author: CERCONE, Judge:

text:
    630 A.2d 1238
    COMMONWEALTH of Pennsylvania v. Christopher Francis DONAHUE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1993.
    Filed Aug. 27, 1993.

      Christopher Donahue, pro se.
    Carolyn L. Darringer, Asst. Dist. Atty., Reading, for Com.
    David M. McGlaughlin, Philadelphia, amicus curiae.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is a pro se appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County, dated November 13,1991. We vacate the judgment of sentence and remand for a new trial.

Appellant was charged with two counts each of possession of a controlled substance, possession of a controlled substance with intent to deliver, and corrupt organizations. He was also charged with one count of criminal conspiracy in connection with the sale of illicit drugs. The charges arose from a criminal relationship the appellant had with Erwin Bieber of Berks County. On various occasions, Bieber sold large quantities of marijuana to appellant at appellant’s residence in Bucks County.

On June 19, 1990, the Pennsylvania State Police learned from Albuquerque, New Mexico police detectives that suspects in a drug ring in that city had made numerous telephone calls to two phone numbers in Berks County. Those telephone numbers belonged to Bieber. As part of the Pennsylvania investigation, the Berks County District Attorney applied with this Court for authorization to intercept communications from Bieber’s telephones. Our Court granted three separate authorizations to intercept calls. As a result of the telephone interception, the police learned that Bieber was selling marijuana to the appellant herein. The police monitored Bieber and observed him travelling to Bucks County on November 7, 1990, to deliver sixteen pounds of marijuana to appellant. Appellant later wrote a check to Bieber for remuneration. A second incident occurred on November 17, 1990, when Bieber received marijuana from two cohorts he met at the Philadelphia International Airport. Bieber was later arrested, along with his cohorts, and the police seized approximately sixty pounds of marijuana. Thereafter, police executed a search warrant for appellant’s residence. Upon execution of the warrant, they found appellant in possession of twenty-five (25) grams of marijuana. He was subsequently arrested and charged with the aforementioned crimes.

Before trial, appellant filed an omnibus pretrial motion seeking, inter alia, (1) suppression of the intercepted communications pursuant to the Pennsylvania Wiretapping and Electronic Surveillance Control Act, (2) dismissal of the possession charges on grounds that the criminal complaint charged appellant of these crimes in Bucks County, outside of the jurisdiction of the Berks County Court of Common Pleas. In a plethora of orders, the trial judge denied appellant’s motion to suppress the evidence and permitted the Commonwealth to amend the complaint to allege that the criminal acts of possession were committed in either Berks or Bucks County.

Trial began on October 16, 1991. After four days of testimony, a jury convicted appellant of the two counts of possession with intent to deliver, two counts of criminal conspiracy and two counts of corrupt organizations. Trial counsel filed post-verdict motions which alleged a variety of issues. Trial counsel specifically briefed twelve of these issues. The trial judge denied this motion. Appellant was then sentenced to a term of incarceration of three (3) to seven (7) years for possession with intent to deliver. He was also sentenced to concurrent terms of one (1) to seven (7) years incarceration on all other counts. This timely appeal followed.

After notice of appeal was filed, the trial judge ordered' appellant to file a statement of matters complained of pursuant to Pa.R.A.P. Rule 1925(b), 42 Pa.C.S.A. Counsel for appellant filed a statement listing seventy-one issues raised on appeal. The trial judge declined to file an opinion which addressed the issues on the merits, finding instead that all the issues were waived under Rule 1925. Subsequently, counsel for appellant filed a motion to withdraw, which we granted. Accordingly, appellant is representing himself pro se and has raised the following issues for our review:

1. Did the Berks County Court of Common Pleas have jurisdiction of the substantive crimes in this case when the marijuana was possessed in Bucks County;
2. did the trial court err in not giving a corrupt and polluted source jury instruction where the witness was a co-defendant, his testimony was the only testimony linking [appellant] to sixteen (16) pounds of marijuana and the witness testified he expected very favorable treatment from the prosecutor;
3. should the contents of the intercepted wire communications and the evidence derived therefrom have been suppressed where
(1) the Final Report was not timely served upon [appellant]; Service of Inventory was never made upon [appellant], and Judge Cavanaugh did not cause to be served on [appellant] Service of Inventory;
(2) the Application for Authorization to intercept wire communications was not signed nor sworn to by the District Attorney of Berks County;
(3) [the] Commonwealth did not meet the normal investigative procedures requirement of 18 Pa.C.S.A. § 5710(a)(3);
4. was there sufficient evidence to convict [appellant] of Corrupt Organizations and conspiracy to commit Corrupt [Organizations;
5. was [appellant] denied due process of law, effective assistance of counsel, his right of confrontation and equal protection under the law by the actions of the Superior Court of Pennsylvania and Judge Calvin Smith;
6. was [appellant’s] counsel effective?

We shall consider each of these issues. As a preliminary matter, however, we must address the trial judge’s contention that all the issues raised on appeal were waived, pursuant to Rule of Appellate Procedure 1925. That rule states in pertinent part:

(b) Direction to File Statement of Matters Complained
of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Id. The Honorable Calvin Smith of the Court of Common Pleas of Berks County ordered appellant to file a concise statement of matters complained of on appeal. Counsel for appellant filed a statement listing thirty-two issues, some containing a variety of subparts. Based on the “inordinate” number of issues raised, Judge Smith held that the statement was not concise and deemed all the issues waived pursuant to Rule 1925. We do not agree with Judge Smith’s analysis.

We first note that the issue of waiver based on a violation of Rule 1925(b) is expressly reserved to the appellate courts, and not to the trial courts. Id. Furthermore, with reference to the case at hand, most of the issues in the Rule 1925 statement would have been waived for failure to raise and argue these issues in post-verdict motions. It is well-established that boiler-plate allegations in post-verdict motions do not preserve issues for appellate review. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). Even if an issue is contained in a written post-trial motion, unless it is briefed or argued during post-trial proceedings, the issue is waived for purposes of appellate review. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). See also Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983) (where issues stated in post-trial motions are not briefed or argued in the lower court, issues are waived on appeal). Appellant did, however, raise and brief twelve issues in post-verdict motions, including those raised on appeal. We find that the issues raised on appeal have been preserved and we will address the merits of the issues raised despite the lack of a substantive trial court opinion.

In his first issue, appellant contends that the trial court did not have jurisdiction over the possession crimes with which he was charged, as the Commonwealth never adduced evidence that appellant possessed the marijuana in Berks County. Initially, appellant sought to quash the complaint on the grounds that he conducted no criminal activity in Berks County; but rather in Bucks County, as borne out by the complaint. The trial judge denied the motion to quash and allowed the Commonwealth to amend the complaint to aver that the substantive crimes occurred in Bucks County and/or Berks County.

Our Supreme Court has established that “the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless by some statute, it need not____” Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987). “For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county.” Id. “In order to base jurisdiction on an overt act, the act must have been essential to the crime ...” Id.

Appellant maintains that the evidence cannot show that he either actually or constructively possessed the marijuana in Berks County. The Commonwealth, in contrast, avers that the facts demonstrate that appellant could be and was convicted on the basis of accomplice liability as an accessory to Bieber’s possession of marijuana in Berks County. We agree with the Commonwealth for the reasons that follow.

Accomplice liability is discussed in pertinent part in the Pennsylvania Crimes Code as follows:

§ 306. Liability for conduct of another; complicity
(a) General rule. — A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(b) Conduct of another. — A person is legally accountable for the conduct of another person when:
* * * * * *
(3) he is an accomplice of such other person in the commission of the offense.
(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it;....

18 Pa.C.S.A. § 306. The Crimes Code further defines the crime of solicitation as follows:

(а) Definition of solicitation. — A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission, he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

Id. § 902. Thus, one who encourages or requests another to commit a crime is guilty of solicitation. He is further guilty of accomplice liability for the crime if he intends to promote the commission of the offense.

[б] The facts of the case indicate that Erwin Bieber and appellant were “business associates” in the distribution of marijuana. Bieber resided in Berks County while appellant lived in Bucks County. Prior to obtaining a shipment of marijuana, Bieber had a telephone conversation with appellant whereby appellant informed Bieber that should Bieber receive a shipment of marijuana, he (appellant) would be interested in acquiring it. Bieber received a shipment of marijuana at his home in Berks County and then transported it to appellant’s home in Bucks County. Bieber also testified that he had conducted business with appellant five to ten times in the past.

