author: WIEAND, Judge: JOHNSON, Judge,

text:
    613 A.2d 569
    COMMONWEALTH of Pennsylvania v. Walter GARNETT, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1992.
    Filed Aug. 11, 1992.

      Patrick J. Connors, Media, for appellant.
    William H. Ryan, Jr., Dist. Atty., Vram Nedurian, Jr., Asst. Dist. Atty., Media, for Com., appellee.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   WIEAND, Judge:

Appellant, Walter Garnett, Jr., has appealed from an order denying his petition for post-conviction relief. In a brief filed by appointed counsel, it is argued that trial counsel was constitutionally ineffective for failing to seek the suppression of inculpatory statements made by appellant following an arrest which is alleged to have been illegal because it was made in violation of the Statewide Municipal Police Jurisdiction Act, 42 Pa.C.S. § 8953. Appellant has also filed a pro se supplemental brief in which he avers that his court appointed PCRA counsel was ineffective for failing to raise in this appeal additional instances of trial counsel’s ineffectiveness.

Garnett was tried by jury and, on October 3, 1975, vas found guilty of second degree murder, rape, involuntary deviate sexual intercourse and criminal conspiracy. Post-trial motions vere denied, and appellant vas sentenced to life in prison for murder and to concurrent terms of imprisonment for the remaining convictions. A direct appeal was filed in the Superior Court, which affirmed the judgment of sentence. See: Commonwealth v. Garnett, 267 Pa.Super. 41, 405 A.2d 1293 (1979). On February 6, 1989, appellant filed a pro se petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. Following the appointment of counsel, an evidentiary hearing was scheduled. At the time of the hearing, however, appellant decided to submit his petition to the PCRA court for decision without presenting evidence. On June 20, 1991, the PCRA court issued an order denying appellant’s petition for post-conviction relief. This appeal followed.

The factual scenario which led to appellant’s arrest and conviction was summarized in the post-trial opinion of the trial court in the following manner:

The body of Lauren Whitaker, a seven year old girl, was found October 24, 1974 in a vacant room at 710 West Third Street, Chester, Pennsylvania. The child had been sexually molested and murdered. The father of defendant, Walter Garnett, Jr., lived in the building where the child was found and the defendant was living with the victim and her mother. During the resulting criminal investigation, Gar-nett was questioned numerous times concerning the child’s death. He was not considered, at that time, to be a suspect.
Late in April, 1975, Garnett contacted the Chester Police Department on several occasions indicating that he had further information pertaining to the crimes. After some preliminary conversations with the defendant, he was picked up by the police, at his own request, early in the morning of April 29,1975 to discuss the matter fully. On that occasion, following a review of his constitutional rights, Garnett admitted knowledge of certain undisclosed circumstances surrounding the discovery of the victim’s body. Among other information, the defendant described his father’s admission that he had killed Lauren Whitaker. Being rather surprised at the disclosures, the police proposed that Garnett submit to a polygraph test in Philadelphia. The defendant voluntarily accompanied the police to Philadelphia where the test was performed. At the conclusion of the test and after his rights were again detailed, the defendant offered a statement admitting his presence at and participation with his father in the crimes against the victim, Lauren Whitaker. He was promptly arrested and returned to Chester.
On the defendant’s arrival in Chester, early in the evening of April 29, 1975, a further statement was obtained from him. At all times, he was well advised of his rights and offered food and drink. While Garnett appeared emotional at times, the evidence reflected that the statements were given without coercion and that he appeared almost relieved to discuss the incident. He was arraigned at approximately 8:30 p.m., April 29, 1975, before the District Justice.

Trial Court Opinion at pp. 1-2 (filed February 3, 1977).

Appellant argues that his arrest in Philadelphia by the Chester Police violated the provisions of the Statewide Municipal Police Jurisdiction Act and that any subsequent inculpatory remarks were the product of an illegal arrest. As such, his argument continues, trial counsel should have asserted the violation of the Act as a basis for suppressing his inculpatory statements. We disagree.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). The standard utilized to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). Pursuant to the Post Conviction Relief Act, “a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type Vhich in the circumstances of the particular ease, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.’ ” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990), quoting 42 Pa.C.S. § 9543(a)(2)(ii).

In pertinent part, the Statewide Municipal Police Jurisdiction Act provides as follows:

(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an order issued by a court of record or an order issued by a district magistrate whose magisterial district is located within the judicial district wherein the officer’s primary jurisdiction is situated, or where the officer is otherwise acting pursuant to the requirements of the Pennsylvania Rules of Criminal Procedure, except that the service of an arrest or search warrant shall require the consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services in the municipality wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.
(4) Where the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer’s primary jurisdiction to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.
(6) Where the officer views an offense which is a felony, or has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer.

42 Pa.C.S. § 8953(a).

Instantly, the Chester Police had taken appellant to Philadelphia for the purpose of a polygraph test, which appellant had agreed to take. Under these circumstances, it is clear that the Chester Police were on official business when they transported appellant to Philadelphia. Moreover, when, upon completion of the polygraph test, appellant admitted his involvement in the murder of Lauren Whitaker, the Chester Police then had probable cause to place appellant under arrest. Police conduct, therefore, was lawful and in accordance with 42 Pa.C.S. § 8953(a)(5) and/or (a)(6). It follows that trial counsel was not ineffective for failing to aver an illegal arrest.

Moreover, even if a technical violation of the Municipal Police Jurisdiction Act had occurred, the suppression of appellant’s inculpatory statements “ ‘would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.’ ” Commonwealth v. Saul, 346 Pa.Super. 155, 162, 499 A.2d 358, 361 (1985), quoting United States v. Searp, 586 F.2d 1117, 1123 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). “[Suppression of evidence may or may not be the appropriate remedy for a violation of section 8953 of the Act, depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused.” Commonwealth v. O’Shea, 523 Pa. 384, 399, 567 A.2d 1023, 1030 (1989), cert. denied, — U.S. —, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990). See also: Commonwealth v. Fetsick, 392 Pa.Super. 264, 272-273, 572 A.2d 793, 797 (1990). Here, appellant had the benefit of Miranda warnings prior to making his inculpatory remarks, and both the trial court and Superior Court have already determined that the inculpatory statements were voluntarily given by appellant. Thus, even if appellant’s arrest were technically in violation of 42 Pa.C.S. § 8953, the circumstances of the instant case would not warrant the suppression of the inculpatory statements which he voluntarily gave to police.

There also is no basis in this case for finding PCRA counsel ineffective for failing to raise additional claims of ineffective assistance by trial counsel. In his pro se brief, appellant asserts that trial counsel was ineffective for (1) failing to challenge the systematic exclusion of blacks from appellant’s jury pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) failing to challenge the 13 hour delay between appellant’s arrest and arraignment; and (3) failing to request a change of venue due to extensive pre-trial publicity. These allegations are wholly lacking in merit and provide no basis for relief.

Appellant’s trial counsel was not ineffective for failing to assert that his jury was selected in a racially discriminatory manner in violation of the principles set forth in Batson v. Kentucky, supra. Appellant was convicted in 1975, more than ten years before the United States Supreme Court’s 1986 decision in Batson. Trial counsel will not be deemed ineffective for failing to predict future developments in the law. See: Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977); Commonwealth v. Carter, 409 Pa.Super. 184, 190-192, 597 A2d 1156, 1159-1160 (1991). Moreover, the decision in Batson, it has been held, is not to be applied retroactively to cases on collateral review. See: Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986); Commonwealth v. Green, 365 Pa.Super. 142, 529 A.2d 13 (1987); Commonwealth v. Williams, 364 Pa.Super. 630, 528 A.2d 980 (1987). Therefore, Batson has no application in appellant’s appeal from the denial of his petition for post-conviction relief.

Whether an unreasonable delay had occurred between appellant’s arrest and arraignment was raised in appellant’s pre-trial suppression motion, his post-trial motions and in his direct appeal to the Superior Court. Both the trial court and Superior Court found his contention lacking in merit. This issue, therefore, has been finally litigated and cannot now be asserted as a post-conviction basis for challenging the effectiveness of trial counsel. See: 42 Pa.C.S. § 9544(a).

