author: POPOVICH, Judge:

text:
    441 A.2d 750
    COMMONWEALTH of Pennsylvania, v. Hans VON ACZEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1981.
    Filed Sept. 18, 1981.
    Commonwealth’s Petition for Limited Reconsideration Denied March 16, 1982.

      Robert Rubin, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   POPOVICH, Judge:

After a non-jury trial held on February 27, 1979, the appellant was found guilty of attempted burglary and possession of an instrument of crime. On the same day, sentence, which consisted of three (3) years probation for the former offense and a concurrent two (2) years probation for the latter, was imposed. On appeal, appellant questions (1) the sufficiency of the evidence, (2) trial counsel’s effectiveness, and (3) the legality of the sentence. We affirm in part; and, because we agree that the sentence imposed was illegal, we vacate judgment as to the possession charge.

Before reaching the merits of appellant’s claims, we need to determine the scope of review to be given this case. Initially, we note that trial counsel dispensed with the filing of written post-trial motions and orally argued the insufficiency of the evidence. More particularly, of the three issues raised on appeal, only the sufficiency question was passed upon by the post-verdict motions court. The second and third issues were not raised in the post-verdict proceedings and not considered by the post-verdict motions court. Nonetheless, we find that said issues are cognizable on appeal. The reason is, as for the effectiveness of counsel issue, inasmuch as it is unrealistic to expect trial counsel to argue his own ineffectiveness, see Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Cooke, 288 Pa.Super. 205, 431 A.2d 360 (1981); Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981), and this being the first occasion in which the appellant is represented by counsel other than whose stewardship is being challenged, we cannot fault him for failing to raise the issue sooner. Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Cooke, supra; Commonwealth v. Jennings, supra. As to the propriety of inquiring into the validity of the sentence, the same result obtains since a question as to the legality of the sentence is never waived, despite the fact that it was not raised in the court below. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1980).

Turning now to the merits of appellant’s claims, we start with the sufficiency of the evidence argument. In evaluating such contention, we must view the facts in a light most favorable to the verdict winner, giving such party the benefit of all reasonable inferences arising therefrom. Then, we ask whether the evidence and the reasonable inferences arising from it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Herman, 271 Pa. Super. 145, 412 A.2d 617 (1979). Guilt does not have to be established to a mathematical certainty, Commonwealth v. Lewis, 276 Pa.Super. 451, 419 A.2d 544 (1980); however, mere conjecture or surmise is not enough either. Id.; Commonwealth v. Lovette, 271 Pa.Super. 250, 413 A.2d 390 (1979).

Examined in light of these principles, the record reveals the following: On August 31, 1978, at approximately 2:00 a. m., Officer Raymond Spraggins of the Philadelphia Police Department received a radio call of a “burglary in progress” at 20th and Walnut Streets in Philadelphia, Pennsylvania. The officer proceeded to 2003 Walnut Street, where he observed the appellant standing a foot from the door of a pet shop. Officer Spraggins walked up behind the appellant, looked over his shoulder and observed him “hunched over the lock, with a screwdriver, prying at the lock on the door.” (N.T. 10) The officer also noticed that a large plate glass window had been broken. The officer removed the screwdriver from appellant’s hand and asked him what he was doing. According to the officer, appellant answered that “he was waiting for a bus.” (N.T. 11) Further, upon closer examination of the entrance, the officer detected that there “was fresh damage to the window of the door” and “marks around the lock and on the door.” (N.T. 12)

At trial, the parties stipulated that if Ms. Peggy Chambers, an owner of the store, were to testify she would have stated that “she did not give [appellant] permission to attempt to enter the store or break the window, and that her partner ... did not either.” (N.T. 8) Appellant, after taking the stand, remarked that on the evening in question he was walking home and sought shelter from the rain in the alcove of the pet shop; when the rain let up, he proceeded on his way. However, upon traveling but a short distance, he “heard a big crash,” returned to the store and noticed that the window had been broken. Before he had a chance to contact the authorities, Officer Spraggins arrived on the scene. Appellant also admitted having the screwdriver in his possession, but denied using it in an attempt to pry open the door to the establishment.

Given the disparity in the accountings of the witnesses, it was for the trier of fact to decide which version was credible. Commonwealth v. Borris, 247 Pa.Super. 260, 372 A.2d 451 (1977). It being within the province of the trier of fact to believe all, part or none of the evidence presented, and to draw all reasonable inferences therefrom, Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981), it is obvious that the trial judge, as the arbiter of fact here, believed the Commonwealth’s witness. In fact, he stated that “after observing the demeanor of the witnesses during the trial, [he] found the testimony of Officer Spraggins to be most credible, while that of Aczel was just not believable.” (Trial Court Opinion at 2) The Court finds no reason to alter the ruling on this point.

Under the Pennsylvania Crimes Code, “[a] person is guilty of burglary if he enters a building . . . with the intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(a). “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” Id. at § 901(a). In charging attempted burglary, the Commonwealth was not required to specify in the indictment what crime the accused allegedly intended to commit. Commonwealth v. Thompson, 274 Pa. Super. 44, 417 A.2d 1243 (1979). However, since the Commonwealth did specify such crime, i. e., theft, it was required to prove the requisite intent for that crime. Commonwealth v. Lewis, supra. Thus, proof of two distinct intents was necessary: the intent to enter the building and the intent to commit theft after entering. Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979).

Appellant submits that because “there was no entry and nothing was taken, although the broken window would have permitted entry,” the Commonwealth failed to establish the intent to commit a theft, and points to Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973) in support of such averment. (Appellant’s Brief at 15) We cannot agree.

Initially, it is to be noted that “[p]roof of intent is often difficult,” and the means by which such element is to be established depends upon the facts of a given case. Commonwealth v. Willetts, 277 Pa.Super. 538, 419 A.2d 1280 (1980). As for the relevancy of Commonwealth v. Stanley, supra, to the case at bar, we find appellant’s reliance thereon to be misplaced. To explicate, in Stanley, a police officer received information to proceed to a particular address. When he was approximately 12, 13 stores away from the location, he observed the accused coming out of the doorway of a store, then walking to a construction site nearby and placing something on a sand pile. The officer apprehended the accused, and upon bringing him back to the scene he noticed that the screen protecting the window in the doorway had been pried away. The officer also checked the sand pile and recovered a screwdriver. Our Supreme Court reversed the conviction for attempted burglary on the basis that:

“there [was] nothing to indicate that [the appellant] used [the screwdriver] to bend back the screen. The record [was] devoid of any evidence connecting appellant with the screen. There was no showing that anyone saw appellant tampering with the window .... [A]lso ... there was no evidence to show that the screwdriver was the instrument which caused the bending of the screen.” Id. 453 Pa. at 471, 309 A.2d at 411.

Stanley is inapposite to the case at hand, for here we have: 1) a radio call received by the arresting officer reporting a burglary in progress, see Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Viall, 278 Pa.Super. 613, 420 A.2d 710 (1980); 2) an eyewitness specifically placing the appellant in the doorway in question, see Commonwealth v. Morgan, supra; Commonwealth v. Gendrachi, 256 Pa.Super. 68, 389 A.2d 604 (1978); and 3) the appellant being observed by the police attempting to pry open the door with a screwdriver. Consequently, the crucial evidence that was absent in Stanley, testimony placing the appellant by the screen of the store, is present instantly. See Commonwealth v. Morgan, supra; Commonwealth v. Wilder, 259 Pa.Super. 479, 393 A.2d 927 (1978); Commonwealth v. Moore, 226 Pa.Super. 32, 311 A.2d 704 (1973); cf. Commonwealth v. Johnson, 272 Pa.Super. 375, 415 A.2d 1246 (1979) (evidence of attempted burglary insufficient, where there was no direct evidence that the police saw appellant touch the door, use the screwdriver, or perform any motions indicating usage).

As for whether the Commonwealth presented sufficient evidence to prove that appellant intended to commit a theft after entering the building, the same result obtains. To begin with, the specific intent required to make out an attempted burglary charge may be found in appellant’s words, conduct or from the attendant circumstances together with all reasonable inferences therefrom. See Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980); Commonwealth v. Nutter, 256 Pa.Super. 111, 389 A.2d 626 (1978).

Appellant argues that evidence of his intent to commit a theft inside the pet shop is negated “due to the nature of the building and his own behavior.” (Appellant’s Brief at 16A) As to appellant’s first point, we have held that attempted entry into a commercial establishment after business hours allows one reasonably to infer that the accused intended to commit a theft therein. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979); Commonwealth v. Corbin, 251 Pa. Super. 512, 380 A.2d 897 (1977). Appellant’s second point, i. e., the fact that he did not flee upon being discovered, is no more persuasive. As we stated in Commonwealth v. Morgan, supra, “[although evidence of flight may be evidence of intent to commit theft, it does not follow that evidence of lack of flight is evidence that the [appellant] did not intend to commit theft.” (Citations omitted) Id. 265 Pa.Super. at 236, 401 A.2d at 1187. Here, appellant was unaware of the presence of the police, as evidenced by his continued “prying” at the door with the officer looking over his shoulder. “In these circumstances, the [trier of fact] could find, appellant’s failure to flee did not show that he was standing by the door with some lawful purpose in mind, but rather that he did not flee because he had no reasonable chance to.” Ibid.