It can be reasonably inferred that because of appellant’s prior relationship with Bieber in the purchase of marijuana, his statement to Bieber regarding the marijuana implies that appellant both encouraged and requested Bieber to obtain marijuana to sell to him. Thus, the evidence establishes that appellant solicited Bieber to purchase and possess the marijuana with intent to deliver. Taken one step further, it is also reasonably clear that appellant intended to promote Bieber to commit the offense so that he, in turn could obtain marijuana to sell. Thus, because Bieber’s criminal acts occurred in Berks County, appellant could be tried in Berks County as an accomplice of Bieber.

In his fourth issue, appellant argues that the evidence was insufficient to prove his convictions for corrupt organizations and conspiracy to commit corrupt organizations. 18 Pa.C.S.A. § 911(b)(3), (4). It is well settled that when sufficiency of the evidence claims are raised, “an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, 512 Pa. at 546, 517 A.2d at 1259, and that “the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Harper, 485 Pa. at 576, 403 A.2d at 538.

The pertinent provisions of the Corrupt Organizations statute are set forth as follows:

(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.
(4) It shall.be unlawful for any person to conspire to violate any of the provisions of paragraphs (1), (2) or (3) of this subsection.

18 Pa.C.S.A. § 911(b)(3), (4) (emphasis added). Appellant relies on the precedents set forth by federal courts in interpreting the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) to argue that the Commonwealth was unable to prove that an “enterprise” existed. Section 911 of the Crimes Code defines “enterprise” as:

(3) “Enterprise” means any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity, engaged in commerce.

Id. This Court has interpreted this term to encompass both legitimate and illegitimate enterprises. Commonwealth v. Yacoubian, 339 Pa.Super. 413, 420, 489 A.2d 228, 231 (1985).

Appellant refers us to the United States Supreme Court decision of United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.E.2d 246 (1981), which discussed and further refined the necessary proof of an enterprise under RICO. In Turkette, the Supreme Court held that in order to prove the existence of an enterprise, the government must proffer evidence of an ongoing organization, formal or informal, and evidence that the various associates function as a continuing unit. Id. at 583, 101 S.Ct. at 2528, 69 L.E.2d at 254. Accord United States v. Riccobene, 709 F.2d 214 (3rd Cir.1983), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.E.2d 145 (1983). In Riccobene, the Court of Appeals for the Third Circuit discussed the Supreme Court’s decision in Turkette and found:

In reaching its conclusion, the Supreme Court was not unmindful of the dangers of its interpretation. Both judges and commentators had raised the concern that the concept of “illegal enterprise” could be construed quite broadly. Legal scholars had concluded that without further refinement of the term, the statute could be extended to situations far removed from those actually contemplated by Congress, and that federal prosecutors could use the law to invoke an additional penalty whenever they had a case involving the commission of two offenses that, coincidentally were among those listed as “racketeering activities.”

Id. at 400, 489 A.2d at 221. When interpreting our corrupt organizations statute, we are not bound by the mandates of the United States Supreme Court decisions regarding concomitant federal statutes. However, because the Pennsylvania corrupt organizations statute substantively covers the same type of criminal activity as that proscribed in the federal RICO Act, we find the federal court interpretations persuasive. To that end, we hold that in order to sustain a conviction for corrupt organizations, the Commonwealth must prove that there was an ongoing organization engaged in commerce and that the associates of the organization functioned as a continuing unit. By so holding, we ensure that a criminal defendant is being convicted based on evidence of his involvement in the ongoing enterprise, as the corrupt organization statute intended, and not merely based on evidence which proves the underlying crimes committed in furtherance of the alleged enterprise.

In the context of the present matter we find that the Commonwealth met its burden of establishing that appellant was associated with an ongoing enterprise engaged in commerce. Although appellant maintains that the evidence merely establishes his involvement in purchasing marijuana from Bieber without any further indication that he was aware of the existence of the other parts of the enterprise, his view of the facts is belied by the certified record and does not represent the facts when taken in a light most favorable to the Commonwealth as the verdict winner.

Erwin Bieber testified at appellant’s trial that he had a business relationship with appellant which continued for seven to eight years. He further testified that he would receive telephone calls from various marijuana suppliers asking if he was interested in purchasing large quantities of the illicit drug. Bieber specifically referred to one incident which occurred on November 7,1990. Bieber received a telephone call from Paul Allen on November 6, 1990 who asked Bieber if he was interested in receiving a shipment of marijuana. Allen flew into Philadelphia International Airport and drove to Bieber’s home to deliver the shipment. Later, Bieber transported the shipment to appellant’s residence. There, appellant and Bieber agreed on a price for the marijuana. Bieber left the shipment with appellant and went home. Appellant paid Bieber the following day by leaving a check for Bieber in a large bag of dog food, a common procedure for payment.

Bieber also recounted a second incident where he met one Jeff Morgan and one Greg Jacquez at the Philadelphia Airport when the two arrived from California. Morgan and Jacquez supplied Bieber with a large quantity of marijuana which Bieber then resold to various people including appellant. He indicated that appellant was willing to purchase whatever quantity he was able to offer. Although Bieber intended to deliver the marijuana to appellant on this occasion, the Pennsylvania State Police apprehended him before the transaction was consummated.

Bieber further testified that appellant did not personally know any of his [Bieber’s] suppliers. Appellant argues that since he did not know any of the suppliers, his own role as a buyer of Bieber’s was just that and could not justify an inference that he was associated with an ongoing criminal enterprise. His contention ignores the evidence of appellant’s conversations with Bieber which indicate his general knowledge of the source of the illicit drugs from suppliers in New Mexico and California. Although the conversations were in cryptic language, Bieber testified that this “code” was used to disguise the real purpose of the telephone conversations. Further, the conversations indicate that appellant himself had given Bieber leads in finding sources of marijuana. See N.T. 10/21/91 at 18-34.

Thus, the evidence indicates that appellant maintained an association with Bieber and his drug suppliers in a drug ring which lasted for six to seven years. The group was engaged in the commercial activity of distributing marijuana with individual profits being made from each transfer of the drugs. Contrary to appellant’s assertions, he knew the basic structure of the enterprise and was aware of his role in the distribution scheme. It was not necessary that he specifically know each person associated with the enterprise. Thus, we find that the evidence sufficiently established the existence of an enterprise necessary to support appellant’s convictions for corrupt organizations and conspiracy to commit that crime.

In his third issue, appellant contends that the trial court erred in refusing to give a “corrupt source” instruction concerning Erwin Bieber’s testimony. In the present matter, after the trial judge concluded instructing the jury, he asked counsel if they wished to request corrections or additions to the instructions. Counsel for appellant answered affirmatively and at sidebar requested that the trial judge instruct the jury as to the credibility of an accomplice, otherwise known as a “corrupt source” instruction. Counsel did not have a written charge submitted and the trial judge ostensibly denied the request on that basis. This was error.

In Commonwealth v. Gonzales, 334 Pa.Super. 603, 483 A.2d 902 (1984), after instructing the jury, the trial judge asked if there were any other points. We held that the oral request in response to the judge’s inquiry was appropriate under Rule of Criminal Procedure 1119. That rule does not require a written request for instructions; but merely indicates a preference for the written request. Therefore, the request was not untimely and the trial judge erred in refusing for failure to have a written point for charge prepared. Id. at 608-09, 483 A.2d at 904-05; Pa.R.Crim.P. Rule 1119, 42 Pa.C.S.A.

We must now determine whether the charge was necessary under the facts of this case. Our standard of review of a decision denying a requested point for charge is well settled. Jury instructions must be viewed in their totality to assess whether the charge accurately and adequately explains the relevant law to the jury and guides the jury in its deliberations. Commonwealth v. Ort, 398 Pa.Super. 475, 482, 581 A.2d 230, 234 (1990), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1991). The trial judge is not required to grant a requested point for charge, so long as the charge given sufficiently states the pertinent law. Commonwealth v. Sanders, 380 Pa.Super. 78, 95, 551 A.2d 239, 248 (1988), allocatur denied, 522 Pa. 575, 559 A.2d 36 (1989).