Finally, there is no basis in the record before this Court for holding trial counsel ineffective for failing to file a motion for change of venue prior to appellant’s trial. In support of this claim, appellant attached to his PCRA petition three newspaper articles discussing the circumstances of his crimes. However, two of these articles were written after appellant had been convicted. The third article did not extensively discuss the circumstances of the crimes and was neither sensational nor inflammatory in nature. Thus, there simply is no evidence in the record of any extensive or pervasive pretrial publicity which would have entitled appellant to a change of venue. See: Commonwealth v. Tedford, 523 Pa. 305, 323-325, 567 A.2d 610, 618-619 (1989). We conclude, therefore, that appellant failed to allege a valid claim that trial counsel was ineffective for failing to file a motion for a change of venue.

The order denying post-conviction relief is affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I believe that the claimed ineffective assistance of counsel could not have implicated the truth-determining process in this case in any manner. I also believe we are precluded from examining those claims set forth in the appellant’s pro se supplemental brief. Since I believe we should neither reach an examination of the Statewide Municipal Police Jurisdiction Act nor review appellant’s pro se claims, I must respectfully dissent.

The sole issue set forth in the brief filed on behalf of Walter Garnett, Jr. by the Public Defender’s Office is:

Whether trial counsel was ineffective in not raising and preserving the issue as to whether Appellant’s arrest was illegal since the arrest occurred outside of the jurisdiction of the arresting officers.

Brief of Appellant, Statement of Question Involved, page 3.

On his direct appeal from judgment of sentence, Garnett argued that the confessions he had made to police, evidence of which the trial court refused to suppress and which was used against him at trial, were the product of an unnecessary delay between arrest and arraignment. In rejecting this claim, this court found:

Garnett himself first contacted police to offer information he said he had withheld at the time of the crimes six months before. After several conversations with police, Garnett requested they pick him up and take him to the station for a discussion. He was picked up at 8:30 a.m. and transported to the police station. On his arrival, he was informed he was not in custody and was free to leave, and he was given Miranda warnings. Between 9:00 and 9:30 a.m., he gave a statement implicating his father in the crimes. The police requested he submit to a polygraph examination in Philadelphia to which he agreed. On arrival in Philadelphia at noon and after Miranda warnings, Garnett took the polygraph examination, and, immediately after completion of the examination at 3:30 p.m., he admitted his own involvement. Only at that time did he become a suspect. He was placed under arrest and again given Miranda warnings, and he then gave a statement and signed a transcription. Garnett was returned to Chester and fed, and a confirmatory statement was taken after Miranda warnings. His arraignment took place at 7:30 or 8:30 p.m. that evening. Thus there was a delay of five hours at most between Garnett’s arrest and arraignment. Under the circumstances, the statement could not have been the product of unnecessary delay because there was no unnecessary delay. See Commonwealth v. Coley, 466 Pa. 53, 351 A.2d 617 (1976) (Plurality Opinion).

Commonwealth v. Garnett, 267 Pa.Super. 41, 43, 405 A.2d 1293, 1294 (1979).

In order to be eligible for relief under the Post Conviction Relief Act, as amended April 13, 1988, P.L. 336, No. 47, § 3, 42 Pa.C.S. §§ 9541 et seq. (1992 Supp.), a person claiming ineffective assistance of counsel must plead and prove, in addition to other requirements:

That the conviction or sentence resulted from ...

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S. § 9543(a)(2)(ii). This provision, enacted in 1988 and applicable on this appeal, reflects a legislative perception that courts had been too generous in entertaining claims for relief under the former statute. Commonwealth v. Lawson, 519 Pa. 504, 513 n. 12, 549 A.2d 107, 112 n. 12 (1988).

All of the recent decisions of this Court are uniform in applying the stringent requirements of § 9543(a)(2)(h). Thus, in Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990), this Court acknowledged that it is not enough for an appellant to show that he or she has suffered some prejudice as a result of counsel’s action or inaction, but rather that counsel’s action or inaction so affected the trial itself (the “truth-determining process”) that the result of the trial is inherently unreliable. Id., 395 Pa.Superior Ct. at 625, 577 A.2d at 1374. In Weinder, the matter was remanded for further proceedings, in part because it was clear, under Commonwealth v. Pounds, 490 Pa. 621, 634 n. 17, 417 A.2d 597, 603 n. 17 (1980), that a correct alibi instruction is an essential part of the truth determining process.

We have several recent cases where it has been determined, as a matter of law and without resort to any traditional three-prong ineffectiveness analysis, that eligibility for PCRA relief is not available. In Commonwealth v. Hanes, 397 Pa.Super. 38, 45, 579 A.2d 920, 923 (1990), we recognized that the amendment appearing as 42 Pa.C.S. § 9543(a)(2)(h) “is a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania,” citing to Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990). In Thomas, there was dictum suggesting that the new subsection mandates a two-step analysis and that a court must first apply the “well-settled three prong standard for ineffectiveness to determine if counsel was ineffective.” Id. The later cases indicate, however, that this suggested two-step analysis is not required.

In Hanes, supra, we held that trial counsel’s failure to poll the jury “when it was obvious that its verdict was inconsistent,” does not raise a claim that undermines the truth-determining process. Thus, we found that the issue was not cognizable under the PCRA. Id., 397 Pa.Superior Ct. at 45, 579 A.2d at 923. Similarly, in Commonwealth v. Pitts, 397 Pa.Super. 387, 393, 580 A.2d 352, 355 (1990), we held that counsel’s failure to seek severance where both charges stemmed from the same criminal incident was not cognizable on its face, since severance of charges to which the defendant obviously was guilty did not implicate the reliability of the truth-determining process. To the same effect, we have recently held that 42 Pa.C.S. § 9543(a)(2)(h) precludes analysis based upon the traditional three-prong standard, where the claim of ineffectiveness is based upon factual inaccuracies. Commonwealth v. Senk, 399 Pa.Super. 627, 631 n. 4, 582 A.2d 1119, 1121 n. 4 (1990).

When I apply the principles announced in these cases to the appeal now before this court, I am unable to agree with the majority that an analysis of the legality of the arrest and the possible applicability of the Statewide Municipal Police Jurisdiction Act is necessary to our decision on this appeal. Nowhere in Garnett’s 24-page petition filed under the PCRA does he allege that any violation “so undermined the truth determining process that no rehable adjudication of guilt or innocence could have taken place.” Nor does he advance such an argument in his brief to this court. Commonwealth v. Laskaris, 407 Pa.Super. 440, 444-45, 595 A.2d 1229, 1231 (1991).

We have held that, where an issue does not bear upon a defendant’s ultimate guilt or innocence, and where the defendant fails either to explain how the truth-determining process was undermined, or to allege that counsel’s actions prevented a reliable determination of guilt or innocence, the claim is not cognizable under the PCRA Commonwealth v. Tanner, 410 Pa.Super. 398, 405, 600 A.2d 201, 205 (1991). See also Commonwealth v. Grier, 410 Pa.Super. 284, 288, 599 A.2d 993, 995 (1991) (collecting cases).

As the Opinion by the majority on this appeal points out, both the trial court and this court have already determined that the inculpatory statements were voluntarily given by Garnett. That is the law of this case. Commonwealth v. Goldblum, 498 Pa. 455, 473, 447 A.2d 234, 243 (1982); Com monwealth v. Lenig, 403 Pa.Super. 455, 460, 589 A.2d 700, 702-703 (1991). Garnett’s arrest in Philadelphia by the Chester Police could not, in any way, have undermined the truth-determining process where this court has already determined that the inculpatory statements were voluntarily given. Since the truth-determining process was not undermined by Gar-nett’s arrest in Philadelphia, the adjudication of guilt may not be challenged under the PCRA on these allegations. 42 Pa.C.S. § 9543(a)(2)(h).

Moreover, the notes of testimony from the PCRA hearing held on June 5, 1989 have not been included in the record certified to this court and may not have even been transcribed. In his Opinion prepared pursuant to Pa.R.A.P. 1925 and dated February 19, 1992, the Honorable William R. Toal, Jr., P.J. states:

The defendant filed a pro se Petition for Post Conviction Relief alleging that his confessions were obtained by deception and fraud and were not voluntary. He further alleges that his arrest was illegal, in that he was arrested in Philadelphia outside of the jurisdiction of the Chester Police Department. Finally, he alleges without further specificity that his trial counsel was ineffective. A hearing was scheduled on the defendant’s post-conviction allegations and the defendant appeared in court represented by counsel from the Delaware County Public Defender’s Office. Counsel for the defendant advised the court that he and his client did not wish to present any testimony but would prefer to have the court consider the Post-Conviction Petition and the answer ... without the benefit of supplemental testimony or evidence. We inquired of the defendant whether or not he wished to proceed with this matter and he advised the court that he was satisfied with his ... counsel and that he did not wish to present any additional evidence at the hearing on the defendant’s petition. After reviewing the petition and the response filed by the Commonwealth, the ... Petition was denied on June 20, 1991.