Based on the aforesaid, we conclude that a factfinder would of had no difficulty in determining that the appellant was attempting to enter the pet shop intending to commit a theft. Concomitantly, we find that the screwdriver found in appellant’s possession, which has been held to be a common burglary tool for purposes of criminal possession of burglary tools, Commonwealth v. Jackson, 261 Pa.Super. 355, 396 A.2d 436 (1978); Commonwealth v. Shannon, 244 Pa.Super. 322, 368 A.2d 742 (1976), when taken together with the eyewitness account of his using it against the door of the business, was sufficient to sustain the conviction for possession of instruments of crime. Commonwealth v. Jackson, supra; Commonwealth v. Shannon, supra.

Appellant next complains that trial counsel was ineffective for failing to raise in post-trial motions the inadequacy of the colloquy, conducted by the Assistant District Attorney, in which he waived his right to a trial by jury. The complained of colloquy consists in its entirety of the following:

“MR. ROSS [Assistant District Attorney]: Mr. Aczel, do you understand that you are here today to have a trial on the charges that the Commonwealth brought against you? Do you understand that?
THE DEFENDANT: Yes, sir.
MR. ROSS: Do you understand that you have a right to go to trial on these charges, that you are presumed to be innocent, and the Commonwealth must prove your guilt beyond a reasonable doubt? Do you understand that?
THE DEFENDANT: Yes.
MR. ROSS: There are two types of trials that you could have. One is a jury trial, and one is a trial by the Judge sitting without a jury.
If you chose to be tried by a jury, you would have the right to select, with your attorney, twelve people that would sit in judgment and hear the case, and they would all have to agree that you were guilty beyond a reasonable doubt. Do you understand that?
THE DEFENDANT: Yes, sir.
MR. ROSS: If you were tried by just the Judge sitting without a jury, then the Judge alone would decide whether or not you were guilty. Do you understand that? THE DEFENDANT: Yes, sir.”
(Emphasis added) (N.T. 3—4)

Appellant protests that the preceding does not comport with the standard enunciated in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) for the knowing and intelligent waiver of one’s right to a jury trial, which are: “that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Id., 454 Pa. at 373, 312 A.2d at 600. Appellant avers that, of the three elements considered by the Williams Court to be a sine qua non to the establishment of a valid waiver of one’s right to a jury trial, “the first is absent entirely in the . . . colloquy” conducted in his case. (Appellant’s Brief at 6) We disagree.

In Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (SPAETH, J., dissenting), this Court was confronted with an issue identical to the one raised by the appellant here. In Fortune, the accused asserted that he did not knowingly and voluntarily waive his right to a trial by jury due to the fact that in his colloquy, the court failed to explain that the jury would be chosen from members of the community—from appellant’s peers. The jury waiver colloquy was as follows:

“Q. Mr. Fortune, how old are you?
A. 43.
Q. And do you read and writ and understand the English language?
A. Fairly well.
Q. Do you understand the nature of the charges against you today?
A. Some.
Q. You understand you are charged with rape, forcible rape of the young girl? Do you understand that?
A. Yes.
Q. You understand that you have a right to a trial by jury on those charges?
A. Yes.
Q. And that you would help with your attorney as well as the District Attorney select 12 people that would sit as that jury and all 12 of those people must be convinced beyond a reasonable doubt that you are guilty, before you could be found guilty. Do you understand that?
A. Yes, sir.
Q. Do you understand if one person of that 12 do not feel you were proven guilty beyond a reasonable doubt, you could not be found guilty by that jury?
A. Yes, sir.
Q. You also have a right to waive a trial by jury and have his Honor hear the case without a jury and his Honor must be satisfied that you are guilty beyond a reasonable doubt. How is it you wish to be tried, with a Judge with a jury, or with the Judge without a jury?
A. Without a jury.
Q. By the Judge without a jury?
A. Yes.
Q. Has anybody threatened you or forced you or promised you anything to get you to give up your right to a jury trial?
A. No, sir.
Q. Are you under the influence of any alcohol or narcotic drug at this time?
A. No, sir.”
(Emphasis added) Id., 289 Pa.Super. at 281-82, 433 A.2d at 66-67.

As in Fortune, where the trial court informed the accused that he, with the help of counsel, would “select 12 people that would sit as a jury....,” the appellant in the case sub judice was likewise told that he “would have the right to select, with [his] attorney, twelve people that would sit in judgment and hear the case. .. . ” We can discern no meaningful difference between the verbiage utilized in the two colloquies. As a result, inasmuch as the “lower court’s failure to use the word ‘peers’ or ‘chosen from the members of the community’ in advising appellant of his right to a jury trial d[id] not constitute error[]” In Fortune, supra, 289 Pa.Super. at 290-91, 433 A.2d at 71, a fortiori, we can rule ho differently in the case before us. Thus, we hold that trial counsel was not ineffective for failing to raise the issue of a defective colloquy, since the essential ingredients of a jury trial were explained to appellant in compliance with Commonwealth v. Williams, supra.

Lastly, appellant posits that his conviction for attempted burglary and possessing an instrument of crime is prohibited by 18 Pa.C.S.A. § 906, which provides:

“A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.”

Both of the offenses for which the appellant was found guilty fall within the purview of Chapter 9, of the Crimes Code, the Chapter mentioned in Section 906, and it is apparent in reviewing the facts that both offenses were perpetrated with one objective in mind. Accordingly, appellant’s conviction for attempted burglary and possessing an instrument of crime was improper. Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980); see also Commonwealth v. Tingle, supra.

Given the error committed by the lower court, we have the option to either remand for resentencing, or amend the sentence, directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980); Commonwealth v. Richbourg, 260 Pa.Super. 438, 446 n. 6, 394 A.2d 1007, 1011 n. 6 (1978); Act of July 9, 1976, P.L. 586, No. 142, § 2, June 27, 1978; 42 Pa.C.S.A. § 706 (Purdon’s 1981). As recited earlier in this opinion, the appellant was sentenced concurrently to three (3) years probation for attempted burglary and two (2) years probation for possession of an instrument of crime. Since the sentence for possession obviously did not affect the sentence for attempted burglary, we shall not remand but shall merely vacate the sentence imposed for possession of an instrument of crime as the lesser offense. Commonwealth v. Crocker, 280 Pa.Super. 818, 421 A.2d 818 (1980).

Judgment of sentence for possession of an instrument of crime vacated. Judgment of sentence for attempted burglary affirmed.

      . With the appellant’s consent (N.T. 34), counsel from the public defender’s office opted to argue orally the insufficiency issue at the close of trial—this was enough to preserve this point for review. Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977). However, neither counsel nor judge advised appellant on the record
        that only those grounds presented in such motion could be raised on appeal. Pa.R.Crim.P. 1123(b) & (c)(3). Thus, we cannot say that appellant knowingly and voluntarily waived all but the sufficiency of evidence claim. See Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980). This ruling also undermines the Commonwealth’s contention that the legality of sentence question is waived because it was not raised in post-verdict motions. (Commonwealth’s Brief at 9) See Commonwealth v. Jackson, 280 Pa.Super. 522, 525 n. 4, 421 A.2d 845, 846 n. 4 (1980); Commonwealth v. Turner, 265 Pa.Super. 486, 488-89, 402 A.2d 542, 543-44 (1979); see also Commonwealth v. Anderson, Pa.Super., n.5, (J. 1/81, filed 8/7/81).

      . We note that trial counsel objected, but to no avail, to the legality of sentencing appellant on both offenses (N.T. 31), and cited Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978) (18 Pa.C.S.A. § 906 explicitly barred appellant’s conviction and sentencing for both criminal attempt and possession of an instrument of crime) in support of his position. Nevertheless, the lower court still imposed a sentence for two inchoate crimes in direct violation of 18 Pa.C.S.A. § 906.

      . Attempted burglary is a felony of the second degree, 18 Pa.C.S.A. §§ 3502 & 905, and thus exposed the appellant to a possible term of imprisonment of up to 10 years, id. at § 1103(2). Possession of an instrument of crime is a misdemeanor of the first degree, id. at § 907, carrying a possible term of imprisonment of 5 years. Id. at § 1104(1).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    441 A.2d 756
    The LAUREL NATIONAL BANK, Appellant, v. MUTUAL BENEFIT INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 14, 1980.
    Filed Feb. 5, 1982.

      Edward Peduzzi, Ebensburg, for appellant.
    R. Thomas Strayer, Johnstown, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   PER CURIAM:

The instant appeal comes to us as a result of an order of the lower court awarding appellant, Laurel National Bank (“Laurel Bank”), insurance coverage as mortgagee under one mortgage but denying it coverage on the same property and under the same policy under its second mortgage. Laurel Bank contends that both mortgages should be covered by the insurance policy and that the amount due under the policy should not be limited to its preforeclosure debt.

Laurel Bank filed a complaint in assumpsit against Mutual Benefit Insurance, which case came on for trial before the Honorable Eugene A. Creany in the Court of Common Pleas of Cambria County on May 3,1978, non-jury. On January 2, 1979, Judge Creany entered an order directing that Mutual Benefit Insurance Company pay to the Laurel National Bank the sum of $25,000.00, representing the pre-foreclosure value of the first mortgage. In compliance with Pa.R.C.P. 1088, exceptions were filed, briefed and argued and on June 15, 1979 the exceptions were dismissed en banc.