In Commonwealth v. Franklin, 397 Pa.Super. 265, 580 A.2d 25 (1990), allocatur denied, 527 Pa. 641, 593 A.2d 415 (1991), we had occasion to discuss the propriety of an accomplice charge. We held:

An accomplice charge with respect to a witness is warranted when evidence at trial either requires or permits the inference that the witness may have been a participant in the crime charged. It is reversible error for a trial court not to give an accomplice charge if the evidence permits an inference that a witness was an accomplice. However, where the evidence does not permit the jury to infer that a Commonwealth witness was an accomplice, the trial court is empowered to conclude, as a matter of law, that the witness was not an accomplice. In such a case, an accomplice charge is not required.

Id. at 282, 580 A.2d at 34 (citations omitted) (emphasis added). In the present matter, it is relatively clear that Erwin Bieber and appellant were both part and parcel of the illicit enterprise of selling drugs. Bieber was appellant’s supplier of drugs and appellant was Bieber’s primary customer. Therefore, the evidence establishes that Bieber was a participant in the crimes charged against appellant. Accordingly, the trial judge committed reversible error when he refused to charge the jury as to the accomplice testimony and appellant is entitled to a new trial.

Next, we address appellant’s claims surrounding the wiretap which resulted in incriminating evidence. Appellant contends that the evidence obtained from the interception of his telephone communications should have been suppressed for various reasons. In reviewing an order denying a motion to suppress evidence, we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error. Id.

Appellant contends that intercepted wire communications should have been suppressed for the following reasons: (1) the Final Report was not timely served upon appellant in accordance with 18 Pa.C.S.A. § 5720; (2) the application for authorization was not signed nor sworn to by the District Attorney of Berks County, in accordance with 18 Pa.C.S.A. § 5709; (3) the Commonwealth did not meet the normal investigative procedures requirement of 18 Pa.C.S.A. § 5710(a)(3); and, (4) the original applications and orders were not produced at the hearing, in violation of the Best Evidence Rule. These issues call into question the proper application of various provisions of the Pennsylvania Wiretapping and Electronic Surveillance Control Act. 18 Pa.C.S.A. §§ 5701-5748. Section 5721 of the Crimes Code provides the exclusive grounds for suppression of evidence under the Wiretap Act, as follows:

(a) Motion to suppress. — Any aggrieved person in any trial, hearing, or other adversary proceeding in or before any court or other authority of this Commonwealth may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on any of the following grounds:
(1) The communication was unlawfully intercepted.
(2) The order of authorization if required is insufficient on its face.
(3) The interception unless made in accordance with section 5704 (relating to exceptions to prohibition of interception and disclosure of communications) was not made in conformity with the order of authorization or in accordance with the requirements of section 5712 (relating to issuance of order and effect).

18 Pa.C.S.A. § 5721(a). Section 5721 further provides:

(d) Exclusiveness of remedies and sanctions. — The remedies and sanctions described in this subchapter with respect to the interception of wire, electronic or oral communications are the only judicial remedies and sanctions for non-constitutional violations of this subchapter involving such communications.

Id. § 5721(d) (emphasis added). Thus, grounds for suppression based on nonconstitutional violations of the Wiretap Act are limited to incriminating evidence resulting from a wiretap based on an interception which was unlawful or otherwise conducted in contravention of the judicial order, or because the judicial order was insufficient on its face. In the case sub judice, appellant characterizes certain violations of the Wiretap Act as constitutional violations. However, we note that no constitutional claims were preserved in post-verdict motions. We therefore deem any constitutional claims in this regard to be waived for our review. It is well-established that boiler-plate allegations in post-verdict motions do not preserve issues for appellate review. See Commonwealth v. Pronkoskie, supra; Commonwealth v. Philpot, supra; Commonwealth v. Holzer, supra.

We now turn to the substantive claims appellant has raised. He first contends that the evidence should be suppressed because the Commonwealth failed to follow the notice requirements of section 5720. That section prohibits the disclosure of any evidence derived from an interception at any hearing unless, at least ten days before the hearing, the parties to the action have been served with a copy of the judicial order, application for authorization to conduct a wire intercept, and the final report detailing the results of the intercept. 18 Pa.C,S.A. § 5720. However, failure to comply with the notice requirement is not a basis for suppression of the intercepts under section 5721. We can therefore afford appellant no relief on this claim.

Next, appellant avers that the evidence of the wiretaps should have been suppressed because the application for authorization to intercept communications was facially invalid because the District Attorney of Berks County failed to attach a sworn affidavit which complied with 18 Pa.C.S.A. § 5709. Again, we are constrained to find that suppression was not an appropriate remedy for any violation of the application procedures outlined in section 5709. Violation of that section is not one of the bases of suppression outlined in section 5721.

Appellant also argues that the sworn affidavits executed by investigating official pursuant to section 5709(3) did not state that normal investigative measures had been exhausted sufficient to warrant a wire interception. For the reasons already stated, this claim cannot serve to support a motion to suppress under section 5721. Nonetheless, we have reviewed the sworn affidavits of the investigating officers and have found that they did indeed detail, with specificity, that normal investigative measures had been exhausted in this matter.

Finally, appellant maintains that the evidence of the interceptions should have been suppressed on grounds that the Commonwealth failed to produce the original applications and orders in violation of the Best Evidence Rule. However, evidentiary rulings are not a ground for suppression under section 5721(a). Accordingly, we can afford appellant no relief on this claim and conclude that the trial judge properly denied the motion to suppress.

In his fifth issue, appellant maintains that Judge Smith of the Court of Common Pleas of Berks County and this Court have denied appellant’s due process rights, his right to effective assistance of counsel, his right of confrontation and right to equal protection. Although appellant couches this claim as one of constitutional magnitude his claims address whether he received a fair trial.

As to Judge Smith, appellant avers, along with. Amicus curiae, that Judge Smith’s conduct deprived him of a fair trial. In his brief, appellant lists sixteen various reasons to support his conclusion. We have reviewed the record in this case and find that although Judge Smith, at times, acted in a cantankerous manner towards this case, we find nothing in the record to support appellant’s claim that he was denied a fair trial.

Appellant also argues that this Court denied him his rights under the Wiretap Act. Specifically, appellant requested to inspect sealed documents concerning the wiretap of his telephone conversations. This contention is supported by the record. Although 18 Pa.C.S.A. § 5715 mandates the sealing of the application, final report, monitor’s record and other supporting papers, Section 5716(c) allows a moving party, who was a participant in intercepted communications, to inspect transcripts of the interceptions, as well as other listed documents. Upon such application, this Court is required to make them available to the movant. Id. § 5716(c). Thus, upon remand, the Prothonotary of this Court is directed to make the monitor’s record, transcripts of the intercepted communications, and all applications and orders available to appellant for his inspection, pursuant to section 5716(c).

In his last issue, appellant contends that trial counsel was ineffective for failing to seek suppression based on twenty-five separate grounds set forth in his brief. Our standard of review for allegations of ineffective assistance of counsel is well-established and quite narrow. Ineffectiveness claims are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 624, 552 A.2d 1053, 1056 (1989), allocatur denied, 525 Pa. 581, 575 A.2d 112 (1990). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 623, 557 A.2d 421, 425 (1989). Moreover, in making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective since the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989).

Although appellant states many reasons upon which suppression should have been sought, he provides this Court with no meaningful discussion of whether his claim is of arguable merit, whether trial counsel had no reasonable basis for his actions, or whether he was prejudiced by counsel’s alleged dereliction. As we cannot decide ineffectiveness claims in a vacuum, id., we can afford appellant no relief on his claim.

Judgment of sentence vacated; case remanded for proceedings consistent with this opinion; jurisdiction is relinquished.

      . 35 P.S. § 780-113(a)(16).

      . Id. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 911.

      . Id. § 903.

      . Appellant was charged with two counts each of possession of a controlled substance and possession of a controlled substance with intent to deliver, in connection with these two separate incidents.

      . We shall consider appellant's claims concerning jurisdiction and sufficiency of the evidence first as those claims afford him the most relief.

