author: ROWLEY, Judge:

text:
    458 A.2d 204
    COMMONWEALTH of Pennsylvania, Appellant, v. Norma Jean CHANDLER. COMMONWEALTH of Pennsylvania, Appellant, v. James CHANDLER.
    Superior Court of Pennsylvania.
    Submitted May 20, 1982.
    Filed March 18, 1983.
    Petition for Allowance of Appeal Granted Sept. 7, 1983.

      Daniel Lucian Chunko, Assistant District Attorney, Washington, for Commonwealth, appellant.
    Robert C. Brady, Washington, for appellees.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   ROWLEY, Judge:

These are consolidated appeals by the Commonwealth from two orders suppressing evidence seized during a search of appellees’ home on the ground that defects in the issuance of the search warrant vitiated the validity of the ensuing search. These two cases were consolidated because they arise from identical facts and present identical issues.

When we review an order suppressing evidence, we are not bound by the trial court’s conclusions of law. We are bound, however, by the court’s findings of fact if those findings are supported by the record. See e.g., Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981). The courts of this Commonwealth have therefore “refused” “time and again” to substitute their own findings for those of the suppression court, Commonwealth v. Davis, supra, 491 Pa. at 368, 421 A.2d at 181, especially where credibility is at issue, Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4 (1981); Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978) [court equally divided on other grounds], remanded on other grounds, 487 Pa. 30, 407 A.2d 1302 (1979). Mindful of this scope of review, we now turn to a discussion of the facts which, in this case, are not the subject of any serious dispute.

On January 27, 1981, at some time after 11:00 P.M., Trooper Richard L. Pompei of the Pennsylvania State Police Region Five Narcotics Strike Force appeared before District Justice Clyde Tempest of Mongahela, Pennsylvania, then on duty as the night magistrate, for the purpose of obtaining a search warrant. The trooper had prepared a one-page application form which was in substantially the form required by Pa.R.Crim.P. 2006(a). On the application, the trooper had typed information identifying the premises to be searched as the residence of the appellees, setting forth its address and a description of the dwelling. He also identified the items to be searched for and seized as a variety of drugs and drug-related paraphernalia. The trooper had also completed a lengthy affidavit of probable cause setting forth his investigative efforts with respect to Appellee James Chandler’s suspected activities as a dealer in narcotics and other controlled substances. Trooper Pompei set forth information obtained from two confidential informants and details allegedly supporting the reliability of the information obtained from them. One of these informants was alleged to have given reliable information on previous occasions which led to three convictions and had also personally obtained from James Chandler a quantity of a substance which, upon later chemical analysis, turned out to contain Pentazocine, a controlled substance under Schedule IV of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L.233, No. 64, as amended, 35 P.S. § 780-101 et seq., and the regulations of the Secretary of Health promulgated thereunder, 28 Pa. Code § 25.72(e)(2)(h). Trooper Pompei’s affidavit was set forth in part on the application form, but the greater part of the affidavit was contained on two additional typed pages which were attached to the form.

After presentation of the application for the warrant, District Justice Tempest administered an oath to Trooper Pompei and, while under oath and in the presence of the District. Justice, Trooper Pompei swore to the truth of the factual content of the application and signed his name both to the bottom of the printed form in the space provided and at the end of the affidavit, i.e. at the end of the second additional typed page. District Justice Tempest then also signed the bottom of the printed form near the Trooper’s signature and at the end of the affidavit, imprinting his seal in each place as well.

Despite the meticulous care otherwise shown, Trooper Pompei and District Justice Tempest then committed what the suppression hearing judge aptly called “a single fantastic error”: the issuance section of the application, which appears on the back of the pre-printed form, was left entirely blank. This section of the form is in substantial compliance with Pa.R.Crim.P. 2006(b). None of the blanks in this section were filled in: no date or time of issuance was specified, no date beyond which the search could be conducted was indicated and the District Justice neither signed in the space provided nor did he affix his seal upon it.

Believing that all was in order, however, Trooper Pompei, accompanied by Troopers Donald Ross and Anthony J. Perella, also members of the Region Five Strike Force, went to appellees’ home with the executed documents at approximately 7:50 A.M. on January 28, 1981, barely eight hours after leaving the office of District Justice Tempest. Both appellees were present during the search which resulted in the seizure of several quantities of controlled substances including Talwin, Tuinal and marijuana. The troopers thereupon arrested the Chandlers.

After completing the search and seizing the substances the troopers filled out a form entitled “Receipt/Inventory of Seized Property,” describing the material seized and its location when found in the Chandler home. This form was later presented to a different magistrate, District Justice J. Albert Spence, of Washington, Pennsylvania. Trooper Pompei was again placed under oath and the facts concerning the property seized represented on the form were sworn to and the form signed by the trooper. The Receipt/Inventory was also signed and sealed by District Justice Spence. After a preliminary hearing, the appellees were held for court on charges of possession and possession with intent to deliver the various substances seized.

Both appellees subsequently filed motions to suppress the evidence on the grounds that (1) no probable cause existed for the issuance of the search warrant and (2) the search warrant was defectively issued. The suppression court, while commending the thorough efforts of Trooper Pompei and his fellow officers, ruled that the omissions of the District Justice violated Pa.R.Crim.P. 2005 and required that the evidence be suppressed. In his opinion, the suppression hearing judge, the Honorable John F. Bell, made known his “distaste for the result” he reached, adding that he was “almost disgusted” that the “mistake” here made called for “the suppression of evidence that would, undoubtedly, result in conviction.” But Judge Bell felt that he had no discretion to allow the Commonwealth an opportunity to amend under Pa.R.Crim.P. 150. Rather, he concluded that the decisions of this court in Commonwealth v. McAfee, 230 Pa.Super. 336, 326 A.2d 522 (1974) and Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978), required that the evidence be suppressed. For the reasons which follow, we disagree and vacate the orders entered in these cases and remand for further proceedings.

Unlike the trial court, we find this case to be controlled by Commonwealth v. Lardo, 240 Pa.Super. 107, 368 A.2d 324 (1976). There, this court heard two consolidated appeals which challenged two search warrants alleged to be defective. The form used by the magistrate in each case contained a combined issuance and affidavit section which provided space sufficient for the magistrate to sign and affix his seal to the form only once. As the trial court in this case correctly noted, in the first challenge in Lardo, the defendant asserted that the single signature and seal was insufficient to serve for both the affidavit and the warrant. This court rejected that argument. Id., 240 Pa.Superior at 112-115, 368 A.2d at 326-328.

However, it is the second challenge in Lardo, one not discussed by the trial court here, which is more germane to the case at hand. In that challenge, the affidavit-warrant form had not been signed at all. The trial court had permitted the Commonwealth, after a hearing, to amend the form by having the magistrate supply the missing information necessary to cure the defect. This court, after a review of the warrant and the surrounding circumstances, affirmed. Id., 240 Pa.Superior at 115-116, 368 A.2d at 328-329. Speaking for the court, Judge Van der Voort stated:

No person ... shall be discharged nor shall any case be dismissed because of any informal defects in the complaint, citation, summons or warrant, but the complaint, citation, summons or warrant, may be amended at any time so as to remedy any such informality.
Gauged by one practical test no one did misunderstand the document. Looking to another test there was no reason not to understand the document. It contained a clear statement of facts showing probable cause ____ The appellant understood the warrant and so did the officers who executed it. Judged by another test, there was no change in any of the substance of the document [upon completion of the amendment]. There was no challenge to the warrant at the time it was executed. It was a de facto warrant and no prejudice resulted to the appellant because it wasn’t signed and sealed. Id., 240 Pa.Superior at 116, 368 A.2d at 329. (Emphasis added.)

The court concluded that the decision whether or not to allow an amendment to cure such errors was largely committed to the discretion of the trial court. Id., 240 Pa.Superior at 117, 368 A.2d at 329.

Cases cited by the Commonwealth add further support for our conclusion, as they deal with the appropriate approach to errors and omissions in the completion of the issuance section of search warrant application forms. In Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977), the magistrate inadvertently omitted the month from the date of issuance. This court concluded, after examining the other sections of the warrant, that it was clear that the magistrate intended to enter “November” as the month of issuance. Since omission of the month from the date of issuance, although a violation of Rule 2005, did not deprive the court of the information needed to determine that the warrant was properly issued and executed, it was held that the evidence seized pursuant to the warrant should not have been suppressed. In Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978), the magistrate inadvertently entered July 15, 1976, as the date of issuance. This was one day earlier than the date of the application, which led the trial court to conclude that the warrant was patently defective and therefore invalid. In reversing the suppression order, this court held that although Pa.R.Crim.P. 2003 proscribes consideration of evidence outside the warrant affidavit on the issue of probable cause, this limitation does not extend to other aspects of the warrant. Therefore, it was held that the trial court should have considered the officer-affiant’s unchallenged testimony that the warrant was actually issued on July 16, 1976.