Laurel Bank took a direct appeal to this court from such order entered on June 15, 1979. Final judgment was not entered.

As we said in Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981):

Orders dismissing exceptions following nonjury trials are interlocutory and nonappealable until judgment has been entered on the docket. See, e.g., Heffner v. Bock, 281 Pa.Super. 345, 430 A.2d 318 (1981); Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). Similarly, orders dismissing post-trial motions following jury trials are interlocutory and nonappealable until entry of final judgment. See, e.g., Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super. 562, 424 A.2d 952 (1981). These decisions rest upon Rule 301 of the Pennsylvania Rules of Appellate Procedure, which provides in pertinent part:
(a) Entry upon docket below. No order shall be appealable until it has been entered upon the appropriate docket in the lower court ....
(c) Orders not appealable. A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, or a direction that a verdict of a jury be recorded or entered, or an order denying a motion for a new trial, does not constitute an appealable order. Any such order shall be reduced to judgment and docketed before an appeal is taken.

Appellate Rule 301 intermeshes with the provisions of the Rules of Civil Procedure governing post-trial motions practice. For example, all post-trial motions or exceptions must be filed within ten days after the verdict or decision by the court. See Pa.R.Civ.P. 227.1 (jury trials), and 1038(d) (non-jury trials). Together, these rules provide essentially uniform procedural prerequisites for appeals in civil actions at law. See Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, supra 291 Pa. at 404, 435 A.2d at 1289. See also E. J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.Civ.P. 227.1.

Id., 291 Pa.Super. at 430, 435 A.2d at 1302-03.

Appeal quashed.


author: SHERTZ, Judge:

text:
    441 A.2d 758
    COMMONWEALTH of Pennsylvania v. Gary KESSINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Feb. 12, 1982.

      Joseph P. Martone, Erie, for appellant.
    James E. Blackwood, Assistant District Attorney, Erie, for Commonwealth, appellee.

      Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

Appellant, Gary Lee Kessinger, pleaded guilty to five counts of Theft by Deception. In this appeal from judgment of sentence Appellant makes three contentions: (1) the sentencing court abused its discretion in refusing to allow him to inspect the pre-sentence report; (2) he was denied a full and fair allocution as provided in Rule 1405, Pa.R. Crim.P., because of this refusal; and, (3) sentencing counsel was ineffective for failing to place specific objections to the pre-sentence report on the record at the time of sentencing and for withdrawing a motion to vacate the guilty plea prior to a full determination of the merits of the motion. We find no merit in any of these contentions and we therefore affirm the judgment of sentence.

With regard to Appellant’s first assertion, the record simply does not support the contention that the trial court did not act in conformity with the mandates of Rule 1404, Pa.R.Crim.P. or Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), and the ABA Standards Relating to Sentencing Alternatives and Procedures adopted therein. The record reveals that counsel for Appellant was permitted full access to the report as required by the Rules of Criminal Procedure and the ABA Standards. Thus, we reject Appellant’s argument that the trial court abused its discretion in disallowing him personally to review the report for inaccuracies. As the trial court stated to Appellant at the time of sentencing:

Mr. Kessinger, I’ll explain to you further what I said about the presentence report. Your attorney has [been?] provided this and there are matters here that the probation department has developed in their investigation and reevaluation of the case. These are matters that they have worked on, and they have a right to keep confidential. The other matters, I would tell you, the other matters in your background, certainly would not indicate anything detrimental to you.

N.T. Sentencing Hearing at 4—5.

Appellant’s next contention, that he was denied a full and fair allocution pursuant to Rule 1405, Pa.R.Crim.P., is similarly unsupported by the record.

The twenty-four page sentencing transcript indicates that both Appellant and his counsel were permitted to address the court prior to the imposition of sentence so as to afford Appellant a full and fair allocution. See Commonwealth v. Knighton, 251 Pa.Super.Ct. 299, 380 A.2d 789 (1977). In addition, the court below read the extensive materials which Appellant had submitted in his own behalf. N.T. Sentencing Hearing at 19. We therefore conclude Appellant was not denied his allocution rights.

Appellant’s final argument alleges ineffectiveness of trial counsel on two grounds: failure to object to the presentence report at the time of sentencing and failure to seek a full determination of the merits of the motion to vacate the guilty plea. Insofar as the first of these assertions is concerned, it is without merit. We agree with the Commonwealth that appellate counsel has not specified in what respect sentencing counsel was ineffective for placing no specific objection to the pre-sentence report on the record. As this Court stated in Commonwealth v. Smith, 250 Pa.Super.Ct. 537, 378 A.2d 1278 (1977):

[R]ule 1404(a)(2) permits appellate counsel to see the report; he is, after all, “counsel for the defendant.” Consequently, if appellate counsel wishes to argue before us that counsel at the sentencing hearing was ineffective for failing to dispute a presentence report, he must examine the report and then set out in his brief in what respect he contends the report prejudiced his client.

Id., 250 Pa. at 543, 378 A.2d 1282. Appellate counsel asserts trial counsel “though aware of possible inaccuracies in and of Appellant’s displeasure with the report, did not rebut or object to it or any portion.” Brief for Appellant at 20. Nowhere, however, does appellate counsel particularize inaccuracies in the report nor does he specify in what respect the report prejudiced Appellant. Appellate counsel’s generalized, conclusory allegations of ineffectiveness of counsel at sentencing are insufficient under Smith.

Finally, the allegation that sentencing counsel was ineffective for withdrawing the motion to vacate Appellant’s guilty plea without a hearing is also without merit. Appellant was sentenced on February 25, 1980. Subsequent to sentencing, on March 3, 1980, counsel filed a motion to withdraw the guilty plea but withdrew same prior to oral argument.

In order to determine whether counsel’s assistance was effective, we must be “able to conclude the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). [Emphasis in original.] However, counsel cannot be found ineffective for failing to assert a meritless claim. Only when an abandoned claim is of arguable merit must we inquire into counsel’s basis for not pursuing it. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Commonwealth v. Weathers El, 485 Pa. 28, 31, 400 A.2d 1295, 1297 (1979). See also Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980) (counsel cannot be found ineffective for failing to assert a meritless claim).

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

Commonwealth v. Pettus, 492 Pa. 558, 562, 424 A.2d 1332, 1335 (1981).

Appellant argues that, unless it can be shown that he consented to the withdrawal of the motion to vacate, counsel was ineffective for withdrawing same because of Appellant’s loss thereby of the right to challenge the plea on appeal. We disagree.

“Where .. . the withdrawal of the plea is sought only after sentence has been imposed, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified” Commonwealth v. Starr, 450 Pa. 485, 489, 301 A.2d 592, 595 (1973) (emphasis added).

Applying this standard in conjunction with that enunciated in Pettus, we find that appellate counsel has failed to specify any facts which would enable a reviewing court to conclude that sentencing counsel could have made a showing of prejudice, on the order of manifest injustice, to the court below, such as would result in the grant of the motion. We therefore conclude that sentencing counsel was not ineffective in withdrawing the motion to vacate Appellant’s guilty plea.

Judgment of sentence affirmed.

SPAETH, J., concurs in the result.

The decision in this case was rendered prior to the expiration of Judge SHERTZ’s commission of office on the Superi- or Court of Pennsylvania.

      . 18 Pa.Cons.Stat.Ann. § 3922 (Purdon 1973).

      . Appellant is currently represented by counsel other than sentencing counsel. This assertion is, therefore, timely made. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

      . At the time of sentencing, the Rule read, in relevant part: Disclosure of Reports
      (a) All psychiatric and pre-sentence reports shall be confidential records. They shall be available only to:
      (1) the sentencing judge;
      (2) the attorney for the Commonwealth and counsel for the defendant for inspection, only, on conditions stated by the sentencing judge, provided that counsel shall not be supplied with copies of such reports unless ordered by the sentencing judge, but counsel shall be given the opportunity to comment thereon before the imposition of sentence;
      (b) The sentencing judge may impose conditions of confidentiality consistent with this Rule.
      COMMENT: The policy on disclosure contained in this Rule is intended to prevent injustices which may arise when inaccurate information in psychiatric and pre-sentence reports is submitted to the judge unchallenged. However, the Rule is not intended to encourage formal litigation over these reports but, on the contrary, is intended to prevent such a development by affording counsel for both parties an opportunity to point out any such inaccuracies before the judge pronounces sentence. Although the appellate courts have never conclusively decided whether a defendant is entitled to see these reports as a constitutional right, the Supreme Court of Pennsylvania has recently concluded that in its supervisory powers it would direct disclosure of portions not secured on a confidential basis. Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973).
      Paragraph (a)(2) permits the sentencing judge to impose conditions on counsel. This permits the judge to preserve the confidentiality of sources of information when deemed necessary. It also permits the judge in the proper exercise of his discretion to withhold portions of the report from counsel or to require counsel not to disclose portions to defendant, when the latter’s mental or physical well-being may be jeopardized thereby.
      Rule 1404, Pa.R.Crim.P. (emphasis added).

      . These Standards provide:
      “Presentence report: disclosure: parties.
      (a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.
      (b) This principal should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.
      ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 4.4 (Approved Draft, 1968) (emphasis added).

