author: JOHNSON, Judge: POPOVICH, Judge,

text:
    439 A.2d 720
    COMMONWEALTH of Pennsylvania, v. David ANDERSON, Appellant. COMMONWEALTH of Pennsylvania, v. Richard ROSS, Appellant. COMMONWEALTH of Pennsylvania, v. Melvin JOHNSTON, Appellant. COMMONWEALTH of Pennsylvania, v. Tyrone BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Dec. 18, 1981.

      Wayne S. Lipecky, Steven Kocherzat, John P. Dohanich and Joseph M. Budicak, Assistant Public Defenders, Beaver, for appellants.
    John L. Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from the order of October 12, 1979, which denied Appellants’ motions to quash on grounds of double jeopardy.

On August 13, 1979, Appellants were tried jointly with Valentine and another inmate of the Beaver County Jail on charges of Involuntary Deviate Sexual Intercourse, Indecent Assault, and Assault by a Prisoner. The charges against Valentine were nolle prossed, and the other defendants were granted a motion for a mistrial.

Appellants’ retrial commenced on September 10, 1979, before a jury. At the conclusion of the first day of trial, the judge denied a request for instructions to caution the jury against reading or listening to news reports about the trial. Articles appeared in the Beaver County Times on September 10 and in the local edition of the Pittsburgh Post-Gazette the next morning.

These articles referred to the trial and to the motives of Valentine, who, in an in camera proceeding, from which the press had been specifically excluded, had refused to testify despite a grant of immunity. The Post-Gazette article contained the following information:

Joseph Stanichak, assistant district attorney, based his belief that Valentine would implicate the other inmates on a statement Valentine wrote while under oath.
sfc * * * * *
Stanichak said during a recess that Valentine faces substantial jail time for other offenses with which he is charged, including participation in the June breakout. “He figures, ‘Why not save my buddies because how much more time can I get?’ ” the prosecuting attorney said.

At the beginning of the second day of trial, defense counsel notified the court about the articles. When the jurors were polled concerning whether or not they had read the article in the Post-Gazette, all of the jurors responded affirmatively. Appellants Bryant and Ross were granted a motion for a mistrial. The judge then proceeded sua sponte to declare a mistrial for Anderson, Johnston, and the one additional defendant, despite the objections of their respective counsel.

Appellants presented motions to quash, contending that retrial would constitute double jeopardy. Appellants then filed this appeal from the denial of their motions. For the following reasons, we reverse.

The appeals of Bryant, Ross, Anderson, and Johnston have been consolidated in this appeal. In the case of Appellants Anderson and Johnston, the issue is whether or not “manifest necessity” existed for the trial judge to declare a mistrial over the objections of the forenamed Appellants. The issue in the case of Appellants Bryant and Ross is whether or not the prosecutor’s conduct constituted prosecu-torial overreaching, so that a retrial would be barred under the Double Jeopardy Clause.

In deciding the first issue, we must determine whether or not the judge’s sua sponte declaration of a mistrial was dictated by “manifest necessity.” See Commonwealth v. Stewart, 456 Pa. 447, 451, 317 A.2d 616, 618 (1974). The Pennsylvania courts have not adopted a clear-cut definition of “manifest necessity” ; instead, they have determined the existence or nonexistence of “manifest necessity” by reviewing the particular circumstances of each case. Commonwealth v. Bycer, 254 Pa.Super.Ct. 336, 340, 385 A.2d 1367, 1369 (1978). If the appellate court, after considering the factual details of the case, determines that the trial judge did not abuse his discretion in deciding that manifest necessity compelled the declaration of a mistrial, a retrial will not violate the Double Jeopardy Clause. Commonwealth v. Stewart, 456 Pa. at 451, 317 A.2d at 619.

In the instant case, the trial judge learned, in the morning of the second day of trial, of the circulation of the articles described above. When the judge polled the members of the jury, he discovered that every juror had read the article in the Post-Gazette.

The content of this article would prejudice the jurors’ views so they would be unable to make a decision that would be based solely on the evidence presented in court. See Commonwealth v. Pierce, 451 Pa. 190, 194, 303 A.2d 209, 212 (1973). By reference to the statements of Joseph Stanichak, Assistant District Attorney, the articles created a substantial risk that the jurors would have great confidence in the content of the articles due to the position that such a person holds in the community. Id., 451 Pa. at 198, 303 A.2d at 214. Also, the reference to Valentine’s written statement under oath creates an aura of validity about this statement since it is assumed that one is more likely to be truthful if he speaks under oath.

Also, the time of publication of the articles in the instant case is another factor that contributed to the manifest necessity of declaring a mistrial. Since the articles were published while the trial was in progress, there was no “cooling off period” to lessen the effect of the articles upon the jurors. See Commonwealth v. Cohen, 489 Pa. 167, 178, 413 A.2d 1066, 1076 (1980).