      . We note the limited precedential value of our discussion in this regard. In all cases in which the determination of guilt occurs on or after January 1, 1994, post-trial motions will no longer be a prerequisite to appellate review of alleged trial court errors. See 23 Pa.Bull. 1685 (1993).

      . Upon remand, the trial judge should instruct the jury that appellant may only be found guilty for those actions which occurred in Berks County if it finds that he was an accomplice to Bieber.

      . The definition of “enterprise” under the Federal RICO statute is similar to the Pennsylvania definition, but does not require that the enterprise be engaged in commerce. 18 U.S.C. § 1961(4).

      . The Pennsylvania Corrupt Organizations statute mirrors the Federal RICO statute in all matters pertinent to this issue.

      . We are aware of our Supreme Court’s discussion in Commonwealth v. Hashem, 526 Pa. 199, 584 A.2d 1378 (1991) which held:
      If the surveillance permitted by the Act is to meet the test of reasonableness, it is essential that at a minimum, all the requirements directed by the Legislature be met. No violations of any provisions of the Act will be countenanced, nor will the failure of the prosecutors to diligently follow the strict requirements of the Act be lightly overlooked.

        Id. at 206, 584 A.2d at 1382 (1991) (emphasis in original). Although the Supreme Court held that no violations of the Wiretap Act can be countenanced, that case interpreted the Wiretap Act before it was amended in 1988. The prior version of section 5721 did not include subsection (d) which made the suppression grounds in subsection (a) the exclusive remedy for nonconstitutional violations of the Act. Accordingly, we are constrained to follow the statute as amended and cannot reverse the ruling of the suppression court except for the violations as enumerated in section 5721(a).


source: Caselaw Access Project

author:
TAMILIA, Judge. DEL SOLE, Judge,
      POPOVICH, Judge,

license: Public Domain

text:
    630 A.2d 1250
    COMMONWEALTH of Pennsylvania v. Rolan Santiago TORRES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Aug. 24, 1993.

      Joseph P. Burt, Erie, for appellant.
    Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   TAMILIA, Judge.

Rolan Santiago Torres takes this appeal from judgment of sentence imposed August 12, 1991 after appellant pled guilty to three counts of unlawful delivery of a controlled substance and one count of possession of a controlled substance. Appellant was sentenced to an aggregate term of eight (8) to sixteen (16) years imprisonment. In addition to the appeal, we are presented with a Petition for Leave to Withdraw as Counsel filed by appellant’s counsel, Joseph P. Burt, which must be decided prior to review of the appeal on its merits. This issue was presented to the Court en banc because a conflict arose between the panel decision and prior Superior Court decisions which appeared to enlarge the requirements imposed by United States Supreme Court and Pennsylvania Supreme Court decisions for withdrawal of counsel when the appeal appeared to be frivolous.

Appellant’s counsel seeks to withdraw from this appeal pursuant to Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and its federal precursor, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Since its promulgation in Pennsylvania under McClendon, conflicting interpretations of Anders have crept into subsequent decisions of this Court. We seek in this decision to reaffirm the principles for which Anders stands, and from which our Supreme Court has not strayed since McClendon.

In McClendon, the Pennsylvania Supreme Court found it “apparent [based on Anders ] that the right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that the appeal is ‘wholly frivolous.’ ” Id. at 471, 434 A.2d at 1187. The Court also imposed the Anders requirements that counsel notify appellant of his request to withdraw, furnish appellant with a copy of the brief prepared by counsel and advise appellant of his right to retain new counsel or raise any points that he may deem worthy of consideration. Id. “At that point it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 471, 434 A.2d at 1187.

The major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and by also placing the responsibility on the reviewing court to make an independent determination of the merit of the appeal.
The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more.

Id. at 473-74, 434 A.2d at 1188.

Recently, a panel of this Court stated:

In Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200, 201 (1986), this Court [in Wallace ] set forth those requirements which need to be satisfied prior to granting counsel leave to withdraw; to-wit:
(1) petition[ ] ... for leave to withdraw [must] state[ ] that, after making a conscientious examination of the record and interviewing the defendant, [counsel] ha[s] determined that the appeal [i]s frivolous; (2) file[ ] a brief referring to anything in the record that might arguably support the appeal, but which d[oes] not resemble a no-merit letter or amicus curiae brief; and (3) furnish[ ] a copy of the brief to the defendant and advise[ ] him of his right to retain new counsel or raise any additional points that he deem[s] worthy of this Court’s attention.

Commonwealth v. Kennedy, 417 Pa.Super. 154, 157, 611 A.2d 1312, 1313 (1992) (emphasis added). The insertion of an interview requirement in Kennedy derivative of its interpretation of Thomas is the element not presented in Anders or McClendon which is the focus of this en banc review. An examination of Thomas, however, discloses that the Court therein was referring to the actions of counsel in Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983), in satisfying the requirements of Anders. Looking to Wallace, the following was stated:

Counsel, after making a conscientious examination of the record and interviewing appellant, determined that this appeal is frivolous. She then: 1) petitioned this court for leave to withdraw; 2) filed a brief referring to anything in the record that might arguably support the appeal; and 3) furnished a copy of the brief to appellant and advised him of his right to retain new counsel or raise any additional points that he deems worthy of this court’s attention.

Wallace, supra at 160, 469 A.2d at 231-232.

It is clear that the Thomas Court’s reference to “interviewing” in Wallace pertains to the particular actions of counsel on behalf of appellant Wallace, limited to that case, rather than the requirements of Anders, as evidenced by the fact that the former was set off and apart from the latter. Apparently, counsel in Wallace, appointed to take appellant’s appeal from the Order dismissing without hearing his third petition under the PCHA (now PCRA), was not familiar sufficiently with appellant’s case, and sought to interview him to make the determination whether the appeal was frivolous. It is this determination of frivolousness which is essential under Anders, and not an interview which may aid in making it. An interview is unnecessary in most instances, and we find no justification in making one an additional Anders requirement. What is essential to making a determination of frivolousness and fulfilling the duty under Anders to advise the defendant adequately of counsel’s actions and his rights is communication with defendant by providing a copy of the Anders brief, the motion to withdraw and a letter explaining counsel’s actions and the defendant’s alternative recourses. Prior communication may or may not be necessary for counsel to fulfill adequately his responsibility, depending on the circumstances of the particular case. Obviously counsel who has represented the defendant from the trial through sentencing and post-conviction proceedings would feel lesser need to interview, telephone or write to the defendant than counsel first involved by appointment for appeal purposes. It thus becomes counsel’s responsibility to determine when and to what extent communication is nécessary. For example, in the case before us, counsel, a public defender, represented appellant throughout the proceedings and was aware of the issues appellant sought to present on appeal. As such, no interview of appellant was necessary for counsel to make the requisite determination of the appeal’s merit. Counsel sent the following letter to appellant accompanied by a copy of his “AndersBaker” brief and a motion for leave to withdraw as counsel:

Dear Sir:
Since I received the assignment to pursue your case for appeal, I have finally been able to gather all the information I needed to review. Having reviewed your case and all of the pleadings that were submitted by your prior counsel, and, having performed legal research to try and find some support for the issues that are available, I am writing to you, with great regret, to inform you that I can find no meritorious issues that would be able to be pursued on appeal.
I am enclosing with this letter a copy of a Petition for Leave to Withdraw as your Counsel. This Petition is being filed with the Superior Court of Pennsylvania. I am also enclosing a copy of the Brief to which I refer in the Petition itself.
Having applied the available Pennsylvania law to the issues that are available, I have concluded that your appeal would be of no merit and that raising the issues would be frivolous. I have a duty to communicate this fact to you, but also, I have a duty to communicate it to the Court and to seek permission to withdraw as your counsel.
Under applicable law I am required to file a Petition with the Superior Court seeking its permission to. withdraw and also a brief setting forth anything in the record that might arguably support your appeal. I am also obligated to furnish a copy of that brief to you. It is enclosed with this letter. I am also obligated to advise you of your right at this point in time to find or retain new counsel. You may also act on your own behalf to raise any additional points or arguments with the Superior Court that you feel the Court should consider in your pending case.
I am sincerely disappointed that I was unable to point to anything in the record which would be able to be argued successfully in your appeal. I know that you feel the result you received was a harsh one. However, I have no doubt that these matters will stand up on an appeal.
I wish you the best in your efforts to pursue these matters further if you so desire.