      . Appellant has not contended that counsel failed to review the report with him. In fact, paragraph four of the application for disclosure which was filed with the court below avers that counsel did indeed so review it.

      . In so doing we also reject Appellant’s assertion that, because he was easily manipulated by women and because the pre-sentence report was compiled by a female probation officer, he should have been permitted to inspect the report personally. Brief for Appellant at 11-12.

      . Appellant essentially reiterates the assertion that he himself should have been permitted to inspect the presentence report. That is, refusal of this request resulted in a denial of the allocution rights afforded by the following language in the Rule:
      At the time of sentencing, the judge shall:
      (a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;
      Rule 1405, Pa.R.Crim.P. (emphasis added).
      Appellant argues he could not speak authoritatively in his own behalf when he did not know those matters the court relied on and considered relevant. Brief for Appellant at 16. The sentencing transcript, however, reveals that both Appellant and his counsel spoke to the court of his ability to be manipulated by women. N.T. Sentencing Hearing at 8, 17.

      . Appellant nowhere contends that his guilty plea was involuntarily entered. In this respect his reliance on Commonwealth v. Johnson, 258 Pa.Super.Ct. 214, 392 A.2d 760 (1978), is misplaced for Appellant therein did make such a contention. In addition, the record herein, unlike the record in Johnson, reveals that, at the time he was sentenced, Appellant was apprised of his right to petition the court below within ten days, of the waiver of appellate rights should he fail to petition and of the right to assistance of counsel. N.T. Sentencing Hearing at 2. At that time Appellant indicated his understanding of these rights and the consequence of not exercising them.

      . See Rule 321, Pa.R.Crim.P. and Comment.


text:
    441 A.2d 761
    Ann M. LEE, Appellant, v. Phyllis J. LEONE.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Decided Feb. 12, 1982.
    Charles S. Morrow, Pittsburgh, for appellant.
    David L. Beck, Pittsburgh, for appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from an order refusing to remove a compulsory non-suit. Appellant’s evidence—or, more correctly, the lack of evidence—was reviewed in an able opinion by the trial court. Our own review of the record causes us to agree that where, as here, the driver of a vehicle enters an intersection against a stop sign and collides with a vehicle which was unseen prior to impact, some additional evidence is required before a jury will be permitted to infer negligence on the part of the other driver. Because that additional evidence was lacking in the instant case, a non-suit was properly entered.

Order affirmed.


author: WIEAND, Judge:

text:
    441 A.2d 1225
    COMMONWEALTH of Pennsylvania, v. Frank METZGER, Appellant.
    Superior Court of Pennsylvania.
    Argued July 17, 1979.
    Filed Aug. 28, 1981.
    Reargument Denied March 16, 1982.
    Petition for Allowance of Appeal Denied May 13, 1982.

      Robert Breslin, Jr., Assistant Public Defender, Chester, for appellant.
    Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WIEAND, NIX and WEKSELMAN, JJ.

       Justice Robert N. C. Nix, Jr., of the Supreme Court of Pennsylvania and Judge I. Martin Wekselman of the Court of Common Pleas of Allegheny County, Pennsylvania, are sitting by designation.

   WIEAND, Judge:

In this direct appeal from the judgment of sentence imposed for murder of the first degree, burglary and conspiracy, appellant contends that his trial counsel was' constitutionally ineffective in seven separate instances. We disagree and affirm the judgment of sentence.

On September 25, 1974, the remains of Martha Metzger, who had been reported missing from her Delaware County home on August 18, 1974, were found in a field behind a farm house in Farnham, New York. The cause of death was determined to be suffocation and strangulation caused by a cloth which had been stuffed into her mouth and secured with adhesive tape. Her body had been bound with rope, wrapped in bed clothes, covered with plastic and buried in a shallow grave.

Martha Metzger and the appellant, Frank Metzger, had been husband and wife and the parents of four children. They had been separated, however, and after 1971 appellant lived meretriciously with Diane Linda Hamill. In the summer of 1974, appellant and Diane Hamill rented a farm house in Farnham, New York, and began to ready it for the four Metzger children who were then residing with their mother in Pennsylvania. On August 18, 1974, appellant and Diane Hamill drove to Mrs. Metzger’s home in Delaware County, Pennsylvania, where they broke into the residence and struck Mrs. Metzger with a flashlight, rendering her unconscious. Mrs. Metzger was then wrapped in a bedsheet; a wash cloth was stuffed in her mouth, causing her to suffocate; and she was carried to appellant’s car. The same night appellant returned with his girlfriend, his dead wife and his four children to the farm house in Farnham, New York.

A month later, appellant and Diane Hamill fled, abandoning the farm house and leaving the children alone in a nearby motel. Appellant was not arrested until July 11, 1975, when he was found in Boise, Idaho. On March 29, 1976, he entered a plea of guilty to a general charge of murder. He also waived trial by jury on the burglary and conspiracy charges and agreed that trial should be consolidated with the degree of guilt hearing to be held before the Honorable Clement J. McGovern. After trial, Judge McGovern found appellant guilty of burglary and conspiracy and fixed the degree of guilt as murder in the first degree. In July, 1976, appellant appeared pro se to present a motion to withdraw his guilty plea to murder and a separate motion for the appointment of new counsel. New counsel was appointed, but the motion to withdraw his plea and post-trial motions were unsuccessful, and sentence was imposed.

The standard for evaluating the effectiveness of counsel is clear: we must determine whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel will not be deemed ineffective if the action which he failed to take would have been frivolous or futile. Commonwealth v. Barren, 273 Pa.Super. 492, 417 A.2d 1156 (1979); Commonwealth v. Yarbough, 248 Pa.Super. 356, 375 A.2d 135 (1977).

The first alleged dereliction of trial counsel is his failure to file a motion to suppress the finding of the body and the items with which the body had been tied and wrapped. The failure to file a suppression motion under some circumstances may be evidence of ineffective assistance of counsel. However, if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Martin, 479 Pa. 63, 68, 387 A.2d 835, 837 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977).

In the instant case, an application to suppress the evidence found in the yard of the abandoned farm house would have been futile. “The Fourth Amendment,” it has been said, “protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). To attack the validity of a search, one must demonstrate a proprietary or possessory interest in the premises searched sufficient to justify a reasonable expectation of privacy. Commonwealth v. Treftz, 465 Pa. 614, 622, 351 A.2d 265, 268 (1976). There is not such an interest in abandoned property. One has no standing to complain of a search of property which he or she has voluntarily abandoned. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976); Commonwealth v. Williams, 269 Pa. Super. 544, 410 A.2d 835 (1979). Property has been abandoned if the complaining party no longer retains a reasonable expectation of privacy in the property. Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978); Commonwealth v. Shoatz, supra.

Appellant’s trial counsel testified at an evidentiary hearing that he had considered a motion to suppress and had rejected it because, in his opinion, appellant had abandoned the farm and, therefore, lacked standing to challenge the validity of the search. The trial court agreed; and the evidence substantiates and confirms its findings and conclusion. Appellant testified that he had believed the police would soon arrest him for the murder of his wife. After procuring a motel room in Dunkirk and remaining there for three days with his children and Diane Hamill, he decided to flee the jurisdiction. Leaving his children at the motel, where they were found on September 23, 1974, he and Diane Hamill fled to Missouri. When police arrived at the farm house in Farnham on September 25, with a warrant for appellant’s arrest on charges of abandoning his children, they found the door open, lights turned on, partially prepared sandwiches on the counter, defrosted hot dogs in the sink, and personal belongings strewn about. Thus, appellant had effectively abandoned his interest in the property and no longer had any reasonable expectation of privacy with respect thereto.

It is also significant that the victim’s body was found in a grassy area two hundred feet to the rear of the farm house. In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900 (1924), the Court observed that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields.” See also: Commonwealth v. Treftz, supra, 465 Pa. at 626, 351 A.2d at 270-271; Commonwealth v. Janek, 242 Pa.Super. 340, 363 A.2d 1299 (1976). The decedent’s body was found in a field behind the farm house in which appellant had lived with his girlfriend and children.

For these reasons we conclude that a motion to suppress the corpse and the evidence found with it would have been futile, and trial counsel was not ineffective for failing to file or pursue the same.

Appellant next contends that his trial counsel was ineffective because he stipulated to the testimony of several witnesses and for failing to cross-examine others. Appellant has failed completely, however, to show in what manner he would have benefitted by a contrary course of action. Appellant entered a plea of guilty to the murder of his wife. Previously he had admitted the killing when he testified at the trial of Diane Hamill. The strategy of defense counsel, therefore, was not to deny the killing but to focus on appellant’s mental capacity. The stipulations entered by counsel and his failure to cross-examine Commonwealth witnesses were consistent with that strategy. Counsel testified that he cross-examined witnesses only when doing so would elicit neutral or favorable responses.

Trial decisions, including a decision as to whether to cross-examine a witness, are within the exclusive province of counsel. Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). Counsel will not be declared ineffective where, as here, his trial strategy had a reasonable basis designed to effectuate his client’s interest; Commonwealth ex rel. Washington v. Maroney, supra, and appellant has failed to show that the alternatives not chosen offered a potential for success substantially greater than the strategy and tactics actually utilized. Commonwealth v. Hubbard, supra 472 Pa. at 277-78, 372 A.2d at 695-696.