It is true that this case involves more than merely the typographical errors addressed in Chinea and Swint. However, the trial court in this case concluded that it was precluded from exercising its discretion or permitting any amendment of the warrant. This was an erroneous conclusion. The court, as a result, did not consider whether the as yet unchallenged testimony of Trooper Pompei served to supply any of the information missing from the printed form. We think it clear that the Commonwealth may possess sufficient evidence to permit the amendment of the warrant and the filling in of the missing information.

We also note that the trial court’s reliance upon Belcher and McAfee is misplaced. First, in McAfee, there was no written record that the officer-affiant had in fact been placed under oath prior to the signing of his affidavit of probable cause. Unlike the warrants in Lardo and in this case, the affidavit and the warrant were on totally separate pieces of paper. In this case, the requirements of McAfee have been met. That case, therefore, does not require the result reached by the trial court here. Furthermore, the court in Lardo distinguished McAfee, refusing to apply it in a factual context more closely resembling the case at bar. See Lardo, 240 Pa.Super. at 114, 368 A.2d at 327-328.

Second, an en banc panel of this court has recently overruled Commonwealth v. Belcher, holding that the requirement of Pa.R.Crim.P. 225(b) that the district attorney sign an information is directory only, and that the absence of such a signature, raised in a pre-trial motion, is curable by amendment. Commonwealth v. Veneri, 306 Pa.Super. 396, 404, 452 A.2d 784, 788, (1982). In so doing, Judge Cavanaugh, writing for a unanimous en banc panel, explored the concerns relevant to a judicial examination of the government’s action in cases of noncompliance with the formal requirement of the Rules of Criminal Procedure. First, the courts must be able to identify the participants as governmental officers with the requisite authority to engage in the activities undertaken. Id,., 306 Pa.Superior at 400-403, 452 A.2d at 786-787. For example, in Veneri, the court was concerned with whether the decision to file an information was made by a person possessing the requisite authority to do so. In the case at bar, we are concerned with whether the person who applied for the warrant and the person who authorized the search had the authority to do so. Second, the formal requirements of the rules have been imposed to insure that the agents of the government proceed only with the full cognizance of the seriousness of their actions, including the harshness of the possible .adverse consequences. Id., 306 Pa.Superior at 401-403, 452 A.2d 786-787. In addition to these observations by Judge Cavanaugh, we note that the formal requirements are intended to provide a uniform method of protecting the Constitutional rights of those suspected of criminal activity.

However, we wish to emphasize that there is in this case no violation of any right or privilege of Constitutional dimension. Article I, section 8 of the Constitution of the Commonwealth of Pennsylvania and the Fourth Amend1 ment to the Constitution of the United States prohibit only “unreasonable” searches. There is no unreasonableness involved here. Trooper Pompei went to an impartial and detached magistrate and presented a thorough and detailed statement of the facts which he believed constituted probable cause for the issuance of the search warrant. Apparently concluding that probable cause existed, the District Justice administered the oath to the officer who swore to the truth of both the affidavit and the application and signed his name to each. The District Justice then signed his name in two different places and twice affixed his seal of office. The papers were then served and the search was conducted approximately eight hours after Trooper Pompei left the District Justice’s office. There is no allegation that this warrant was stale nor is there any charge that the troopers carrying out the search conducted themselves improperly in any way while at the Chandlers’ home. The Receipt/Inventory was filled out, sworn to under oath and signed by Trooper Pompei before District Justice Spence who signed his name to the forms and affixed his seal thereto, all on the same day that the search was carried out.

Nor can we perceive that the appellees were denied the protection of any other provision of the law to which they may legitimately lay claim. The substantive protections established by Rule 2005 were afforded to appellants. Trooper Pompei’s testimony at the suppression hearing, thus far uncontradicted, and the warrant application form establish the date and time of issuance of the warrant as required by Rule 2005(a). The application also set forth information conforming to the requirements of Rule 2005(b) and (c), describing the property to be seized and the name of the person and place to be searched. We note that even had the issuance section of the form been filled out, it would not have, within itself, contained the information required by Rule 2005(b) and (c). The issuance section directs interested parties to read the application materials to obtain this information. Furthermore, the warrant was executed well within the two-day time limit of Rule 2005(d) and during the daytime pursuant to Rule 2005(e). Finally, the officers made a return before a judicial officer shortly after the completion of the search in accordance with Rule 2005(f).

Almost all of the technical requirements of the Criminal Rules were fulfilled. The application for the warrant, the affidavit of probable cause and the Receipt/Inventory were completed in comprehensive and even painstaking detail. The purposes to be served by these formal requirements were met: the applicant and the issuing authority are readily identified as governmental agents acting within the scope of their authority and with full cognizance of the significance of the occasion and with due respect for the constitutional rights of the appellees.

It is clear to us, and the trial court so found, that Trooper Pompei intended to obtain and District Justice Tempest intended to issue a warrant for the search of the appellees’ home. The pre-printed form was not completed in every detail as a result of “mistake” or “oversight” rather than as a result of any deliberate decision or misconduct on the part of the trooper or the magistrate. Furthermore, all of the parties, including appellees, understood what was said on the papers and understood the documents to authorize the search that was conducted. As in Commonwealth v. Lardo, 240 Pa.Super. at 116, 368 A.2d at 329, the form in this case can be construed to constitute a “de facto” warrant.

It is also clear to us that, given the admitted facts of this case, the absence of a signature, seal and dates does not, without more, prejudice the rights of the appellants. It would be unrealistic to hold that the errorless completion of the sample forms promulgated in the Criminal Rules constitutes the exclusive method of providing evidence of the deliberative acts of public officials necessary to comply with the formal requirements contained therein and that unintentional flaws in the process of completing these forms destroys the validity of an otherwise untainted process. Where the Commonwealth adduces sufficient evidence to show that there is no substantive defect in the warrant, its issuance or its execution, a formal defect in the warrant is relatively unimportant. To say that the magistrate in this case should have applied his seal and signed his name three times instead of only two is to exalt form over substance, to subscribe to “technical vanity” and to practice “judicial sleight of hand of totally unacceptable proportions.” Commonwealth v. Veneri, 306 Pa.Super. at 405, 452 A.2d at 788.

To adopt appellees’ argument in support of the trial court’s order suppressing the evidence would require us to hold that a technical and formalistic violation of the Pennsylvania Rules of Criminal Procedure concerning the is-

suance of a search warrant reqúires the application of an “exclusionary rule” similar to that used in cases involving violations of the Fourth Amendment. We decline to so hold. We are not directed to any authority supporting this argument and we deem it inappropriate to adopt such a rule for this type of inadvertent error. Justice Powell, speaking for the United States Supreme Court in United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561 (1974), explained the purpose behind the Constitutional exclusionary rule:

The exclusionary rule was adopted to effectuate the Fourth Amendment____ The purpose of the exclusionary rule is not to redress the injury to privacy of the search victim____ Instead the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures:
The rule is calculated to prevent not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way— by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed2d 1669 (1960). (Emphasis added; some citations and quotations omitted.)

Furthermore, in a context similar to the one now before us, our own Supreme Court has stated:

A rule of exclusion is properly employed where the abjection goes to the reliability of the challenged evidence or reflects intolerable government conduct which is widespread and cannot otherwise be controlled ____ [T]he precedures for the execution and return of the warrant are ministerial and the irregularities should not void an otherwise valid search absent a showing a prejudice. Commonwealth v. Musi, 486 Pa. 102, 115-116, 404 A.2d 378, 384-385 (1979). (Citations omitted.)

We cannot emphasize strongly enough that there has here occurred no unlawful or reprehensible conduct on the part of the government. The applicable Federal and State constitutional protections and the substance of the Rules of Criminal Procedure were fully respected. Additionally, the error here committed in no way affects the reliability of the challenged evidence. There is nothing gained, therefore, by excluding the evidence seized during this search except, perhaps, inducing police officers and district justices to focus greater attention on their clerical duties. In this regard, we are guided by the recent expression of a panel of the United States Court of Appeals for the Eleventh Circuit:

Whether exclusion of evidence is appropriate in a particular proceeding depends upon whether the deterrent effect of the sanction outweighs the cost to society of suppressing relevant evidence. Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1070 (11th Cir.1982).

In this case, the Commonwealth would lose the opportunity to present considerable, highly relevant if not damning evidence of serious violations of the drug laws. Society as a whole would, at least in a small way, lose the opportunity of cleansing itself of the harmful short and long term effects of the illegal traffic in illicit drugs. This cost to society far outweighs the benefits to be gained if indeed any benefits would be gained at all, from suppressing the evidence in this case.