This letter fully meets the requirements of Anders-McClendon in “communicating” with appellant. Under the circumstances of this case, additional communication by letter, phone or face to face interview would be redundant and unnecessary. We do not propose any per se requirements of interviewing or communication with appellant by counsel. We believe counsel is presumed to act professionally and ethically in this process and will engage in such communication as required by each case and his prior involvement in the case. Appellate review should provide a sufficient opportunity to evaluate the sufficiency of the communication in the same manner as we determine adequacy of the record in any other situation. As noted below, the court has a heavy responsibility in determining whether the appeal is frivolous and the likelihood that counsel would or could ignore his responsibility to review the record and communicate with an appellant is extremely remote. To require more than communication would be redundant and could create an onerous burden on the public defenders and the judicial system. Particularly, face to face interviews, if required, with the wide dispersal of defendants throughout the penal system of Pennsylvania, would place an unwarranted and unnecessary expense and misuse of attorney time to the detriment of the legal defense system.

At oral argument, Joseph P. Burt, Esquire, despite questioning by members of the en banc panel, was reluctant to discuss his contacts with appellant after the appeal was taken other than the one in which he communicated his intention to file a motion to withdraw. He believed to do so would be a breach of his client’s right to privileged communication and confidentiality and could have an adverse effect on his appeal. Since counsel was trial counsel as well as appellate counsel, it is an inescapable assumption that counsel had far more contact and communications with appellant than minimally required by Anders-McClendon when a motion for leave to withdraw as counsel is filed. As counsel during trial and sentencing stages as well as being appointed counsel for defendant on appeal, the communication between appellant and counsel was extensive.

In explaining its decision, the Kennedy Court stated:

Although McClendon, supra makes no reference to the need to communicate/interview with the appellant in advance of counsel seeking to withdraw because of the frivolousness of an appeal, Superior Court has interpreted the law to be otherwise. See Thomas, supra. More to the point, we do not find that sending a letter to a defendant informing him/her that an appeal perfected on his/her behalf would be frivolous does not satisfy [sic] the communication/interviewing contemplated by this Court in Thomas, supra. Surely, a face-to-face confrontation or an affidavit of communication over the phone if counsel cannot meet with the defendant would be satisfactory. Neither scenario transpired instantly. Accordingly, the Petition To Withdraw is premature. Thus, we are required by precedent to adhere to the satisfaction of such a requirement before allowing a petition to withdraw to be granted. Thomas, supra.
In all other regards, counsel has adhered to the mandate of Anders, e.g., furnishing a copy of the brief to the appellant in advance of seeking to withdraw. Id.; see also Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968); Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982). Nevertheless, the failure to comply with the dictates of Thomas, supra, on the question of “interviewing” with a defendant in advance of seeking, to remove oneself as counsel undermines the grant of the Petition To Withdraw.

Id. at 158, 611 A.2d at 1314 n. 2. Inasmuch as this Court’s decision in Kennedy, making an interview of appellant an Anders requirement, is based on Thomas, which detailed the factual circumstances (including an interview) involved in Wallace, we find the precedential value of Thomas as to an interview requirement to be illusory, and we reiterate the continuing validity of McClendon, without modification or addition. We hereby specifically reject any interview requirement that has been specified by Kennedy or inferred from Thomas or Wallace.

In addition, we find instructive the fact that since McClendon, the Supreme Court has not seen fit to add the “interview” requirement to those specified in Anders, despite opportunities to do so. See Thornton v. Pennsylvania Board of Probation and Parole, 525 Pa. 180, 578 A.2d 1289 (1990); Smith v. Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990). As stated in Thornton:

The proper method by which counsel’s petition to withdraw is evaluated is well established. In Anders, supra, the Supreme Court set forth a detailed procedure whereby counsel could inform the court of his desire to withdraw from representation of a client. This Court in Pernell Smith v. Commonwealth, Pennsylvania Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990), reiterated its faith in the Anders procedure, which the Anders court set forth as follows:
[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. Smith v. Commonwealth, Pennsylvania Board of Probation and Parole, supra, [574 A.2d] at 564 (citation omitted). The Anders procedure adequately addresses petitioner’s concerns. Counsel who submits an Anders brief both has outlined any issues which are suggested by the record and whose review may benefit his client, and has informed the court of his belief that those issues are probably meritless. Additionally, the indigent has been afforded the opportunity to review counsel’s brief and to raise any points that he may deem to be meritorious. Thus The court is in a position of assessing the claimed frivolity of the allegation of error.

Thornton, supra at 183-84, 578 A.2d at 1291. Neither Smith nor Thornton makes mention of the “interview requirement” nor do the Anders cases decided by our brethren in Commonwealth Court. See Frankhouser v. Pennsylvania Board of Probation and Parole, 143 Pa.Cmwlth. 80, 598 A.2d 607 (1991); McDaniel v. Board of Probation and Parole, 137 Pa.Cmwlth. 598, 587 A.2d 42 (1991); Morrison v. Board of Probation and Parole, 134 Pa.Cmwlth. 488, 578 A.2d 1381 (1990).

We find, therefore, from our review of prior case law on the issue of Anders requirements that the interview of the appellant by counsel as required by Kennedy is not a requirement of Anders or McClendon. While interviewing the appellant to determine the merit of his appeal is laudable and even recommended, it is not always practicable and we will not impose such a stricture on counsel who in all other ways have satisfied the requirements of Anders.

Turning again to the case before us we find on September 11,1992, counsel filed a petition with this Court, in conjunction with his appellate brief, representing that he had conducted a conscientious examination of the record, found the issues advanced by appellant to be without merit and concluded an appeal on those grounds to be frivolous. Counsel also averred he has notified appellant by letter of his request to withdraw, furnished appellant with a copy of his brief and advised appellant of his right to retain new counsel and/or raise any additional points appellant may deem worthy of this Court’s consideration.

We have reviewed the petition filed by counsel and find he has complied with Anders and McClendon. Moreover, from our independent review of the entire record, including appellant’s pro se amendment of brief, we find no issues of arguable merit and further find the appeal filed by counsel to be wholly frivolous.

Based on the foregoing, we grant counsel’s request to withdraw and affirm the judgment of sentence.

Petition to withdraw as counsel granted.

Judgment of sentence affirmed.

DEL SOLE, J., filed concurring and dissenting opinion joined by FORD ELLIOTT, J.

POPOVICH, J., filed concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting.

I join the Majority Opinion in affirming the conviction of the Defendant. Also, I join in the determination that counsel should be permitted to withdraw. I agree that the petition to withdraw need not contain a statement that counsel has communicated with the defendant where, as here, the record establishes that counsel seeking to withdraw was trial counsel. I would further hold, that where counsel attended a post-trial proceeding at which the defendant was also present a statement that counsel communicated with the defendant need not be included in the withdrawal petition. We can correctly assume that in these situations there was communication between attorney and client.

However, in cases involving the withdrawal of counsel who was not trial counsel, nor present with the defendant at a post-trial proceeding, I join the Concurring and Dissenting Opinion of Judge Popovich, and would continue to require that the petition seeking withdrawal contain the attorneys statement that counsel communicated with the client in arriving at the conclusion that there are no legitimate issues that warrant relief. Judge Popovich is correct in observing that communication between counsel and client is necessary to assure adequate representation of criminal defendants.

Since the Majority attempts to eliminate this requirement I believe it necessary to raise three points. First, as the Majority sets forth in its Opinion, current counsel who seeks to withdraw was trial counsel and had many communications with his client, before, during, and after the verdict. Therefore, the communication requirement was established on the record and any discussion of the requirement of communication, or the contents of a withdrawal petition in this regard by the Majority is necessarily dicta.

Second, in direct appeal cases where post-trial counsel is not trial counsel, only communication between counsel and client can assure that non-record issues which warrant relief have been raised. For example, no review of the record alone can assure subsequent counsel that character evidence or alibi defense issues were properly explored. Only communication with the defendant will do so. Requiring counsel to certify that such communication occurred enhances the quality of the process, and serves to insure that issues not raised are truly not present.