For the same reason, counsel cannot be held ineffective for entering stipulations concerning the testimony of defense character witnesses in lieu of calling them to the witness stand to testify. Indeed, in the instant case, counsel testified that by stipulating to testimony of appellant’s good character, he was able to eliminate a concern, which had arisen after interviews with the character witnesses, that some witnesses would disclose flaws in appellant’s reputation which were better left undisclosed.

Counsel also cannot be faulted for withdrawing a defense motion for change of venue after appellant had decided not to berried by jury and to enter a plea of guilty to murder. The principal reason for changing venue is to insure trial by an impartial jury. Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977). Here, appellant had waived jury trial, and there was no basis for believing that appellant would receive anything less than an impartial hearing from the judge who accepted appellant’s guilty plea.

Appellant next contends that counsel was ineffective for relying upon the testimony of an endocrinologist instead of employing a psychiatrist to testify as a defense witness. The endocrinologist, who had offices in Boise, Idaho, testified that he had treated appellant for a condition known as myxedema, a thyroid hormone deficiency, which is frequently accompanied by psychological difficulties such as psychosis and loss of emotional control. He expressed the opinion that appellant was suffering from these psychological side-effects at the time of the killing. There was no known reason for counsel to believe that appellant had been suffering from any other psychiatric problems. There was no basis for an insanity defense, and counsel, therefore, utilized the testimony of appellant’s treating physician to present testimony of a diminished capacity. We perceive in this decision, calculated to effectuate appellant’s interests, no basis for declaring counsel ineffective.

The facts of the instant case are vastly different from and are not controlled by the decision in Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979). In that case counsel had failed to present relevant and beneficial psychological and psychiatric testimony which was known and readily available because examinations had previously been made. In the instant case, counsel did present the evidence which was available concerning appellant’s state of mind. The psychological difficulties allegedly experienced by him, however, were caused by a medical condition. Therefore, counsel called the treating physician who gave extensive testimony pertaining to appellant’s physical condition and its effect upon his state of mind. Counsel was not ineffective for choosing this course instead of employing a psychiatrist to examine appellant further. Even now, appellant does not suggest that such an examination would have produced evidence of greater benefit to him than that given by his treating endocrinologist. See: Commonwealth v. Hubbard, supra.

Appellant also contends that trial counsel was ineffective for failing to investigate fully whether the medical cause of his wife’s death was suffocation or the blow to the head with a flashlight. The coroner’s report listed the cause of death as suffocation but contained no reference to head trauma. Trial counsel testified that he had been aware of the causation issue after the preliminary hearing. After appellant decided to testify at the trial of Diane Hamill that it was he who had killed his wife, however, counsel determined that no good purpose could be served by pursuing further the causation issue. Whether she died from a blow to the head or as a result of suffocation, appellant was equally culpable. Therefore, the decision was made to proceed on the theory that the killing had occurred during a period of diminished capacity caused by myxedema. This was not ineffectiveness or sloth on the part of counsel.

Appellant’s final contention that counsel was inadequately prepared is frivolous. The record discloses that appellant’s counsel, an- able attorney, interviewed witnesses, spent hours in preparation, monitored the co-defendant’s trial, consulted frequently with appellant and kept him advised so that he could make informed and intelligent decisions.

We conclude, therefore, that appellant failed to prove ineffective representation by his trial counsel. The judgment of sentence is affirmed.

      . When this appeal was initially before a panel of the Superior Court, it was remanded on motion of the appellant to permit an additional averment of ineffective assistance. That averment was made, an evidentiary hearing was held thereon, and the entire appeal has been returned to the panel for decision.


author: BROSKY, Judge: HOFFMAN, Judge,

text:
    441 A.2d 1230
    COMMONWEALTH of Pennsylvania, Appellant, v. Stanley LOVE.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Jan. 29, 1982.
    Petition for Allowance of Appeal Denied May 13, 1982.

      Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Leonard N. Sosnov, Assistant Public Defender, Philadelphia, for appellee.
    Before BROSKY, CIRILLO and HOFFMAN, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   BROSKY, Judge:

On February 5, 1979, appellee, Love, was charged with robbery, simple assault and terroristic threats. Love pleaded guilty to robbery and was sentenced to one to three years imprisonment. The Commonwealth brought this appeal which we allow pursuant to Section 5 of Act of November 26,1978, P.L. 1316, No. 319, subpart (d) which is found in a note following 42 Pa.C.S.A. § 2155 (hereinafter Section 5).

The Commonwealth contends that the trial court is obliged to provide a statement of reasons why a sentence less than four years is imposed where, as here, the defendant, below, is a repeat offender. Section 5, subpart (b). We remand for a statement of reasons for the sentence.

On or about February 5, 1979, Love was apprehended by police who were responding to a woman, Mabel Dorsey, who requested their assistance, as the police drove by her. Love was seized by the police who found personal papers belonging to Ms. Dorsey and two hundred dollars in his pocket. Love was subsequently charged and convicted.

The sentencing court stated in its opinion that the sentence which the appellee received was within the statutory limits proscribed for the offense of robbery. The court went on to say it made its decision in compliance with all the factors set forth in 18 Pa.C.S.A. § 1821.

Love is a repeat offender. He was convicted in the instant case of robbery and on two earlier occasions he had been convicted of robbery. Accordingly, the trial court should have followed the procedures stated in Section 5. They are:

Section 5. Pursuant to this section, there is established an interim guideline for the minimum sentencing of certain repeat offenders.
(a) Until sentencing guidelines adopted by The Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to [42 Pa.C.S.A. § 2155] (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defiried in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
(b) In any case where a court sentences a person subject to the provision of subsection (a), to a term of less than four years imprisonment, the court shall provide a contemporaneous written statement of the reason or reasons for the sentence.

The provisions established in subpart (b) are not discretionary. Therefore, the trial court is obliged to state its reasons for sentencing the appellee for a period of less than four years.

The trial court, on imposing judgment of sentence should place on the record its reasons for imposition of the particular sentence chosen. In stating its reasons, the trial judge should consider the character of the defendant and the particular circumstances of the crime. No mention is made of appellant’s prior criminal record, his age, his personal characteristics, or his potential for rehabilitation. Moreover, by the trial court’s “brevity and eonclusory quality” in making a statement of its reasons for sentencing, it obviated the purpose behind Section 5(b). Cf.: Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1970); Commonwealth v. Roberts, 263 Pa.Super. 237, 397 A.2d 1187 (1978). Accordingly, we remand to the trial court for a hearing at which time the trial court will state its reasons for sentencing.

The parties are not prejudiced by our decision from bringing a new appeal within 30 days from the trial court’s issuance of its statement of reasons on remand.

Accordingly, we remand for proceedings consistent with this opinion.

HOFFMAN, J., files a concurring opinion.

CIRILLO, J., joins in both opinions.

HOFFMAN, Judge,

concurring:

I agree with the majority that the Commonwealth is entitled to a remand to an enunciation for the reasons for the sentence imposed upon appellee. I write separately, however, because the double jeopardy issues surrounding the prosecutorial appeal of sentences have yet to be addressed by any court in this Commonwealth. I would hold that the procedures invoked by the Commonwealth do not violate the constitutional prohibitions against double jeopardy.

I.

This is a Commonwealth appeal from a judgment of sentence imposed upon appellee after his third conviction for robbery. The court below sentenced appellee to serve one-to-three years in prison—a sentence outside the'applicable statutory guideline of four years imprisonment established by section 5(a) of the Act of November 26, 1978, P.L. 1316, No. 319 (hereinafter Act 319) (section 5 of Act 319 is set forth in full in a note following 42 Pa.C.S.A. § 2155). Consequently, the court below was obliged to “provide a contemporaneous written statement of the reason or reasons for the sentence” it had imposed. Act 319, § 5(b). After the lower court refused to articulate its reasons for the nonconforming sentence, the Commonwealth took this appeal.

Appellee argues that this Court should not entertain this appeal because to do so would violate the double jeopardy clauses. I disagree. “The double jeopardy focus ... is not on the [fact that the prosecution has taken an] appeal but on the relief that is requested.”. United States v. DiFrancesco, 449 U.S. 117, 133, 101 S.Ct. 426, 435, 66 L.Ed.2d 328, 343 (1980) (upholding federal government’s appeal of sentence pursuant to 18 U.S.C.A. § 3576). See also Government of the Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir. 1981).

“That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. (Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, at 717, 89 S.Ct. 2072, at 2076, 23 L.Ed.2d 656[,] [at 664 (1968)].

United States v. DiFrancesco, supra at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340 (footnote omitted). See also Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Moreover,

“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s ‘valued right to have his trial completed by a particular tribunal.’ ” Arizona v. Washington, 434 U.S. [497], at 503, [98 S.Ct. [824], at 829, 54 L.Ed.2d 717], quoting from Wade v. Hunter, 336 U.S. 684, 689[,] [69 S.Ct. 834, [837], 93 L.Ed. 974, [978]] (1949).

