author: CERCONE, President Judge:

text:
    443 A.2d 818
    COMMONWEALTH of Pennsylvania v. Michael GUERRISI, Appellant.
    Superior Court of Pennsylvania.
    Argued May 5, 1981.
    Filed March 26, 1982.

      Paul W. Kilgore, Lebanon, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

      Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   CERCONE, President Judge:

Having been tried before judge and jury, the appellant, Michael Guerrisi, was convicted on January 10, 1980 of aggravated assault and resisting arrest. On October 15, 1980, he was sentenced to five consecutive weekends in prison, a two year less one day period of probation, plus costs and fines. This appeal followed.

Appellant first contends that the evidence was insufficient as a matter of law to sustain his convictions. Viewed, as we must, in the light most favorable to the Commonwealth as verdict winner below, the salient facts are these. See Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Williams, 447 Pa. 206, 290 A.2d 111 (1972); Commonwealth v. Emmi, 290 Pa.Superior Ct. 86, 434 A.2d 142 (1981); Commonwealth v. Rainey, 285 Pa.Superior Ct. 75, 426 A.2d 1148 (1981); Commonwealth v. Young, 233 Pa.Superior Ct. 429, 335 A.2d 498 (1975). On September 7,1979, two police officers, Robert E. Weinhold and Scott Bartel, were summoned by a radio dispatch to a parking lot to disperse a group of approximately twenty to thirty teenagers. Upon arriving at about 11:00 p. m., they observed the appellant attempting to strike Michael Weller, the operator of the car. The police officers decided to place appellant under arrest for harassment after conversing with Mr. Weller.

After informing appellant of the arrest, the officers each grasped one of his wrists and led him toward the police car. Appellant broke loose and a scuffle ensued, during the course of which, according to Officer Weinhold’s testimony alone, he was struck in the groin by appellant. The officer testified that he then retaliated by punching appellant a single time in the side of the head. Eventually, the appellant was controlled, put into the police car, and transported to headquarters. The officers testified that en route, the appellant stated he was going to kill them, and that, upon arriving at the police garage, appellant struck Officer Weinhold, precipitating another scuffle. According to their testimony, the officers then simply wrestled appellant to the ground in order to regain control over their prisoner. Clearly, when viewed in this light, the evidence sufficiently supported the appellant’s convictions for the offenses of resisting arrest and aggravated assault on a police officer.

Appellant next contends that the lower court erred in permitting testimony concerning the altercation that took place in the police garage because the information allegedly only charged him with offenses that occurred in the parking lot. Our review of the record indicates that the information for the aggravated assault charge did in fact charge appellant with acts at both the parking lot and the Lebanon Police Department. Therefore, appellant’s contention is patently frivolous.

Appellant’s final contention is that he was denied the effective assistance of trial counsel in that counsel did not offer evidence of the physical injuries that were inflicted upon him by the police. More specifically, he contends that counsel had hospital records and pictures which would have established the serious nature of appellant’s injuries to both corroborate the appellant’s testimony that he was brutalized at the hands of the police while at the same time impeaching the credibility of the police officer’s testimony that they only struck appellant once in the parking lot and only “wrestled” him down at the police garage. It was appellant’s testimony, which was corroborated by defense witnesses, that the officers bounced him off of cars, threw him to the ground, and continually banged his head into the sidewalk at the parking lot. Also, he testified that they threatened to beat him up when they arrived at the station and that, when they did arrive, Officer Weinhold took off his badge and utility belt, and gave them to Officer Bartold who then complied with Officer Weinhold’s request to leave the area. Appellant’s version of the facts continues with the allegation that Officer Weinhold took off appellant’s handcuffs and attacked him. Appellant admitted to attempting to defend himself, but testified that he received a blow to the head with a blunt object from someone standing behind him, and that when he thereafter fell to the ground, Officer Weinhold and someone from behind continually kicked him in the ribs and the groin. Thus, appellant testified that after he was released his father took him to the hospital where it was necessary for him to stay over night to obtain treatment for head injuries and broken ribs. On cross-examination, appellant testified that he had the medical records from the hospital to substantiate his testimony. Nevertheless, appellant’s counsel did not introduce these medical records or other medical testimony into evidence, nor did he introduce pictures of the extensive nature of appellant’s injuries which appellant now claims were in counsel’s trial folder. Certainly, such testimony would have been highly relevant, and perhaps even crucial, because the credibility of the defendant and his witnesses was pitted against that of our generally respected law enforcement officials. Had such evidence been admitted, the jury may have been led to seriously doubt the veracity of the testimony given by the two police officers in this case.

The standard to be applied in determining whether counsel’s failure to introduce such evidence amounted to constitutionally ineffective assistance of counsel was established in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

[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.

More recently, our Supreme Court, in reference to counsel’s failure to call known eye-witnesses, has held that:

In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.

Commonwealth v. Abney, 465 Pa. 304, 309, 350 A.2d 407, 409 (1976) (quoting Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975)).

Although Abney and Twiggs involved the favorable testimony of known eyewitnesses, this principle is equally applicable to favorable demonstrative evidence, documentary evidence, and expert testimony which is allegedly present in the instant case. See Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) (counsel was ineffective for failing to introduce evidence of defendant’s hospitalization and injuries which was relevant to the defendant’s claim of self-defense and/or mitigation of the seriousness of the homicide charge); Commonwealth v. Adams, 465 Pa. 314, 350 A.2d 412 (1976) (counsel was ineffective for failing to produce the testimony of two eyewitnesses to the alleged beating of the accused by police, and medical testimony to corroborate it, so as to afford the jury grounds to disregard the accused’s oral admission which was made after the alleged beating). In point of fact, this Court addressed a similar issue with respect to counsel’s failure to introduce hospital Records indicating that the accused was treated for stab wounds which would allegedly corroborate the defendant’s testimony that several days prior to the Commission of the alleged crime, the Commonwealth’s chief witness had stabbed him with a knife during a quarrel. Commonwealth v. Lee, 271 Pa.Superior Ct. 504, 414 A.2d 367 (1979). The appellant therein claimed, inter alia, that the evidence should have been offered to impeach that Commonwealth witness’ credibility through a showing of bias. Nevertheless, we held “that counsel’s failure to introduce the hospital records did not render counsel’s assistance ineffective since the records would not have impeached [the] testimony [of the Commonwealth’s witness], . . . The introduction of the records would have been useless.” Id., 271 Pa,Superior Ct. at 507, 414 A.2d at 368. But see id., 271 Pa.Superior Ct. at 507, 414 A.2d at 369 (Manderino, J., dissenting). In the present case, however, this cannot be gainfully said. The evidence in question, if of the nature and calibre that appellant alleges, would most certainly have impeached the testimony of Officers Weinhold and Bartal with respect to the force they used to arrest Mr. Guerrisi. Since credibility was absolutely crucial, the evidence of Mr. Guerrisi’s injuries, which was allegedly corroborative of the defense version of the force used and contradictory to the version depicted by the police, could have caused the jury to disbelieve the Commonwealth’s witnesses and acquit the appellant. Thus, if the evidence, would have been helpful to so impeach the Commonwealth’s witnesses and was available to counsel at the time of trial, as appellant contends, then the claim foregone would have been one of arguable merit.

On the present state of the record, however, we are unable to determine what the medical records contained, what medical testimony would have been available, and also what the pictures actually portrayed, if, in fact, pictures of appellant’s injuries were available to counsel as appellant now contends. We, therefore, vacate the judgment of sentence and remand to the lower court for an evidentiary hearing to determine exactly what evidence, if any, was available to the defense and to determine whether or not counsel’s decision not to introduce such evidence had some reasonable basis designed to effectuate his client’s interests. If upon remand the lower court decides that counsel’s representation was constitutionally ineffective, then a new trial shall be awarded. If, however, trial counsel’s conduct was not ineffective, then the judgment of sentence shall be reinstated.

The judgment of sentence is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished and the parties may file new appeals from any adverse rulings.

      . Crimes Code, 18 Pa.C.S. § 2702(a)(3).

      . Id. at § 5104.

      . We note that the act of breaking loose was not, and indeed, cannot be the basis for the resisting arrest charge. See Commonwealth v. Rainey, 285 Pa.Superior Ct. 75, 426 A.2d 1148 (1981). Rather, the conviction rests solely on Officer Weinhold’s testimony that appellant struck him in the groin. In fact, this was the only testimony offered to support that conviction.

      . As the Supreme Court stated in Commonwealth v. Adams, 465 Pa. 314, 322, 350 A.2d 412, 416 (1976) (citation omitted): “We cannot determine what effect this testimony would have had in appellant’s ... trial, but it is evidence the jury should have had an opportunity to consider.”