For all of the foregoing reasons, we conclude that the Commonwealth should have been permitted to amend the warrant in these cases in order to bring them into substantial conformity with the evidence and the Rules of Criminal Procedure. Since, however, the suppression hearing was adjourned before the Commonwealth completed its presentation of evidence and before the appellees had had an opportunity to present any rebuttal evidence or cross-examine any of the Commonwealth’s witnesses and before the trial court made a final decision on the issue of probable cause, the hearing on remand should be completed and a final decision entered by the trial court on all issues raised by appellees in their pre-trial motions. We therefore vacate the order of the trial court in these cases and remand them for the purposes of completing the suppression hearing and such further proceedings not inconsistent with this opinion as may be necessary. At the appropriate time, the parties may, if they deem it necessary, seek appellate review of the trial court’s determination of any other issues raised by the appellees’ motions to suppress.

Orders vacated and cases remanded for further proceedings.

Jurisdiction relinquished.

      . It is apparent from the records in these cases that the orders of the trial court suppressing the evidence will effectively terminate or substantially handicap the prosecution. Therefore, these appeals are properly before our court, Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). The Commonwealth’s claim that the suppression orders effectively terminate the prosecution is not contradicted by the appellees.

      . In its brief the Commonwealth also states as fact that:
      After the search and seizure of the fruits thereof, Trooper Pompei made a return of the search warrant and inventory to the issuing authority. The result of search section of the search warrant was duly signed by Trooper Pompei ____ The District Justice who issued the search warrant, Clyde Tempest, Esq., also signed and sealed the result of search section. (Brief for the Commonwealth, p. 7.)
      Appellees do not contest this statemént’s accuracy. However, we have no confirmation of its accuracy in the record. The suppression hearing was concluded before Trooper Pompei could testify completely. The only "result of search” section appears as an exhibit in the reproduced record. (R.R., p. 42a.) It is a photocopy of the District Attorney’s carbon copy of the application and affidavit form. This photocopy is not of good quality and the date apparently associated with District Justice Tempest’s signature is not legible. Furthermore, the time when this signature and its accompanying seal were placed on the page is not apparent from the photocopied carbon. If in fact the Trooper did make this second trip to Monongahela, it would support the inference that District Justice Tempest intended to issue and believed he had in fact issued a search warrant to the officer. If the troopers did not make this second trip, however, this inference would not be quite so strong. We leave this determination to the suppression judge on remand.

      . Rule 2005 reads as follows:
      Each search warrant shall:
      (a) specify the date and time of issuance;
      (b) identify the property to be seized;
      (c) name or describe with particularity the person or place to be searched;
      (d) direct that the search be executed within a specified period of time, not to exceed two (2) days from the time of issuance;
      (e) direct that the warrant be served in the daytime unless otherwise authorized, provided that, for purposes of the Rules of Chapter 2000, the term "daytime” shall be used to mean the hours of 6 a.m. to 10 p.m.;
      (f) designate by title the judicial officer to whom the warrant shall be returned.

      . Rule 150 provides in pertinent part:

      . We note that currently pending before the United States Supreme Court is a case in which the Court has apparently decided to reconsider the scope of the Constitutional exclusionary rule. The Court has requested the parties to address the question:
      [W]hether the rule requiring the exclusion of evidence obtained in violation of the Fourth Amendment ... should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable brief that the search and seizure at issue was consistent with the Fourth Amendment. Illinois v. Gates, 459 U.S. 1028, 103 S.Ct. 436, 74 L.Ed.2d 595 (1982).
      We express no opinion on this issue nor its applicability nor its application to the case before us.

      . Further support for our conclusion is derived from the total absence of any provision for the enforcement of the directives of Rules 2005 and 2006. If the Pennsylvania Supreme Court had desired to impose so harsh a sanction as the exclusion of the evidence seized in technical violation of these rules, it would have done so. Cf. Pa.R.Crim.P. 1100(f) (explicit requirement for discharge for lack of a speedy trial as defined in the rule) and Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977).


source: Caselaw Access Project

license: Public Domain

text:
    458 A.2d 212
    Louis GOEBEL and Helen Goebel, his wife, Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed March 18, 1983.

      Robert D. Beck, Washington, for appellants.
    Stephen Paul McCloskey, Washington, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   ROWLEY, Judge:

This case presents another question of first impression under the Pennsylvania No-Fault Motor Vehicle Insurance Act. The question raised is whether § 205(d) of the No-Fault Act, 40 P.S. § 1009.205(d) (Supp.1982-83), permits a claimant to recover increased work loss benefits from his no-fault carrier based upon increases in the minimum wage required by the federal Fair Labor Standards Act. The trial court sustained appellee’s preliminary objection in the nature of a demurrer and dismissed appellants’ complaint. We reverse.

On appeals sustaining preliminary objections in the nature of a demurrer, we accept as true the well-pleaded averments of fact contained in the complaint. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981). Upon inspection, the complaint reveals the following facts.

On December 20, 1978, appellant Louis Goebel was struck by an automobile as he walked along Jefferson Avenue in Washington, Pennsylvania. As a result of this accident, Mr. Goebel suffered the fracture of both legs and his skull as well as other severe injuries. At the time of the accident, Mr. Goebel worked an average of 53 hours per month as a custodian for the Farm Credit Associations. He was paid at the then prevailing minimum wage of $2.65 an hour. The accident rendered Mr. Goebel permanently and totally disabled; he will never be able to return to gainful employment of any kind. Appellee, Hartford Accident and Indemnity Company, the Goebels’ no-fault carrier, has thus far paid all hospital and medical expenses incurred due to the accident.

The dispute concerns the precise amount of work loss benefits to be paid Mr. Goebel under the No-Fault Act. Hartford commenced paying work loss benefits sometime during 1979 after Mr. Goebel’s disability was determined to be permanent. At that time, Hartford paid $153.70 per month based upon Mr. Goebel’s average of 53 hours of work per month at the 1979 minimum wage of $2.90 an hour. When, under the Fair Labor Standards Act, the minimum wage rose to $3.10 an hour in 1980 and to $3.35 an hour in 1981, Mr. Goebel demanded a concomitant increase in his work loss benefits. Hartford refused and Mr. and Mrs. Goebel filed a complaint in equity seeking, 1) an injunction against Hartford’s continued refusal to pay the increased amounts, 2) payment of benefits allegedly past due and owing, 3) statutory interest of eighteen percent per annum, and 4) attorney’s fees. As mentioned above, Hartford filed a preliminary objection in the nature of a demurrer which the trial court sustained. The court ruled that appellants had no cause of action for increased benefits. The court therefore also found that appellants had no right to an injunction, interest or attorney’s fees. The court dismissed the complaint and appellants appealed challenging each of the trial court’s conclusions.

Initially, we note that we can discover no legal basis upon which Mrs. Goebel can recover. Only Mr. Goebel was injured and Hartford owes any benefits due under the policy of insurance to him. Therefore, the trial court was correct that, as to Mrs. Goebel, “on whose behalf no claim seems to be made,” this complaint should be dismissed.

With respect to Mr. Goebel, however, we face a different situation. Appellants rely on the phrase “absent a showing that it [probable annual income] is or would be some other amount” contained in § 205(d). Appellants assert that this language permits them to claim increased work loss benefits from their no-fault carrier when an event, in this instance an increase in the minimum wage, subsequent to the original calculation of their benefits allegedly alters the amount of money the victim would have received had he continued to work. The trial court characterized this argument as “specious” and stated that “[i]f the [General Assembly] had intended to provide for indexing this loss to the cost of living, they could have done so. They didn’t.” That court also relied upon the speculative nature of the future relations between Mr. Goebel and his employer:

We have no way of knowing that Mr. Goebel’s employer would have let him continue working 53 hours per month. The 53 hours a month may have been arrived at to fit the employer’s budget for money allocated to custodial services....

Additionally, the court opined that “it doesn’t make much difference [because] ... in 8.04 years [appellant] will get it all [the $15,000 statutory maximum work loss benefits] anyhow.”

This discussion is off the point. The issue is not so broad as indexing to the cost of living. Nor is the court’s consideration of a question of fact, the amount of time Mr. Goebel would have worked for his employer under the new wage structure, entirely appropriate in the present procedural posture or pertinent to the question before us. We must here discern the meaning and effect of a given statutory phrase. Because this phrase is not defined in the No-Fault Act, we turn to the Statutory Construction Act and other sources for guidance.

We begin with the proposition that we are “to ascertain and effectuate the intention of the General Assembly,” giving full effect, if possible, to each provision in the statute before us. 1 Pa.C.S.A. §§ 1921(a), 1922(2). See also, Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). The General Assembly is presumed not to have intended any result which is absurd or unreasonable. 1 Pa.C.S.A. § 1922(3). The words and phrases used in legislation are to be construed “according to their common and accepted usage” with technical words to be given their technical meaning. Id. § 1903(a). Furthermore, the No-Fault Act is among those enactments which are to be construed liberally. Id. § 1928.