When the total effect of the foregoing circumstances is considered, it is clear that manifest necessity to declare a mistrial existed in the instant case. It would be nearly impossible for the jurors, all of whom had read one of the articles, to divorce what they had read from the evidence that was presented in the courtroom. The jurors must base their decision solely upon the evidence and arguments that they hear in the courtroom, but a decision that was untainted by the newspaper articles could not be reached in the instant case. Thus manifest necessity to declare a mistrial existed.

A finding that manifest necessity existed as a basis for the trial court’s sua sponte declaration of a mistrial generally does not bar a retrial under the Double Jeopardy Clause. Commonwealth v. Stewart, 456 Pa. at 451, 317 A.2d at 621; Commonwealth v. Bycer, 254 Pa.Super.Ct. at 341, 385 A.2d at 1368-1369. Previous cases, however, have not addressed the situation in which circumstances that created manifest necessity were caused by alleged prosecutorial misconduct.

In the instant case, Appellants Bryant and Ross contend that the prosecution’s conduct bars their retrial on double jeopardy grounds. We proceed to determine whether or not a retrial for either Appellants Anderson and Johnston or Appellants Bryant and Ross is barred because of prosecutorial overreaching.

In Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), the court defined two types of prosecutorial overreaching, both of which create exceptions to the general rule that the Double Jeopardy Clause does not bar retrial of a defendant whose motion for a mistrial has been granted. Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2145, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The first type of prosecutorial misconduct is designed to provoke a mistrial. United States v. Dinitz, 424 U.S. at 611, 96 S.Ct. at 1081. The second type is undertaken in bad faith to prejudice or harass the defendant. Lee v. United States, 432 U.S. at 33, 34, 97 S.Ct. at 2147, 2148; Commonwealth v. Starks, 490 Pa. at 341, 416 A.2d at 500. See also, Commonwealth v. Hoskins, 494 Pa. 600, 432 A.2d 149 (1981).

Although Appellants do not contend that the prosecutor’s conduct was designed to provoke a mistrial, the prosecutor’s misconduct must be examined to determine whether or not the prosecutor acted in bad faith to prejudice or harass Appellants.

In the foregoing discussion of the existence of manifest necessity to declare a mistrial, the existence of actual prejudice to Appellants was obvious. We must proceed to consider whether or not the prosecutor’s conduct, which resulted in this prejudice, was “undertaken in bad faith to prejudice. . .the defendants).” Commonwealth v. Starks, 490 Pa. at 341, 416 A.2d at 500.

In Commonwealth v. Clark, 287 Pa.Super.Ct. 380, 430 A.2d 655 (1981), we held that the following guidelines are relevant to determine whether or not the prosecutor acted in bad faith:

(1) the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant’s prospects for a fair trial after the misconduct occurred, (2) the absence of either abundant or convincing evidence of the defendant’s guilt, so that the prosecutor’s misconduct might reasonably be perceived as an attempt to rescue an inadequate prosecution, (3) the absence of misconduct causing serious and incurable prejudice to the defendant, (4) the absence of any neutral explanations, including inexperience, trial strategy, or inadvertence on the part of the government, to show that it did not, in fact, act purposely, (5) observations of the trial judge concerning the prosecutor’s motives, and (6) defiance by the prosecutor of any direct order or clear admonition by the trial court to refrain from specific conduct prejudicing the defendant’s prospects for acquittal.

Id, 287 Pa.Super. at 392, 430 A.2d at 661.

In regard to the first guideline, the record in the instant case reveals an absence of any actions by the prosecution to preserve the trial and to enhance the defendants’ prospects for a fair trial. Near the beginning of the discussions with the judge concerning the newspaper articles, the prosecutor argued that no prejudice had occurred because the content of the articles had been known by various people. Later, when the court agreed to poll the jury, the prosecutor moved for a mistrial on three grounds:

Number one, on the untimely application made to the Court regarding the testimony of one, Robin Kerr, [a defense witness]; improper application and statements made yesterday making reference to the fact that there was a trial last month and, three, in light of the fact that this could possibly prejudice the case against the Commonwealth, as that article appears in the paper, we move for a mistrial on behalf of the Commonwealth.

At no time did the prosecutor request the court to issue any curative instructions that might have “saved” the trial.

In applying the second guideline of Clark to the instant case, the prosecutor’s divulgence of information to the press may be interpreted as “an attempt to rescue an inadequate prosecution.” 287 Pa.Super.Ct. at 393, 430 A.2d at 661. The victim, who was the chief prosecution witness, could only identify two of the defendants. Valentine, a potential prosecution witness, had refused to testify. A physician’s testimony, establishing that the victim’s laceration could have been caused by the insertion of a blunt object into his anus, constituted the remainder of the prosecution’s case. Obviously, the prosecution’s case suffered from an “absence of either abundant or convincing evidence of the defendants’] guilt.” Id., 287 Pa.Super. at 393-394, 430 A.2d at 661.