Opinion, Toal, P.J., February 19, 1992, pages 1-2. None of these assertions are contested by Garnett, either in his Brief or in the pro se Supplemental Brief.

Because Garnett has failed to allege that the truth-determining process has been undermined, and because the facts contained in his petition simply could not support such a claim, I would conclude that the sole claim raised in Garnett’s original Brief for Appellant is not cognizable under the PCRA Commonwealth v. Laskaris, supra, Commonwealth v. Tanner, supra. I, therefore, would not consider whether the Statewide Municipal Police Jurisdiction Act had been violated.

I must also respectfully disagree with my colleagues’ decision to review the additional claims found in Garnett’s pro se Supplemental Brief. On this appeal, a counseled brief was filed on behalf of Garnett on April 6, 1992. Prior to that, Garnett’s pro se Supplemental Brief was filed on April 1,1992.

In Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990), appeal allowed 528 Pa. 636, 598 A.2d 992 (1991), we had occasion to consider and revisit this court’s policy regarding pro se briefs. In an en banc decision, we there declared:

We will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues. Because we refuse to play a timing game or that of a mind reader, trying to determine what the pro se really wants, we see no difference as to when the pro se brief is filed in relation to the counseled brief. If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief on to counsel who is best able to determine in her professional judgment which of the pro se’s issues should be presented for our review.

Commonwealth v. Ellis, 398 Pa.Superior Ct. at 550, 581 A.2d at 600 (emphasis in original).

Garnett has alleged the ineffectiveness of his PCRA counsel in his Supplemental Brief. Since PCRA counsel continues to represent Garnett on this appeal, counsel would have been required to petition this court to remand the case to the trial court for a hearing on Garnett’s waiver of his right to counsel and his desire to proceed pro se. Commonwealth v. Ellis, supra, 398 Pa.Superior Ct. at 550, 581 A.2d at 600-601. When a three-judge panel of this court further considered Ellis, it held that appointed counsel, upon review of the pro se allegations of ineffectiveness should petition this court for a remand, citing the client’s allegations of ineffectiveness. Commonwealth v. Lawrence, 408 Pa.Super. 9, 14, 596 A.2d 165, 168 (1991). It is only after such a petition for remand that this court, relying on Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10,13 (1986), may decide whether a remand is in fact required. Id.

I am unaware of any law since Ellis and Lawrence which operates to make the directives contained therein no longer binding on this three-judge panel. I therefore would decline to review the contentions contained in Garnett’s pro se Supplemental Brief until compliance with the dictates of Ellis and Lawrence had been demonstrated.

For all of the above reasons, I must dissent.

      . Because it is clear from the record that the additional issues raised by appellant are so lacking in merit as to be frivolous, we have elected to decide these issues on the merits even though they have been argued only in appellant’s pro se brief. To remand for thfe appointment of new counsel to argue appellate counsel’s ineffectiveness in these respects or for further proceedings in the trial court would not only be fruitless but would constitute an inefficient use of judicial resources. Therefore, we have examined and rejected appellant’s frivolous pro se arguments simultaneously with our consideration of the arguments made by appellate counsel.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    613 A.2d 577
    In the Interest of Malick WILKS. Appeal of COMMONWEALTH OF PENNSYLVANIA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1992.
    Filed Aug. 13, 1992.

      Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com. appellant.
    Fortunato N. Perri, Jr., Philadelphia, for appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from the pre-trial order of the Court of Common Pleas of Philadelphia County suppressing evidence obtained during a search of a multi-dwelling building at 1013 Brown Place, Philadelphia. The suppression court held that the search warrant failed to describe the premises to be searched with sufficient particularity because neither the search warrant nor the supporting affidavit of probable cause mentioned the number of the apartment to be searched. We affirm.

Our Supreme Court has recently restated the rule to be followed when reviewing the grant of a suppression motion, as follows:

[W]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.

Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992), No. 75 E.D. Appeal Docket 1991 (J-149-1992), filed May 20, 1992, Larsen, J., slip op., pp. 1-2, (citations omitted).

We are limited to the evidence on the record of the suppression hearing and the findings of the trial court. In reviewing the suppression court’s determination, we must view the facts in the light most favorable to the prevailing party. Compare Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991); Commonwealth v. Robinson, 518 Pa. 156, 159, 541 A.2d 1387, 1388-89 (1988).

When the suppression hearing testimony is reviewed in a light most favorable to Wilks, the prevailing party, it reveals the following facts. On June 14,1991, Detective Gerald Lynch and his partner, Detective John McNamee, investigated a report that drug activity was taking place at 1013 Brown Place, in the Richard Allen public housing project in Philadelphia. During a surveillance at that location, Detectives Lynch and McNamee observed a male, later identified as Eric Simmons, aka Eric Sims, carrying a brown paper bag. Within a five minute time frame, Sims was approached by four unidentified males. In exchange for U.S. currency, Sims reached into the bag and handed each male a black and white object which contained a white substance. The detectives then observed Sims go into 1013 Brown Place, walk into the first floor hallway and up the flight of steps. N.T., July 30, 1991, at 8. He returned moments later with the brown paper bag and made another transaction. When the detectives left the location of their surveillance and drove into the courtyard of the project, Sims dropped the bag and fled. Although the detectives were unable to apprehend Sims, they did retrieve his brown paper bag which contained sixty-one vials of cocaine.

Based on the information he received from Detectives Lynch and McNamee, narcotics Officer Robert Tames drafted an affidavit of probable cause and a search warrant for the premises. In addition to naming Eric Sims as the owner/occupant of the premises to be searched, Officer Tames described the location as follows:

1013 BROWN.PLACE 2-STORY BRICK DWELLING 2ND FLOOR PROJECT HOUSE.

Prior to trial, defense counsel presented the court a Motion to Suppress any physical evidence recovered, based on the assertion that the search warrant failed to describe with particularity the place to be searched. At the suppression hearing, Detective Lynch testified that 1013 Brown Place is a three-story housing project, which contains three units — A, B, and C. Apartment A is located on the first level. Both Apartments B and C are two levels, located on the second and third floors. N.T., July 30,1991, at 10-11. On cross-examination, Detective Lynch stated that he is familiar with all of the Richard Allen apartments and that they are all divided similarly, with the entrances to Apartment B and C on the second floor. Id. at 23. In addition, Detective Lynch testified that both the probable cause affidavit and the search warrant omitted any reference to Apartment B, and simply directed the search to the 2nd floor of 1013 Brown Place. Id. at 22-23.

Sergeant Mander testified that on June 18,1991, the narcotics team went to the second floor of 1013 Brown Place to execute the warrant. When the officers got to the second floor, the door of Apartment C was opened, the door of Apartment B was closed. He testified that several officers went into Apartment C to “see if they could identify the person they wanted in the warrant,” Id. at 40, while another officer knocked on the door of apartment B and announced “Police, open the door. We have a warrant.” Id. at 33-34. Moments later, after hearing commotion inside Apartment B, the police found the door unlocked and entered the premises. Police secured the second floor area and found appellant, Malick Wilks, sitting on the couch inside Apartment B. When Wilks’ mother arrived, she informed police that one of the locked bedrooms inside Apartment B belonged to her son, Wilks. Inside Wilks’ bedroom the police discovered a large quantity of drugs and a handgun.

The suppression court ruled that the search warrant was defective in that it failed to name or describe with particularity the place to be searched when the specific location was known, i.e., 1013-B Brown Place. The Commonwealth appeals from the order granting Wilks’ motion to suppress, and raises the following issue for our review:

WHETHER THE SUPPRESSION COURT ERRED IN SUPPRESSING PHYSICAL EVIDENCE ON THE BASIS THAT THE SEARCH WARRANT DID NOT IDENTIFY THE APARTMENT NUMBER OF THE PLACE TO BE SEARCHED, WHERE THE WARRANT ADEQUATELY IDENTIFIED THE LOCATION BY ADDRESS, PHYSICAL DESCRIPTION, FLOOR AND NAME OF OCCUPANT, AND THE TARGETED APARTMENT WAS THE ONLY PLACE SEARCHED AND THE ONLY PLACE FROM WHICH EVIDENCE WAS SEIZED?