To ascertain the intent of the legislature, we look first to the findings and purposes set forth in the Act itself. The General Assembly specifically declared that “the maximum feasible restoration of all individuals injured ... in motor vehicle accidents ... is essential____” The Act further states that “it is hereby declared to be the policy of the General Assembly to establish ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims ....” Restoration of victims by providing basic loss benefits includes assuring “every victim ... recovery of a reasonable amount of work loss.” Of course, we are not free to determine on our own the scope of these terms, but we must follow the guide given by the definitions set forth in the No-Fault Act. Hughes v. Pittsburgh, 379 Pa. 145, 148, 108 A.2d 698 (1954).

Section 103 of the Act sets forth the following pertinent definitions:

“Loss” means accrued economic detriment arising out of the maintenance or use , of a motor vehicle consisting of and limited to, allowable expense, work loss, replacement service loss and survivor’s loss.
“Loss of income” means gross income actually lost by a victim ....
“Work loss” means:
(A) loss of gross income of a victim as calculated pursuant to the provisions of section 205 of this act; and
(B) [subject to several adjustments not here pertinent].

Section 205 sets forth the method of calculating work loss as follows:

§ 205 Work Loss
(a) Regularly employed.—The work loss of a victim whose income prior to the injury was realized in regular increments shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim sustains loss of income during the accrual period.
(b) Seasonably employed—The work loss of of a victim whose income is realized in irregular increments shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by the number of weeks he normally works; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim was unable to perform and would have performed work during the accrual period but for the injury.
(c) Not employed—The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period.
(d) Definitions—As used in this section: “Probable annual income” means, absent a showing that it is or would be some other amount, the following:
(A) twelve times the monthly gross income earned by the victim from work in the month preceeding the month in which the accident resulting in injury occurs, or the average annual income earned by the victim from work during the years, not to exceed three, preceeding the year in which the accident resulting in injury occurs, whichever is greater, for a victim regularly employed at the time of the accident;
(B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceeding the year in which the accident resulting in injury occurs, for a victim seasonally employed or not employed at the time of the accident; or
(C) the average annual income of a production or non-supervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in injury occurs, for a victim who has not previously earned income from work.
“Work week” means the number of days an individual normally works in a seven-day period; “weekly income” means income earned during a work week.

Finally § 106(a)(1) adds the general rule that benefits are payable monthly as expense and loss accrues. It also provides that “loss accrues not when the injury occurs but as allowable expense, work loss, replacement service loss or survivor’s loss is sustained.”

Further aid is drawn from two cases in which this Court has had an opportunity to apply § 205. In the first, Dorsey v. Harleysville Mutual Ins. Co., 285 Pa.Super. 124, 426 A.2d 1173 (1981), this Court held that a welder, unemployed at the time of his injury in 1975, could collect work loss benefits based upon his average annual income for those three years (1969, 1970 and 1973) in which he had last been employed prior to the accident. In explaining the work loss calculation, Judge Van der Voort mentioned that the calculation was based on the assumption that “... no evidence was introduced by any party to show that the ‘probable annual income’ would be some other amount.” Id., 285 Pa.Superior at 125-127, 426 A.2d at 1174. Thus, at least in dictum, one panel of this Court assumed that the parties to the insurance contract could avoid the impact of the statutory formulas by adducing proof to show a different amount of actual loss.

In the second case, Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982), we observed that “[sjtrict application of the formula set forth in § 205(a) of the Act does not permit Mrs. Mattia to recoup a ‘reasonable amount of work loss’; in fact, it causes an absurd and unreasonable result.” The absurdity in that case was that Mrs. Mattia, who had not drawn a salary from her fledgling business, would have recovered no work loss benefits at all because the statutory formulas had no separate category for a person working and not paid. She would have clearly come within one such category had she not shown any initiative and remained among the unemployed. Therefore, this Court departed from the strict application of § 205 and permitted Mrs. Mattia to recover under § 205(c) and (d)(C) because she “had not previously earned income from work.” Id., 294 Pa.Superior at 583, 440 A.2d at 619. In essence the Court held that the computation of a claimant’s amount of work loss may be based upon events and circumstances that occur subsequent to the date of injury and is not limited to events occurring prior to the accident which resulted in the claimant’s injury.

Furthermore, in other contexts, Hartford’s present argument that the calculation of work loss benefits is to be set at the beginning of the payment of such benefits and not thereafter altered would lead to absurd results. For example, in § 103 of the Act, the definition of loss of income requires deduction for benefits which would have been available from substitute work, whether such work is actually taken or not. Hartford’s argument would require it to refrain from reducing a victim’s work loss benefits even if that victim returned to work. We believe the legislature intended, by its emphasis on actual loss, that such a deduction from loss of income be made whenever a victim unreasonably fails to undertake such substitute work. Realizing then that a victim’s benefits may be reduced after the initial calculation of work loss benefits, there is no reason to hold that a claimant’s benefits cannot be increased by the occurrence of events subsequent to his injury that may result in an actual increased loss of income. The burden on an insurer is no greater in adjusting calculations for an increase than in adjusting for a reduction.

We thus arrive at the conclusion that § 205 is not to be applied in such a rigorous manner that the purposes of the No-Fault Act are lost to sight. Section 205 offers a framework within which each case may be settled or decided. Indeed, the specific language at issue seems especially well adapted to assuring the parties that the special circumstances of their case will not be disregarded in favor of some preordained result. As observed by one commentator:

The statutory definition of [probable annual income] for the regularly, occasionally and never-employed claimant is always subject to proof that in any individual’s case his “probable annual income” is higher or lower____
It is important to recall that the formulas identified in Section 205 for “probable income” are not controlling. There may be a showing that “it is or would be some other amount.” Thus, the high school student injured the summer following his graduation (when presumably he would be entering the full time labor force), would insist that his “probable annual income” was higher than his historic earnings record would disclose. Conversely, the 70 year old housewife injured just prior to a holiday period when, in previous years, she had been employed, might have no “probable annual income” since it would be urged that she would not have performed any work. In every case, counsel must be alert to proof of a higher or lower probable annual income figure than identified under the statutory definition.

Permitting a claimant or insurer to adduce proof that benefits owed are different than those provided under the formulas of § 205 would serve the purposes and effectuate the intent of the General Assembly. Such ah interpretation would insure that benefits were paid only for losses and expenses actually sustained. It would appear that an increase in the minimum wage could conceivably increase that amount which is actually lost if the claimant was employed in an industry to which the minimum wage provisions of the FLSA applied and claimant’s wages would have gone up but for his injuries having kept him out of the work force. See Erie Ins. Exchange v. Route, 279 Pa.Super. 40, 420 A.2d 733 (1980) (victim remains eligible for work loss benefits during strike of former employer because his injuries, not the strike, prevented him from accepting any available work).

Allowing benefits to be affected by subsequent events also comports with the “accrual” policy established by § 106. Instead of attempting to calculate all the possible elements of damages and loss which a victim suffers and paying for them in advance in one lump sum, expenses and losses are paid out by the insurer as they are incurred by the victim. There is no speculation as to what medical attention will be necessary, how much these costs will increase over time nor how much an individual would have earned over his lifetime. The Act’s wait-and-see approach is thus both more definite and more accurate. We conclude that this policy supports permitting the fluctuation of work loss benefits in much the same manner. Indeed, allowing reconsideration of the work loss benefits will prevent unjust enrichment of victims who suddenly “recover” as well as more complete short-term support of those victims who are not so fortunate. To follow appellee’s argument would put victims in a “Catch-22”: they could not claim wages actually lost at the time of the initial calculation of these benefits because the loss had not yet accrued; but appellee would not permit them to claim such losses at any other date because the Act does not specifically allow for a recalculation of work loss benefits. We believe that the No-Fault Act requires recalculation of benefits, when requested by the claimant, based upon the twin principles of accrual and actual loss, the same being of course, subject to proof. Therefore we hold that, circumscribed by the time limits for claiming and recovering no-fault benefits imposed by § 106 and by the various ceilings imposed upon the amount of benefits payable under § 202, any party to the insurance contract can require an alteration to be made in the payment schedule upon a showing that the claimant’s “probable annual income ... is or would be some other amount” than that previously calculated.

We would be chary of so interpreting § 205 if we believed that such an interpretation would substantially clog our already overburdened judicial system. For several reasons, however, we do not believe we have opened the floodgates. The No-Fault Act contains heavy interest and attorney’s fees provisions which should act to inhibit the assertion of unmeritorious claims. Furthermore, in cases of greater merit, it would appear that the statute casts upon the party wishing to depart from the standard formula the burden of showing the propriety of such departure. These claims necessarily concern events which either did not or will not occur. Thus, the ephemeral quality of the issue is itself a substantial barrier to the success of such a claim. To insure that such claims are not based upon bare assertions and speculation, courts could rightfully subject the proof in cases such as these to close scrutiny.