United States v. DiFrancesco, supra at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340. The relief requested by the Commonwealth in this appeal—a remand for an articulation of the reasons for the sentence imposed, cf. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (to facilitate meaningful appellate review of sentences, lower court should state its reasons on the record for the sentence imposed)—does not infringe upon any of the rights protected by the double jeopardy clauses. Consequently, the majority correctly concludes, 295 Pa. Superior Ct. 278 n.1, 441 A.2d 1231 n.1, that this appeal is not violative of the double jeopardy clauses.

II.

In United States v. DiFrancesco, supra, the United States Supreme Court resolved the question by allowing prosecutors to obtain appellate review of allegedly lenient sentences. DiFrancesco had been sentenced as a “dangerous special offender,” 18 U.S.C.A. § 3575(e), (f), following his conviction on federal racketeering charges, id. § 1962(c), (d). 449 U.S. 121, 101 S.Ct. 429, 66 L.Ed.2d 335. The government, claiming that the District Court had abused its discretion in imposing sentence, appealed DiFrancesco’s sentence pursuant to 18 U.S.C.A. § 3576. Id. at 126, 101 S.Ct. at 431, 66 L.Ed.2d at 338. A divided panel of the Second Circuit Court of Appeals dismissed the government’s appeal on double jeopardy grounds. 604 F.2d at 783. On certiorari, the Supreme Court reversed, holding that the double jeopardy clause of the Federal Constitution did not bar a prosecutorial appeal of an allegedly lenient sentence when the right to such an appeal had been afforded by statute. See 449 U.S. at 143, 101 S.Ct. at 440, 66 L.Ed.2d at 350. It would serve no useful purpose to restate Justice BLACKMUN’s cogent analysis here. It should suffice, however, to note that: (1) a sentence lacks “such finality ... as would prevent a legislative body from authorizing its appeal by the prosecution,” id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 345; (2) it also lacks “the qualities of constitutional finality that attend an acquittal,” id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 345; (3) the “double jeopardy considerations”—unwarranted exposure of the defendant to harassment, “embarassment, expense, anxiety, and insecurity,” of repeated prosecutions and the threat of being “found guilty even though innocent”—“have no significant application to the prosecution’s statutorily granted right to review a sentence,” Id. at 136,101 S.Ct. at 437, 66 L.Ed.2d at 346; and (4) because the defendant has no “right to know at any specific moment in time what the exact limit of his punishment will be” his “legitimate expectations are not defeated if his sentence is increased on appeal,” id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 346. Moreover, the prohibition against multiple punishment, see Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), is inapplicable when the sentencing guideline is explicit and any sentence imposed thereunder is specifically subject to prosecutorial appeal. Id. at 138, 101 S.Ct. at 438, 66 L.Ed.2d at 346.

Act 319 parallels the federal statute approved in DiFranceseo. It represents our legislature’s interim response to the problems confronting a trial court in sentencing repeat offenders of ostensibly violent crimes by recommending a minimum prison term of not less than four years. Act 319, § 5(a). Cf. 18 U.S.C.A. § 3575(b) (dangerous special offender “shall [be] sentence[d] ... to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony”); United States v. DiFrancesco, supra at 143, 101 S.Ct. at 440, 66 L.Ed.2d at 350 (noting purpose of dangerous special offender legislation). Section 5(b) of Act 319 requires the sentencing court to articulate the reasons for any nonconforming sentence. Cf 18 U.S.C.A. § 3575(b) (“The court shall place on the record its findings, including an identification of the information relied upon in making such findings, and its reasons for the sentence imposed.”). Section 5(d) of Act 319 permits the Commonwealth to appeal discretionary aspects of a sentence imposed pursuant to the Act. See note 3, supra. Cf. 18 U.S.C.A. § 3576 (“Review of the sentence shall include review of . . . whether . . . the sentencing court’s discretion was abused.”). The teachings of DiFrancesco are readily applicable to Commonwealth appeals under section 5 of Act 319. Consequently, I would hold that section 5 of Act 319 does not violate the double jeopardy clause of the Federal Constitution.

III.

Assuming, arguendo, that article I, section 10 of the Pennsylvania Constitution applies to non-capital as well as capital offenses, I would hold also that Commonwealth appeals pursuant to section 5 of Act 319 do not violate that proscription against double jeopardy. It is well settled under the Commonwealth’s double jeopardy clause that:

One is placed in double jeopardy if he has received an acquittal or its equivalent, or a sentence which is no longer subject to attack. Until such legal sentence is imposed, the jeopardy in which he was placed, when first tried, must be deemed to continue until the time of imposition of legal sentence at the subsequent trial. “Until a convicted prisoner receives a sentence which can withstand attack, it may be conceived that his original jeopardy continues without interruption, and that he is therefore not put in jeopardy a second time when he receives his first valid sentence[.]”

Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 451, 127 A.2d 660, 661 (1956) (emphasis in original and citations omitted), cert. denied, 353 U.S. 986, 77 S.Ct. 1288, 1 L.Ed.2d 1144 (1957). Accord Commonwealth v. Potter, 478 Pa. 251, 258, 386 A.2d 918, 921 (1978) (POMEROY, J., Opinion in Support of Affirmance) (equally divided Court); Commonwealth v. Baker, 413 Pa. 105, 112-13, 196 A.2d 382, 385-86 (1964); Commonwealth v. Melton, 406 Pa. 343, 347, 178 A.2d 728, 730 (1962), cert. denied, 371 U.S. 851, 83 S.Ct. 93, 9 L.Ed.2d 87 (1962); Commonwealth v. Kubacki, 208 Pa.Superior Ct. 523, 530, 224 A.2d 80, 84 (1966); Commonwealth ex rel. Walker v. Banmiller, 186 Pa.Superior Ct. 338, 340, 142 A.2d 758, 759 (1958); Commonwealth ex rel. Backus v. Cavell, 186 Pa.Superior Ct. 48, 49-50, 140 A.2d 355, 356 (1958). Cf. Commonwealth ex rel. Berry v. Tees, 177 Pa.Superior Ct. 126, 110 A.2d 794 (1955) (modification of sentence). Until the appellate processes are exhausted, a sentence imposed under section 5 of Act 319 cannot be considered “final” for the purposes of Pennsylvania’s double jeopardy clause. Cf. United States v. DiFrancesco, supra (sentence imposed pursuant to federal dangerous special offender legislation not “final” for purposes of federal double jeopardy). A fortiori, an appeal by the Commonwealth pursuant to section 5 of Act 319 would not violate the double jeopardy clause of the Pennsylvania Constitution.

      . The appellee asserts that the appeal should be quashed because the relief requested by the Commonwealth may subject the appellee to a greater sentence and thereby potentially violate the double jeopardy clause. While we appreciate the appellee’s reasoning, we have been asked on appeal solely to determine whether the trial court should have stated its reasons for sentencing under Section 5 and not vacate to reconsider a new sentence. The requested relief does not violate the appellee’s right not to be placed in jeopardy twice.
      Love also asserts the Commonwealth has waived its appeal because it has not followed the procedures for modification of sentence set out in Pa.R.Cr.P. 1410. This contention is unfounded. The Commonwealth does not seek a modification in this appeal, rather it seeks compliance with Section 5.
      Finally, Love contends that the Commonwealth has waived this claim because:
      Neither the appellee nor his counsel were advised either formally or informally that the Commonwealth would seek an enhancement of sentence under Act 319 until after the entry of the guilty plea and well into the sentencing hearing itself. The record reflects that it was only after the sentencing hearing had been substantially completed that the assistant district attorney, who had not participated in the plea proceedings, first mentioned Act 319 (The Presumptive Sentencing Act).
      (Footnote omitted), appellee’s brief, page 13.
      Section 5(i) states: “The Supreme Court shall by Rule prescribe procedures to implement the provision of this statute.” We are unable to find any rule indicating that the Commonwealth must supply notice to the defendant prior to the commencement of sentencing proceedings. We are satisfied that the Commonwealth did not waive its right to raise, on appeal, the issue contained herein.

      . Love was convicted on eleven previous occasions. Two of these convictions were for robbery.

      . The fifth amendment to the United States Constitution, applicable to the states, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), provides, in pertinent part: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Article I, section 10 of the Pennsylvania Constitution contains a comparable provision: “No person shall, for the same offense, be twice put in jeopardy of life or limb.” Although the Courts of this Commonwealth have noted the similarities between the two constitutional provisions, see, e.g., Commonwealth v. Klobuchir, 486 Pa. 241, 253, 405 A.2d 881, 887 (1979) (NIX, J., Opinion in Support of Affirmance) (equally divided Court), it is not at all clear whether the Pennsylvania provision affords protection co-extensive with that afforded by the federal double jeopardy clause, id., 486 Pa. at 254 n.12, 405 A.2d at 887 n.12. See generally Strazzella, Commonwealth Appeals and Double Jeopardy, 4 Pa.L.J. 11 (nos. 39 and 40, October 19 and 26, 1981); Galie, The Pennsylvania Constitution and the Protection of Defendants’ Rights, 1969-1980: A Survey, 42 U.Pitt.L. Rev. 269 (1981).

      . Appellee also had been convicted on eight other occasions.