A search warrant directed against an apartment house, or other multiple-occupancy structure will be held invalid for lack of specificity if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units. Commonwealth v. Carlisle, 517 Pa. 36, 40, 534 A.2d 469, 471 (1987) (citations omitted). Where the description provided is precise enough to enable the officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity. In re Search Warrant B-21778, 341 Pa.Super. 350, 359, 491 A.2d 851, 856 (1985). Moreover, a warrant directing a search of more than one living unit is valid only if there is probable cause that all are being used for the unlawful purposes involved. Commonwealth v. Copertino, 209 Pa.Super. 63, 224 A.2d 228 (1966). Finally, the reviewing court must make a practical, commonsense decision whether the place to be searched has been specified with sufficient particularity. Carlisle, supra, 517 Pa. at 42, 534 A.2d at 472

First, relying on Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119 (1963), the Commonwealth argues that although neither the search warrant nor the affidavit of probable cause included the designation “Apartment B,” the warrant was valid since the warrant contained the name of the “owner/occupant,” Eric Sims. Appellant’s Brief at 17. We disagree.

In Fiorini, supra, the search warrant described the premises to be searched as a first floor pool room and second floor apartment occupied by Joseph V. Fiorini in a two and one half story building located at 872 N. 8th Street. Id., 202 Pa.Superior Ct. at 92-93,195 A.2d at 122. The search warrant did not include the specific apartment number, however, the court expressly found that Fiorini’s occupancy of the premises was not questioned. We upheld the validity of the search warrant finding that the description of the premises “limit[ed] the search to those parts which were occupied by or in possession of ... [Fiorini].” Id. at 93, 195 A.2d at 122. Given those particular circumstances, we concluded that the location of a particular apartment within a building is not necessary to a valid description, when there is proof of occupancy and control. Id., 202 Pa.Superior Ct. at 94, 195 A.2d at 122.

In this case, however, unlike Fiorini, the hearing failed to establish whether Eric Sims, the only person designated on the search warrant, lived in Apartment B or occupied the premises at all. In fact, the record shows that several officers entered Apartment C to see if they “could identify the person they wanted in the warrant,” i.e. Eric Sims. In addition, the only evidence presented as to the occupancy of Apartment B was offered by Sergeant Mander who testified that two bedrooms located in the apartment belonged to Sallie Wilks and her son Malick Wilks. He also testified that the mail which was confiscated from Apartment B belonged to Malick Wilks. N.T., July 30, 1991, at 37-38. Based on this record, we are unable to conclude that the description of the premises limited the search to those parts of 1013 Brown Place occupied by or in the possession of Eric Sims. Thus, we are constrained to find the Commonwealth’s reliance on Fiorini misplaced.

The Commonwealth, citing to Commonwealth v. Kaplan, 234 Pa.Super. 102, 339 A.2d 86 (1975), also contends that the omission of “B” from apartment number was “at most, a technical failure.” Again, we are unable to agree. In Kaplan, the police sought to search the apartment of Eric Kaplan with a warrant which incorrectly described his residence as “# 1812 Pine Street, 3rd Floor Front — 3 story brick building.” Id., 234 Pa.Superior Ct. at 104, 339 A.2d at 87. Kaplan challenged the sufficiency of the warrant, claiming that it was invalid because he lived in the rear apartment and his building contained four floors rather than three. There, relying on Fiorini, we held that despite the errors on the face of the warrant, the facts set forth in the warrant clearly described the premises to be searched. Id. at 105, 339 A.2d at 88. In addition, we held that sufficient proof of Kaplan’s occupancy was available to the officers conducting the search and the error regarding the number of floors was “purely technical” given the sufficiency of the other particular information contained in the warrant.

In the present case, however, the warrant merely limited the search to the second floor of 1013 Brown Place. It did not specify which apartment on the second floor was to be searched. Moreover, the affidavit for probable cause also failed to state with particularity the place to be searched. Carlisle, supra, (if the affidavit, statutorily required to be attached to a search warrant, states the address and specific apartment number to be searched, a warrant which fails to specify the specific apartment number will not fail for lack of particularity). The affidavit simply stated that “1013 Brown Place 2nd Floor is being used as a stash house by a male by the name of Eric Simmons is selling from that location.” Eric Sims’ occupancy at 1013-B Brown Place was never established. Both the warrant and affidavit failed to specify that Apartment B was the intended location of the search, even though officers testified that they were aware that the entrances to two separate apartments were located on the 2nd floor of 1013 Brown Place. Upon arriving at the second floor of 1013 Brown Place, several officers actually entered the premises of Apartment C and inquired about the person named in the warrant. Moreover, there was no probable cause shown to justify the search of the entire second floor. Copertino, supra. Thus, we conclude that the warrant did not clearly describe the premises to be searched, but in essence, without probable cause, authorized the search of both apartments B and C which were located on the second floor.

In the alternative, the Commonwealth argues that although the warrant did not articulate that Apartment B was the target, the only apartment actually searched was Apartment B, thus, Wilks was not aggrieved. We rejected this very argument in Copertino, supra. In Copertino, the search warrant described the premises to be searched as “Passyunk Ave. 7217 W. — 2 story dwelling with store front.” In fact, there were two separate apartments in 7217 West Passyunk Avenue, one on the first floor and one on the second floor. The court held that the warrant was invalid because no probable cause was shown authorizing the search of the whole building. We held:

The fact that only the first floor was actually searched will not validate the warrant which was illegal when issued. The validity of the warrant is dependent upon the facts shown at the time of its issuance.

Id., 209 Pa.Superior Ct. at 69, 224 A2d at 230-231. Compare Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978) (warrant established probable cause to search defendant’s apartment, therefore, he was not “aggrieved” by a too-extensive search).

Based upon the foregoing, we affirm the order of the suppression court.

Order affirmed.


author: KELLY, Judge:

text:
    613 A.2d 581
    COMMONWEALTH of Pennsylvania, Appellant, v. Fred ANTHONY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 25, 1992.
    Filed Aug. 18, 1992.

      Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Peter Scuderi, Philadelphia, for appellee.
    Before McEWEN, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether in a proceeding for the return of property, a Court of Common Pleas is collaterally estopped from undertaking an independent review of an order granting a suppression motion entered by the Philadelphia Municipal Court in a prior criminal prosecution. We conclude it is not and reverse.

FACTS AND PROCEDURAL HISTORY

Armed with a search warrant, police seized from the home of appellee, Fred Anthony, $3,709.00, two telephones, and other documents purportedly establishing appellee’s involvement in an illegal gambling operation. On August 10, 1988, the Philadelphia Municipal Court suppressed all of the seized evidence on the grounds that the warrant application failed to establish probable cause. The Commonwealth did not appeal this suppression ruling, but rather chose to withdraw the charges of illegal bookmaking and conspiracy.

On August 15, 1988, appellee filed a petition pursuant to Pa.R.Crim.P. 324 in the Court of Common Pleas for the return of the confiscated money and telephones. The Commonwealth challenged appellee’s petition, arguing that this seized money constituted derivative contraband subject to forfeiture under Pa.R.Crim.P. 324(b). The trial court found itself bound, by operation of the doctrine of collateral estoppel, to the previous order granting suppression in the Municipal Court, and ordered the property returned. On March 23, 1990, the trial court denied the Commonwealth’s motion for reconsideration. This timely appeal followed.

On appeal, the Commonwealth argues, inter alia, that the trial court erred in considering itself bound by the Municipal Court’s probable cause determination. The gravamen of the Commonwealth’s argument on appeal is that the trial court, in a petition for the return of property, exercises appellate jurisdiction over the validity and propriety of prior Municipal Court suppression rulings. Acting in such a capacity, the Commonwealth asserts, the trial court is immunized from the operation of collateral estoppel, and it is fully authorized to independently review suppression motions entered by the Municipal Court. The Commonwealth submits that the trial court’s failure to independently review the Municipal Court suppression ruling resulted in the return of property to appellee that should have been otherwise forfeited as derivative contraband.

In response, appellee contends that the trial court properly concluded that the operation of collateral estoppel precluded it from re-litigating the propriety of suppression rulings entered by the Municipal Court in a prior criminal proceedings, especially since the Commonwealth failed to present evidence that had not been already presented to the Municipal Court that would justify such a review. Appellee argues that this result is compelled by the well established prohibition against courts of equal jurisdiction entering diverse rulings based on the same record. Because, appellee maintains, the trial court stands on equal jurisdictional footing as the Municipal Court, permitting review under these circumstances is impermissible.

In granting appellee’s motion for the return of property, the trial court essentially embraced appellee’s position on appeal. After a careful review of the relevant law, we conclude that the trial court erred in doing so.