      . Our cases have held that counsel is not ineffective for failing to produce evidence of an exculpatory nature if he or she did not have access to such evidence at the time of trial. Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980); Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 419 A.2d 544 (1980); Commonwealth v. Williams, 271 Pa.Superior Ct. 114, 412 A.2d 601 (1979); Commonwealth v. Sabb, 269 Pa.Superior Ct. 206, 409 A.2d 437 (1979).
      It is likewise clear that the evidence in question must be helpful to the defense. See Commonwealth v. Burrell, 286 Pa.Superior Ct. 502, 429 A.2d 434 (1981); Commonwealth v. Rainey, 282 Pa.Superior Ct. 15, 422 A.2d 652 (1980).

      . Although we are hard pressed to find any reasonable basis to forego such a defense, we will, nevertheless, afford the Commonwealth the opportunity to enlighten us since we have already decided to remand this case for the reasons previously expressed herein.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    443 A.2d 822
    COMMONWEALTH of Pennsylvania v. Arnold ROSENFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1981.
    Filed March 26, 1982.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   WICKERSHAM, Judge:

Arnold Rosenfield, appellant, was charged by criminal informations in Delaware County with unlawfully and feloniously attempting to and, in fact, taking or exercising unlawful control over movable property, to wit: in excess of $135,000.00 U.S. currency, belonging to Circle Ford Company, with intent to deprive said company thereof. The offenses charged in the informations included theft by unlawful taking or disposition (18 Pa.C.S. § 3921), theft by receiving stolen property (18 Pa.C.S. § 3925), theft by deception (18 Pa.C.S. § 3922), and theft by failure to make required disposition of funds received (18 Pa.C.S. § 3927).

Trial commenced in Media on January 17, 1980 before the Honorable Robert A. Wright and a jury. Appellant was found guilty of theft by unlawful taking or disposition, theft by deception and theft by failure to make required disposition of funds received.

Following trial, Arnold Rosenfield filed a motion in arrest of judgment reading as follows:

MOTION IN ARREST OF JUDGMENT TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
AND NOW, after verdict against the said Defendant and before sentence comes the said Defendant, by his attorney Daniel E. Murtaugh, Jr., Esquire, and moves the Court to arrest judgment herein, and not pronounce the same, because of manifest errors in the record appearing; to wit, the evidence was insufficient to sustain the verdict, and such other reasons as may be assigned after a review of the Notes of Testimony.

and he filed a motion for a new trial, reading as follows:

MOTION FOR NEW TRIAL TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
The Court is respectfully moved to grant a new trial in the above stated case for the following reasons:
1. The verdict was against the law.
2. The verdict was against the weight of the law.
3. The verdict was against the evidence.
4. The verdict was against the weight of the evidence.
5. It is further requested that leave be granted to state additional specific grounds after the transcription of the notes of testimony.

On October 23, 1980, Judge Wright denied defendant’s motions for a new trial and in arrest of judgment.

On November 14, 1980, Judge Wright sentenced Arnold Rosenfield to a term of imprisonment for a minimum of eight months and a maximum of three years on the conviction of theft by deception and suspended sentence on the conviction of theft by unlawful taking or' disposition. On the conviction of failing to make required disposition of funds received, the defendant was sentenced to undergo imprisonment in the Delaware County Prison for a minimum of eight months and a maximum of three years. He was also ordered to make restitution in the amount of $75,000 and the sentences to imprisonment were directed to run concurrently. This appeal followed. In his statement of questions involved, appellant sets forth the following:

I. Whether the lower court erred in admitting into evidence the work sheet summaries prepared by Mrs. Cohen, since the summaries were equivalent to expert opinion testimony which the witness was not competent to give?
II. Whether the lower court erred by charging the jury that bookkeeping was not an issue in the case?
III. Whether the lower court erred when it attempted to correct the instruction it had given regarding bookkeeping not being an issue?
IV. Whether the lower court erred when charging the jury as to the status of testimony of persons who are not experts?

Brief for Appellant at 4.

We affirm for want of compliance with the written post-verdict motions specificity requirement of Pa.R.Crim.P. 1123(a) and Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

In Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980), Mr. Justice Roberts speaking for a unanimous court said:

This is a direct appeal from a judgment of sentence imposed by the Court of Common Pleas of Allegheny County on a jury verdict of guilty of murder of the third degree. We affirm for want of compliance with the written post-verdict motion specificity requirement of Pa. R.Crim.P. 1123(a) and Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
On February 15, 1979, appellant filed a written ‘Motion For New Trial And/Or Arrest of Judgment.’ Contained in the written motion was only the following allegation:
‘1. The jury verdict was against the weight of the law and the evidence in this case.’
The post-verdict court denied relief and entered judgment of sentence. On this appeal, appellant contends (1) that he should be discharged for want of sufficient evidence of malice and (2) that he should be awarded a new trial because the Commonwealth failed to produce allegedly existing handwritten notes of the investigating officer to whom appellant gave a statement.
Rule 1123(a) of our Rules of Criminal Procedure (adopted June 8, 1973) provides:
‘Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pretrial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued.’
In Blair, this Court (on January 29, 1975) unanimously stated:
‘The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial courts and appellate courts.’
460 Pa. at 32 n.l, 331 A.2d at 214 n.l. See also Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) (appellate courts shall not dispose of cases on substantive issues raised sua sponte). Here, well over five years after the promulgation of Rule 1123(a) and over four years after Blair, appellant failed to present his allegations of error in writing to the post-verdict court. See Commonwealth v. Meadows, 471 Pa. 201, 208-209, 369 A.2d 1266,1270 (1977). Consistent with Rule 1123(a) and Blair, this Court will not consider appellant’s claims.

Id., 491 Pa. at 599-600, 421 A.2d at 1046-47.

As Judge Wright pointed out in his opinion of October 23, 1980:

Following trial Defendant filed Boiler-Plate Motions for New Trial and In Arrest of Judgment, reserving the right to supplement said Motions by additional grounds following the transcription of the Notes of Testimony. After the notes were transcribed, Defendant failed to file additional grounds for his Motions.
Pennsylvania Rule of Criminal Procedure 1123(a) provides as follows:
‘Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pretrial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued.’
Compliance with this Rule is mandatory. This has been pointedly brought to the fore by the Supreme Court of Pennsylvania in its decision of Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), in footnote 1: ‘... Henceforth, issues not presented in compliance with the Rule [1123(a)] will not be considered by our trial and appellate courts.’
The above pronouncement ‘. . . is intended to enhance the quality of review at both the trial and appellate levels. At the trial level, counsel’s precise statement of issues and grounds relied upon in written form insures that both the trial court and Commonwealth will have adequate notice of the legal theories being advanced... ’ Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). The opinion summarizes the reasoning of the requirement of the Rule, suggesting that it ‘... enhances the quality of review; encourages professional advocacy; discourages pursuit of frivolous claims; and promotes judicial economy.’
The arguments of Defendant presented by way of written Brief are not contained within the Motions for New Trial or In Arrest of Judgment. We, therefore, feel constrained to dismiss the Motions for Defendant’s failure to comply with the dictates of Pennsylvania Rule of Criminal Procedure 1123(a).

Lower ct. op. at 1-3.

We agree with Judge Wright.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . See also Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), wherein the Supreme Court held that “sixty days after the filing of this opinion, only those issues included in post-verdict motions will be considered preserved for appellate review.” Id., 486 Pa. at 198-99, 404 A.2d at 1298.


author: WIEAND, Judge:

text:
    443 A.2d 825
    COMMONWEALTH of Pennsylvania v. Richard D. SIMKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 23, 1981.
    Filed March 26, 1982.

      John R. Gailey, Jr., York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.

      Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Richard D. Simkins was convicted by a jury of risking a catastrophe and possession of methamphetamine, a violation of the Controlled Substance, Drug, Device and Cosmetic Act. Post-verdict motions were denied, and Simkins was sentenced to concurrent terms of imprisonment for not less than three nor more than twenty-three months. On appeal, he contends (1) that the evidence was insufficient to sustain the conviction for risking a catastrophe; (2) that the trial court erred in granting a Commonwealth request to extend the time for commencing trial; (3) that the trial court erred in refusing to suppress the Commonwealth’s evidence; (4) that the court erred in refusing to sever the two charges for purpose of trial; and (5) that the trial judge erred in allowing evidence which showed the presence in appellant’s rented house of substances used in the manufacture of amphetamines. We agree that the evidence did not establish the offense of risking a catastrophe; and, therefore, we set aside and vacate the judgment of sentence for that offense. Appellant’s remaining assignments of error lack merit, however, and the judgment of sentence for possessing amphetamines will be affirmed.

On January 12, 1977, a fire occurred at premises leased by appellant in rural York County. Firemen quickly responded, entered the dwelling, and put out the fire. Inside the dwelling they found evidence that the premises had been used for the manufacture of amphetamines. Included among various substances found on the premises were quantities of acetone, a volatile and highly flammable chemical. A fifty-five gallon drum of acetone, having a three inch opening stuffed with paper towels, was discovered in the basement, less than ten feet from an oil-fired heater. In fact, however, the fire had started at or near the sofa in the first floor living room and had been extinguished before igniting the acetone or any other chemical substance kept in the house. The Commonwealth contended that appellant had risked a catastrophe because of the manner in which the acetone had been stored on the property.