Third, in Post Conviction collateral attacks, the petition must set forth any facts that form the basis for relief not contained in the record. Pa.R.Crim.P. 1502(a)(12)(ii). Also, for counsel to withdraw in collateral attack cases, the “no-merit” letter must list each issue petitioner wished raised and counsel’s assessment of those issues. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). Inherent in each of these requirements is communication between lawyer and defendant. Since the right to counsel in post-conviction matters does not rise to the constitutional level required in a direct appeal, I find it incongruous not to require communication between attorney and client in a direct appeal case, and a certification of that communication in a petition to withdraw where the record does not evidence a joint appearance before the court by counsel and defendant.

POPOVICH, Judge,

concurring and dissenting.

I concur with the Majority’s decision to grant Torres’ counsel’s request to withdraw and affirm the judgment of sentence, especially in light of Torres’ presentment of a pro se amended brief reflective of his concerns on appeal. However, I dissent to that portion of the Majority’s discussion which implies that the laudatory features inherent in a requirement that appointed counsel consult with a defendant, in advance of formulating whether and to what extent an appeal is to be perfected and the substance of the claim(s) to be raised if appellate review is sought, may be dispensed with as a non sequitur in light of Anders v. Calif., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

The withdrawal of counsel, newly appointed to represent a defendant at the post-trial stage or appellate level, without first making inquiry of the accused as to what transpired in the case to achieve a proper perspective of the presence or absence of any meritorious claim(s) is a disservice to the defendant in particular and the judicial system and the principles upon which it rests in general.

It is true that under Anders/McClendon, the focus of inquiry is whether the advocate conducts himself/herself in a fashion which fosters the client’s interests, which, of necessity, requires counsel to act “to the best of his/her ability”) See Pernell Smith v. Com. of Pa. Bd. of Probation & Parole, 524 Pa. 500, 574 A.2d 558, 564 (1990). How better to assure that the client’s judicial-review concerns are being maximized than with some form of interaction between counsel and client. See Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230, 231-32 (1983).

Invariably, as noted by the Majority, all things reduce themselves to the ubiquitous “onerous burden” on the judicial system protestation versus the benefits to a defendant by availing the accused a certain modicum of procedure aimed at providing the minimum required under the law.

I do not equate the requirement of some form of interaction between attorney and client, in advance of counsel formulating a course of action intimately tied to the client’s interests, to be without its benefits. See Commonwealth v. Kennedy, 417 Pa.Super. 154, 611 A.2d 1312 (1992). Surely the effort and energy to be expended by counsel appointed to represent a defendant in conversing is minimum in contrast to the liberty interests generally hanging in the balance. Also, the assiduous review by counsel knowledgeable in the law can only be enhanced with the defendant’s input so as to chart the course to pursue.

Unlike the Majority, I am not willing to exclude a defendant from the judicial review equation. Ironically, the law jealously guards a defendant’s right to be present and participate at the pre-trial, trial and post-trial phase of the criminal justice system. See, e.g., Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Verdict); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985) (Opinion in Support of Reversal by Popovich, J.) (Sentencing); Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981) (Suppression). The accused has a right to be involved in matters affecting, ultimately, his liberty interests.

Yet, the Majority would discount the defendant’s role and find illusory the defendant’s right to be part of the judicial review process, which I find to be no less crucial than any other step in the criminal justice continuum.

Indeed, it is axiomatic that the attorney-client relationship begins with consultation. So, then, that relationship can only be terminated with consultation and not be an abrupt, unilateral act by the professional.

Ergo, to the extent that the Majority looks askance at the requirement that consultation be had between counsel and the defendant prior to deciding the merits of post-trial and appellate action in the context of a petition to withdraw by counsel, I respectfully dissent from such a position.

      . 35 P.S. § 780-113(a)(30).

      . Id., § 780-113(a)(16).

      . Attorney Burt represented appellant at every stage of the proceedings in this case until his petition to withdraw was filed on September 11, 1992.


author: CERCONE, Judge.

text:
    630 A.2d 1257
    COMMONWEALTH of Pennsylvania v. Walter JENNINGS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed Sept. 2, 1993.

      John P. Winicov, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, KELLY and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County on October 22, 1992. For the reason which follow, we affirm.

In this case, we are presented with an issue of first impression in Pennsylvania: Whether the Commonwealth may assert a “surveillance site privilege” to prevent disclosure of the exact location used by police officers to observe suspected criminal activity. We recognize that discovery of an officer’s surveillance location falls within the discretionary disclosure requirements of Pennsylvania Rule of Criminal Procedure 305 B(2), 42 Pa.C.S.A., and hold that such information is subject to a qualified privilege.

Following a bench trial, appellant was found guilty of possession with intent to deliver a controlled substance (cocaine). Appellant timely filed post-trial motions which the trial court denied. This appeal followed. The trial court aptly summarized the facts underlying this appeal as follows:

On the evening of December 14, 1991, a unit of the Philadelphia City Narcotic Strike Force was conducting an investigation in the 2900 block of North Park Avenue. Police Officer David Fisher, Kenneth Scott, Jeffrey Mason and Sergeant Kevin Bethel were the members of the Strike Force.
Officer Fisher was the observation officer conducting surveillance from a “confidential location” on the 2900 block of North Park Avenue. The other three members were serving as “back-up” officers and they were in uniform.
Within approximately forty-five minutes of setting up surveillance, Officer Fisher saw the Defendant on the southeast corner of the block. The defendant was talking with a second black male, who was about 6'2" wearing a long black coat.
The Officer next observed a third black male approach the Defendant. He was wearing a red jacket and blue sweatpants. He and the Defendant engaged in a brief conversation after which he handed the Defendant an unknown amount of currency.
Defendant next reached into his left pocket and retrieved a plastic bag. He then pulled out several plastic vials with red caps and gave them to the purchaser. The purchaser proceeded to walk north on Park Avenue, away from the Defendant. Defendant and the second male remained on the corner.
After the purchaser walked away, Officer Fisher who had been in contact with his back-up via two-way “walkietalkies” relayed to his back-up the facts of the transaction he had just observed. Officer Fisher also gave a description of the Defendant, the second male and the purchaser.
Before the back-up officers “moved in” to the area, Officer Fisher momentarily lost sight of the Defendant and told Officer Mason not to proceed until the Defendant was back in his sight. Once Defendant was in sight, Officer Fisher gave Officer Mason the “go ahead.”
Officer Mason was in a police wagon and drove north on Park Avenue toward the Defendant. Officer Mason stopped the wagon and approached the Defendant. As Officer Mason approached, the Defendant dropped a clear plastic baggie containing vials with red caps on the sidewalk and began running east toward Cambria Street. Officer Mason got back into the wagon and drove after the Defendant. Officer Fisher observed the above-described incident. After the Defendant fled from the scene, he observed the second male pick-up the baggie. He next radioed Officer Scott and Sergeant Bethel that the friend had the baggie of drugs and that he was walking north on Park Avenue with two black females.
Officer Scott arrested the purchaser on the 2700 block of North Broad. Five clear plastic vials with red caps containing an off-white chunky substance were recovered from the purchaser’s right pants pocket.
Officer Mason eventually stopped the Defendant on the 1300 block of Somerset Street. Nothing was recovered from the Defendant.
The second male was arrested by sergeant Bethel at the intersection of Park Avenue and Cambria Street. A clear plastic baggie containing 50 clear plastic vials with red caps containing an off-white chunky substance was recovered from the second male.
The three individuals were brought to the 2900 block of Park Avenue where Officer Fisher identified the three individuals as those involved. The identification was made within ten minutes of the incident. The vials and baggie that had been seized were later analyzed. The analysis revealed that both of the five vials and the fifty vials contained a cocaine-based substance.

Trial Court Opinion filed 1/25/93 at 3-5 (footnote and citations to Notes of Testimony omitted).

Prior to trial, appellant filed a motion to discover the exact location of Officer Fisher at the time he allegedly observed appellant delivering a controlled substance. The trial court conducted an in camera hearing at which time appellant asserted his need for the information. Thereafter, the trial court conducted an ex parte hearing at which the Commonwealth disclosed its evidence to the court. The court subsequently ruled that the Commonwealth did not have to disclose the exaction location of the surveillance site. At trial, the Commonwealth objected to any attempts by appellant’s counsel to seek information which would disclose the location of the surveillance site. The trial court sustained the Commonwealth’s objections. Now, appellant contends that the trial court improperly denied his pre-trial motion to discover Officer Fisher’s surveillance location. In this regard, appellant avers that such information is subject to mandatory discovery pursuant to Pa.R.Crim.P. 305 B(l). We disagree.