The third Clark guideline is whether or not the prosecutor engaged in misconduct that caused “serious and incurable prejudice to the defendant.” In our foregoing discussion of manifest necessity, it was clearly established that the prosecutor’s statements to the press resulted in “serious and incurable prejudice” to Appellants. In fact, the prejudice was so serious that manifest necessity existed to declare a mistrial.

The fourth guideline, which is proposed by Clark, is whether or not the prosecutor can present any explanations, such as trial strategy, inexperience, or inadvertence, to show that he did not act purposefully. Id., 287 Pa.Super. at 394, 430 A.2d at 661. An examination of the facts in the instant case reveals that the prosecutor not only violated the clearly-defined purpose of the in camera proceeding but also had previously experienced breaches of promises by the press.

The prosecutor’s statements to the press concerned an in camera proceeding from which the media had been specifically excluded. The following explanation for the proceeding was provided by the judge during the trial:

THE COURT: Well, the purpose of the In Camera hearing was so that there would be no publicity to the matter that was raised in connection with the expected and anticipated testimony of Charles Valentine. And the Court thought it was perfectly proper that hearing should be In Camera, and it was. And the press honored that statement when I made it from the Bench that it would be an In Camera hearing.

In light of the foregoing explanation, even if the prosecutor did not anticipate that his information would be printed. the prosecutor’s failure to exercise sufficient caution in dealing with the reporters constituted a failure to abide by a clearly-defined obligation. The judge conducted an in camera hearing to avoid publicity, yet the prosecutor deliberately risked the divulgence of his statements by the press. Not only had the court cautioned everyone connected with the case that this matter was not to be publicized, but also the Code of Professional Responsibility defines the prosecutor’s duty after commencement of trial. Section D of DR 7-107 states:

During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records of the court in the case.

In light of the foregoing discussion, the prosecutor’s statements to the press certainly were not inadvertent. Although the prosecutor testified that he made the statements as “background information” for the press, his previous experiences should have alerted him to thé probability that his statements would be divulged. At the hearing on the newspaper articles, the prosecutor testified:

[I]t has been my philosophy that lawyers should not publicize or engage in any type of conversation or activities with media people because they have always completely distorted and smeared names and stories all over the place, and I have been the victim of this over a period of time. If anybody should not speak, I have to plead to this Court that I should not.

Despite his past experiences, the prosecutor felt sorry for the newspaper woman and newspaper man, who had been excluded from the in camera proceeding:

I just couldn’t walk away from her [the newspaper woman]. Mr. Atzinger [the newspaper man] was there. I immediately cautioned them that I felt sorry that they couldn’t be in the courtroom, that those were the rules, but I would tell them what happened and under no circumstances were they to use this in any type of a newspaper article and attach my name to it. This was simply for their background information that they would be able to use at the conclusion of the case. Then I went on further to explain what happened. [Emphasis added.]

Due to his previous unpleasant experiences with the press, the prosecutor should have been forewarned not to divulge information about the in camera proceeding. Thus, the prosecutor cannot assert inadvertence, inexperience, or any other “neutral explanation,” under the fourth guideline in Clark, to justify his conduct.

As our discussion of the fifth Clark guideline, we adopt the analysis of Judge Popovich in his Concurring Opinion on page 725, infra.

The final guideline in Clark is the prosecutor’s defiance of the court’s order or admonition to refrain from specific conduct that would prejudice the defendant. Although, in the instant case, the court did not order or admonish the prosecutor personally to refrain from specific conduct, it is relevant that the court clearly stated that it did not want any publicity concerning the in camera proceeding. As discussed in the foregoing analysis of the fourth guideline, the prosecutor acted intentionally to divulge the information to the press, despite the judge’s admonition.

As the foregoing discussion of the Clark guidelines indicates, the prosecutor in the instant case acted in bad faith. The result of his acting in bad faith was highly prejudicial to Appellants. Not only was the result of the prosecutor’s misconduct highly prejudicial to Appellants, but also the prosecutor’s intention appears to have been to prejudice Appellants—particularly Bryant and Ross. The article, quoted on page 721, supra, indicates that Valentine’s statement would implicate “the other inmates.” This phrase intimates that all five defendants were implicated. • In fact, Bryant and Ross were not implicated at all. The alleged implication of Bryant and Ross was not due to a mistake of the reporters. The prosecutor admitted that he had indicated to the Post-Gazette reporter that Valentine’s statement implicated all of the five defendants. Such conduct surely indicates an intent to prejudice Appellants.

In view of the aforesaid circumstances—the prosecutor’s clear duty under DR 7-107, his previous experiences with the news media, his communication that had a high potential for dissemination by the press, the highly prejudicial information in the instant case, the specific exclusion of the press from the in camera proceeding, and the prosecutor’s deliberate misinformation that prejudiced Appellants—we hold that the prosecutor acted in bad faith to prejudice Appellants.