FORFEITURE

Initially, we note that the Commonwealth’s burden in forfeiture proceedings is a preponderance of evidence standard. See Estate of Peetros v. County Detectives & District Attorney’s Office, 341 Pa.Super. 558, 492 A.2d 6 (1985) (citing Commonwealth v. handy, 240 Pa.Super. 458, 362 A.2d 999 (1976)). Despite the lesser standard, the quasi-criminal nature of forfeiture proceedings is undisputed. See Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985). Disgorging from individuals property linked to criminality manifests the underlying purpose of such proceedings to punish those engaged in illegality. See One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (citing Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

This is not to say, however, that the Commonwealth’s right to seek forfeiture is contingent upon the result in a criminal prosecution. Commonwealth v. One 1988 Ford Coupe VIN # 1FABP41A9JF143651, 398 Pa.Super. 320, 574 A.2d 631 (1990). Regardless of whether a conviction can be gained from the evidence, the Commonwealth may seek to forfeit property as long as it establishes that the property constitutes contraband. There are two distinct categories of contraband subject to forfeiture. First, contraband per se is property which is inherently illegal, and which absent further evidence, subjects its possessor to criminal sanction. Second, derivative contraband is property which is itself innocent, but which nonetheless, constitutes the fruit of some criminal enterprise, or is used to perpetrate an unlawful act. Estate of Peetros v. County Detectives & District Attorney’s Office, supra. The status of property deemed to be contraband per se effectively precludes repossession under all circumstances, since its return would require the Commonwealth to subvert the legitimacy of laws prohibiting its possession. In sharp contrast, the inherently innocent nature of derivative contraband requires the Commonwealth to prove that the property seeking to be forfeited is the fruit of, or an instrument used to further illegality.

However, it is a well-settled proposition of law that the Commonwealth may not permanently acquire derivative contraband which it has initially seized unconstitutionally. Because of the underlying penal purpose of the forfeiture proceedings, the United States Supreme Court has long ago determined that the remedy for violations of the Fourth Amendment, the exclusionary rule, extends to forfeiture proceedings. One 1958 Plymouth Sedan v. Pennsylvania, supra.

In the instant case, the trial court did not reach the ultimate question of whether the Commonwealth had established that the evidence was sufficiently linked to illegal bookmaking. Instead, the trial court refused to grant the Commonwealth’s request for forfeiture based on the Municipal Court’s determination that the alleged derivative contraband was illegally seized. This, we conclude, was error.

COLLATERAL ESTOPPEL

The general rule regarding collateral estoppel is well settled:

According to the rule of collateral estoppel or issue preclusion, when an issue of law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim. Restatement (Second) of Judgments § 27 (1982); Clark v. Troutman, supra, [509 Pa. 336], 502 A.2d [137] at 139. “Unlike merger and bar (res judicata), which are applicable only when the same cause of action is asserted, collateral estoppel may apply in any subsequent litigation. On the other hand, collateral estoppel is applicable only to essential issues of fact which have been actually litigated.” In re Estate of R.L.L., supra [487 Pa. 223], 409 A.2d [321] at 324-4 n. 8. Accord: Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975).
[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in the question of a prior action.
In re Estate of R.L.L., supra, 487 Pa. at 228, 409 A.2d at 323-4 n. 8, quoting Safeguard Mutual Insurance Company v. Williams, supra [463 Pa. 567], 345 A.2d [664] at 668; Gulentz v. Schanno Transportation, Inc., 355 Pa.Super. 302, 308, 513 A.2d 440, 443 (1986); Derry Township School District v. Day & Zimmerman, Inc., 345 Pa.Super. 487, 491, 498 A.2d 928, 930 (1985); Matson v. Housing Authority of the City of Pittsburgh, 326 Pa.Super. 109,112, 473 A.2d 632, 634 (1984).

Zarnecki v. Shepegi, 367 Pa.Super. 230, 238-40, 532 A.2d 873, 877-78 (1987) (en banc).

In Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986), however, our Supreme Court carved an exception to this general rule. There, the Commonwealth had proceeded separately against the defendant, Lagaña, on related charges of burglary and a firearm violation which stemmed from the same arrest. The burglary charge surfaced first. Arguing that police had unconstitutionally arrested him, Lagaña successfully sought suppression of what later proved to be fruits of a burglary. The Commonwealth did not appeal this ruling. The firearms charge subsequently surfaced before a different trial court which, concluding that collateral estoppel precluded a re-litigation of the suppression issues previously disposed of during the first suppression proceedings, ruled that the fruits of the arrest relating to the firearms count must be suppressed as well.

On appeal to our Supreme Court, the Commonwealth argued that the trial court had erred in its application of the doctrine of collateral estoppel. In part, our Supreme Court agreed. Balancing the various competing policy interests involved the Court held:

In the present context we believe that some limited form of collateral estoppel is dictated, since it would have the beneficial effect of discouraging the relitigation of the same issues based on the same evidence, while at the same time preventing judges of equal jurisdiction from entering diverse rulings on the same evidence. However, these benefits do not offset the potential negative impact of perpetuating an erroneous ruling.
The solution for this dilemma is to have the ruling of the first suppression hearing incorporated into the record of the second hearing, and to allow review of the first decision on appeal as if it had been entered anew.
Thus, in those instances where two prosecutions arise out of a single search and/or seizure, a decision by a suppression judge during the first prosecution can, upon the motion of the previous prevailing party, become part of the second prosecution. The party against whom this decision is being offered may offer any new evidence which was previously unavailable. Absent such new evidence the suppression judge in the second prosecution must adopt the findings and conclusions of the first judge, and incorporate them into the record. Thereupon, the party against whom the first decision is offered may have the validity of the decision reviewed on appeal.
In short, while suppression judges must accept the rulings of their fellows upon the same facts, an appellate court should be permitted to determine whether the facts relied upon by both support the conclusion of the one, and the reliance by the other. Since the ruling of one judge becomes the core of another judge’s decision it is in the best interest of all concerned that the party against whom it is offered have the matter open for appellate review.

Lagaña, supra, 510 Pa. at 483^85, 509 A.2d at 866-67 (emphasis added).

Instantly, the trial court and appellee on appeal have correctly recognized that the Lagaña decision is controlling herein. However, in failing to apprehend the appropriate hierarchy of the courts involved, each has misapplied the Lagaña decision to the instant facts. Specifically, each has proceeded from the premise that the Court of Common Pleas and the Municipal Court stand on equal jurisdictional footing. As the Commonwealth points out, this is simply not true.

The Philadelphia Municipal Court is a court of limited jurisdiction with authority to adjudicate summary offenses and misdemeanors only. 42 Pa.C.S.A. § 1123(a)(1). The Philadelphia Court of Common Pleas, on the other hand, is a court of general jurisdiction deriving its authority to resolve all criminal matters arising under the Pennsylvania Crime Code from the Pennsylvania Constitution. Pa. Const. Art. 5, § 5.

Moreover, and more significantly, it is quite clear that the Philadelphia Court of Common Pleas enjoys appellate jurisdiction over orders entered by the Municipal Court. 42 Pa. C.S.A. § 932 provides that “[ejxcept as otherwise prescribed by any general rule adopted pursuant to section 503 (relating to reassignment of matters), each court of common pleas shall have exclusive jurisdiction of appeals from final orders of the minor judiciary established within the judicial district.” That our legislature intended to confer to the Court of Common Pleas such appellate authority over the Municipal Court may be seen through review of the case law regarding the precursor to 42 Pa.C.S.A. § 932; 17 Pa.C.S.A. § 711.19, which provided that,

Any party may appeal the judgment of the municipal court to the Common Pleas Court of Philadelphia within thirty days of the entry of judgment: provided, however, that appeals from summary convictions in municipal court shall be governed by the Minor Judiciary Court Appeals Act.

Applying this statute to a case in which the Commonwealth had brought an appeal directly to the Superior Court from an order entered by the Municipal Court, a unanimous Superior Court held explicitly that “[tjhe proper procedure [where the Commonwealth sought review of a suppression order entered by the Municipal Court] would have been for the Commonwealth to have appealed this matter to the Common Pleas Court of Philadelphia County.” Commonwealth v. Hallowell, 223 Pa.Super. 440, 441-42, 302 A.2d 377, 378 (1973). There is simply no material distinction between the controlling statute herein and its precursor. Each have the effect of conferring upon the Court of Common Pleas appellate jurisdiction over the Municipal Court.