Rule 305 B(l) provides, in pertinent part:

(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
* * * * * *
(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification[.]

Pa.R.Crim.P., Rule 305 B, 42 Pa.C.S.A. The Comment to Rule 305 explains the meaning of the term “identification,” as used in the rule:

Whenever the rule makes reference to the term “identification,” or “in-person identification,” it is understood that such terms are intended to refer to all forms of identifying a defendant by means of the defendant’s person being in some way exhibited to a witness for the purpose of an identification: e.g., line-up, stand-up, show-up, one-on-one confrontation, one-way mirror, etc. The purpose of this provision is to make possible the assertion of a rational basis for a claim of improper identification based upon Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Comment to Rule 305, Section 1.2: Scope of Discovery (emphasis added). Here, Officer Fisher’s observations were not “for the purpose of an identification,” nor was defendant “exhibited” to him for this purpose. Rather, Officer Fisher’s observations occurred as the result of his investigation of criminal activity purportedly taking place in the immediate vicinity. Accordingly, disclosure of his surveillance location was not subject to mandatory discovery pursuant to Rule 305 B(l)(d).

Appellant also argues that the trial court abused its discretion by not ordering the disclosure of the surveillance location pursuant to Rule 305 B(2)(d). Rule 305 B(2) provides, in relevant part:

Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
# * * * *
(d) any other evidence specifically identified by defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

Pa.R.Crim.P., Rule 305 B(2), 42 Pa.C.S.A. (emphasis added). Appellant contends that because he established that the exact location of the surveillance location was (1) material to his defense; (2) reasonable; and (3) in the interest justice, he was entitled to disclosure of the location. The Commonwealth counters arguing that such information should be afforded the same protection granted to the identity of confidential informants. In this regard, the Commonwealth contends that appellant failed to sustain his burden to demonstrate any need for the exact location of the surveillance site. We agree.

For many years, courts of the United States have recognized the need to protect the identities of individuals who provide information to the police or prosecutors regarding criminal activities. In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,1 L.Ed.2d 639 (1957), the United States Supreme Court recognized that protection of the identity of a confidential informant was of vital public interest. Id. at 61, 77 S.Ct. at 628. To determine whether disclosure was appropriate, the United States Supreme Court developed and applied a balancing test:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each ease, taking into consideration the crime charged, the possible defenses the possible significance of the informer’s testimony, and other relevant factors.

353 U.S. at 62, 77 S.Ct. at 628-29. The Roviaro balancing test was accepted by our Pennsylvania Supreme Court in Commonwealth v. Carter, 427 Pa. 53, 58, 233 A.2d 284, 287 (1967) and has been applied in subsequent cases. See Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984).

There are obvious similarities between the government’s interest in protecting the identity of a confidential informant, and its interest in preventing the disclosure of a confidential surveillance location. In analyzing the similarities between the two situations, the District of Columbia Court of Appeals aptly explained:

[l]aw enforcement interests in surveillance positions are analogous to those concerning informants. If an observation location becomes known to the public at large, its value to law enforcement probably will be lost. The revelation, moreover, may jeopardize the lives of police officers and of cooperative occupants of the building.

Anderson v. United States, 607 A.2d 490, 495, (D.C.App.1992) (quoting Hicks v. United States, 431 A.2d 18 (D.C.App.1981)). Based upon these similarities, we find that a qualified privilege is necessary to protect the exact location of a confidential surveillance site.

The request to produce a confidential informant is a discovery matter under Pa.R.Crim.P., Rule 305 B, 42 Pa. C.S.A. Commonwealth v. Bonasorte, 337 Pa.Super. at 347, 486 A.2d at 1370 (citing Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985)). “The [supreme] court has also reached a consensus that the issue is viewed under the rubric of discretionary discovery Pa.R.Crim.P. 305 B(2).... ” Id. at 347, 486 A.2d at 1370. Here, appellant argues, and we agree that Rule 305 B(2)(d) governs discovery of a confidential surveillance site. In determining the prerequisites to discovery of a confidential surveillance location, we are guided by this court’s interpretation of the rule in matters involving the disclosure of a confidential informant. To seek disclosure of the identity of a confidential informant under Rule 305 B(2)(d), which provides for the production of “any other evidence specifically identified by the defendant,” the defendant must not only file a motion for pre-trial discovery, he must also establish that its disclosure would be in the interests of justice. Rule 305 B(2)(d).

However, in meeting this additional burden, “more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense.” Commonwealth v. Mickens, 409 Pa.Super. 266, 274, 597 A.2d 1196, 1200 (1991). Accord Commonwealth v. Eicher, 413 Pa.Super. 235, 256, 605 A.2d 337, 347 (1992). Although the defendant cannot be expected to demonstrate that such information would actually be helpful, the record must at least suggest a reasonable probability that the information would be helpful, and that it is necessary. Commonwealth v. McGinn, 251 Pa.Super. 170, 173, 380 A.2d 431, 433 (1977).

It is important to note that the Rule speaks in terms of a showing by the defendant. These conditions cannot be assumed, and they must be supported by the evidence on the record. It is in this context that the evidence presented at the hearing must be examined to determine whether the defendant met his burden (or more precisely whether the court abused its discretion in determining that he had).

Commonwealth v. Bonasorte, 337 Pa.Super. at 349, 486 A.2d at 1370 (emphasis added). The defendant is required to make a showing that the production of the informant is “material to the defense.” Id. at 351, 486 A.2d at 1370. If defendant meets this burden, the trial court is then required to balance the needs of the defendant against the public interest in protecting the flow of information. Id. at 352-53, 486 A.2d at 1372.

Federal courts have developed their own test for determining whether a confidential surveillance location must be disclosed to the defendant. In United States v. Green, 670 F.2d 1148 (D.C.Cir.1981), the federal court of appeals approved the withholding of the location of a police surveillance post at a suppression hearing; and in United States v. Harley, 682 F.2d 1018 (D.C.Cir.1982), the court held that the privilege applies at trial as well. Again the court applied a balancing test controlled by “the fundamental requirement of fairness.” Id. at 1020. The District of Columbia Court of Appeals opined:

A defendant seeking to learn the location of a police surveillance post should ordinarily show that he needs the evidence to conduct his defense and that there are no adequate alternative means of getting at the same point. The degree of the handicap he establishes must then be weighed by the trial judge against the policies underlying the privilege. This is necessarily a somewhat ad hoc balancing process so that, as Roviaro said, “no fixed rule with respect to disclosure is justifiable.” Id. [353 U.S.] at 62, 77 S.Ct. at 628.

Id.

The District of Columbia likewise recognizes the, need to balance the interests of the government against those of the defendant. Among those factors considered by the District of Columbia Court of Appeals are whether the use of the particular surveillance post had been abandoned so as to assure the safety of the police officers using the site, the safety of the cooperating apartment owner or tenant, as well as the willingness of other citizens to cooperate with the police in this fashion in the future. Anderson v. United States, supra, 607 A.2d at 495. In New Jersey, a trial judge is required to balance the necessity for disclosure against the consequence of revealing the surveillance site:

[I]f the vantage point is in a private home or a place of business, real potential for reprisal against the owner may weigh against disclosure. If maintenance of secrecy is necessary to protect ongoing investigations, this must be considered; if the site is no longer used or useful, other considerations could control.

State v. Crudup, 176 N.J.Super. 215, 220, 422 A.2d 790, 790 (1980). This sound reasoning is of assistance in analyzing the facts of the instant case.

