Our Supreme Court described the effect of probation for double jeopardy purposes as follows:

[wjhere a defendant’s original sentence consists solely of a term of probation, this court has held in Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978), that revocation of probation and imposition of a term of total confinement is not violative of the double jeopardy clause, since the defendant was given one conditional sentence which merely deferred sentencing defendant to a fixed term of confinement until such time appellant violated the conditions of his probation.

Commonwealth v. Pierce, supra, 497 Pa. at 441 n. 6, 441 A.2d at 1220 n. 6 (emphasis added). Thus, the imposition of probation defers further sentencing of a defendant until such time as he violates the conditions placed on the probation, and when the violation of those conditions occurs, the resentence of the defendant is an integral element of the original conditional sentence of probation, not a second punishment for the same offense.

Consistent with the understanding that probation is by-nature a conditional sentence, our Sentencing Code provides that “[u]pon revocation [of probation] the sentencing alternatives available to the court shall be the same as were available at the time of [the] sentencing____” 42 Pa.C.S.A. § 9771(b). The sentencing alternatives referred to in Section 9771(b) are listed in 42 Pa.C.S.A. § 9721(a) and include the following:

(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.

In accordance with Sections 9771(b) and 9721(a) of the Sentencing Code, the sentencing court was empowered to resentence appellant to the original sentence of five (5) to ten (10) years imprisonment following the revocation of appellant’s probation. The reimposition of the original sentence did not violate the Double Jeopardy Clause. Appellant’s argument to the contrary must be rejected. Although Commonwealth v. Johnson, supra, tends to support appellant’s position, its holding was rejected by our Supreme Court in Commonwealth v. Pierce, supra, and we have ceased to follow Johnson. See also Commonwealth v. Roach, 307 Pa.Super. 506, 453 A.2d 1001 (1982).

Accordingly, we affirm judgment of sentence dated October 9, 1981, from which appeal was taken at 340 Philadelphia, 1982. The appeal at 1710 Philadelphia, 1982 is dismissed.

      . The foregoing appeals were consolidated by stipulation of the parties filed on February 23, 1983. The timely appeal filed at 340 Philadelphia 1982 was taken from judgment of sentence dated October 9, 1981, which revoked appellant’s probation and imposed a sentence of imprisonment. The appeal taken at 1710 Philadelphia, 1982 was filed following the sentencing court’s denial of appellant’s petition for a writ of habeas corpus or, in the alternative, to modify and vacate judgment of sentence imposed on October 9, 1981. Because this latter appeal relates to the October 9th judgment of sentence, raises no separate issues as to the denial of reconsideration, and is ostensibly untimely filed, we dismiss it.

      . Appellant’s assertion that the prior sentence was suspended is incorrect. It is clear from the record that the sentencing court vacated that sentence by its order of June 13, 1978. It is also clear from our case law that a vacated sentence is a nullity and the defendant is restored to the status of unsentenced; thus for purposes of double jeopardy analysis the vacated sentence does not limit the sentencing court. Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978).

      . Brief of Appellant at 9.

      . The Double Jeopardy Clause of the Fifth Amendment was applied to the States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Act of December 30, 1974, P.L. 1052, No. 345, § 1 ei seq., 42 Pa.C.S.A. § 9701 et seq. (formerly 18 Pa.C.S.A. § 1301 et seq. ).

      . In Johnson, the defendant was sentenced to two (2) to four (4) years imprisonment. The court suspended the sentence and imposed a term of probation of four (4) years conditioned upon inter alia the service of ten (10) months imprisonment in the county prison. A year and two months later, the defendant’s probation was revoked and the original sentence of two (2) to four (4) years imprisonment was reimposed. Our court held that the reimposition of the two (2) to four (4) year term of imprisonment following revocation of the defendant’s probation constituted a second punishment in violation of the double jeopardy clause. The rationale of this holding was that in suspending the original term of imprisonment and imposing a ten (10) month jail term and probation, the sentencing court imposed a lesser sentence. When the sentencing court reimposed the original sentence after revocation of probation, in that court’s view, the sentencing court imposed a second punishment for the same offense.

      . See note 1 supra.


author:
PER CURIAM:
      POPOVICH, Judge,

text:
    468 A.2d 508
    Charles WOLF & Mary Wolf v. William LONG & Barbara Long, Appellants.
    Superior Court of Pennsylvania.
    Argued March 24, 1983.
    Filed Nov. 25, 1983.

      Fincourt B. Shelton, Philadelphia, for appellants.
    Paul N. Minkoff, Philadelphia, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

The only questions before this court relate to possession of the premises located at 618 South 6th Street, Philadelphia. The only relief requested by appellant is the opening and/or striking of a confessed judgment in ejectment. It is evident from the briefs of both parties and after oral argument that appellants, after residing on the premises for the entire term of the lease, have left the premises during the pendency of this appeal. This court finds the question of possession to have been resolved and that a review of the propriety of the proceedings before the Honorable Juanita Kidd Stout would be purely an academic exercise. This appeal is dismissed as moot. See American Mutual Insurance Co. v. Zion, 319 Pa.Super. 547, 466 A.2d 679 (1983).

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I dissent on the basis of my Dissenting Opinion in American Mutual Insurance Co. v. Zion, 319 Pa.Super. 547, 466 A.2d 679 (1983).