We wish to emphasize that we do not decide whether the General Assembly intended to provide for indexing work loss benefits to the cost of living. Rather, we decide only that an increase in the minimum wage may provide an opportunity for a claimant to show that his or her “probable annual income ... is or would be some other amount” than that provided by statutory formula. However, we do not mean to imply that the minimum wage mandated by the Fair Labor Standards Act is an automatic floor on the amount of work loss benefits payable to a victim. As we. stated above, an amount other than that prescribed by formula must be “shown” with the burden of making that showing placed squarely on the shoulders of the party seeking the adoption of that other amount.

Having stated this much, however, we must still explore the proper disposition of this appeal. In light of the foregoing discussion, we believe that an injunction will not lie. Appellants have merely alleged that Hartford owes additional benefits. We have stated, in many different ways, that this issue is not etched in stone. The insurer may yet return with proof that the FLSA does not apply or that Mr. Goebel would not have been working quite so many hours or that he would not have been working at all. Furthermore, Hartford is. not precluded from bringing such proof forward at a later time. We, therefore, conclude that the trial court properly sustained Appellee Hartford’s preliminary objection pursuant to Pa.R.C.P. No. 1509(c) that plaintiff’s remedy is one at law.

This determination does not end the matter, however, for Rule 1509(c) requires that if such a preliminary objection is sustained, “the court shall certify the action to the law side of the court.” Because we have ruled that the trial court erred in concluding that, as to Louis Goebel, the complaint fails to state a cause of action, it was also error not to transfer the action to the law side.

The order of the trial court is affirmed insofar as it dismissed the complaint as to Helen Goebel and insofar as it sustained Hartford’s preliminary objection as to the adequacy of a remedy at law. That part of the order dismissing the complaint as to Louis Goebel for failure to state a cause of action is reversed and the case is remanded for the entry of an order transferring the case to the law side for further proceedings not inconsistent with this opinion.

Jurisdiction is relinquished.

      . Act of June 19, 1974, P.L. 489, No. 176, Art. 1, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq. (Supp.1982-83).

      . Act of June 25, 1938, c. 676, § 1, 52 Stat. 1060, as amended, 29 U.S.C.A. § 201 et seq. Section 6 of the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 206, provides in relevant part:
      (a) Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:
      (1) not less than $2.65 an hour during the year beginning January 1, 1978, not less than $2.90 an hour during the year beginning January 1, 1979, not less than $3.10 an hour during the year 1980, and not less than $3.35 an hour after December 31, 1980 ----

      . The exact dates are not disclosed.

      . The complaint alleges that Mr. Goebel was not subject to any income tax levy due to his age and the size of his income. Neither detail is provided. But because we accept this averment as true, we have no reason to discuss the application of § 206(b) of the No-Fault Act, 40 P.S. § 1009.206(b) (Supp. 1982-83), dealing with the deduction of tax savings from the benefits received.

      . 40 P.S. § 1009.106(a)(2) (Supp.1982-83).

      . Id. § 1009.107.

      . Id. § 1009.202(b)(2).

      . 1 Pa.C.S.A. § 1501 et seq. The legislative history is also of no assistance on this point because § 205 was passed apparently without recorded debate. The legislative history for the No-Fault Act is collected in D. Schrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act, Appendix B, pp. 311-502 (1979) [hereinafter cited as Schrager, Pa. No-Fault Act ].

      . 40 P.S. § 1009.102(a)(3) (Supp. 1982-83).

      . Id. § 1009.102(b).

      . Id. § 1009.102(a)(6).

      . Id. § 1009.103.

      . “Loss of income" is also subject to certain reductions not here relevant.

      . 40 P.S. § 1009.106(a)(1) (Supp. 1982-83).

      . Schrager, Pa. No-Fault Act, §§ 1:9.1 and 1:9.2, pp. 86-87, 90.

      . See the definition of “Loss of income," quoted above at text accompanying n. 13.

      . The trial court observed that it "doesn’t make much difference [because] ... in 8.04 years [appellant] will get it all anyway.” However, we note that the value to the claimant of the $15,000 maximum work loss recovery decreases as the period over which it is paid increases. We believe it best left to the parties involved to assess their own needs and desires and to decide whether the risk of extra cost in bringing suit offsets the opportunity to obtain the benefits at an earlier date or, in the case of an insurer, whether those costs outweigh the opportunity to retain the funds for a longer period of time.

      . 40 P.S. § 1009.106(a)(2) (Supp.1982-83).

      . Id. § 1009.107.

      . Our disposition of these issues renders it inappropriate for us to pass upon Mr. Goebel's claim for interest and attorney's fees. Resolution of these claims should be made in the first instance by the trial court after resolving Mr. Goebel’s primary claim for benefits.


author: POPOVICH, Judge:

text:
    458 A.2d 219
    COMMONWEALTH of Pennsylvania, Appellant v. Louis McCLOUD.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1982.
    Filed March 18, 1983.
    Petition for Allowance of Appeal Denied Aug. 1, 1983.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Ronald Allan Smith, Philadelphia, for appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from an Order granting a new trial to appellee, Louis McCloud. Appellee was arrested on February 10, 1947, and charged with twenty-four (24) robberies and two (2) auto thefts. Appellee pleaded guilty to two (2) armed robberies and was sentenced to a term of fifteen (15) to thirty-five (35) years imprisonment. Mr. McCloud filed no post-verdict motions and did not take a direct appeal from judgment of sentence. On June 27, 1979, thirty-two (32) years after having been sentenced , Mr. McCloud filed a pro se writ of habeas corpus. Subsequently, court-appointed counsel filed an amended P.C.H.A. petition alleging, inter alia, that appellee’s trial counsel was constitutionally ineffective in failing to attempt to suppress an involuntary confession, in failing to inform appellee of his right to appeal and his right to free counsel on appeal, and for representing both appellee and a co-defendant thus creating a conflict of interest.

The court below conducted hearings on the amended P.C.H.A. petition, and heard the testimony of appellee, his trial counsel, and trial counsel for a co-defendant who had pleaded not-guilty. At the conclusion of testimony and argument, the P.C.H.A. court granted Mr. McCloud’s petition for relief and ordered a new trial.

The Commonwealth has filed this appeal from the lower court’s order, alleging that by pleading guilty appellee waived his right to attack his sentence collaterally on the grounds that his confession was involuntary, and that, because of his thirty-two (32) year delay in seeking relief and his admission of guilt while testifying at the trial of a co-defendant, appellee should be barred from relief by the equitable doctrine of laches.

We find merit in the Commonwealth’s first contention and, accordingly, reverse the lower court’s grant of post conviction relief. Because of our disposition of this appeal, we do not reach the Commonwealth’s second contention of error.

The prosecution contends that the PCHA court granted appellee relief on a waived claim “despite [appellee’s] waiver of the confession issue when he pled guilty in 1947.” Brief for Appellant at 7. In examining whether a defendant may collaterally attack his guilty plea, we have said the following:

“Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court.” Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Accord, Commonwealth v. Chumley, 482 Pa. 626, 639-40, 394 A.2d 497, 504 (1978), cert. denied 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979).

Under 42 Pa.C.S.A. § 9544(b) of the Post Conviction Hearing Act, an issue is waived if:

“(1) the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.”

Section 9544(c) provides:

“There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”

In the instant case, the only issue properly preserved is whether counsel is ineffective for failing to inform appellee of his right to a direct appeal and of his right to free counsel for purposes of effectuating the appeal. This issue is not waived because an allegation of counsel’s ineffectiveness in failing to appeal a ruling constitutes an extraordinary circumstance. See Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978).

The other issues appellee raises concern whether his trial counsel was ineffective for failing to suppress an involuntary confession and for representing both appellee and a co-defendant thus creating a conflict of interest. However,

“Appellant’s claims of ineffectiveness must be evaluated in the context of his guilty plea____ Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976).” (Emphasis added) Commonwealth v. Chumley, supra, 482 Pa. at 639-41, 394 A.2d at 504-5.

In the case before us, appellee has failed to allege that his counsel incompetently caused him to enter an “involuntary or unknowing plea,” id,., thus, the issues concerning the illegal confession and conflict of interest are waived.

However, because of the serious and unusual circumstances presented by this case, and because the PCHA court has completed the record for appellate review, we address the merits of these waived claims. To do otherwise would not be in the interest of judicial economy since it is clear from the record that a subsequent PCHA petition alleging the ineffectiveness of PCHA counsel below would be fruitless.

In the proceedings held below, the PCHA court conducted extensive evidentiary hearings and granted appellee relief. The court did not address the waiver issue below but instead held that:

“The testimony offered at petitioner’s hearing establishes convincingly that the violations of his constitutional right to due process under the Fourteenth Amendment by the police in eliciting his statement were so aggregious [sic] as to negate the voluntariness of that statement. As we have noted earlier, petitioner’s decision to plead guilty to the charges was based in part on the existence of this statement. This basic violation of petitioner’s right to due process warrants granting a new trial.” Lower Court Opinion at 5.