Applied to the facts before us, the significance of the error in failing to recognize the disparate stature of the relevant courts becomes evident. Here, the Municipal Court’s suppression ruling is different than the first suppression ruling referred to in Lagaña. Although each acts as an initial suppression ruling whose effect is to estop any subsequent court of equal jurisdiction from reaching diverse results based on the same facts, the crucial distinction between this case and Lagaña is that the subsequent court asked to reach a diverse result herein is not of equal jurisdiction. The subsequent court here, the Court of Common Pleas, was, as Lagaña expressly contemplated, asked to “review ... the first decision [here, the Municipal Court’s suppression ruling] as if it had been entered anew.” 510 Pa. at 483, 509 A.2d at 866. Since the Court of Common Pleas is authorized to serve in an appellate capacity over the Municipal Court, it was perfectly appropriate for the Commonwealth to have the validity of the Municipal Court’s decision reviewed by the Court of Common Pleas.

CONCLUSION

Accordingly, we conclude that the trial court erred in ruling as it did herein. The order of the trial court granting appellee’s motion for return of property is, therefore, reversed, and the case is remanded to that court for a return of property hearing in accordance with Pa.R.Crim.P. 324. Should the Commonwealth establish by a preponderance of the evidence that such property was linked to illegal bookmaking, it is subject to forfeiture. See 18 Pa.C.S.A. § 5513(b); Commonwealth v. One Electronic Poker Game Mach., 302 Pa.Super. 350, 448 A.2d 1077 (1982); Commonwealth v. McDermond, 127 Pa.Cmwlth. 17, 560 A.2d 901 (1989); In re $13,561.50, 72 Pa.Cmwlth. 451, 456 A.2d 1140 (1983).

Reversed and Remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . Rule 324 provides, in pertinent part,
      (a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
      (b) The jury hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

      . The Commonwealth’s right to seek forfeiture is not, in any way, handicapped because it failed to appeal the Municipal Court’s suppression ruling. As our Supreme Court explained in Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986), the Commonwealth may have other reasons for not appealing the suppression determination in the first prosecution apart from the belief that the court improperly suppressed evidence. The instant case presents analogous considerations. The Commonwealth may have felt that it would have difficulty in proving its case beyond a reasonable doubt. Therefore, the Commonwealth may have refused to pursue the underlying charge.

      . The trial court did indicate that had it considered the suppression motion in the first instance, it would have denied the motion. N.T. 3/23/90 at 2.

      . See also One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (acquittal does not bar forfeiture); Commonwealth v. Two Electronic Poker Game Mach., 502 Pa. 186, 465 A.2d 973 (1983) (property may be forfeited despite fact that owner has no knowledge of its unlawful use); Devito v. United States Dept. of Justice, DEA, 520 F.Supp. 127 (D.Pa.1981) (property owner’s innocence or good faith cannot be asserted as defense against forfeiture).

      . Of course, the validity of seizures involving contraband per se is irrelevant. The suppression of contraband per se at a criminal prosecution does not require the Commonwealth to return such property to the owner at a subsequent return of property proceeding. The Commonwealth's right to forfeit is absolute under these circumstances. To conclude otherwise requires the Commonwealth to frustrate the policy prohibiting possession of such objects. See One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965).

      . This conclusion is not undermined by the rationale of Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976), where our Supreme Court held that the defendant's constitutional right to a trial de novo in the Court of Common Pleas did not include a re-litigation of pre-trial motions to suppress conducted in the Philadelphia Municipal Court. In Harmon, the defendant invoked his constitutional right to appeal a conviction and sentence entered in the Philadelphia Municipal Court by way of a trial de novo in the Court of Common Pleas. In contrast, the petitioner in the instant case is not seeking to appeal an adverse ruling entered by the Municipal Court. On the contrary, petitioner, as the prevailing parly, has initiated a proceeding in the Court of Common Pleas pursuant to Pa.R.Crim.P. 324 to recover property seized by the Commonwealth. As such, the instant facts do not implicate the Harmon rule.


author:
MONTEMURO, Judge:
      WIEAND, Judge,

text:
    613 A.2d 587
    COMMONWEALTH of Pennsylvania v. Charles R.T. JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Aug. 19, 1992.

      George A. Heitczman, Bethlehem, for appellant.
    Marcie Marino, Asst. Dist. Atty., Allentown, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

This appeal from the judgment of sentence of the Court of Common Pleas of Lehigh County, comes before an en banc panel of this Court after a hearing on remand. We affirm.

On October 11, 1985, appellant entered pleas of guilty to twenty-one counts of sexual abuse of children, twenty counts of obscene and other sexual materials, and twenty counts of involuntary deviate sexual intercourse. In exchange for the guilty pleas, the Commonwealth nol prossed eighty-four (84) other counts of alleged criminal activity. The guilty pleas arose from appellant’s homosexual involvement with fourteen (14) boys, ranging in age from four (4) to fifteen (15) years of age.

Appellant was initially sentenced, on May 13, 1986, to a term of consecutive and concurrent jail sentences totalling fifty to one hundred years. This sentence followed a sentencing hearing at which testimony was taken from the parents of some of the victims, the police officer who commenced the prosecution, and a psychiatrist whom appellant retained as an expert. The expert testified that appellant was suffering from pedophilia as a result of various events which had occurred during his childhood and adolescence. The expert also discussed the prospects for appellant’s rehabilitation. After the sentence was rendered, appellant filed a motion for reconsideration which was denied. Appellant then appealed the judgment of sentence to this court.

In a memorandum decision, a panel of this court held that the sentence imposed was manifestly excessive. Commonwealth v. Jones, 367 Pa.Super. 648, 528 A.2d 257 (1987). The panel found that the lower court did not take into adequate consideration “appellant’s background, his crime-free adult record, the relatively short time span during which the crimes occurred, his undisputed mental illness and expression of remorse, and the prospects of treatment of appellant’s illness.” Superior Court memorandum, at 3. This court also criticized the lower court for “totally ignoring]” evidence which suggested that appellant could return to society as a contributing member “in a reasonable period of time and under proper treatment.” Id. at 3-4.

After the panel’s decision, the Commonwealth appealed the case to the Pennsylvania Supreme Court. Although the petition for allowance of appeal was granted, the supreme court ultimately quashed the appeal, holding that an appeal relating to the discretionary aspects of sentence “beyond the appellate court that has initial jurisdiction for such appeals,” is prohibited under the sentencing statute, 42 Pa.C.S.A § 9781(f). Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989). The supreme court also noted the following in regard to the remand order of the superior court:

It is to be noted that the concern expressed by the Superior Court in this matter was that the trial court may have focused “nearly exclusively” upon the need to punish for the harm caused to the victims, and that in doing so proper consideration was not given to the mental illness under which petitioner labored at the time of these incidents and the prospects of treatment which petitioner was receiving for the malady. Nothing in the order of the Superior Court would preclude the trial court from reinstituting the same sentence if indeed that court did weigh those factors in arriving at the sentence imposed. The order of the Superi- or Court should not be viewed as usurping the trial court’s exercise of discretion, but rather as attempting to assure that the trial judge properly weighed all of the relevant facts upon which the decision should have been made.

Id., 523 Pa. at 144, 565 A.2d at 732.

After the supreme court granted the motion to quash, the case was remanded to the lower court in accordance with the superior court panel decision. A sentencing hearing was held on August 13, 1990, and the lower court heard new evidence. After the hearing, the lower court reimposed the same sentence which had been imposed on May 13, 1986. Appellant then filed this timely appeal, in which he raises the following issues:

1. Whether the sentencing court failed to follow the directive of the Superior Court to reconsider the sentence and give adequate consideration to appellant’s background, his crime-free adult record, the relatively short time span during which the crimes occurred, his undisputed mental illness, his expression of remorse, and the prospects of treatment of appellant’s illness.
2. Whether the sentencing court failed to give proper reasons for its sentence and for ignoring the direction of the superior court to impose a lesser sentence.
3. Whether the sentencing court in its re-sentencing again totally ignored evidence which suggests that appellant, in a reasonable period of time and under proper treatment, may return to society as a contributing member.
4. Whether the sentencing court failed to give proper weight to appellant’s mental illness and the rehabilitative needs of the appellant and to the testimony at the re-sentencing hearing that treatment for appellant’s mental illness was not available in the state system until he was within one or two years of completing his minimum term.
5. Whether the sentence is manifestly excessive and comprises cruel and unusual punishment in that it comprises essentially a life sentence for the appellant.