Risking a catastrophe is a crime which was unknown to the law of Pennsylvania prior to the passage of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6,1973,18 Pa.C.S.A. § 3302. The offense is defined in 18 Pa.C.S.A. § 3302(b) as a felony of the third degree, if a person “recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.” (Emphasis added.) The offense of risking a catastrophe, it will be observed, can occur only in the employment of fire, explosives or other dangerous means listed in subsection (a).

The forces or substances identified by 18 Pa.C.S.A. § 3302(a), which defines the offense of causing a catastrophe, include: “explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material ... or by any other means of causing potentially widespread injury or damage. .. .”

Acetone is not one of the forces or substances specifically enumerated by the statute. Therefore, if it is to be a substance whose handling can subject an actor to criminal liability for risking a catastrophe, it must be because the actor’s “improper handling [of the substance] is capable of causing widespread devastation.” Commonwealth v. Hughes, 468 Pa. 502, 512, 364 A.2d 306, 311 (1976) (footnote omitted) (emphasis supplied).

“The ‘risk’ proscribed by this legislation is the use of dangerous means by one who ‘consciously disregards a substantial and unjustifiable rislf and thereby unnecessarily exposes society to an extraordinary disaster.” Commonwealth v. Hughes, supra, 468 Pa. at 513, 364 A.2d at 311 (emphasis omitted and supplied).

The Commonwealth’s evidence in the instant case failed to establish that appellant’s conduct in storing the acetone as described was either reckless or created a potential for an “extraordinary disaster.” Rather, the Commonwealth showed a negligent storage of acetone which the Commonwealth’s witness declined to testify had the potential for “widespread injury or damage.” The orbit of danger, the expert said, included only appellant and the dwelling in which he had stored the acetone. We conclude, therefore, that the Commonwealth failed to prove reckless conduct which created the type of risk proscribed by 18 Pa.C.S.A. § 3302(b).

In Commonwealth v. Hughes, supra, the Supreme Court stated that “the term ‘catastrophe’ is sufficiently precise to designate the extent of the harm sought to be prevented by this section .... We believe that the term ‘catastrophe’ as used here conveys not only a quantitative but a qualitative distinction.” Id., 468 Pa. at 514, 364 A.2d at 312. The defendant in Hughes had violated a known company restriction against smoking while handling lactol, a highly flammable substance. He was carrying an open bucket of lactol from one area of a center-city factory to another and had spilled some of it while transporting it. He placed the bucket on the floor and, after having ascertained that there was no one in the area to observe him, attempted to light a cigarette. However, he was distracted and dropped the lighted match into the five gallon pail of solvent. The bucket, areas of the floor and the defendant’s safety shoes caught fire. He then kicked his burning shoes in different directions. The resulting fire and explosions raged out of control for four hours, causing injury to thirty-eight firemen, one policeman, three civilians and the death of two firemen. The fire also required the evacuation of families from fifty-one nearby homes. The defendant had been aware of the risk entailed in lighting a match while carrying an open container of the highly flammable solvent. His conduct evidenced a conscious disregard of a known risk and also the company’s safety rule. By this disregard of known safety requirements, he recklessly exposed other employees, the occupants of neighboring buildings and the surrounding property itself to widespread and serious injury and damage.

In the instant case, the risk which the Commonwealth contended appellant’s conduct had created was that acetone would ignite. This arose because the drum of acetone had been stored in the basement, sealed only with paper towels, in proximity to the heater. We conclude that this was insufficient to prove recklessness. There may have been carelessness in the manner in which the acetone was stored, but the fact that it had not been used in the basement and that, while stored, the container had been closed, albeit inadequately, negatived the conclusion appellant had acted recklessly in disregard of a risk of extraordinary disaster. Moreover, the evidence failed to show that ignition of the acetone was likely to cause a catastrophe. Fire involving a single residence, unoccupied except by the actor, is not the type of widespread damage contemplated by the statutory term “catastrophe.” See and compare: Commonwealth v. McGinnis, 481 Pa. 394, 403, 392 A.2d 1350, 1354-1355 (1978) (Roberts, J., dissenting); Commonwealth v. Martinez, 12 D & C 3d 780, 781-782 (1980).

Appellant’s contention that the trial court erred in granting an extension of time within which to commence trial is lacking in merit. The delay in commencing trial occurred so that the court could hear and consider appellant’s motion to suppress evidence. This is the type of “judicial delay” for which an extension of time can properly be granted. See: Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Schaszberger, 285 Pa.Superior Ct. 586, 590, 428 A.2d 200, 202 (1981); Commonwealth v. Jackson, 269 Pa.Superior Ct. 249, 409 A.2d 873 (1979).

Similarly, there was no merit in appellant’s application to suppress the acetone and other chemicals, as well as the amphetamine, found on the premises. These substances were observed and examined by members of the Pennsylvania State Police who were charged by statute to “investigate the origin or circumstances of any fire occurring in this Commonwealth.” Act of April 27, 1927, P.L. 450, No. 291, § 4, as amended, 35 P.S. § 1184. Their entry of the premises in order to investigate the origins of the fire was proper and authorized by law. Once lawfully on the premises and in a position from which they could observe objects stored therein, police could legally seize evidence in plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. Mitchell, 489 Pa. 537, 540, 414 A.2d 1021, 1023 (1980); Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978); Commonwealth v. Ginter, 289 Pa.Superior Ct. 9, 18, 432 A.2d 1024, 1028 (1981).

Appellant also argues that the court erred in permitting the Commonwealth to introduce evidence that other chemicals used in the manufacture of amphetamines had been purchased and stored on the premises by appellant. The Commonwealth introduced this evidence in order to establish appellant’s identity as the owner of the acetone and amphetamine. The evidence was relevant for this purpose, particularly in view of appellant’s defense that the acetone belonged to a friend who had left it behind after visiting appellant’s dwelling.

Appellant’s final contention is that the trial court erred in denying his motion to sever the charges of risking a catastrophe and possession of a controlled substance. It is well established that the grant or denial of a severance is within the discretion of the trial judge, whose determination will be reversed only for an abuse of discretion. Commonwealth v. Lasch, 464 Pa. 573, 584, 347 A.2d 690, 695 (1975); Commonwealth v. Peterson, 453 Pa. 187, 193, 307 A.2d 264, 267 (1973) (plurality opinion); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth v. Brown, 227 Pa. Superior Ct. 410, 413, 323 A.2d 223, 225 (1974). In the instant case, the two charges arose from the same criminal conduct, and no prejudice to appellant has been shown from the consolidation of the charges for trial. There was no error in refusing to sever the charges. See: Commonwealth v. Herman, 271 Pa. Superior Ct. 145, 153, 412 A.2d 617, 621 (1979); Commonwealth v. Grassmyer, 266 Pa. Superior Ct. 11, 14, 402 A.2d 1052, 1054 (1979). This is particularly so with respect to the methamphetamine charge, where appellant’s guilt of possessing the same was established beyond peradventure of any doubt.

For the foregoing reasons, the judgment of sentence for risking a catastrophe is vacated, and appellant is discharged on such charge. The judgment of sentence for possession of methamphetamine, however, is affirmed.

      . 18 Pa.C.S.A. § 3302(b).

      . Act of April 14, 1972, P.L. 233, No. 64, § 1, 35 P.S. § 780-101 et seq.

      . Causing or Risking a Catastrophe, 18 Pa.C.S.A. § 3302, is derived from Section 220.2 of the Model Penal Code. The comments to Section 220.2 note that it is patterned on European legislation dealing with activity creating a “common danger.” American Law Institute’s Model Penal Code, § 220.2 (Tentative Draft No. 11) (1960).

      . It was established at trial that appellant’s dwelling, located on a dirt road in a rural area of York County, was 102 feet from the nearest building.

      . It is interesting to note that the state police took no steps to have the acetone removed from the house following the fire, although they were empowered to do so under 35 P.S. § 1183. At the preliminary hearing on March 18, 1977, two months after the fire, both investigating officers testified that to the best of their knowledge, the acetone was still in the basement of the house. In fact, the owner of the house had removed it several weeks after the fire.
      It is also curious that the contents of the drum had never been measured to ascertain the quantity remaining in the container at the time of or immediately following the fire. Police officers testified at trial that they had identified the substance as acetone solely on the basis of its smell and the label on the opened drum.

      . Appellant also questions whether probable cause existed for the issuance of a search warrant for his motel room on March 3, 1977. However, the record does not disclose that evidence seized pursuant to this warrant was introduced at appellant’s trial on the instant charges. Moreover, the existence of probable cause where, as here, it was derived in large measure from information supplied by the owner of the motel, has been determined contrary to appellant’s contention by decisions of this Court in Commonwealth v. Cosby, 234 Pa. Superior Ct. 1, 335 A.2d 531 (1975) and Commonwealth v. McKeever, 229 Pa. Superior Ct. 35, 323 A.2d 44 (1974).


author: BECK, Judge:

text:
    443 A.2d 829
    Vernice SMITH, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and James E. Foyle and Robert Foyle, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed March 26, 1982.
    Thomas D. Watkins, Philadelphia, for appellant.
    Norman Hegge, Jr., Philadelphia, for Southeastern, appellee.