Although the court granted the motion for a mistrial by Appellants Bryant and Ross, the prosecutor’s bad faith conduct bars a retrial. Commonwealth v. Starks, 490 Pa. at 341, 416 A.2d at 500. In the cases of Appellants Anderson and Johnston, where a mistrial was declared sua sponte, the prosecutor’s bad faith conduct caused the manifest necessity. Thus, the prosecutor’s misconduct bars a retrial, for the reasons set forth hereinabove,, despite the existence of manifest necessity.

The order of October 12, 1979, is reversed, and Appellants are ordered discharged.

POPOVICH, J., files a concurring opinion.

SPAETH, J., concurs in the result.

POPOVICH, Judge,

concurring:

While I believe the prosecution’s misconduct bars retrial, this writer takes the opportunity to comment on the factual setting of the case for the purpose of giving courts of this Commonwealth some guidance in cases where prosecutorial misconduct has been alleged. This is consistent with the dictates of the United States Supreme Court as well as our own high Court that “ ‘appellate tribunals have the duty to make an independent evaluation of the circumstances[ ]” attendant to claims of prosecutorial misconduct (i.e., overreaching or bad faith). Commonwealth v. Cohen, 489 Pa. 167, 179, 413 A.2d 1066, 1073 (1980) (quoting Shepphard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Cf. Commonwealth v. Tolassi, 489 Pa. 41, 51-53, 413 A.2d 1003, 1008 (1980) (although findings of the trial court were not in error appellate court conducted its own independent evaluation of the facts).

It is a rare instance, indeed, in which a prosecutor openly admits to intentionally aborting the trial with the injection therein of highly prejudicial information consonant with prosecutorial misconduct. Therefore, close attention must be paid to the factual setting surrounding the complained of conduct. This case provides this Court with such an opportunity.

The guidelines adopted by the majority, as originally set forth in Commonwealth v. Clark, 287 Pa.Super. 380, 394, 430 A.2d 655, 663 (1981), with one exception, are relevant to indicate the presence or absence of bad faith on the part of the prosecution. Notwithstanding the fact that the list is not exhaustive, these guidelines, when applied to the facts before us, support a finding of bad faith intent.

First of all, the prosecution’s case was neither abundant nor convincing as the key prosecution witness, the victim, could only testify having seen two of the five defendants immediately before the incident occurred. But see Commonwealth v. Washington, 492 Pa. 572, 424 A.2d 1340 (1981); Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978) (Opinion in Support of Affirmance); Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970); Commonwealth v. Myers, supra; Commonwealth v. Simms, 284 Pa.Super. 528, 426 A.2d 620 (1981); Commonwealth v. Rios, 246 Pa.Super. 479, 371 A.2d 937 (1977). According to the victim’s uncorroborated testimony, defendants Ross and Johnston approached him one evening while watching television in the trustees’ room. (N.T. 40) They asked him to go into the next room, which was the chapel room. (N.T. 41) When the victim refused, he was led by the arm into the room and forced to perform a sexual act on Johnston. (N.T. 40, 45) Defendant Ross repeated Johnston’s demands, and the victim once again was forced to perform a sexual act. (N.T. 45)

Moments later, defendants, Turner, Anderson, and Bryant in turn entered the room. (N.T. 48, 51) Turner then approached the victim, and the sexual activity continued. Bryant followed. After Bryant was finished, defendant Anderson told the victim “to get up and pull [his] pants down and lean over the ping-pong table”. (N.T. 52-53) When his pants were down, “Anderson was behind. . . [and] stuck a broomstick ... in [the victim’s] rectum.” (N.T. 54) The victim then was forced onto a cot from behind and his clothes removed. (N.T. 57) The scenario continued with “[a]ll five of the inmates” penetrating the victim, “after one got off, the other got on, they just told each other to get on, and they kept taking turns.” (N.T. 60) The inmates all left the room, which was approximately two hours after the victim’s initial entry into the room. (N.T. 60)

At no time during the entire episode could the victim see who was forcing him to engage in sexual activity because the room was dark. The sole source of light in the chapel room came from the reflection of a television in an adjoining room. This light was visible from the opening and closing of the connecting door. Because he would have been able to see from the television light if the door had been opened, the victim only could say positively that nobody left the room once they had entered except when the cot was brought in.

The remainder of the prosecution’s case consisted of a physician’s testimony concerning an examination the victim had the day after the incident. His testimony established that the laceration observed on the victim could have been caused with a reasonable degree of medical certainty by the insertion of an object into the anus. (N.T. 112)

No one else testified on behalf of the prosecution because the prosecution’s attempt to strengthen its case was undermined by Charles Valentine, a potential witness, who persistently refused to testify. Thus, things were going badly at trial for the prosecution. But see Commonwealth v. Simms, supra; Commonwealth v. Thomas, 270 Pa.Super. 375, 411 A.2d 767 (1979).