      . The Commonwealth contends that its appeal is allowable as of right under section 5(c) of Act 319 (“The defendant or the Commonwealth may appeal as of right the legality of a sentence imposed pursuant to the provisions of subsection (a).”), or, in the alternative, in the discretion of this Court pursuant to section 5(d) of Act 319 (“The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence imposed pursuant to subsection (a), [and such petition] may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this section.”). Because we have allowed this appeal under the latter provision, we need not consider the Commonwealth’s alternative basis for this Court’s exercise of jurisdiction. See generally, Commonwealth v. Anderson, Pa.Superior Ct. (J. 1/1981, filed August 7, 1981, reargument granted February 18, 1982) (explaining statutory underpinnings of prosecutorial appeals of nonconforming sentences).

      . Compare, e.g., Freeman & Earley, United States v. DiFrancesco: Government Appeal of Sentences, 18 Am.Crim.L.Rev. 91 (1980) with Stern, Government Appeals of Sentences: A Constitutional Response to Arbitrary and Unreasonable Sentences, 18 Am.Crim.L.Rev. 51 (1980). See also United States v. DiFrancesco, supra at 121 n.4, 101 S.Ct. at 429 n.4, 66 L.Ed.2d at 335 n.4 (collecting authorities).

      . Section 3576 provides, in part:

        With respect to the imposition, correction, or reduction of a sentence after proceedings under section 3575 of this chapter, a review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals.... The taking of a review of the sentence by the United States shall be deemed the taking of a review of the sentence and an appeal of the conviction by the defendant. Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court’s discretion was abused. The court of appeals on review of the sentence may, after consideration of the record, ... affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could have imposed, or remand for further sentencing proceedings and imposition of sentence ....

      . It is unclear whether article I, section 10 of the Pennsylvania Constitution is limited in application to capital offenses. Compare

        Commonwealth v. Boerner, 281 Pa.Superior Ct. 505, 513-15, 422 A.2d 583, 587-88 (1980) (double jeopardy clause applies to both capital and non-capital offenses; summarizing conflicting authorities) with Commonwealth v. DiValerio, 283 Pa.Superior Ct. 315, 320 n.4, 423 A.2d 1273, 1276 n.4 (1980) (double jeopardy clause applies to capital offenses only). Because I would hold that the Pennsylvania double jeopardy clause would not bar a Commonwealth appeal under section 5 of Act 319,1 would not need to resolve the apparent conflict over the applicability of that provision.

      . Insofar as Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369 (1979); Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974); Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); and Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), rest upon Pennsylvania double jeopardy principles, they do not compel a different result. Those cases recognize the principle that a sentence cannot constitutionally be increased after the defendant has begun to serve his sentence. Although the Tome Court rejected the Commonwealth’s contention that compliance with “mandatory sentencing proceedings set forth by the legislature overrides the double jeopardy clause,” 484 Pa. at 276, 398 A.2d at 1377 (footnote omitted), it must be noted that there was no statutory authority for a modification of the nonconforming sentence. See Commonwealth ex rel. Backus v. Cavell, supra, 186 Pa.Superior Ct. at 50, 140 A.2d at 356 (when manner for correction of sentence has been directed by law, such a correction does not violate double jeopardy). Accord Commonwealth v. Taylor, 238 Pa.Superior Ct. 232, 237 n.3, 357 A.2d 562, 564 n.3 (1976). When the sentencing statute expressly provides for prosecutorily-induced appellate review of sentences, double jeopardy is not offended by the prospects of such review and the potential for an increased sentence. See United States v. DiFrancesco, supra at 133, 101 S.Ct. at 435-36, 66 L.Ed.2d at 343.


author: SHERTZ, Judge: CERCONE, President Judge,

text:
    441 A.2d 1236
    GEORGE H. ALTHOF, INC., Appellant, v. SPARTAN INNS OF AMERICA, INC., Joseph J. Sorce and Mary Virginia Sorce.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1981.
    Filed Feb. 12, 1982.

      Kenneth D. Chestek, Erie, for appellant.
    John M. Wolford, Erie, for appellees.
    Before CERCONE, President Judge, and DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

The question presented by this appeal is whether a confessed judgment may be stricken, due to defective verification of a complaint filed pursuant to Pa.R.Civ.P. 2952. We hold that it may not, and hence reverse the order of the court below.

On January 3, 1975, Appellees signed two notes, payable on demand, evidencing a debt incurred for work performed by plaintiff in the Spartan Inn Motel. One note had been fully paid and part payment had been made on the second when, on April 25, 1975, Appellant filed a form “Complaint in Judgment” (Erie County Prothonotary Form 85-1 & 85-2) together with the second note which contained a confession of judgment. The prothonotary promptly mailed notice of judgment, in the amount of $20,000.00, to Appellees and additional partial payments were made subsequent to entry of the judgment. Approximately four years later, on February 22, 1979, Appellant sought to execute on the judgment for the total claimed indebtedness of $11,-066.66 plus costs. Appellees thereupon filed a Petition to Strike and/or Open the Confessed Judgment. The court below, concluding that the petition to open was not timely filed, refused to open the judgment. However, the court below granted the petition to strike on the ground that the verification to the complaint was defective inasmuch as it was made by counsel, rather than by Appellant.

A motion to strike a default judgment, as opposed to a petition to permit a defense, may not be granted unless a fatal defect appears on the face of the record. Curcio v. Diluzio, 245 Pa.Super.Ct. 578, 369 A.2d 778 (1977); Fourtees Co. v. Sterling Equipment Co., 242 Pa.Super.Ct. 199, 363 A.2d 1229 (1976). If the defect is one that can be remedied by an amendment of the record or other action, nunc pro tunc, the judgment should not be stricken off. 7 Standard Pa. Practice, Chapter 30, § 169 (1961).

The record defect, upon which the court below granted the petition to strike, was Appellant’s failure to attach to its complaint a “verification in accordance with the rules relating to the action in assumpsit.” Pa.R.Civ.P. 2952(j). Pa.R. Civ.P. 1024, the applicable rule in assumpsit, provides inter alia:

(a) Every pleading containing averments of facts not appearing of record in the action or containing denials shall be verified on oath or affirmation that the averments or denials are true upon the affiant’s personal knowledge or information and belief.
(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party.
In the instant case, the verification was not made by Appellant, but rather it was made by his attorney who did not set forth the information required by subsection (c) of Pa.R. Civ.P. 1024.

In West Penn Sand & Gravel Co. v. Shippingport Sand Co., 367 Pa. 218, 80 A.2d 84 (1951), the Supreme Court stated:

“[Cjourts should not be astute in enforcing technicalities to defeat apparently meritorious claims; if defendant has any real or substantive defense to the confessed judgment the way lies open to it to present it.”

Id., 367 Pa. at 220-21, 80 A.2d at 86, 87. This Court has, accordingly, looked beyond technical defects in affidavits accompanying petitions to open or strike judgments. Monroe Contract Corp. v. Harrison Square Inc., 266 Pa.Super.Ct. 549, 405 A.2d 954 (1979); Davis v. Safeguard Investment Co., 239 Pa.Super.Ct. 300, 361 A.2d 893 (1976). In Davis, Appellants filed separate petitions to open separate judgments. One of the petitions was verified by defendant’s attorney; the second petition was verified by the defendant. This court held that the error, although not to be condoned, was “inconsequential and certainly not prejudicial in the instant case.” Id., 239 Pa.Super. at 304, 361 A.2d at 896.

In Monroe Contract Corp., petitioner’s attorney verified the complaint. An accompanying affidavit averred that appellant lacked sufficient knowledge to make verification but did not also allege that appellant was without sufficient information to do so. This court, deeming the error to be inconsequential and not prejudicial, did not require a remand to permit an amendment. Moreover, we therein stated:

Verification is necessary to defend a party against spurious allegations; it must not be transformed into an offensive weapon designed to strike down an otherwise valid petition. While we do not, of course, condone willful noncompliance with our procedural rules, a hypertechnical reading of each clause, and a blind insistence on precise, formal adherance, benefits neither the judicial system nor those utilizing that system.. . .
. . . [a]t a bare minimum, a court confronted by defective verification should grant leave to amend before dismissing the petition.

Id., 266 Pa.Super, at 555-57, 405 A.2d at 958, 959. Formal defects, mistakes and omissions, in confessions of judgment, may be corrected by amendment where the cause of action is not changed, where the ends of justice require the allowance of such amendment and where the substantive rights of defendant or of any third persons will not be prejudiced thereby. West Penn, 367 Pa. at 220, 80 A.2d at 86. In the instant case there is no averment of prejudice to Appellees resulting from the defective verification, nor is it averred that any of the allegations in the complaint are spurious. We conclude that the instant defective verification is not of a magnitude which requires striking of the judgment.

Order of the court below is reversed and case remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

CERCONE, President Judge, files a concurring statement.

CERCONE, President Judge,

concurring:

I write separately only to note that the remand of the present appeal is for the purpose of allowing appellant the opportunity to file a proper verification to the complaint in compliance with Pa.R.Civ.P. 2952(i) and 1024(c).

This decision was rendered prior to the expiration of DiSALLE and SHERTZ, JJ., commission of office.

      . In view of our disposition of the case we need not reach Appellant’s additional contentions.

      . The form complaint, as prepared by the Erie County Prothonotary, provided for verification by counsel. Such a local practice is in conflict with Pa.R.Civ.P. 2952(j) and Pa.R.Civ.P. 1024. The form is therefore invalid to the extent that it is in conflict with Pennsylvania Rules of Civil Procedure. Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super.Ct. 245, 407 A.2d 1338 (1979).