On appeal, appellant challenges the discretionary aspects of his sentence and not its legality. In such a case, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990), allocatur den., 527 Pa. 646, 593 A.2d 419 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). “Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” 42 Pa.C.S.A. § 9781(b), referring to Chapter 97 (Sentencing). The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence must be evaluated on a case-by-case basis; the court will be inclined to allow appeal where the appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code or contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990).

In the concise statement of the reasons relied upon for allowance of appeal contained in appellant’s brief, he gives the following reasons for requesting appellate review of the discretionary aspects of his sentence: (1) that the sentence imposed by the lower court on remand is “manifestly unreasonable in view of any actual harm committed by defendant, and in view of the fact that he had a prior record score of zero”; (2) that the sentence imposed is “cruel and unusual in that it comprises a life sentence for conduct that did not endanger the lives of others”; and (3) that the sentencing court did not have adequate reason for imposing sentence and did not state adequate reasons for doing so. Appellant’s first reason for allowance of appeal is essentially a claim that the lower court did not properly consider and/or weigh certain factors (i.e., the harm caused by appellant’s acts, his prior record of no offenses). Such a reason does not state a substantial question which will permit appellate review of the discretionary aspects of sentence. See Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990) (arguments concerning weight trial court gave to legitimate sentencing factors did not raise a substantial question entitling defendant to appellate review of discretionary aspects of sentence).

The second reason which appellant advances for requesting allowance of appeal, that the sentence imposed was “cruel and unusual,” sets forth at least a colorable argument that the trial judge’s actions were contrary to the fundamental norms which underlie the sentencing process; this claim thus raises a substantial question. Appellant also raises a substantial question with his third stated reason for allowance of appeal. See Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9 (1988) (substantial question raised where there is an allegation that sentencing court did not adequately explain its reason for the sentence). Thus, we will permit the appeal and will address the issues appellant raises.

Turning to appellant’s first argument on appeal, we note that he states that the panel of this court which previously decided this case specifically ordered the lower court to reduce the sentence, and that the lower court erred in failing to comply with this directive. Appellant argues that the supreme court’s discussion of the superior court’s action, and the proper interpretation to be placed thereon, does not excuse the lower court’s failure to reduce the sentence because the supreme court quashed the appeal in this case, and its discussion of the merits was therefore dicta. Appellant urges that “[i]t is difficult to comprehend how a sentence of 50 to 100 years in any way takes in any account [sic] the defendant’s remorse, his need for treatment, or his undisputed mental illness.” (Brief for appellant, at 13.)

Appellant is correct in arguing that the lower court was not required to follow the suggestion of the supreme court in this case to the effect that the same sentence which was originally imposed might be reimposed. Nevertheless, we cannot fault the lower court for what appears to be compliance, or at least agreement with the supreme court’s admonition. We agree with that court’s statement that the superior court’s prior order “should not be viewed as usurping the trial court’s exercise of discretion.” It is beyond question that the sentencing function is a matter vested in the sound discretion of the trial court whose judgment will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), allocatur denied, 516 Pa. 632, 533 A.2d 91 (1987). See also Commonwealth v. Jones, supra, 523 Pa. at 142, 565 A.2d at 734 (“[o]ne of the most important functions performed by a trial judge is the fashioning of the sanction to be imposed for those who are convicted of violating our laws”). When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Common wealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987), allocatur denied, 515 Pa. 619, 531 A.2d 427 (1987).

These basic and fundamental principles demonstrate the wisdom of the supreme court’s dicta concerning the appropriate interpretation to be given the prior superior court decision in this case. Given the essentially unfettered discretion of the trial judge in sentencing, and the complete reliance on this principle throughout our sentencing law, it was not error for the lower court on remand to decide the case in a fashion consistent with the supreme court’s dicta. We agree that the previous decision of the superior court, if we are to find it consistent with our well-established sentencing principles, may not be interpreted as providing the lower court with an irrefutable directive to reduce the original sentence. Such a directive would be a complete rejection of basic principles of sentencing law, which we are quite sure the prior panel did not intend. Since we determine that the previous superior court decision did not bestow a directive on the lower court to reduce the original sentence, we find appellant’s first issue on appeal without merit.

In his third issue on appeal, appellant argues that the lower court ignored evidence presented on remand by the National Center on Institutions and Alternatives (NCIA) in the form of a pre-sentence report prepared by that organization, and testimony offered at the hearing on re-sentencing by Hans Selvog, an employee of the NCIA. Appellant asserts that the lower court overlooked the conclusion of that evidence, which appellant characterizes as indicating that within a reasonable period of time and under proper treatment, appellant could be expected to return to society as a contributing member.

While the lower court did not adopt the conclusions of the NCIA report or its witness, appellant’s claim that the lower court totally ignored this evidence is belied by the record. Prior to imposing sentence, the sentencing judge indicated that he “was very much impressed with,” and “read with a great deal [of] interest the Pre-Sentence Report of the Independent Agency.” The sentencing judge further stated that he had reviewed that report in detail, as well as the presentence report of the county probation office and other information presented to him on remand. The court indicated that it had considered the “undisputed mental illness” of appellant, his expression of remorse and his prospects for treatment. In his memorandum opinion, filed in connection with this appeal, the sentencing judge further stated that he had reviewed the pre-sentence report and recommendations prepared by NCIA. The judge also commended counsel for appellant on the “excellent job” he had done in preparing the case on remand, and specifically cited the NCIA report in this regard.

Given these facts of record, we would be hard pressed to say that the lower court “totally ignored” the evidence which appellant cites as having been overlooked. The record establishes that the lower court read the independent pre-sentence report and heard the testimony of the NCIA expert. The sentencing judge further indicated that he was “impressed” with the information conveyed from these sources. The fact that the lower court did not accept the conclusions of this agency does not equate to a finding that the court “totally ignored” the evidence. The record amply supports the conclusion that the lower court did indeed consider the disputed evidence.

We do not find the lower court’s failure to accept the recommendations of the NCIA to be an abuse of discretion. The record establishes that the lower court was also informed by a pre-sentence report issued from the county office of probation, and that the court relied upon this report in reimposing the original sentence. Where the sentencing court has been fully informed by a pre-sentence report, its discretion should not be disturbed. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Since the lower court was fully informed by the pre-sentence report of the county probation office, it would be error for this court to interfere with that exercise of discretion and hold that the lower court was required to adopt the findings of the NCIA. We conclude that appellant’s contention that the lower court ignored certain evidence is without merit.

Appellant also argues that the lower court failed to give proper reasons for its sentence. The standard for determining whether the sentencing judge properly stated the reasons for imposition of sentence is currently governed by the seminal case of Commonwealth v. Devers, supra. In Devers, it was held that the sentencing judge may satisfy the requirement of disclosure on the record of the reasons for imposition of a particular sentence where the judge indicates he/she has been informed by a pre-sentence report. Commonwealth v. Devers, supra, 519 Pa. at 101-02, 546 A.2d at 18 (“A pre-sentence report constitutes the record and speaks for itself’). The court held that the pre-sentence report informs the sentencing procedure, and having been thus informed, the sentencing court’s discretion should not be disturbed. Id.

We have reviewed the record of the sentencing hearing on remand. At that hearing, the lower court stated on the record the reasons for its decision. The court also indicated that it had reviewed the pre-sentence report of the county probation office as well as other materials, and had relied primarily upon the probation office pre-sentence report in reaching its decision. We find the lower court’s actions completely in conformance with the requirements of Devers.

Appellant contends that the sentencing court, in stating its reasons for re-imposition of sentence, was “clearly concerned only with the nature of the offenses and with the welfare of the victims.” This statement is inaccurate and belied by the record of the sentencing hearing. A reading of the transcript of that proceeding clearly indicates that the lower court was informed by and relied upon the pre-sentencing report of the county office of probation and that he also considered the independent pre-sentence report and other evidence in reaching his decision. We find no merit to appellant’s contention that the lower court stated improper reasons for its decision.