This was the second trial; the first trial had ended in a mistrial due to the prosecution’s attempt to call Valentine as a surprise witness. After the testimony of the physician was presented during the second trial, and the prosecution was about to close its case, the court excused the jury and said the following in open court:

“The reason I am staying, the reason the lawyers are staying, the second matter that was mentioned at the time we were at Sidebar, suggested by counsel and agreed on by the Court, relates to all the rest of you who are here in the Court Room. The matter that will be preliminarily considered is going to be an In Camera hearing relative to the possible next witness of the prosecution. For that reason, no one other than the counsel, the defendants, the prosecution, the prosecutor’s assistant, and the Stenographer and myself will be in the Court Room. I mention this because I know that there is always a concern with whether or not there should be a public hearing, a public trial. There will be a public hearing and public trial, but certain matters must be considered preliminary and properly are considered out of the presence of the public. If the matter is presented to the jury, the public is involved, because the jury will then consider it and the public will be able to hear it. But the matter that we will discuss beginning at 1:15 is going to an In Camera hearing relative to the next possible witness’s testimony. We will recess until 1:15, when I want to see counsel.” (N.T. 119-120) (Emphasis added)

An in camera hearing followed. The court determined at the hearing that Valentine would not be able to invoke the Fifth Amendment and ordered Valentine to testify because he would be Immune from prosecution. A recess was held so that Valentine could consult with his attorney. When the proceedings resumed, Valentine testified as follows:

[Prosecution]
Q Did you understand the nature and extent of the Immunity Order that Judge Mannix issued?
[Valentine]
A Yes, I did.
Q Did you discuss the matter with your attorney, Mr. Rabik?
A Yes.
Q Did Mr. Rabik explain to you the ramifications of the failure to comply with an Immunity Order issued by Judge Mannix?
A Yes.
Q Did you understand what Mr. Rabik said to you regarding the implications if you do not comply with or obey the ruling that Judge Mannix made requiring you to testify?
A Yes.
Q Did you understand that you would not be in any way tried for any matters that occurred on March 19, 1979, at the Beaver County Jail?
A Yes.
Q Understanding all of that, did you make a decision as to whether or not you would honor the ruling that Judge Mannix has made in this case?
A Yes, I have.
Q What is that?
A Refuse to testify.
Q And you are going to refuse, continue to refuse to testify, is that correct?
A Yes.
Q Knowing full well that there will be another proceeding based upon your failure and your refusal, your willful refusal to honor the ruling of Judge Mannix?
A Yes.
Q THE COURT: Are you finished?
[The Prosecutor]
MR. STANICHAK: Yes, your Honor.
THE COURT: Mr. Rabik is there anything you want to ask or state?
[Valentine’s attorney]
MR. RABIK: I have no questions, Your Honor.
THE COURT: Mr. Valentine, you understand my having simply issued an order directing you to testify, but if you fail to comply with that immunity order you are going to be returned to jail and you are going to be subsequently brought back before me for sentencing for contempt of my order? Do you understand that.
MR. VALENTINE: Yes.
THE COURT: And you realize you are in direct violation of my order, in what we call contempt of Court? MR. VALENTINE: Yes.
THE COURT: You realize that?
MR. VALENTINE: Yes, I do.
THE COURT: All right. I am directing the Sheriff’s Department to take you back to jail, confine him there. We will subsequently consider the matter of the contempt of this Court’s order, and that will be done at a later time after this proceeding is over. You will be returned to the jail. You will be later brought before the Court and I will decide at that time what I shall sentence you to for contempt of this order.
MR. VALENTINE: Yes.
(WHEREUPON, the witness was excused.) (N.T. 152 -55) (emphasis added).

Before the in camera proceeding was adjourned, the prosecution made one last motion:

“Your Honor, before we conclude, there is one matter I want to move, since the witness, Charles Valentine, has indicated that he refuses to honor the Order of the Court, that he has thumbed his nose at the Order of Court, and the law, as we understand it, and since he has been recommited back to the Beaver County Jail, we, at this time, move Your Honor that he is a witness who is unavailable. And we have his sworn statement, and we are going to move that it be introduced into evidence and be read to the Jury before the Commonwealth rests.” (N.T. 155-56) (Emphasis added)

Defense counsels for all the defendants objected to the prosecution’s motion because Valentine’s sworn statement was not subject to cross-examination. (N.T. 157) Before ruling on the motion, the court ordered a recess and said it was “inclined to think their, [defense counsels’], objection is well taken.” (N.T. 157) It was during this recess that the prosecution conversed with the reporters concerning Valentine’s sworn statement and his refusal to testify. When the proceedings resumed, the court denied the motion, and the prosecution rested its case. Clearly, this sequence of events shows that the trial was proceeding in a manner unfavorable to the prosecution. But see Commonwealth v. Simms, supra, 284 Pa.Super. at 535-36, 426 A.2d at 623, (1981) (a mistrial was declared two hours after the trial commenced, which was “long before the prosecutor could have had in his mind the thought of provoking a mistrial because of things not going his way.”) (Emphasis added). Valentine’s refusal to testify and the court’s denial of the prosecution’s motion to admit his statement substantially undermined its chances of obtaining convictions against at least three of the defendants.