      . This court has recently determined that a defective verification does not affect the jurisdiction of the court. Parliament Industries v. William H. Vaughan, 287 Pa.Super.Ct. 458, 430 A.2d 981 (1981); Monroe Contract Corp. v. Harrison Square, 266 Pa.Super.Ct. at 557, n.5, 405 A.2d at 959 n.5.


author:
CAVANAUGH, Judge:
      WATKINS, Judge,

text:
    441 A.2d 1239
    COMMONWEALTH of Pennsylvania v. Ronald Vernon MATT, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Feb. 16, 1982.

      Harry C. J. Blair, Easton, for appellant.
    John Gallagher, District Attorney, Easton, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   CAVANAUGH, Judge:

On April 17, 1975, following a jury trial, the appellant, Ronald Vernon Matt, was found guilty of robbery. Post trial motions were denied and dismissed by the court en banc. On October 18, 1975, Matt was sentenced to a term of imprisonment of four to eight years. Matt, by his trial counsel, appealed and we affirmed the lower court. Commonwealth v. Matt, 249 Pa.Super. 98, 375 A.2d 777 (1977).

In the matter now before us the appellant attacks his conviction by way of a Post Conviction Hearing Act petition. The petition claims that the appellant has been denied his constitutional right to effective assistance of counsel; and that his sentencing was defective due to the trial court’s failure to comply with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). The lower court, recognizing that Riggins has been given retroactive application in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), ordered that Matt be resentenced, but dismissed the remaining claims as without merit. This appeal followed. We reverse.

Perceived in the light most favorable to the Commonwealth, see Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975); Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978), the following was adduced at trial. On February 3, 1975 the victim of the robbery, Joseph Feist, met appellant and discussed the purchase of a stereo from one of appellant’s friends. Later in the day appellant and Feist joined a third person who was to drive them to see the stereo. While in the car the appellant grabbed a spatula and held it to the victim’s throat. He demanded the victim’s money, punched him and forced his head against the dashboard. While the victim was so positioned, the appellant removed $140.00 from him. According to the appellant he and Feist had been playing pool earlier in the day and that as a result Feist owed him $55.00. Matt claimed that the scuffle in the car arose due to his efforts to recover the gambling debt. Appellant admitted that he tried to get money from Feist, that he struck him with his hand and attempted to hit him with the spatula. However, he denied taking any money. The victim, Feist, on the other hand denied losing $55.00 to Matt while playing pool and stated that he did not know how to play pool.

First we will consider appellant’s claim of ineffective assistance of counsel. We have often stated the test for determining whether trial counsel has been effective:

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. 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, 604-05, 235 A.2d 349, 352-53 (1967).

As noted above, as part of Matt’s defense he claimed that he had been playing pool with Feist on the day of the alleged robbery. During cross-examination the Commonwealth questioned Matt as to the whereabouts of the attendant at the pool hall who might corroborate Matt’s testimony. The following exchange took place:

Q How long were you playing pool there that day?
A No more than—no more than an hour, if that long.
Q You mean he lost $55 to you in one hour’s time?
A Less than an hour, yeah.
Q Less than an hour?
A Yeah.
Q Is that pool hall attendant—is he in the courtroom here? Do you see him here?
MR. PASLINE: I object to that.
THE COURT: The objection is overruled.
BY MR. FREEDBERG:
Q. The man that was the attendant there, you don’t see him in the courtroom here today. Do you?
A. No, I don’t.
Q. And he could bear out your story that you—
MR. PASLINE: I’m going to object to that.
THE COURT: Overruled.
BY MR. FREEDBERG:
Q According to you, he was there. He can bear out your story that there was a pool game between you and Feist. Isn’t that correct?
A Not necessarily.
Q Well, he was there. Wasn’t he?
A Yes. He was there.

Appellant’s trial counsel did not question the appellant concerning the attendant. During the charge to the jury the court stated:

The pool room owner or the pool room operator was not called as a witness by the defendant and he did not testify. In light of this, you may, if you wish, conclude that had he testified, his testimony would have been unfavorable to the defendant, but you cannot reach that conclusion until you are sure that the following conditions have not been met: First, the defendant must have given no reasonable explanation of why the witness did not testify. Secondly, you must conclude that the witness would have some knowledge or information important to your decision in this case; and, third, that he must have been more available to and had he been called, more likely to be favorable to the defendant than the Commonwealth. If those conditions are met, as I have outlined them, then you may conclude that the owner’s testimony would have been unfavorable to the defendant, who failed to call him, but even if those conditions do not exist, then, of course, you are not required to draw that conclusion.

The charge is consistent with the “missing witness rule” which provides that a negative inference may be drawn from a party’s failure to call a corroborating witness who was in his control:

The criteria for determining when an inference can properly be drawn from the failure of a party to call a witness are well-settled. ‘Where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.’ Wills v. Hardcastle, 19 Pa.Super. 525, 529 (1902); Green v. Brooks, 215 Pa. 492, 496, 64 A. 672 (1906); Haas v. Kasnot, 371 Pa. 580, 584, 585, 92 A.2d 171 (1952).

Commonwealth v. Gibson, 245 Pa.Super. 103, 105-06, 369 A.2d 314, 315 (1976). See also Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971); Commonwealth v. Paull, 250 Pa.Super. 416, 378 A.2d 1006 (1977). One exception to this rule is where the witness is not available or not within the control of the party against whom the negative inference is desired. See Commonwealth v. Wright; supra; Commonwealth v. Gibson, supra. Appellant argues that his trial counsel was ineffective for failing to establish that the attendant was not in appellant’s control because Matt was unable to contact him. Matt was a newcomer and therefore unknown in the area; he did not know the attendant’s name and, more importantly, he was incarcerated from the time of his arrest until trial.

At the PCHA hearing the following exchange took place during the direct examination of appellant’s trial counsel, Harris Pasline:

Q So you made no attempt to find any attendant in the pool hall?
A I didn’t feel it was relevant, until Mr. Freedberg brought it out at trial, and which I objected to.
Q [But you did not cross-examine or] redirect with respect to his prison status. Did you?
A That is always a delicate situation and that is a decision that’s made there on the spot. I must assume that if I made a decision not to discuss it with—his prison record, I did feel that was also detrimental to his case.

The lower court held that trial counsel’s decision not to inform the jury that appellant was in prison was not ineffective in that it had “at least some reasonable basis designed to effectuate his client’s interest.” However, the record discloses that trial counsel did not, in fact, make a decision not to discuss appellant’s prison status. Rather, trial counsel specifically requested that the lower court judge instruct the jury that because Matt was in prison he would have difficulty finding the missing witness. The following discussion took place at side bar during the jury charge:

Gentlemen, is there anything you wish me to add to this charge?

MR. FREEDBERG: No, your honor.
(the following discussion took place at side bar:)
MR. PASLINE: One of the problems also in bringing a witness in, which you did not charge on, is the fact that he is in prison, which makes it, you know, difficult for him to go out and find this person.
MR. FREEDBERG: There is no evidence to that effect.
THE COURT: You are his lawyer.

This contradicts trial counsel’s testimony at the PCHA hearing. Just as the benefit of hindsight cannot be used to determine the reasonableness of a particular trial tactic, the benefit of hindsight cannot be used to transform counsel’s omission into a tactical decision. Thus counsel’s failure to explain the absence of the corroborating witness cannot be said to have had a reasonable basis so as to effectuate appellant’s interests. If evidence had been admitted that Matt was incarcerated the objection to the charge should have been sustained. As it was, the jury was permitted to infer that the testimony of this attendant would have been adverse to the appellant. Therefore, we hold that the appellant was denied the effective assistance of counsel and is entitled to a new trial.

In view of our disposition, we need not address the appellant’s remaining arguments.

Order reversed. New trial granted.

WATKINS, J., files dissenting opinion.

WATKINS, Judge,

dissenting:

I respectfully dissent. Although the defendant’s trial counsel might have handled this matter in a better fashion, I cannot say that the one, isolated incident during the trial which is cited by the Majority as the reason for its holding amounts to ineffective assistance of counsel.

A defendant is not entitled to a “perfect trial”, but is merely entitled to a fair trial. Under all of the circumstances of this case, I believe that the defendant in the instant case was given a fair trial.

      . The propriety of appellant’s sentence is, therefore, not before us.

      . Cf. McCormick on Evidence, § 272 (2d ed. 1972):
      “It is often stated that when a particular witness is available, and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference would have been unfavorable.” [footnotes omitted].

      . In Wright the court emphasized that the inference the jury is permitted to draw is only permissible and not mandatory. The court went on to state that “such inferences do not affect the presumption of innocence. The Commonwealth must still prove that the defendant committed the crimes alleged beyond a reasonable doubt.” 444 Pa. at 541, 282 A.2d at 325.

      . There is no evidence on the record that appellant’s trial counsel undertook an investigation concerning the existence of the pool hall attendant. In fact counsel admitted that he did not think the testimony of such a witness would be relevant. It is clear, however, that the pool hall attendant could have corroborated appellant’s version of the events and serve to discredit the testimony of Feist. As such counsel was ineffective for failing to investigate. See Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166, 170 (1978).