Our Supreme Court has reiterated the current state of the law on this issue:

“[I]n order successfully to attack a guilty plea in a P.C.H.A. proceeding on the ground that it was the product of an involuntary pre-trial confession, one must demonstrate all of the following: ‘(1) an involuntary pre-trial confession ...; (2) that the guilty plea was primarily motivated by [the confession]; and, (3) that [appellant] was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial.’ Commonwealth v. Marsh, 440 Pa. 590, 593, 271 A.2d 481, 483 (1970)” (emphasis in original) Commonwealth v. Miller, 494 Pa. 229, 236-37, 431 A.2d 233, 236. See also, Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967).

Thus, it is clear that a collateral attack of a guilty plea must fail if less than all three of the above criteria are met. See Commonwealth v. Williams, 485 Pa. 137, 140-41, 401 A.2d 331, 333 (1979) (“appellant’s guilty plea was not primarily motivated by his confession.”); Commonwealth v. Miller, supra 494 Pa. at 236-37, 431 A.2d at 236 (1979) (“even assuming arguendo that appellant’s confession was involuntary, he never attempted to prove at the PCHA hearing that his guilty plea was primarily motivated by the allegedly involuntary confession____ [also] the record adequately reflects that counsel’s decision [, a recommendation that appellant plead guilty,] was made in an attempt to avoid appellant’s likely conviction of first degree murder and a sentence of death or life imprisonment.”); Commonwealth v. Maute, 263 Pa.Super. 220, 397 A.2d 826 (1979) (“Because we conclude appellant has not shown that his confession was in fact involuntary, we do not decide whether the remaining criteria have been satisfied.”); Commonwealth v. Farrington, 270 Pa.Super. 400, 405-06, 411 A.2d 780, 782 (1979) (“For the foregoing reasons appellant has failed to prove all three requisites to successfully collaterally attack his guilty pleas.”)

The PCHA court found that the testimony offered was sufficient to establish that appellee’s signed confession was the product of beatings by the police. A thorough review of the record clearly supports this finding. Thus, the first of the three requirements to a successful guilty plea attack has been satisfied.

Our next consideration is whether the involuntary confession was the primary motivation behind the guilty plea. The reason that a defendant launching a successful collateral attack on a guilty plea, in addition to proving that his confession was involuntary, must prove also that the guilty plea was motivated primarily by the confession and that the defendant was advised incompetently by counsel to enter a plea of guilty has been stated in the following manner:

“Conviction after a guilty plea is based not on evidence in the hands of the Commonwealth, including a pre-trial confession, but rather on a defendant’s admission in open court that he committed the crime. The existence of an involuntary confession does not, in itself, prove that a defendant did not have the opportunity to make a reasonable choice, and thus it cannot, in itself, establish that the plea was not intelligently and knowingly entered.”
Commonwealth v. Miller, supra 494 Pa. at 236-37, 431 A.2d at 236.

Appellee testified that he pleaded guilty for a number of reasons: (1) his attorney told him that the judge would be lenient toward him since he had never been convicted before (N.T. p. 78); (2) the detectives, after beating him and holding him incommunicado for eight days, said they would “give him a hand,” (N.T. p. 67); and (3) because “I was beaten and scared and frightened.” (N.T. p. 68) It is apparent from this testimony that appellee pleaded guilty because he was beaten and, also, because his attorney advised him that a guilty plea would mean a more lenient sentence.

The court below did not go so far as to say that the primary motivation behind appellee’s guilty plea was the beating and subsequent involuntary confession. The PCHA court granted relief because “[Petitioner’s decision to plead guilty to the charges was based in part on the existence of this [involuntary] statement.” (emphasis added) Lower Court Opinion at 5. It is clear that the court erred by granting relief on the basis of this “in part” standard. However, it is also obvious from the record that appellee did not prove any more than what the PCHA court found, that the guilty plea was motivated in part by the involuntary confession.

In Commonwealth v. Garrett, supra, our Supreme Court discussed the primary motivation issue:

“The mere existence of an involuntary confession, however, is not sufficient to invalidate a guilty plea for the petitioner would still have to prove that the involuntary confession was the primary motivation for his plea of guilty. Brown v. Turner, 257 F.Supp. 734, 738 (E.D.N.C. 1966); see Gilmore v. People of State of California, 361 F.2d 916 (9th Cir.1966). When a defendant enters a guilty plea, the Commonwealth in justified reliance upon that plea frequently does not preserve all the evidence it has assembled against the defendant. Thus a contrary rule would encourage an obviously guilty defendant to enter a plea in the hope that it could be set aside as coerced, at a later time when the evidence against him would have disappeared and witnesses to the crime will be unavailable.
There are, moreover, many reasons, other than the existence of the confession, which may influence the defendant’s decision to plead. For example, he may view it as a first step towards his rehabilitation, he may believe the Commonwealth has sufficient evidence to convict him without the confession, he may wish to avoid the glare of publicity of a jury trial and save his family from the resulting embarrassment, or he may simply hope for a more lenient sentence.”
Commonwealth v. Garrett, supra 425 Pa. at 597-599, 229 A.2d at 925.

The Commonwealth argues that appellee has coyly waited through repeated incarcerations and parole violations until the Commonwealth could not again prove his guilt. Brief for Appellant at 13. In the proceedings below, the Commonwealth showed that its witnesses in the case are dead, otherwise unavailable, or simply cannot be identified because its file and the court’s records are no longer in existence. (N.T. pp. 11-12, 63-64, 70,103-104). This Court, in reviewing the trial of one of appellee’s co-defendants, William Roberts, stated that “when testimony was being taken on the pleas of guilty of the other defendants, they again exonerated the appellant.” Commonwealth v. Roberts, 161 Pa.Super. 548, 55 A.2d 577, 579 (1947). Although such testimony would undoubtedly shed light on the issues before us, it is now missing from the record. Because most of the record in this case no longer exists, it is not possible to ascertain if appellee pleaded guilty primarily because of the involuntary confession or because the evidence, even without the confession, was sufficient to convict him, or because he simply hoped for a more lenient sentence.

Appellee testified that his counsel told him that the Commonwealth had “a lot of evidence” against him. (N.T. p. 31). However, counsel testified that the fact that a statement had been made, even though involuntary, would have been a factor behind advising a guilty plea since most involuntary confessions were not suppressed in 1947. (N.T. p. 87). How important this confession was to the Commonwealth’s case is unknown.

Subsequent to entering his guilty plea, appellee testified at the trial of William Roberts. Although called as a Commonwealth witness, appellee, after admitting having pleaded guilty to a number of robbery charges, when asked if Mr. Roberts acted with him in the holdup of a second hand automobile place, stated that he (appellee) had taken part in the robbery but that Mr. Roberts had not been involved. (N.T. Trial of William Roberts, April 23 & 24, 1947, pp. 23, 24). A subsequent admission in court to involvement in a crime to which one had earlier pleaded guilty might be considered as evidence that the earlier guilty plea was not primarily motivated by an involuntary confession. However, in this case, the robberies to which appellee pleaded guilty do not coincide with any crime subsequently admitted to during the Roberts trial.

The burden of proof in a PCHA hearing is on the petitioner. Commonwealth v. Conley, 243 Pa.Super. 295, 298, 365 A.2d 858, 860 (1976). In this case, it appears that several factors motivated appellee to plead guilty. The conclusion drawn by the PCHA court that appellee’s decision to plead guilty was based “in part” on the involuntary confession is the only possible conclusion to be derived from the facts. Although we are appalled at the circumstances surrounding appellee’s arrest, we are constrained by well settled law. Appellee knew that a plea of guilty would probably get him a more lenient sentence. He also knew that a major piece of evidence against him was the confession. Even if, due to criminal procedures in 1947, the involuntary statement could not have been suppressed, appellee may have pleaded guilty primarily because he knew he was guilty and wanted to pay his debt to society by serving a lenient sentence. Moreover, appellee does not assert his innocence on this appeal.

However, even if we assume that appellee could prove that his primary motivation in pleading guilty was the involuntary confession, we could not find that appellee was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial. Appellee argues that his trial counsel was ineffective for failing, pre-trial or post-trial, to suppress appellee’s confession or bring it to the attention of a jury or have it reviewed by an appellate court.

“[Bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967). Appellee’s trial counsel testified that he had no personal recollection of representing appellee, apparently because of the 34 year time lapse. However, counsel testified that his practice was not to allow a defendant to plead guilty “unless he admitted to me facts which would constitute the crime with which he was charged.” (N.T. p. 84). Further, counsel testified that in 1947 there were no motions to suppress, and in most cases the confession would be submitted to the jury, subject only to what evidence could be shown regarding its involuntary nature. (N.T. p. 86).