Here, appellant averred, and we may conclude, that the testimony from the eye-witness of what he observed from the confidential surveillance location contained material facts pointing to appellant’s guilt. However, at the in camera hearing on appellant’s request to discover the exact location of Officer Fisher, appellant alleged that he needed the information so as to conduct an investigation of the area. Appellant’s counsel argued that he would take measurements of the area to see whether or not the distance would support the Commonwealth’s case. N.T. 4/6/92 at 6. Because this case revolves upon Officer Fisher’s identification of appellant, counsel argued that his cross-examination would be blocked without specific knowledge of the location from which Officer Fisher viewed the alleged criminal activity. Id. at 7. Obviously, this very general argument advanced by appellant falls far short of suggesting a reasonable probability that the information would be helpful and material to appellant’s case. Commonwealth v. McGinn, supra, 251 Pa.Super. at 173, 380 A.2d at 433. Specifically, appellant failed to put forth the precise manner in which the failure to reveal this information would handicap his case.

Even without the requisite showing, however, the Commonwealth presented the testimony of Officer Fisher. Officer Fisher testified that he observed the criminal activity of appellant from a distance of about five to seven feet and that his view was unobstructed. N.T. 4/6/92 at 11. At an ex parte hearing, the Commonwealth revealed the exact location of the surveillance location. After reviewing the evidence presented at that hearing, we have no difficulty in concluding that the balancing test would sustain application of the surveillance site privilege here. It is clear that the trial court properly balanced the interests, as discussed supra, and we find no abuse of discretion in this regard.

Judgment of sentence affirmed.

      . New Jersey, California, Massachusetts, the District of Columbia Court of Appeals, and the United States Court of Appeals (D.C. Circuit) have also recognized the existence of the surveillance location privilege. See State v. Garcia, 131 N.J. 67, 618 A.2d 326 (1993); Hines v. Superior

        Court, 203 Cal.App.3d 1231, 251 Cal.Rptr. 28 (1 Dist., 1988); Commonwealth v. Lugo, 406 Mass. 565, 548 N.E.2d 1263 (1990); Anderson v. United States, 607 A.2d 490 (D.C.App.1992); United States v. Green, 670 F.2d 1148 (D.C.Cir.1981).

      . 35 P.S. § 780-113(a)(30).

      . The ex parte hearing was conducted so as to protect information regarding the exact location of the surveillance site. It would be inappropriate for us to comment further upon information revealed at the hearing beyond stating that it was not exculpatory to appellant.


author: DEL SOLE, Judge:

text:
    630 A.2d 1263
    Roman GUTMAN and Janet Gutman, Individually and as Husband and Wife, Appellee, v. WORLDWIDE INSURANCE COMPANY, Appellee, v. AGENCY RENT-A-CAR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 29, 1993.
    Filed Sept. 3, 1993.

      James C. Haggerty, Philadelphia, for appellant.
    Benjamin E. Zuckerman, West Conshohocken, for Worldwide Ins., appellee.
    Before DEL SOLE, BECK and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order declaring that Appellant, Agency Rent-A-Car, is primarily liable to pay Appellees, Roman and Janet Gutman’s, uninsured motorist benefits, up to the statutory limit, and that Appellee, Worldwide Insurance, is liable for any excess up to its policy limits.

The parties stipulated the relevant facts to the trial court. They agreed that the Gutmans were occupying a car they had rented from Appellant (Agency), a self-insured party in accord with the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701 et seq., when they were involved in an accident with an uninsured vehicle. The Gutmans were traveling in the Agency vehicle temporarily as a substitute for their own vehicle, which was insured by Appellee (Worldwide).

The Gutmans made claims against both Agency and Worldwide for recovery of uninsured motorist benefits. The trial court’s ruling, which found Agency primarily liable for the payment of uninsured motorist benefits, is called into question in this appeal.

Agency contends that it, as a self-insurer, is not required to provide coverage for uninsured motorist benefits as a result of Act No. 6 of 1990, Feb. 7, P.L. 11, No. 6, § 9, effective July 1, 1990, which made uninsured motorist coverage optional. It notes that the rental agreement provided that all optional coverages remained the responsibility of the customer and reasoned that since uninsured motorist coverage is now optional the trial court incorrectly ruled that it had an obligation to provide uninsured motorist coverage.

Appellant errs in its conclusion that the provisions of Act No. 6 affect its obligations as a self-insurer to provide uninsured motorist coverage.

In this Commonwealth it is necessary to offer proof of financial responsibility by submitting evidence that either an applicable motor vehicle liability insurance policy exists, a program of self-insurance applies or other reliable financial arrangements which are acceptable to the department have been made. See 75 Pa.C.S.A. § 1782. Provisions regarding those who choose to be self-insured are contained in 75 Pa.C.S.A. § 1787. Among the responsibilities detailed, which are required of all self-insurers, is an obligation to provide uninsured motorist coverage. The statute provides:

§ 1787. Self-insurance
(a) General rule. Self-insurance is effected by filing with the Department of Transportation, in satisfactory form, evidence that reliable financial arrangements, deposits, resources or commitments exist such as will satisfy the department that the self-insurer will:
(3) Provide uninsured motorist coverage up to the limits set forth in section 1774. (Payments sufficient to satisfy judgments.)

While Agency recognizes that § 1787 sets forth a duty on self-insurers to provide uninsured motorist coverage, it argues that these provisions were modified by the enactment of Act No. 6. Because under the new provisions, which were in effect at the time of the Gutmans’ accident, the purchase of uninsured motorist coverage is optional, Agency contends that the duty to provide such coverage is now optional with the self-insurer. We disagree.

As noted by the trial court, the 1990 amendments gave private insurance customers the option of declining uninsured motorist coverage when purchasing insurance. However, Act No. 6 of 1990 does not refer to, nor does it apply to self-insurers. This is clear from language contained therein. The statute requires a mandatory offering of uninsured and under-insured motorist coverages by stating that “No motor vehicle liability insurance policy shall be delivered or issued for delivery ... unless uninsured motorist and underinsured motorist coverages are offered.” 75 Pa.C.S.A. § 1731(a). It further states that the “[p]urchase of uninsured motorist and underinsured motorist coverages is optional.” Id. By referring to the deliverance, issuance and purchase of policies and coverage, it is evident that this statutory provision does not apply to self-insurers. A self-insurer would not “purchase” uninsured or underinsured motorist coverage. Likewise, with a self-insurer there is no “policy” to deliver or issue. The statute also required those who wish to reject uninsured motorist coverage to sign a particular form, 75 Pa.C.S.A. § 1731(b), and directs that this form be printed in a certain manner and that the signature on the form be witnessed by an insurance agent or broker. 75 Pa.C.S.A. § 1731(e.l). A self-insurer has no agent or broker and no need to sign a waiver form because their is no policy of insurance.

Agency argues that although that statutory waiver provisions may not strictly apply to self-insurers, an examination of the purpose of the 1990 amendments leads to the conclusion that mandatory uninsured motorist coverage should not exist for self-insurers. It reasons that coverages were made optional in order to effectuate cost control and this purpose should apply equally to self-insurers. Agency points to the fact that prior to the amendments self-insurers did not have all of the burdens and requirements imposed on insurers. It maintains that it would be incongruous for the legislature to have relaxed the burdens on insurers by making uninsured motorist coverage optional and not to have relieved self-insurers of that same obligation. The failure to apply the optional provisions to self-insurers would, according to Agency, impose greater obligations upon self-insurers which could not have been the legislative intent. Clearly, submits Agency, the intent of the legislature in passing the 1990 amendments was to make all uninsured coverage optional.

In analyzing and interpreting a statute, a court has as its goal to ascertain and give effect to the intent of the General Assembly. Freeze v. Donegal Mutual Ins. Co., 412 Pa.Super. 305, 603 A.2d 595 (1992). We are not, however, free to disregard the plain, clear meaning of a statute under the guise of pursuing its spirit. 1 Pa.C.S.A. § 1921(b), Walker v. Dalasini, 426 Pa.Super. 469, 627 A.2d 771 (1993).

In this case the statutory provisions are clear. Self-insurers are required to provide a minimum amount of uninsured motorist coverage. Nothing in the 1990 amendments, 75 Pa.C.S.A. § 1731, alters this requirement. We hold that the trial court correctly ruled that uninsured motorist coverage is mandated for self-insurers despite the optional provisions recently enacted for purchasers of liability insurance policies under 75 Pa.C.S.A. § 1713. Any attempt by Agency to avoid this requirement by the inclusion of a contract provision waiving uninsured motorist coverage is invalid since it violates the statutory requirements of a self-insurer. See 75 Pa.C.S.A. § 1787(a)(3).

Order affirmed.