      Jeffrey F. Swigart, Philadelphia, for Foyle, appellees.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from the denial of appellant’s Petition to Reinstate her Cause of Action. The pertinent facts are as follows. Appellant was injured in a collision on July 25, 1972 between an automobile and a bus in which she was riding. She filed suit on July 31, 1973, and discovery was completed by November, 1974. On September 23, 1977 the action was dismissed pursuant to Philadelphia Local Star Rule 350. Subsection 1 of that rule states:

(1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two successive years, the action shall be dismissed with prejudice, for failure to prosecute, under the provisions of this rule, and the docket so marked, provided that no less than sixty days’ notice be given by the publication once in The Legal Intelligencer.

Subsection 3 of that Rule provides that the action may be reinstated for good cause shown if written application is made within three months of dismissal.

Appellant’s counsel filed a Certificate of Readiness and a Major Case Petition in March, 1980—more than five years after the completion of discovery. Both were rejected by the Prothonotary because the action had already been dismissed. On October 2, 1980, appellant filed a Petition to Reinstate the Cause of Action. The Court of Common Pleas denied that Petition. It held that appellant’s late filing for reinstatement was excused because the Prothonotary failed to provide written notice of the dismissal as required by Pa.R.C.P. 236: “(t)he prothonotary shall immediately give written notice by ordinary mail of the entry of any order, decree or judgment. . ,” But it also held that appellant’s failure to prosecute was not reasonably explained or excused and accordingly refused to reinstate the action.

The lower court centrally relied upon Corcoran v. Florentino, 277 Pa.Super. 256, 419 A.2d 759 (1980). That opinion held in part:

Where notice that the case has been dismissed has not been given pursuant to Rule 236, however, the party seeking reinstatement may not learn of the dismissal until after the expiration of the three month period. We therefore conclude that the failure to give Rule 236 notice to plaintiffs in this case excuses their failure to file their application to reinstate within three months of dismissal.

Id., 277 Pa.Super. at 260, 419 A.2d at 761.

But the second part of the Corcoran court’s two pronged inquiry was the basis for the result reached by the trial court:

Our inquiry now focuses upon whether “good cause” was shown for reinstating the action pursuant to Philadelphia Rule *350. The requirements for a showing of “good cause” are identical to those for the opening of a judgment of non pros: “ ‘(1) the petition must be timely filed; (2) the reason for the default reasonably explained; and, (3) the facts constituting grounds for the cause of action be alleged.’ ” International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 382. 378 A.2d 986, 988 (1977) (quoting Boyles v. Sullivan, 230 Pa.Super. 453, 455, 326 A.2d 440, 442 (1974)).

Id., 277 Pa.Super. at 260-261, 419 A.2d at 761.

The lower court concluded that laches such as in the instant case must be reasonably explained.. Mere confusion or consolidation of two cases involving the same client is not sufficient. See International Telephone and Telegraph Corporation v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977). We agree that the delay was not reasonably explained.

The order of the lower court denying reinstatement of appellant’s cause of action is affirmed.

      . Philadelphia Rule *350 was replaced by Rule 130 of the Rules of Civil Procedure of the Court of Common Pleas of Philadelphia County.

      . We note that Stringer v. Kaytes, 286 Pa.Super. 551, 429 A.2d 660 (1981) and Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980) held that Philadelphia Rule *350 and Pa.R.C.P. 236 do not conflict. The local rule does not mention that the Prothonotary must give notice after the action is dismissed. The Stringer court held that because Pa.R.C.P. 236 is a statewide rule of general application, its notice requirement is implicit in all rules of court authorizing “the entry of any order, decree or judgment.” 286 Pa.Super. at 556, 429 A.2d at 662.

      . Appellant advanced clerical error as reason for the delay. Counsel represented appellant in two other cases, and the file in the instant case was closed with one of the other claims.


author: JOHNSON, Judge: BROSKY, Judge, concurring: POPOVICH, Judge, WICKERSHAM, Judge,

text:
    443 A.2d 831
    Debra K. WILLIAMS, Appellant, v. Alan R. WOLFE.
    Superior Court of Pennsylvania.
    Argued June 25, 1981.
    Filed March 26, 1982.
    Petition for Allowance of Appeal Denied August 30, 1982.

      Samuel E. Teeter, Assistant District Attorney, Gettysburg, for appellant.
    John R. White, Gettysburg, for appellee.
    Before CERCONE, President Judge, and SPAETH, HESTER, WICKERSHAM, BROSKY, JOHNSON, POPOVICH, DiSALLE and SHERTZ, JJ.
   JOHNSON, Judge:

This appeal concerns whether a civil action for support of a non-marital child is barred by the running of a two-year criminal statute of limitations when paternity is denied. This case was ordered argued along with Commonwealth ex rel. Johnson v. King, 297 Pa.Super. 431, 444 A.2d 108 (Pa.Super.Ct.) because of the similarity of issues.

Appellant filed a complaint for support of her illegitimate child born September 17, 1973, pursuant to 42 Pa.C.S.A. § 6701 et seq., alleging Appellee to be the putative father. The Complaint was filed April 4, 1979 in Franklin County and transferred to Adams County pursuant to the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C. S.A. § 6741 et seq. Her Complaint alleged, inter alia, that Appellee had acknowledged paternity in writing and had contributed to the child’s support as late as September 23, 1974.

Appellee filed an Answer and New Matter on April 27, 1979, denying paternity and raising the two-year statute of limitations as an affirmative defense to the action. The said statute of limitations, 18 Pa.C.S.A. § 4323(b), required: § 4323. Neglect to support bastard

(b) Limitation of action.—All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

The lower court then granted Appellee’s Motion for Judgment on the Pleadings, relying on its earlier decision in a similar case, Dettrey v. Keckler, 10 D & C3d 610, 20 Adams L.J. 194 (1979).

Since we here determine that the repeal of the criminal statute of limitations never extinguished the civil right to support, the order granting judgment on the pleadings is reversed and the case will be remanded.

Appellant argues that the new six-year statute of limitations found in the provisions of 42 Pa.C.S.A. § 6704(e) should have been applied to her Complaint. Appellee argues that the two-year statute of limitations for criminal paternity actions had run on or about September 23, 1976 at the latest, and therefore, Appellant’s action is forever barred because Appellee has disputed paternity.

The developments in the law concerning paternity and support of illegitimates must first be scrutinized in order to grasp the complexities involved in the instant appeal.

The 1953 enactment of the Civil Procedural Support Law dealt only with legitimate children, until its amendment in 1963:

§ 2043.32 Definitions

“Duty of Support” includes any duty of support imposed or imposable by law or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance, prosecution for failure to support a child born out of lawful wedlock, or otherwise.

Prior to that point in time, paternity was determined by the institution of a criminal action, either for fornication and bastardy, 18 P.S. § 4506, or willful neglect to support a child born out of lawful wedlock, 18 P.S. § 4732.

However, our Supreme Court in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968) determined that the amendment of the Civil Procedural Support Law was not intended to, and could not, eliminate a defendant’s right to a criminal jury trial when paternity was at issue. Therefore, when paternity was contested, a criminal proceeding was an ancillary condition precedent to the right to recover support under the Civil Support Law, supra. Accord, Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa.Super.Ct. 202, 362 A.2d 1101 (1976).

Commonwealth v. Jacobs, 220 Pa.Super.Ct. 31, 279 A.2d 251 (1971) then held that where a defendant chooses a civil determination of paternity, he will be deemed to have waived his right to a jury trial, and both the paternity and support actions could be decided as a civil matter.

Therefore, a complainant was required to institute criminal charges within the criminal statute of limitations period of two years, if paternity was in dispute, prior to the institution of a civil suit for support. And, if the criminal limitations period had run, a civil action could not be maintained, absent a waiver of the right to a criminal trial or admission of paternity, and complainant could be without recourse. See Commonwealth ex rel. Kolodziejski v. Tancredi, 222 Pa.Super.Ct. 436, 295 A.2d 174 (1972); Commonwealth ex rel. Yentzer v. Carpenter, supra.

In, Matthews v. Cuff, 254 Pa.Super.Ct. 65, 385 A.2d 526 (1978), we held that a criminal charge of neglect to support a bastard child, dismissed for failure to comply with Pa.R. Crim.P., Rule 1100, barred the court from proceeding with a civil paternity proceeding because that civil court had no subject matter jurisdiction over the paternity action where the defendant requested a criminal jury trial. See also Commonwealth ex rel. Czuryla v. Toscano, 264 Pa.Super.Ct. 216, 399 A.2d 744 (1979).