Although appellee’s co-defendant, William Roberts, stood trial and had his conviction reversed by this court on direct appeal, Commonwealth v. Roberts, supra, albeit not on the grounds of an involuntary confession, the determination of counsel’s effectiveness is in no way dependent upon this defendant’s satisfaction with the result. Commonwealth v. Garrett, supra 425 Pa. at 601-03, 229 A.2d at 927. Mr. Roberts’ attorney, Louis Lipschitz, testified that he had attempted to have an involuntary confession (which had been prepared by appellee for Mr. Roberts’ signature) suppressed before Mr. Roberts’ first trial. The judge did not suppress it even though Mr. Roberts’ testimony as to severe beatings by the police was corroborated by a prison physician and the physician’s associate. According to the factual accounting recorded in Commonwealth v. Roberts, the trial judge stated that “Except for defendant’s own testimony, there was no evidence that he had suffered any physical abuse until after he had joined in making and signing the statement or confession.” Further, the trial judge offered that the injuries for which Mr. Roberts was treated at the county prison may have been received “at the hands of one or more of the other defendants.” Commonwealth v. Roberts, supra 161 Pa.Super. at 552-54, 55 A.2d at 579. This Court, in ordering a new trial, could not account for the above statements of the trial judge, finding his suggestions “highly improbable” in view of the fact that the defendants were confined in separate police stations until after the police officers had completed their investigation. Nevertheless, this Court agreed “that defendant’s evidence on the subject was not so clear or convincing as to warrant the exclusion of the confession from the jury.” Id. Therefore, despite pretrial review (at the preliminary hearing Mr. Lipschitz attempted to pull the clothes off of his client in order to show the court his bruises) and review by the Superior Court after trial, Mr. Roberts’ confession, which was elicited in the very same manner as appellee’s confession, could not be suppressed and was presented to the jury. This scenerio clearly corroborates the testimony of appellee’s trial counsel concerning the law on suppression motions in 1947. It was not until Mr. Roberts’ second trial that Mr. Lipschitz found a newspaper photograph, which, when enlarged, depicted the defendants’ bruises and impeached the testimony of a police detective who had interrogated Mr. Roberts. Although Mr. Roberts was acquitted after his second trial, the determination of the effectiveness of appellee’s trial counsel is in no way dependent upon the result in a co-defendant’s case. “The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967). Here, in light of the fact that appellee apparently had no prior convictions, and that his confession, even though involuntary, would probably have gone to a jury and very possibly led to a conviction, we find that counsel’s recommendation to plead guilty had some reasonable basis designed to effectuate his client’s interests. To consider the fact that appellee received a very stiff sentence would improperly require the use of hindsight evaluation.

As the PCHA court correctly noted, the allegations of numerous violations of appellee’s rights concern occurrences that substantially predate the landmark United States Supreme Court decisions defining what those rights entail. Presented with the issue of whether a valid guilty plea may be impeached in collateral proceedings by assertions that the plea was motivated by a prior coerced confession, the United States Supreme Court held that:

“It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk or ordinary error in either his or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.” McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 1450, 25 L.Ed.2d 763 (1970).

In Commonwealth v. Miller, supra, our Supreme Court stated, “We have held repeatedly that counsel’s stewardship must be judged in light of the available alternatives in that he cannot be expected to raise motions unsupported by existing law. Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978); Commonwealth v. Logan, supra; Commonwealth v. Alvorado, 442 Pa. 516, 276 A.2d 526 (1971).” Commonwealth v. Miller, supra 494 Pa. at 234, 431 A.2d at 235. We hold that counsel was not ineffective in advising appellee to enter a plea of guilty.

Appellee’s remaining contentions of ineffectiveness of counsel are that he was not informed of his appellate rights and that counsel created a conflict of interest by representing appellee and a co-defendant. Although it did not base its award of a new trial on these grounds, the P.C.H.A. court found that appellee’s counsel had represented several of appellee’s co-defendants, that this was a common practice at the time, as was the failure to advise defendants of their appellate rights.

Appellee’s conflict of interest argument is not supported by the law of this Commonwealth. “[A] defendant must demonstrate that a conflict of interest actually existed at trial, because ‘dual representation alone does not amount to a conflict of interest.’ ... [AJppellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, ‘that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.’ ” (Citations omitted) (Emphasis in original) Commonwealth v. Breaker, 456 Pa. 341, 345, 318 A.2d 354, 356 (1974).

Here, appellee and the other co-defendants represented by appellee’s counsel all pleaded guilty. Appellee argues only that, “Such multiple representation clearly tainted the proceedings and eliminated any possibility of acquittal when counsel advised the appellee and co-defendants to enter a guilty plea.” Brief for appellee at 11. This assertion does not reach the issue of whether, because of his multiple representation, counsel neglected appellee’s case. Appellee’s argument clearly has no merit. '

The PCHA court found that counsel’s failure to advise appellee of his appellate rights was consistent with common practice in 1947. Furthermore, because he pleaded guilty, the only issues appellee could have contested on appeal would be the jurisdiction of the trial court, the validity of his plea, and the lawfulness of his sentence. See Commonwealth v. Skurkis, 465 Pa. 257, 348 A.2d 894 (1975). Appellee had the opportunity to raise these issues in post-conviction proceedings. The same legal standards were applicable to the post-conviction proceedings as would apply on appeal. Since we have determined that appellee’s post-conviction petition is meritless, to remand for an appeal nunc pro tunc is not appropriate. See Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741, 744 (1977).

For the above reasons, we reverse the order of the lower court granting appellee a new trial, and deny appellee’s PCHA petition.

      . The record shows that appellee had been paroled but had been recommitted after several parole violations. (N.T. p. 74).

      . Post Conviction Hearing Act, Act of January 25, 1966 P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S.A. § 9541 et seq.

      . Although we dispose of this case on other grounds, a recent decision by our Supreme Court, per Justice Larsen, Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), would appear to support appellant’s contention that appellee has waited too long in seeking relief. Justice Larsen sets forth various factors to be considered by the PCHA court, including the length of time between the occurrence of the asserted error and the filing of the petition, and the explanation for any delay. Alexander, supra, 495 Pa. at 34-35, 432 A.2d at 186.

      . As was stated previously, William Roberts pleaded not guilty and was represented by Attorney Louis Lipschitz. Appellee had different counsel and pleaded guilty along with two other co-defendants.


author: WATKINS, Judge:

text:
    458 A.2d 226
    COMMONWEALTH of Pennsylvania v. Thomas J. SCHILLING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 16, 1981.
    Filed March 18, 1983.

      Ronald R. Pellish, Pottsville, for appellant.
    Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE  and WATKINS, JJ.

       DiSalle, J. did not participate in the consideration or decision of 'this case.

   WATKINS, Judge:

Appellant, Thomas J. Schilling was convicted by a jury of three violations of the Controlled Substance, Drug, Device and Cosmetic Act. At Information No. 179 of 1979 on the charge of Delivery of a Controlled Substance, he was sentenced to pay the costs of prosecution, to undergo partial confinement in Schuykill County Prison for not less than three nor more than twelve months, and to pay a fine of $2,000.00. Sentence on Information No. 278, which included charges of Possession and Possession with Intent to Deliver, was suspended. Appellant now appeals his judgments of sentence on multiple grounds. We affirm.

Appellant argued for suppression of approximately 90 grams of marijuana which were seized by state troopers from appellant’s car pursuant to a search warrant on April 11, 1979. His Suppression Motion was denied. Trooper Peter Zuber received information on April 10, 1979, from two fifteen year olds that on the day before, they had purchased a quantity of marijuana from appellant Thomas J. Schilling, also known as “Squeaky”. Armed with the information, the trooper presented an application for a Search Warrant for appellant’s car to the District Justice. The probable cause section reads:

That on 10 Apr 79 Todd M. SLAKOPER, of 266 W. Phillips St. Coaldale, Pa. informed the affiant that he was with Timothy S. KEER, on 9 Apr 79 in the above mentioned vehicle in Coaldale Boro., and did see Thomas “Squeaky” SCHILLING take marijuana from the glove compartment of this vehicle and did sell same to Timothy for $35.00. That on 10 Apr 79, Timothy S. KEER, 41 High St., Coaldale, Pa. did inform the affiant that he got into the vehicle mentioned above on 9 Apr 79 in Coaldale, Pa. sometime about 8:00 P.M. and did in fact see SCHILLING take from the glove compartment some marijuana which he sold to him for $35.00 and that he seen him put some more marijuana back into this glove compartment. And that the affiant believes this information from both persons to be reliable, true and honest and correct. And that the affiant (sic) that there is still some more marijuana and drugs in this vehicle.

The District Justice noted in granting the application that the warrant should be served no later than 10:00 P.M. on April 11, 1979. The date of application is specified as April 11, 1979. However, the District Justice neglected to enter the date and time of issuance of the warrant.

Appellant argues that the evidence should have been suppressed because the omission of the date and time of issuance rendered it illegally drawn, because the affidavit lacked sufficient underlying circumstances to amount to probable cause for a search, and because the information in the warrant was stale.