Appellant’s fourth contention on appeal is that the court failed to give proper weight to his mental illness and his rehabilitative needs, including testimony at the re-sentencing hearing that treatment for his pedophilia was not available in the state system until he was within one or two years of completing his minimum term. As we have previously indicated, an argument that the sentencing court gave improper weight to certain sentencing factors does not raise a renewable question on appeal. See Commonwealth v. Smith, supra. Accord Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990), allocatur denied, 526 Pa. 629, 584 A.2d 312 (1990); Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989). We note, however, that even the witness from NCIA, at the re-sentencing hearing recommended that appellant be incarcerated for at least ten to twenty years despite his testimony that treatment is unavailable in the state institution where appellant is currently incarcerated until the last two years of one’s minimum sentence. This testimony seems to demonstrate that present incarceration is more essential than is immediate treatment, although we have no doubt, and the record clearly reflects that appellant is suffering from an illness which requires treatment if he is to attempt to function in society as a law-abiding citizen. Nevertheless, we choose not to engage in extensive analysis of this issue because it is not, as we have stated, a proper issue for review on appeal from the discretionary aspects of sentence.

Appellant’s final contention is that the sentence imposed by the lower court on remand “is manifestly excessive and comprises cruel and unusual punishment in that it comprises essentially a life sentence for the defendant.” Appellant contends that a sentence of incarceration for the rest of appellant’s life is patently excessive, and that the alleged excessiveness of the sentence constitutes cruel punishment. Appellant cites no authority in support of his position that the alleged excessiveness of the sentence imposed by the lower court constitutes cruel punishment under the Eighth Amendment. Thus, for purposes of this appeal, appellant has waived his “cruel and unusual punishment” argument, as he has simply failed to advance an appellate argument on this subject. See Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-02, 551 A.2d 1112, 1114 (1988) (“[w]hen an appellant fails to carry forward, or is indecipherably vague in, argumentation upon a certain point in his appellate brief, that point is waived.”).

Since appellant has waived the “cruel and unusual punishment” aspect of his last argument on appeal, his contention is reduced to an assertion that the sentence imposed was manifestly excessive. We have previously held that a claim of excessiveness of sentence does not raise a substantial question so as to permit appellate review where the sentence is within the statutory limits. Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990). The lower court’s imposition of a sentence of fifty to one hundred years was well within the statutory limits. Involuntary deviate sexual intercourse, of which appellant was convicted of twenty counts, is a felony of the first degree punishable by a sentence of up to twenty years incarceration. 18 Pa.C.S.A. § 1103(1). Sexual abuse of children, of which appellant was convicted of twenty-one counts, is a felony of the second degree, punishable by a term of incarceration of up to ten years. Id. § 1103(2). Appellant was also convicted of twenty counts of obscene and other sexual materials, a misdemeanor of the first degree, punishable by a sentence of up to five years in jail. Id. § 1104(1). With this particular configuration of offenses, appellant was subject to a possible maximum term of confinement of up to seven hundred ten (710) years. The sentence imposed was thus well within the limits of possible sentence which the statutory scheme permits.

In addition, there was evidence of record which supports the need for a lengthy sentence. At the original sentencing hearing, appellant’s expert testified that appellant is suffering from a fixated (incurable) pedophilia. The experts at both hearings agreed that a substantial period of incarceration is necessary. Both experts also testified that even after a lengthy jail term, it would be necessary for appellant to be subject to a long period of probation with very strict controls. Appellant’s expert indicated that the impulses associated with appellant’s illness would diminish with the natural aging process. He also testified that appellant was a candidate for hormonal therapy to assist in control of the impulses from which he suffers. Both of these facts testify to a need to protect the public from appellant’s acting out of the impulses associated with his illness for a substantial number of years.

Under the Sentencing Code, the court may impose a sentence of total confinement under the following circumstances:

if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

42 Pa.C.S.A. § 9725. All of these factors were present in the instant case; thus the sentence of incarceration was justifiable under the Sentencing Code. Appellant objects, however, not to the fact of incarceration but to the length of confinement imposed. We note in this regard that appellant’s characterization of his sentence as a “life sentence imposed for conduct which did not endanger the life of others” is inaccurate. The sentence is more properly described as a sentence possessing a minimum of fifty years which was imposed in a case involving multiple crimes against multiple victims. We are aware that because of the length of the minimum sentence, appellant, who was born in 1947, may not survive until his parole; if he does, he will be an elderly man. Nevertheless, it is inaccurate for appellant to state that he received a life sentence for his crimes.

We also cannot say that the sentence imposed, which is significantly less than the statutory limit, was excessive. The lower court, as indicated at the sentencing hearing and in the memorandum of its decision, considered, and was permitted to consider, not only appellant’s illness and his potential for rehabilitation, but also the fact of multiple convictions and multiple (fourteen) victims. See 42 Pa.C.S.A. § 9721(b) (sentence imposed must be consistent with “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant”). Since there were multiple convictions, the sentencing judge possessed the discretion to impose consecutive sentences. 42 Pa.C.S.A. § 9757; Commonwealth v. Norris, 248 Pa.Super. 330, 375 A.2d 122 (1977). The lower court utilized its discretion in this case by imposing consecutive sentences on a victim-by-victim basis and concurrent sentences on the crimes committed against the same victim. This ruling did not contravene the statutory scheme in any way.

While the sentence imposed is indeed substantial, it is within the permissible length of sentence which the legislature has provided for the crimes involved, and it does not violate any of the provisions of the Sentencing Code. In sentencing matters, the issue of a defendant’s mental illness is addressed through the legislative directive that the sentencing court consider the rehabilitative needs of the defendant. See 42 Pa.C.S.A. § 9721(b). The legislature’s directive to the sentencing court in this regard does not mandate a certain maximum amount of incarceration beyond which it will be deemed that the defendant’s rehabilitative needs are not being met. A defendant’s rehabilitative needs must also be balanced against other factors. See id. Looking at the Sentencing Code as a whole, the sentence imposed by the lower court was within its mandates and consistent with its statutory provisions. On this basis, we conclude that the sentence imposed was not manifestly excessive.

Judgment of sentence affirmed.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment a sentence of imprisonment for not less than fifty (50) years nor more than one hundred (100) years for homosexual acts committed by this thirty-eight year old pedophile was grossly excessive and unnecessary either to protect society or to punish the offender.

When the appeal was initially before a three judge panel of the Superior Court, our colleague, Judge Beck, wrote a dissenting opinion which, in my judgment, provides an excellent analysis and correct disposition of this appeal. Therefore, I adopt her opinion and incorporate the same herein.

“In its memorandum vacating the trial court’s original sentence of fifty (50) to one hundred (100) years imprisonment, [the panel] ordered the trial court to ‘correct [ ] its manifestly excessive sentence.’ The panel found that on the basis of the record before it, it was improper for the trial court to consign appellant to prison for what amounts to the rest of his life. The majority concludes that the prior panel did not intend to direct the court to reduce the original sentence. In the context of this case, I disagree.

“Clearly, the circumstance which factored most heavily and which ultimately persuaded the prior panel to find that the length of the sentence was manifestly excessive was the fact that the original sentence ‘effectively ensure[d] that appellant will spend at least the next fifty years of his life in jail.’ Further, the panel found that, in imposing this sentence, the trial court did not afford sufficient consideration to several ameliorating factors among which were appellant’s background, his mental illness and his prospects for treatment. [The Superior Court] noted that the record ‘suggested] that appellant, in a reasonable period of time and under proper treatment, may return to society as a contributing member.’ In my view, the import of our previous decision was that the trial court failed properly to weigh these factors and genuinely balance them against the undeniable gravity of these offenses in imposing its sentence. The record indicated that the sentence imposed was ‘nearly exclusively’ premised on the need to punish and achieve retribution for the considerable harm done to the young victims here. In imposing a sentence which ignored even the potential for rehabilitation and discounted entirely appellant’s psychological history, the panel found the court had abused its admittedly broad discretion.

“On remand, the trial court was presented with a report which outlined a sentencing plan for appellant. The report compared the original sentence given appellant to guidelines imposed in other jurisdictions for comparable offenses. The range of sentences suggested elsewhere, according to the report in evidence, [was] dramatically less severe than the original sentence imposed here. The report recommended a significant period of incarceration accompanied by treatment and followed by lengthy out-patient monitoring. It also argued for treatment as a reasonable alternative to salvage the life of appellant and allow him to successfully re-enter society eventually. However, despite the clear directive of this court to give adequate consideration to these indispensible features of the sentencing determination, the trial court reimposed its original sentence. This action was based on a record which did not significantly differ from the record upon which the panel was forced to remand in the first place. If anything, the record presented even greater support for the mitigating factors which this court found the trial court had originally ignored. Therefore, I conclude that the trial court’s sentence continues to constitute an abuse of discretion. For these reasons, I dissent.”

      . 18 Pa.C.S.A. § 6312(b).

      . Id. § 5903(a) and (c).

      . Id. § 3123(5).