The second factor to consider is whether the prosecution’s misconduct caused serious and incurable prejudice to the defendants. The news article that the jurors read contained prejudicial information as it disclosed Valentine’s identity, his motive for refusing to testify, and the incorrect contents of his statement. This disclosure caused the mistrial because it informed the jurors of damaging inadmissible evidence. But see Commonwealth v. Palmer, 276 Pa.Super. 473, 419 A.2d 555 (1980). In our system of justice, a verdict cannot be based on inadmissible evidence; rather, it must be based on “evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Commonwealth v. Pierce, 451 Pa. 190, 199 ftn. 5, 303 A.2d 209, 212 ftn. 5 (1973) (Emphasis added). This is so because:

“Jurors are of course human beings and even with the best of intentions in the world they are in the well-known phrase of Holmes and Hughes, JJ., ‘extremely likely to be impregnated by the environing atmosphere.’ ” Commonwealth v. Pierce, 451 Pa. 190, 199 ftn. 5, 303 A.2d 209, 214 ftn. 5 (1973).

As human beings and not machines, the jury was “extremely likely to be impregnated” by the prejudicial nature of the prosecution’s disclosure. Id.

Next, it is appropriate to examine whether the prosecutor’s conversation with the reporters was in defiance of any “direct order or clear admonition by the trial court”. Commonwealth v. Clark, 287 Pa.Super. at 392, 430 A.2d at 661. In the instant case, the court ordered an in camera proceeding relative to the possibility of Valentine testifying. By definition, that proceeding was “not open to the public.” Black’s Law Dictionary 684 (5th Ed. 1979). Furthermore, the trial court’s statement in open court, infra at 6-7, clearly indicated that the matter was to be “considered out of the presence of the public”. (N.T. 120) This writer equates the prosecutor’s divulgence of information to the press, who had been excluded from the in camera proceeding by the court, as equivalent to defiance by the prosecutor of a direct court order. But see Commonwealth v. Potter, supra.

The prosecutor attempts to neutralize the serious nature of his misconduct by contending that although he disclosed information in a conversation with the press, it was “background information” and was not for print. A review of the record, however, also reveals an absence of any neutral explanation (i.e., trial strategy, inadvertence, or inexperience) for the prosecutor’s conduct. To begin with, the prosecution’s tactic was not proper trial strategy. See DR 7-107; See also ABA Standards Fair Trial and Free Press § 1.1, Comment 1.1 at 82-84 (Tent. Draft, December, 1966). Additionally, his explanation is an admission that the information was not given inadvertently. Another admission established that he should have known the information given to news reporters in the heat of the trial “would [be] expect[ed] to be disseminated by means of public communication”. See DR 7-107. The following admission by the prosecutor also negated any possibility that his inexperience could explain his conduct:

Q Where did you confront Barbara Stack White? [the Post-Gazette reporter]
A Before I answer that question specifically, I think that it is important for the Court to have a background before we reach the conversation that took place. During the second trial on these various rapes, homosexual rape assaults, firstly, it has been my philosophy that lawyers should not publicize or engage in any type of conversation or activities with media people because they have always completely distorted and smeared names and stories all over the place, and I have been the victim of this over a period of time. If anybody should not speak, I have to plead to this Court that I should not. With that in mind, Barbara White Stack came to my office on a number of occasions prior to the trial of the first case, and she acted like a lady, and I related to her what my philosophies were and further related to her that on a number of occasions she would receive information that would be of a background nature. During this period of time, she appeared to act like a lady in that total and complete regard. Now, in the first trial, there were no cautionary instructions, and a mistrial was made simply by virtue of the motion of the defense counsel, which in my judgment should not have been granted by the Court.” 10/11/79, p. 24. (emphasis added).

Under these circumstances, the prosecutor’s conversation with the reporters about the case in litigation, in which he disclosed prejudicial information, constituted deliberate prosecutorial misconduct. See Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973).

With respect to the last factor to consider (i.e., the trial court’s observations concerning the prosecutor’s motives), the record shows that the court was inclined to believe that the prosecutor’s actions were not deliberate. In a colloquy with one of the defense counsels, the court said:

“Now, as I understand the testimony in this case, and I don’t but generally, the prosecutor revealed this information under, I think, apparently a hypothesis on his part. He was only giving background information, and he didn’t really expect it to be published. However, in fairness to the reporters involved, he didn’t say he didn’t want it published, as I understand it. There’s no evidence he said, ‘I don’t want this published.’ So, it could have been a combination of Mr. Stanichak relying on something in good faith that he may not have had a right to rely on and the reporters relying on the fact that he didn’t instruct them not to publish. So, by a possible misunderstanding on the part of Mr. Stanichak, not deliberately, but misunderstanding how he had presented this and what he himself considered to be the basis of his presentation but not making it clear to the media, this results. Now, it resulted in a situation that you agreed with Judge Mannix on. He had to grant the mistrial, and you had to move for it to protect your client. Now, you’re saying this has to be intentional, that we have to find that Mr. Stanichak did this intentionally?” 10/11/79, pp. 58-59. (emphasis added)

Even though the trial court’s observations as set forth above are relevant to an inquiry into bad faith intent on the part of the prosecutor, it does not follow automatically that the trial court’s observations are conclusive where the record supports a finding of prosecutorial overreaching. See Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); see also Commonwealth v. Clark, supra. Those observations are but one of a number of factors to consider in evaluating the prosecutor’s actions.