In order to correct this development and simplify the procedures in paternity and support cases, 62 P.S. § 2043.31 et seq. was amended effective June 27, 1978, to allow a six-year statute of limitations for civil support proceedings and to repeal the criminal statutes relating to paternity. The Judiciary Act Repealer Act (JARA) then repealed the civil support law and reenacted it in substantially the same form in the Judicial Code, 42 Pa.C.S.A. § 6701 et seq. See also, 1 Pa.C.S.A. §§ 1952, 1953; JARA § 41.

The amended and reenacted sections pertinent to the instant appeal state:

§ 6704. Commencement of Actions.
(e) All actions commenced under this section shall be brought within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.
(f) An action commenced under this act shall be a civil action in accordance with the Rules of Civil Procedure. Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil action and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.

Furthermore, the repeal of the criminal statutes included a statement that prosecutions already commenced under 18 Pa.C.S.A. § 4323 as of the effective date of the repeal, June 27, 1978, shall not be affected by the repeal. It is clear then, that the Legislature intended the criminal statute to continue to be applicable only if a prosecution had been commenced prior to its repeal on June 27, 1978. This leads to the conclusion that as of June 27, 1978, the requirement of a criminal determination of paternity for actions involving disputed paternity was eliminated, even if the cause of action arose prior to that date, if no criminal prosecution was pending.

In the case now before us, the criminal statute of limitations had run prior to Appellant’s commencement of suit. However, because suit was instituted after the repeal of the criminal statute, Appellant argues that her claim is not barred, since she did file suit within the new six-year statute of limitations.

Appellee argues that the running of the criminal statute of limitations prior to its repeal extinguished any and all right to institute a civil action for support. His argument is based on a statutory analysis of the provisions of the Statutory Construction Act of 1972 and JARA, the basis of which is described supra in the development of the law in this opinion. His conclusion, however, is that § 25(b) of the Judiciary Act of 1976 which states “[n]o cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act” is controlling, and bars Appellant’s suit.

Appellee would argue that when the time prescribed in a statute of limitations expires, the right to recover is defeated, and when a right is thus completely extinguished, it cannot be reinstated or revived by a change in the limitations law. Overmiller v. D. E. Horn & Co., Inc., 191 Pa.Super.Ct. 562, 159 A.2d 245 (1960). We cannot agree.

To the extent that a criminal prosecution as per 18 Pa.C. S.A. § 4323 is desired, the above statement of the law is applicable. However, merely because the Commonwealth’s right to prosecute Appellee criminally has been barred, it does not follow that Appellant’s civil action is barred.

It is settled law that the obligation to give parental support, prior to the enactment of 42 Pa.C.S.A. § 6701 et seq., survived, and was concurrent to, the former two year statutory period, despite the fact that in cases of disputed paternity, the criminal conviction was a necessary prerequisite. See Commonwealth v. Jacobs, supra (dictum). This is evident in a situation where a putative father admits paternity or waives the criminal prosecution. In such a situation, the civil support action was available at any time after the birth of the child. Therefore, the enactment of the new civil paternity and support statute merely provides a new and independent procedure for the enforcement of an existing and continuing right.

Nor is this analysis analogous to applying the new statute of limitations retroactively. As stated in 1 Pa.C.S.A. § 1926: “[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” The court states in Creighton v. City of Pittsburgh, 389 Pa. 569, 575-76, 132 A.2d 867, 871 (1957), quoting Burger Unemployment Compensation Case, 168 Pa.Super.Ct. 89, 94, 77 A.2d 737, 739 (1951):

“Where, as here, no vested right or contractual obligation is involved, an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date. ‘A statute is not retrospective . . . because a part of the requisites for its action is drawn from a time antecedent to its passing’: Endlich, Interpretation of Statutes, § 280. ‘However, a statute is not regarded as operating retroactively because of the mere fact that it relates to antecedent events, or draws upon antecedent facts for its operation’: 50 AmJur.Statutes, § 476. See also 59 C.J., Statutes, § 690.”

See also, Hargreaves v. Mid-Valley Sch. Dist., 40 Pa. Cmwlth.Ct. 110 n. 2, 396 A.2d 894 n. 2 (1979).

Also, because the claim for support monies refers back only to the date of the filing of the complaint, it cannot be said that the statute would be retroactive as to the duty of support prior to the effective date of the new act, at the earliest. See 42 Pa.C.S.A. § 6706(a).

Our Legislature has made it plain that their intention in amending and repealing the provisions discussed herein was to abolish the requirement of proving criminal responsibility in an action for the support of an illegitimate child when paternity is denied.

As set forth in Agostin v. Pittsburgh Steel Foundry Corp., 354 Pa. 543, 549, 47 A.2d 680, 683 (1946):

“No one has a vested right in a statute of limitations or other procedural matters. The legislature may at any time alter, amend or repeal such provisions without offending constitutional restraints. So long as there is no omission of a remedy for the enforcement of a right for which a remedy existed when the right accrued, a want of due process is in no way involved.” (citations omitted). Therefore, Appellee has no vested right to not be named

as the putative father in a support action. See Timms v. Potts, 127 P.L.J. 145 (Allegh. Co. 1979) (putative father not deprived of right to due process).

In summary, we hold that the repeal of the criminal statute of limitations never extinguished the civil right to support, but only the ancillary criminal enforcement remedy. We also hold that an action commenced after the effective date of 42 Pa.C.S.A. § 6701 et seq., is not barred by the running of 18 Pa.C.S.A. § 4323(b), repealed in 1978.

We are well aware of the cases in our lower courts that have reached a contrary result, but find that the reasoning found in the cases which support our determination to be of greater merit.

The Order dated September 12, 1979 is reversed and the case remanded for further proceedings consistent with this opinion.

BROSKY, J., files a concurring opinion.

POPOVICH, J., files a concurring statement.

WICKERSHAM, J., files a dissenting opinion.

DiSALLE and SHERTZ, JJ., did not participate in the decision of this case.

BROSKY, Judge, concurring:

I concur in the result reached by the majority, namely, that the repeal of the criminal statute of limitations never extinguished the civil right to support, but only the ancillary criminal enforcement remedy. However, I feel it is necessary to add a comment concerning the effect of the statute of limitations upon an illegitimate child’s right to collect support.

As the majority notes in its chronology of the law, a mother of a child born out of wedlock was required to institute criminal charges within two years of the birth of the child, if paternity was in dispute, prior to the institution of a civil suit for support. Therefore, if a mother failed to bring such criminal charges, or if the Commonwealth on the mother’s behalf was not vigorous in prosecuting such cases, the child’s right to receive support could be foreclosed. However, no such limitation was placed upon a legitimate child, who could bring an action for support until the age of eighteen.

There can be no doubt that both the mother and father of a child born out of wedlock have the duty to support such child. Commonwealth v. Rebovich, 267 Pa.Super. 254, 406 A.2d 791 (1979). To subject a child born out of wedlock to a limitation period, however reasonable, is to limit that child’s unqualified right to receive support from his father. As other jurisdictions have found, such limitation upon an illegitimate child’s right to receive support violates the Equal Protection clause of the United States Constitution. See: State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979); State of Montana, Department of Revenue, Department of Social Rehabilitative Services v. Wilson, 634 P.2d 172 (Mont.l981); Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C.App. 182, 264 S.E.2d 816 (1980). As the court stated in Cogdell, supra, “Those jurisdictions which have invalidated such statutes [of limitations] on Equal Protection grounds have generally held that they constitute an overly broad restriction on the rights of illegitimates which in fact does result in an impenetrable barrier to support actions.” Id. at 187, 264 S.E.2d at 820. In Stringer, supra, the court held that “if there is no limitation on the right of a legitimate child to seek support from his parent, then there can be no limitation on the same right for an illegitimate child.” Id. 92 N.M. at 100, 482 P.2d at 464.

By Act of April 28, 1978, P.L. 106, No. 46, § 2, eff. June 27, 1978, 62 P.S. § 2043.31 was amended to provide for a new, civil means of securing enforcement of an illegitimate child’s right to receive support. However, a six-year limitation period was placed upon the institution of such causes of action, whereas no comparable time limit was established with respect to causes of action brought by legitimate children. This matter, however, is for the attention of the Legislature.

These comments notwithstanding, I agree with the majority’s position that, in the case at bar, appellant’s civil action for support, brought within six years of the birth of her child, was not barred. Accordingly, I concur.

POPOVICH, Judge,

concurring:

I concur in the result; however, I am of the view that no statute of limitations can constitutionally preclude a child from asserting paternity during his minority.

WICKERSHAM, Judge,

dissenting:

I respectfully dissent. Appellant’s cause of action for support is fully barred by the criminal statute of limitations and cannot be revived now.

The majority opinion concludes that a cause of action for civil support lies even though criminal prosecution of the putative father is barred by the running of the statute of limitations. This result is reached by labeling the criminal prosecution merely “ancillary” to the mother’s right to seek support in a civil suit.

This position is untenable, as analysis of the precedents shows.

In Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968) our Supreme Court decided that the Civil Procedural Support Law, as amended, could not discard a putative father’s right to a jury trial in the determination of paternity-

The Civil Procedural Support Law as originally enacted did not provide for the support of illegitimate children. In 1963, however, the statute was amended to include an action for support of illegitimate children. Prior to the adoption of this amendment, an order for support of an illegitimate child could only be entered after a determination of paternity had been established by criminal proceedings under the Penal Code of June 24,1939. This determination could be made either in a prosecution for fornication and bastardy under § 506 of the Code, 18 P.S. § 4506, or in a prosecution for willful neglect to support a child born out of lawful wedlock under § 732 of the Code, 18 P.S. § 4732.

Id., 431 Pa. at 483, 246 A.2d at 861.

As this court said in Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa.Super.202, 362 A.2d 1101 (1976).

Further support for the proposition that the putative father cannot be deprived of a criminal trial on the issue of paternity absent an admission or express waiver is our Court’s negative response to the question of whether a civil action could be maintained when the statute of limitations for a criminal action had expired. In Commonwealth ex rel. Kolodziejski v. Tancredi, 222 Pa.Super. 436, 295 A.2d 174 (1972), the complainant filed under the Civil Procedural Support Law. A hearing was held at which the defendant denied paternity, and the lower court ordered that appellant be held for court on criminal charges, but proceedings were delayed until the Supreme Court-decided Commonwealth v. Dillworth, supra. Subsequently, the defendant petitioned to have all criminal proceedings against him dismissed on the ground that the statute of limitations had expired. We held that a complaint filed pursuant to the Civil Procedural Support Law did not toll the statute of limitations on bastardy charges, and, therefore, dismissed the criminal charges. After our decision, the complainant again filed suit under the Civil Procedural Support Law. The defendant denied paternity and demanded that he be tried in a criminal procedure by a jury. Thereupon, the lower court dismissed the complaint. On appeal, we affirmed without opinion. Commonwealth ex rel. v. Kolodziejski v. Tancredi, 230 Pa.Super. 710, 326 A.2d 532 (1974), allocatur refused January 15, 1975. Thus, it is reasonable to state that a civil action cannot be maintained absent a waiver or admission if the criminal statute of limitations has expired.

Id., 240 Pa.Super. at 207, 362 A.2d at 1103.

Under the teaching of Dillworth, Yentzer and Kolodziejski the criminal proceeding simply cannot be characterized as “ancillary” to a civil support proceeding. If the reputed father contested the issue of paternity a criminal determination was an absolute prerequisite to any civil support case. Here, Debra Williams bore a child on September 17, 1973. Wolfe, the putative father, allegedly last contributed to the child’s support on September 23, 1974. Within two years of that date Debra Williams could have brought a criminal action to determine the paternity of her child. After September 23,1976 she was barred from seeking support for the child unless Wolfe waived a criminal trial or admitted paternity.

Williams now argues that the repeal of the criminal statute of limitations and the reenactment of the civil support law in the Judicial Code at 42 Pa.C.S. § 6701 et seq., gave her a new cause of action and a new six year statute of limitations. She filed this action within the six year limitation period. The superficial appeal of Williams’ contention is negated by section 25(b) of the Judiciary Act of 1976 which provides

No cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act.

Accordingly I dissent.

      . Repealed, April 28, 1978, P.L. 106, No. 46, § 3, eff. June 27, 1978.

      . Act of July 13, 1953, P.L. 431, No. 95, § 1, 62 P.S. § 2043.31 et seq.

      . Id., amended August 14, 1963, P.L. 872, No. 420, § 1, 62 P.S. § 2043.32 (emphasis added).

      . 18 Pa.C.S.A. § 4323(b), supra.

      . Act of April 28, 1978, P.L. 106, No. 46, § 2, eff. June 27, 1978.

      . Id., § 3(a).

      . Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1291], eff. June 27, 1978.

      . Id., § 10(88).

      . Act of 1972, Dec. 6, P.L. 1339, No. 290, § 3, imd. effective.
      1 Pa.C.S.A. § 1952 states:
      § 1952. Effect of separate amendments on code provisions enacted by same General Assembly

      Whenever any existing statute, incorporated into and repealed by a code, is also amended by other legislation enacted at the same General Assembly, such separate amendment shall be construed to be in force, notwithstanding the repeal by the code of the statute such other legislation amends, and such amendment shall be construed to prevail over the corresponding provisions of the code. 1 Pa.C.S.A. § 1953 states:
      § 1953. Construction of amendatory statutes

      Whenever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part amended, and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.

      . Section 41 of the Judiciary Act Repealer Act provides: “The provisions of 1 Pa.C.S. § 1952 (relating to effect of separate amendments on code provisions enacted by same General Assembly) and 1 Pa.C.S. § 1974 (relating to effect of separate repeals on code provisions by same General Assembly) shall not be applicable to any act of the 1975-1976 General Assembly insofar as relates to Title 42 of the Pennsylvania Consolidated Statutes. The provisions of 1 Pa.C.S. § 1952 and 1 Pa.C.S. § 1974 shall apply to all acts of the 1977-78 General Assembly (except Act Nos. 1977-41 and 1977-50) insofar as relates to Title 42 of the Pennsylvania Consolidated Statutes or any other provision of law codified by this act.”

      . This section has since been amended by the Act of 1980, October 5, P.L. 693, No. 142, § 207(a), eff. in 60 days.

      . Id., footnote 1.

      . Act of July 9, 1976, P.L. 586, No. 142, § 25(b), imd. effective.

      . For an excellent analysis of the development of the law in this area, see Judge Kaplan’s opinion in Broadie v. Hall, 15 D&C 3d 182, 128 P.L.J. 309 (Allegh. Co. 1980).

      . Act of Dec. 6, 1972, P.L. 1339, No. 290, § 3, imd. effective.

      . See e.g., Weaver v. Smith, 13 D&C 3d 108 (Columbia Co. 1979); Swavely v. Dick, 12 D&C 3d 497 (Cambria Co. 1979); Commonwealth ex rel. Stidfole v. Lullo, 10 D&C 3d 623 (Clinton Co. 1979); Dettrey v. Keckler, 10 D&C 3d 610, 20 Adams Co. L.J. 194 (1979); Gould v. Clayton, 38 Beav. Co. L.J. 193 (1980); Weyand v. Sharpless, 38 Beav. Co. L.J. 17 (1979).

      . See, e.g., Frey v. Kindt, 16 D&C 3d 260 (Leh. Co. 1980); Broadie v. Hall, 15 D&C 3d 182, 128 P.L.J. 309 (1980); Commonwealth ex rel. Williams v. Wright, 14 D&C 3d 75 (Berks Co. 1980); Commonwealth ex rel. Cassarella v. Mason, 13 D&C 3d 713 (Luz. Co. 1979); Commonwealth ex rel. Ebron v. Lee, 13 D&C 3d 719 (Del. Co. 1979); Timms v. Potts, 127 P.L.J. 145 (1978).

      . At 18 Pa.C.S.A. § 4323(b) the statute provided:
      (b) Limitation of action.—All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgement by the reputed father.
      The statute was repealed by Act of April 28, 1978, P.L. 106, No. 46, § 3, eff. June 27, 1978.

       Act of July 13, 1953, P.L. 431 § 2, 62 P.S. §§ 2043.31-2043.44.

       Act of August 14, 1963, P.L. 872, 62 P.S. §§ 2043.32, 2043.35. To the definition of ‘Duty to Support’ was added ‘prosecution for fai[l]ure to support a child born out of lawful wedlock,’ so that the definition now reads as set forth in footnote 1. Likewise, § 5 of the original act (62 P.S. § 2043.35), setting forth the procedure for filing a complaint, was amended by adding to subparagraph (3) the following: ‘if married, or if unmarried, the date and place of birth of each child born out of lawful wedlock.’

      . The Judiciary Act Repealer Act (JARA) repealed the civil support law. Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1291] eff. June 27, 1978. Section 10 of JARA reenacted the support law in the Judicial Code at 42 Pa.C.S.A. § 6701 et seq. The new statute of limitations may be found at 42 Pa.C.S.A. § 6704(e).

      . Judiciary Act of 1976, July 9, 1976, P.L. 586, No. 142, eff. immediately.


author:
POPOVICH, Judge:
      CIRILLO, Judge,

text:
    443 A.2d 838
    COMMONWEALTH of Pennsylvania v. Nicholas A. VITACOLONNA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1981.
    Filed March 26, 1982.

      Jack J. Bulkin, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before HESTER, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

In a bench trial before the Hon. Alfred J. DiBona, J., the appellant, Nicholas Vitacolonna, was found guilty of tampering with a witness (18 Pa.C.S.A. § 4907) and simple assault (Id. at § 2701). Post-verdict motions were timely filed and denied. The trial judge, on December 4, 1979, sentenced appellant to five (5) years probation for tampering with a witness and two (2) years concurrent probation for simple assault. Appellant appeals the judgment of sentence, claiming that the evidence was insufficient and that the trial judge erred in limiting his counsel’s cross-examination of a Commonwealth’s witness. We disagree and, accordingly, affirm the judgment entered below.