Pa.R.Crim.P. 2005 requires that a search warrant specify date and time of issuance. The omission of the date and time of issuance of the search warrant will be considered fatal only if it deprives this Court or the suppression court of the ability to review the propriety of the issuance and execution of the warrant. Commonwealth v. Chinea, 246 Pa. Superior Ct. 494, 371 A.2d 944 (1977); Commonwealth v. Swint, 256 Pa. Superior Ct. 169, 389 A.2d 654 (1978); Commonwealth v. Hamlin, 302 Pa. Superior Ct. 86, 448 A.2d 538 (1982). Pa.R.Crim.P. 2005 has not been interpreted in such a hypertechnical manner so as to equate all errors to be violative of one’s Fourth Amendment rights. In this case, because both the date of application and the limiting date of execution of the warrant were April 11, 1979, we conclude without looking beyond the four corners of the warrant, that the date of issuance also was April 11, 1979. This conclusion is inescapable in light of the clear principle that “searches conducted pursuant to warrants are to be favored over warrantless searches and thus ‘... must be tested with a commonsense, nontechnical, ungrudging and positive attitude____’” Commonwealth v. Conner, 452 Pa. 333, 340, 305 A.2d 341, 345 (1973); Commonwealth v. Wilds, 240 Pa. Superior Ct. 278, 286, 362 A.2d 273, 277 (1976) in Commonwealth v. Hamlin, supra, 302 Pa. Superior Ct. at 93, 448 A.2d at 542.

Appellant contends that probable cause to believe that the marijuana would be found in his car was lacking because the issuing authority was not provided with reasons why the marijuana was still in appellant’s car, nor with reasons supporting the credibility of the reporting witnesses.

We find these contentions to be utterly without merit. The affidavit clearly explains that the affiant received information on April 10, about a drug sale on April 9 which occurred in appellant’s car with appellant as the seller and that the marijuana was taken from the glove box. The two informants were named, and one stated that appellant placed more marijuana back into the glove box.

Applying the standards of Aguilar/Spinelli to this case, the underlying circumstances supporting how the informants knew about the marijuana are apparent; further, the informants are named eyewitnesses, one of whom actually purchased marijuana. Because the informants were not paid, unknown tipsters, but actual identified eyewitnesses to the transaction, their trustworthiness is presumed. Commonwealth v. Frazier, 269 Pa. Superior Ct. 527, 410 A.2d 826 (1979). Additionally, the fact that Timothy Keer admitted buying the marijuana from appellant weighs in favor of his trustworthiness, since it is a declaration against his own interest. Commonwealth v. Ambers, 225 Pa. Superior Ct. 381, 310 A.2d 347 (1973).

Finally, we find that a search warrant executed approximately thirty-six hours after the transaction during which the marijuana was placed in the glove box of the car is not so remote as to render the information on which it is based stale. Commonwealth v. Terra, 292 Pa. Superior Ct. 250, 437 A.2d 29 (1981); Commonwealth v. Toner, 289 Pa. Superior Ct. 200, 433 A.2d 25 (1981). Accordingly, we agree with the suppression court’s findings.

Appellant attacks the sufficiency of the evidence for his convictions of Possession with Intent to Deliver and for Delivery. Appellant specifically refers to the equivocal nature of the testimony of the two young witnesses who also provided the probable cause for the search warrant. While we note that they were unwilling or unable to state at trial that appellant, and not the unknown passenger in the front seat, took the money and passed back the marijuana, what they did testify to and the reasonable inferences therefrom do support appellant’s conviction of delivery to them.

Testimony established that appellant was driving his car down the street in Coaldale when the two young men began to chase it to gain appellant’s attention. When they caught up to appellant, his passenger had gone into a store and appellant was waiting for him in appellant’s car. Keer knocked on appellant’s window and asked if he had any pot for sale. They were invited into the car by appellant. With the two juveniles in the back seat and the now-returned passenger in the front, appellant drove to an isolated location. Neither witness would say that they actually saw appellant hand Keer the pot, however, both said that any conversation regarding cost of the sought-for material was carried on by appellant. In addition, there was no testimony at trial that any conversation occurred between appellant and his passenger indicative of why the young men were in the car when the passenger came out of the store. They also testified that the marijuana came from an area near the glove compartment. The testimony was uncontroverted that the car was registered to appellant. Therefore, the evidence was sufficient to convict appellant of Delivery of a Controlled Substance.

Regarding appellant’s sufficiency argument on his conviction for possession with intent to deliver, evidence of a recent sale of marijuana from the same car from which the 90 grams were seized was presented to the jury. We believe that this circumstance presented the jury with sufficient evidence from which it could reasonably infer that the 90 grams which appellant admitted were his, were indeed possessed by him with an intent to distribute, and not merely for his own personal use. In Commonwealth v. Golden, 277 Pa. Superior Ct. 180, 419 A.2d 721 (1980), this court, although reversing appellant’s conviction for failure of police to “knock and announce,” found the evidence was sufficient to convict appellant of possession with intent to deliver marijuana. Thirty-four tie sticks of marijuana valued at $680 were found in appellant’s apartment; but the Court found sufficient evidence in the fact that earlier the same evening as the search, appellant had sold two tie sticks of marijuana. So also in this case.

Appellant next argues that he was prejudiced by the consolidation of the two informations for trial. Appellant’s Motion for Severance was denied after a hearing. Only if the court abused its discretion by this denial resulting in prejudice to appellant, will we reverse its decision. Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975).

Because we feel the lower court decided correctly to let the informations be tried together, we affirm its decision. The court, in tracking the analysis of Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), found that the offenses all arose from the same set of facts and circumstances, and that the two incidents—the actual sale to the juveniles and the subsequent seizure—were not complicated. Basically, this analysis is contained in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981) in which the Supreme Court found that if evidence from the separate cases would be admissible in each trial and if the facts are separable by a fact-finder, then consolidation of them is proper. In this case, the same evidence would be admissible in each trial. In a trial on the delivery charge, evidence of the subsequent search and seizure would be admissible to prove identity of appellant and his possession of the marijuana and ownership of the car. It would also serve to corroborate the two juveniles’ testimony. In a trial for possession and possession with intent to deliver, evidence of the prior delivery would be necessary to provide the probable cause for the search and to show the element of intent for possession with intent to deliver. The facts of each were separable by a jury so that they would be prevented from cumulating the evidence erroneously. Therefore, the motion for severance was properly denied.

Appellant next argues that reversible error was committed because the Commonwealth was permitted to cross-examine him concerning his statements to police and his alibi defense. Our review of the record convinces us that appellant suffered no implication of his Fifth Amendment rights at trial with regard to inquiries by the prosecutor into appellant’s alibi witnesses. On each occasion except one, appellant’s attorney objected to inquiries of his alibi witnesses and whether they testified at the preliminary hearing. Appellant’s objections were all sustained, except for an inquiry of one Francis McHugh regarding whether he appeared at the preliminary hearing. However, after a request by appellant’s attorney, the court gave the jury a cautionary instruction about the purpose of a preliminary hearing. We feel this cured any misconception which the Commonwealth’s attorney may have caused by his cross-examination. Commonwealth v. Zellner, 268 Pa. Superior Ct. 59, 407 A.2d 436 (1979).

However, the assistant district attorney did ask appellant if he told the police about his alibi witness on the day he was arrested to which appellant answered, “No.” Counsel for appellant made no objection to the question and cannot raise an issue now on appeal, absent preservation of it at trial. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981).

Finally, because we have found that the evidence was sufficient to convict appellant of Delivery of a Controlled Substance, we need only comment that appellant’s argument that his conviction as the “deliverer” was mere conjecture, is not supported by the evidence.

Accordingly, we affirm.

      . 35 P.S. 780-101 et seq.

      . The court reduced this amount to $500.00 following a Motion to Modify Sentence.

      . The trooper was called by the sister of one of the juveniles who upon discovering that money was missing from their grandmother’s purse, elicited from her brother that he had taken the money to buy marijuana.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . When reviewing sufficiency claims, we must view the evidence in a light most favorable to the verdict winner, and accept as true the evidence and the inferences deducible therefrom, which if believed, could have supported the jury’s verdict. See Commonwealth v. Roberson, 485 Pa. 586, 403 A.2d 544 (1979); Commonwealth v. Horton, 485 Pa. 115, 401 A.2d 320 (1979).

      . Appellant took the stand in his own behalf and denied selling the' marijuana to Keer. He admitted that he purchased the marijuana just prior to its seizure and after the alleged sale to the juveniles, and asserted that the substance was for his own consumption alone.

      . The lower court premised its decision on its finding that the instant situation was analogous to the joinder of offenses in one indictment which is governed by Pa.R.Crim.P. 219(b). We note that Pa.R.Crim.P. 1127, which was specifically created to guide courts in this situation, was made effective only on July 1, 1982, well after this case went to trial.

      . Intent may be proved by “other crimes”. Peterson, supra.

      . Notes of Testimony, at p. 191.