Commonwealth v. Virtu, supra, is controlling on that issue. In Virtu, the prosecutor “denied any intention to cause a mistrial or to seek unfair advantage by causing the witness to assert his Fifth Amendment privilege before the jury. He claimed that his intended questions at trial went no farther than those asked and answered at the suppression hearing.” Id., 495 at 65, 432 A.2d at 201 (footnote omitted). The trial court accepted the prosecutor’s version of the facts and concluded that the prosecution “did not deliberately provoke a mistrial. . . . ” Id., 495 at 65, 432 A.2d at 202. On appeal, our Supreme Court reversed and said that “Fagan [the prosecutor] knew, or should have known, that under the decisions of this Court, his alleged ‘good faith’ belief in the invalidity of a witnesses] contemplated assertion of his Fifth Amendment privilege was irrelevant.” Id. Similarly, in the instant case, the prosecutor should have known that his divulgence of information to the press was improper and might surface in public print.

To reiterate, the observations of the trial court are relevant but not conclusive of the retrial issue. In the instant case, where the evidence of guilt was not overwhelming, the prosecutor’s conduct caused serious and incurable prejudice to the defendants, there was an absence of any neutral explanation for the prosecutor’s conduct, and the prosecutor defied a direct order of court, this writer concludes that appellants may not be retried.

      . 18 Pa.C.S.A. § 3123.

      . Id, § 3126.

      . Id., § 2703.

      . See Commonwealth v. Pierce, 451 Pa. at 194, 303 A.2d at 212, which cites Mr. Justice Holmes’ statement in Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907):
      The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

      . The unique procedural posture of this case also deserves comment. The trial court was faced with a mistrial motion made on behalf of two of the defendants and an objection to the granting of that motion by three of the defendants. The prosecution, in chambers, moved for a mistrial as to all of the defendants. The court granted the defendant’s mistrial motion and sua sponte declared a mistrial as to the three objecting defendants. This situation is unique because “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” Commonwealth v. Meekins, 266 Pa.Super. 157, 162-164, 403 A.2d 591, 594 (1979) (quoting United States v. Jorn, 400 U.S. 470, 483, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556-57 (1971) (emphasis added) (citations omitted). On the other hand, “[wjhere a mistrial is declared in the face of an accused’s desire to continue the trial, reprosecution may be precluded, even though had the case proceeded to verdict and been reversed on appeal, no barrier to retrial would exist.” Commonwealth v. Myers, 422 Pa. 180, 192-93, 220 A.2d 859, 866 (1966) (emphasis added).
      A trial court, however, need not be hamstrung when a mistrial motion has been objected to by some but not all of the defendants, because it has the power to declare a mistrial for reasons of manifest necessity when an event at trial is “prejudicial to the defendant and he elects not to move for a mistrial.” Commonwealth v. Africa, 281 Pa.Super. 419, 428 n. 14, 422 A.2d 539, 544 n. 14 (1980) (emphasis added). In the instant case, the trial court correctly handled the mistrial motion and the objections.

      . This writer adopts the view set forth by Judge Hoffman in a dissenting opinion and rejects one of the guidelines formulated by the majority in this case and in Commonwealth v. Clark, 287 Pa.Super. 380, 392, 430 A.2d 655, 661 (1981). In Clark, the majority concluded that a court should consider as relevant “the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant’s prospects for a fair trial after the misconduct occurred”. Id. (Emphasis added.) As the minority opinion appropriately states, this writer considers “a prosecutor’s urging that a mistrial not be granted after he has engaged in misconduct [to be] totally irrelevant in determining whether he intended to provoke a mistrial or engaged in a bad faith effort to prejudice the defendant. Moreover, reliance on such a factor may encourage prosecutors whose deliberate misconduct provokes a motion for a mistrial to attempt to prevent a successful double jeopardy claim by vigorously arguing that a mistrial should not be granted.” Commonwealth v. Clark, 287 Pa.Super. at 399, 430 A.2d at 664 (Emphasis in original).

      . The trustees’ room was a room downstairs in the Beaver County Jail where all the trustees slept. (N.T. 30, 38) According to the victim, the trustees were inmates who were rewarded for their good behavior and whose responsibilities entailed “sweep[ing] the range, and tak[ing] the meals to the other inmates.” (N.T. 31) The chapel room was located next door to the trustees’ room and had a door which was barred by cardboard. (N.T. 41) The chapel room contained a ping-pong table and a weight set. The laundry room also was in the basement and led to the trustees’ room. (N.T. 39).