The facts, viewed in a light most favorable to the verdict-winner, consist of the following: On March 18, 1978, complainant, Colleen O’Hare, reported to the police that appellant had attempted to rape her the previous night. Appellant was arrested, charged with attempted rape and released on bail that same day. That evening, appellant phoned Miss O’Hare and offered her $2,000 and a one-way airline ticket to Florida if she would not appear in court to testify; Miss O’Hare refused the offer. (N.T. 13-14, 18) In the ensuing weeks, appellant persisted in calling the complainant to get her to drop the charge and escalated the offer from $2,000 to $10,000. Complainant’s position did not change.

The first time the complainant saw the appellant after the March 18th incident was on April 5th. The encounter took place outside the courtroom of Judge Jenkins, located in the Philadelphia City Hall, where Miss O’Hare was subpoenaed to appear for a preliminary hearing on the attempted rape charge. At this time, the appellant stalked and harassed Miss O’Hare, telling her that he had the District Attorney and the judge “in his pocket” and that it would be “easier if [she would] just take the money and . . . walk right out.” (N.T. 21) This matter was reported to the District Attorney and a Det. Jack Warren. (N.T. 22-23) A couple of days later, the complainant saw the appellant on Frankford Avenue in Philadelphia, as she was exiting a dress shop. The complainant tried to avoid the appellant by walking fast, but he caught up with her, “grabbed [her] arm, and pulled [her]. Then [she] went to go on to walk faster and he just yanked [her] back again.” (N.T. 23-24) Appellant told Miss O’Hare that he wanted her to drop the charge and that he would give her money to do so. The complainant answered, “no way.” (N.T. 25) The witness also testified that appellant “told [her] he could have had [her] knocked off ” (N.T. 49) Such threat caused the witness to become “very upset.” Id.

On the stand, appellant did not deny calling Miss O’Hare. However, he stated he did so to inquire as to why the attempted rape charge had been filed by her. Additionally, appellant’s version indicated that it was the complainant who first said, “well, you give me a couple thousand and a one way ticket to Florida and I’ll drop the charges.” (N.T. 65) As to the occurrence on the date set for the preliminary hearing, appellant denied “threatening” the victim and admitted to no more than “passpng] her in the hallway.” (N.T. 67) In like fashion, the accused did not dispute seeing the victim on Frankford Avenue, but he stated he just “talked to her.” (N.T. 69)

No one contests the point that appellant and complainant had been friends for about six months prior to the attempted rape incident, and had dated on occasion. Appellant, however, contends that the complainant moved in after his common law wife became disenchanted with him. According to appellant, the reason behind complainant’s conduct stemmed from the fact that, “She was very angry with [him] because [he] told her to leave the apartment.” (N.T. 69)

In assessing the appellant’s sufficiency of evidence claim, the test to be applied is whether, accepting as true all evidence and all reasonable inferences therefrom on which if believed the fact-finder could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime charged. Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976). Nevertheless, guilt must be proved and not conjectured; the reasonable inference of guilty must be based on facts and conditions proved, not solely on suspicion or surmise. Commonwealth v. Holquin, 254 Pa.Super. 295, 385 A.2d 1346 (1978); Commonwealth v. Navarro, 251 Pa.Super. 125, 380 A.2d 409 (1977). Instantly, we have little difficulty in deciding that sufficient evidence was adduced to find appellant guilty of tampering with a witness and simple assault. The offense of tampering with a witness is defined in pertinent part as:

“A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to:
* * * * * *
(4) absent himself from any proceeding or investigation to which he has been legally summoned.” 18 Pa.C.S.A. § 4907(a)(4).

As for simple assault, a person is guilty of such offense “if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to anotherf.]” Id. at § 2701(a)(1).

Accepting O’Hare’s version of the phone conversations she had with appellant, he appeared to have knowledge of the impending official proceeding and its subject matter. If he did not, he certainly acquired such knowledge prior to appearing at the preliminary hearing scheduled at City Hall, before Judge Jenkins. At that time, giving credence to the victim’s version of the conversation, appellant renewed his offer of money to the witness in exchange for her not appearing at the hearing. Appellant persisted in his efforts to discourage the victim from pursuing the attempted rape charge by promising her more money, and, when that failed, he threatened her with physical harm and restrained her movement on Frankford Avenue by grabbing her arm.

The credibility of all witnesses is in the exclusive province of the fact-finder, Commonwealth v. Barnosky, 264 Pa.Super. 443, 400 A.2d 168 (1979), such that the weight to be accorded to each witness’ testimony and whether to believe all, part or none of the evidence is for the trier of fact, and is not to be disturbed unless the “evidence offered to support a verdict of guilty is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture ... .” Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). Such is not the case here. Rather, appellant’s statements and acts, along with the reasonable inferences deducible therefrom, confirm his guilt for both offenses beyond a reasonable doubt. See Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979); see also Commonwealth v. Mayo, 272 Pa.Super. 115, 414 A.2d 696 (1979).

Appellant’s second contention concerns a claim that the trial court erred in refusing to allow defense counsel the opportunity to cross-examine Miss O’Hare about an alleged prior inconsistent statement which he urges would have tended to show that her testimony was not credible.

Procedurally, we observe that this issue was not raised in the post-trial motions presented by the appellant on November 30,1978, which were of the “boiler-plate” variety, despite a statement to the contrary in his appellate brief. Notwithstanding the fact that the motions contained a notation that appellant would submit other reasons for the requested relief upon review of the notes of testimony when transcribed, appellant made no effort to offer an amendment or supplement to the original motions. Nonetheless, the lower court did address the. merits of such claim in its Opinion filed with this Court. It is the prosecution’s position that “[t]his issue has been waived by [appellant’s] failure to raise it either in his written post-verdict motions or in a written brief in support thereof.” (Commonwealth’s Brief at 5) In support of such proposition, the prosecution cites us to Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). There, our Supreme Court mandated that “sixty days after the filing of th[e] opinion [—July 6, 1979—], only those issues included in post-verdict motions w[ould] be considered preserved for appellate review.” Id., 486 Pa. at 198, 404 A.2d at 1298.

In Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981) our high Court, speaking through Justice LARSEN, found that an accused’s failure to raise an issue in written post-verdict motions resulted in it not being preserved for appellate review, and, thus, it was held waived. The reasoning for the Court’s decision was explained as follows:

“In Commonwealth v. Graveley [sic], 486 Pa. 194, 404 A.2d 1296 (1979), a limited exception was granted to Rule 1123 to all defendants who filed post-verdict motions prior to September 4, 1979. The within appellant filed post-verdict motions on September 25, 1978. The limited exception provided that an issue not included in written post-verdict motions would be considered on appeal if two conditions were met: (a) appellant addressed the issue in his post-verdict motions brief, and (b) the post-verdict motions court actually considered the issue. Inasmuch as this appellant did not address the prosecutorial misconduct issue in his post-verdict brief, condition ‘(a)’ has not been met. Consequently, appellant does not come within the purview of the limited exception. See Commonwealth v. Burton, 491 Pa. 13, 17 n. 1, 417 A.2d 611, 613 n. 1 (1980).” (Emphasis in original) Id., 494 Pa. at 200 n. 2, 431 A.2d at 218 n. 2.

Instantly, appellant filed his post-trial motions prior to the ruling in Gravely. As such, we need to decide, as did the Court in Parker, whether the issue of the trial court’s alleged error in curtailing appellant’s counsel’s cross-examination of a Commonwealth witness was: (a) addressed by the appellant in his post-verdict motions brief, and, if so, (b) did the post-verdict motions court actually consider the issue. As in Parker, the appellant here “did not address the . . . issue in his post-verdict brief, [which means] condition ‘(a)’ has not been met. Consequently, appellant does not come within the purview of the limited exception.” Id. Thus, the issue is waived. The fact that the appellant may have raised the issue in oral argument before the trial court, see supra note 3, is not sufficient to preserve it for review. Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047 (1980) (“This Court uniformly has held that a post-verdict court’s erroneous consideration of orally presented allegations of error will not suffice to preserve the allegations for appellate review.” [Citations omitted]); accord Commonwealth v. Gravely, supra, 486 Pa. at 198 n. 1, 404 A.2d at 1297 n. 1, citing Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979) and Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); see also Commonwealth v. Urbina, 290 Pa.Super. 117, 118 n. 3, 434 A.2d 157, 158 n. 3 (1981); Commonwealth v. Knox, 290 Pa.Super. 104, 107 n. 2, 434 A.2d 151, 152-153 n. 2 (1981).

Finding no merit to any of appellant’s claims, we deny the relief requested.

Judgment of sentence affirmed.

CIRILLO, J., files a concurring opinion.

CIRILLO, Judge,

concurring:

I concur with the result reached in the Opinion of Judge Popovich in this matter .but I disagree as to his treatment of the appellant’s second contention. The appellant’s second contention concerned a claim that the trial court erred in refusing to allow defense counsel an opportunity for further cross examination. Judge Popovich, in his Opinion, dismisses the appellant’s contention as having been waived because it was an oral protest instead of a written complaint on post trial motions. It is my belief that oral motions are acceptable under Pa.Rule of Criminal Procedure 1123 which provides in Subsection (b) that “if the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial.” Therefore, I believe that the trial court properly addressed the merits of the oral motion. However, since Judge Popovich, in his Opinion, also addressed the merits in his last footnote and found that there was no merit to the oral motion, I am in agreement that there was no merit.

I hereby concur with the Opinion of Judge Popovich.

      . Appellant was found not guilty of terroristic threats (id at § 2706). It is to be noted that the charges at issue here are separate and distinct from an attempted rape charge brought by the same complainant, although the instant offenses are an outgrowth of said charge, which was lodged against the accused at a different term and number. From the record we are unable to ascertain the status of the attempted rape charge.

      . This offense was repealed by the Act of Dec. 4, 1980, P.L. 1097, No. 187, § 2, eff. in 60 days. The offense is now captioned “Intimidation of witnesses or victims,” and appears at 18 Pa.C.S.A. § 4952 (Supp. 1981-82).

      . The only insight we have as to how such issue was brought to the trial court’s attention is in reading the Commonwealth’s brief, wherein it is noted that appellant “raised the issue orally .... ” (Commonwealth’s Brief at 5)

      . Even if, arguendo, we held that the issue were not waived, the trial court’s refusal to permit the defense to continue cross-examining the prosecutrix on a matter [—the attempted rape charge—] collateral to the offenses being tried was not error. See Lower Court Opinion at 1-2; see also Commonwealth v. Gee, 467 Pa. 123, 138-141, 354 A.2d 875, 882-883 (1976); McGoldrich v. Pa. Railroad Co., 430 Pa. 597, 600-601, 241 A.2d 90, 92-93 (1968); Commonwealth v. Resting, 274 Pa.Super. 79, 417 A.2d 1262, 1270 (1979); Commonwealth v. Donnelly, 233 Pa.Super. 396, 417-418, 336 A.2d 632, 643 -644 (1975); In re Farms, 216 Pa.Super. 445, 451, 268 A.2d 170, 174 (1970).


author: POPOVICH, Judge:

text:
    443 A.2d 843
    COMMONWEALTH of Pennsylvania v. Edward A. CANADY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1981.
    Filed March 26, 1982.

      J. Hugh O’Donnell, Philadelphia, for appellant.
    Ann Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Edward Canady, was convicted after a trial by a judge, sitting without a jury, of robbery, burglary, possession of an instrument of crime, simple and aggravated assault, and criminal conspiracy. Post-verdict motions were granted in part since judgment was arrested on the burglary conviction. Appellant was sentenced to a term of imprisonment of not less than five nor more than ten years on the robbery conviction. Terms of two years probation were imposed on the weapons offenses and on the unlawful restraint conviction. These terms were to run concurrent with each other but consecutive to the robbery conviction. This appeal followed.

Appellant raises only one issue before this Court. He contends that the trial court abused its discretion when it ordered him to proceed to trial represented by a court-appointed attorney with whom appellant was dissatisfied. We cannot address the merits of appellant’s claim because it has been waived.

First of all, the fact that the question of waiver has not been raised by the prosecution does not foreclose this Court from raising the issue sua sponte. See Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979).

In the instant case, the issue of whether the trial court should have granted appellant another opportunity to obtain another attorney was not raised in the written post-verdict motions filed by counsel. However, the trial court permitted appellant’s counsel to amend the motions orally. See the Trial Court’s Opinion at 2 (“at oral argument on post trial motions [appellant] orally amended the motions to allege error in permitting [appellant’s] counsel to withdraw and the appointment of new counsel .... ”). The trial court then addressed the merits of the issue in its opinion.

With respect to whether the scenario below was sufficient to preserve the issue, we have said that:

“a post-verdict court’s erroneous consideration of orally presented allegations of error will not suffice to preserve the allegations for appellate review. E.g., Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979); Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978).” Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047 (1980). (Emphasis added).

Therefore, the issue appellant attempts to raise is waived.

In its brief, the prosecution sets forth certain facts which occurred after the notice of appeal was filed to this Court.

On March 3, 1980, as mentioned above, appellant was sentenced to a five to ten year term of imprisonment. This term was to be followed by three concurrent terms of probation. Attorney O’Donnell, who represented appellant at trial and at sentencing, filed a notice of appeal to this Court on March 25,1980. An untimely petition for reconsideration was filed by Attorney Smalls on April 25, 1980. A hearing was held on August 5, 1980. At the end of the hearing, the court stated the following:

“THE COURT: Well, I am willing to believe that you have changed, Mr. Canady. I remember what you were like when you came up for trial.
THE [APPELLANT]: Yes, ma’am.
THE COURT: You were not a very pleasant individual, and what I’m willing to do is to change the sentence from 5 to 10 on robbery to 2 to 10 and when you have completed the two, then you’re eligible for parole.
MR. SMALLS: Thank you, Your Honor.”
Sentencing Transcript at 23.

A review of the record, however, reveals that the sentencing court did not file a formal order vacating the original sentence. In any event, that court had no authority to modify the original sentence after the appeal had been taken and after more than thirty days had passed from March 3, 1980, which was the date that the sentence was first imposed. See Commonwealth v. Leatherbury, 269 Pa.Super. 194, 197 n.4, 409 A.2d 431, 433 n.4 (1979); Commonwealth v. Lauer, 265 Pa.Super. 542, 544, 402 A.2d 678, 679 (1979); see also Commonwealth v. Hanlon, 266 Pa.Super. 456, 405 A.2d 523 (1979). Accordingly, the court’s attempt to modify the sentence of March 3, 1980, was null and void. See Tillman v. Pennsylvania Board of Probation and Parole, 48 Pa.Cmwlth. 325, 409 A.2d 949 (1980). See also Commonwealth v. Pinkney, 267 Pa.Super. 288, 292, 406 A.2d 1045, 1047 (1979) (Pa.R.A.P. 1701(b) which “authorizes reconsideration by the lower court when an appeal is pending, but does not in any way affect or enlarge upon the substantive law of the statute” which mandates a 30 day time period for such action.).

We note also that because the only judgment of sentence of record is the original one which is dated March 3, 1980, there is no need to remand in order to reinstate the original judgment of sentence.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result.

      . The trial court imposed only one sentence on the criminal conspiracy and robbery convictions because, under its view, these crimes . merged.

      . Even if the issue had not been waived, the trial court’s refusal to grant appellant’s late request to be represented by counsel, who had been granted leave to withdraw earlier in the case, did not deprive appellant of any Sixth Amendment right. See the Trial Court’s Opinion at 2-3; see also Moore v. Jamieson, 451 Pa. 299, 307, 306 A.2d 283, 288 (1973).

      . The prosecution’s brief states that this was the second petition for reconsideration which had been filed. The prosecution’s version of the facts are as follows:
      “The Commonwealth’s records further reflect that on April 1,1980, [appellant], through another attorney, Thomas L. McGill, Esquire, [Mr. McGill had been previously permitted to withdraw from this case, see discussion infra ], filed a petition to reconsider sentence which was denied by the trial court on April 8, 1980.” Brief for the Prosecution, at 2 n.2. (emphasis in original).
      Although our independent review of the record fails to disclose if such a motion had been filed and denied by the court, this irregularity does not affect our disposition of the instant appeal.

      . Although in the instant case, the motion to modify sentence was untimely filed since it was not filed “within ten (10) days after imposition of sentence”, we take this opportunity to comment on the options available to the court when presented with a timely petition to reconsider the sentence. See Pa.R.Crim.P. 1410. The following commentary to Rule 1410 sheds some insight into the subject:
      “[The] court should take one of the following types of action within the thirty day appeal period: (1) issue an order denying the motion, (2) schedule a hearing on the motion, (3) issue an order granting the motion, and vacating the earlier judgment of sentence, or (4) if the court would like additional time to consider the motion, issue an order vacating the judgment of sentence. The failure of the sentencing court to act within the thirty day appeal period will normally result in the loss of the court’s jurisdiction to modify sentence, and will have the same effect as a denial of the motion. See Pa.R.A.P. 1701.”

      . That motion also would have been untimely filed since it was not filed “within ten (10) days after imposition of sentence.” Pa.R. Crim.P. 1410. The most recent enactment of the statute which governs modification of sentence when no appeal has been taken reads as follows:
      “Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any terms of court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S.A. § 5505.
      Finally, we note that our decision does not affect the court’s inherent power to correct an illegal sentence, or patent mistakes in its order. See DeVillars v. Commonwealth, 61 Pa.Cmwlth. 274, 277, 433 A.2d 604, 606 (1981). However, in the instant case, we are not confronted with such a situation.