      . For whatever reason, this consolidated appeal does not include defendant Turner. However, the victim’s testimony on Turner’s participation in the criminal episode is nonetheless relevant to the prosecutorial misconduct issue.

      . There is also testimony in the record which was introduced as part of the defense establishing that the victim did not identify the voices of defendants Anderson and Turner when blindfolded at a voice identification proceeding. (N.T. 192, 198) The victim, however, did identify defendants Bryant, Ross, and Johnston. (N.T. 198, 201)

      . A news reporter for the Post-Gazette testified to this fact at the hearing on the pretrial motion to quash the information:
      [Defense Counsel for defendant Turner]:
      Q Can you tell the Court when he [the prosecutor] gave that information?
      [Reporter for the Post-Gazette]:
      A It was in a recess.
      Q Was that a recess?
      A Valentine had just refused to testify and was being sent back to the jail, and during the period when he was being sent back to the jail, there was a short recess. 10/11/79, p. 6. Another reporter for the Beaver County Times also corroborated Barbara White’s testimony. 10/11/79, p. 28.
      Hereinafter, all references to the pretrial hearing will be designated 10/11/79, p.-.

      . According to one of the briefs, Valentine’s statement actually implicated three and not all of the defendants, as was reported in the news. See Brief for Appellants Bryant and Ross at p. 4.

      . The full text of the prosecutor’s explanation consisted of the following:
      “So, right at the conclusion of that, the granting of that mistrial, I gave them the background information as to what had transpired. There were no cautionary instructions, and at that time I didn’t feel that anybody was going to be violated in any of their rights. Because she [the news reporter] had been up to that moment a lady, acted like a lady, and Mr. Atzinger [the other news reporter], I may add, was a gentleman at that time and remained a gentleman at all times and they were in a quandary as to what the procedural aspects of it were, I explained it to them. Now we go into the second trial, and in the interim—I think it’s in the interim—the Supreme Court of the United States had issued a new ruling indicating that in various in camera proceedings the Court could specifically exclude media people, and there had been a hue and cry all over the country about that. During the course of the second trial, it became necessary to have an immunity hearing in which Judge Mannix specifically excluded the media people. So, they were wandering out there in the halls. As I came out of the courtroom, Barbara White Stack immediately approached me. Mr. Atzinger was near her, and because of the manner in which she had treated these matters, I have to plead guilty of being a gentleman. I just couldn’t walk away from her. Mr. Atzinger was there. I immediately cautioned them that I felt sorry that they couldn’t be in the courtroom, that those were the rules, but I would tell them what happened and under no circumstances were they to use this in any type of a newspaper article and attach my name to it. This was simply for their background information that they would be able to use at the conclusion of the case. Then I went on further to explain what happened. Most of those quotes are accurate, and you can tell from the informality of the statements that I was placed in that position, in that posture of being informal, being off the Record. That’s exactly what happened, and I am now to the point where I certainly don’t want to violate any rules of any prosecutorial overreaching. I had no intention. This was simply a total violation and a breach, and I consider Ms. White Stack’s conduct in this entire matter reprehensible.” (N.T. 10/11/79, at pp. 25-26) (emphasis added).

      . Additionally, this writer is mindful of the Supreme Court’s “reluctanc[e] to mandate dismissal of charges against this or any defendant in the absence of a completed fact finding procedure.” Commonwealth v. Virtu, supra, 495 Pa. at 69, 432 A.2d at 203. Accord Commonwealth v. McElligott, 495 Pa. 75, 432 A.2d 587 (1981). In the instant case, a hearing was held to determine if the prosecutor’s conduct barred retrial, and a record of that proceeding was made. The trial court’s observations and the contents of the in camera proceeding are also of record. Under these circumstances, this writer considers the fact-finding procedure to have been completed even though the trial court did not make a specific finding as to whether he believed the prosecutor or the reporters.


source: Caselaw Access Project

author: POPOVICH, Judge: BROSKY, Judge,

license: Public Domain

text:
    439 A.2d 732
    COMMONWEALTH of Pennsylvania v. Herbert DIETERLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 18, 1981.

      Arthur J. King, Assistant Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BROSKY, JOHNSON, and POPOVICH, JJ.
   POPOVICH, Judge:

On April 27, 1977, appellant, Herbert Dieterly, entered pleas of guilty to six separate counts of theft by deception and forgery. One month later, appellant was sentenced to consecutive terms of imprisonment of one to seven years on the theft and forgery convictions. Appellant did not appeal the judgment of sentence; however, he did file a petition for reconsideration seeking a “reduction in the maximum sentences ... to fifty-nine (59) months” and the authorization of the sentencing judge so that appellant would qualify for the work release program. The court granted appellant’s reconsideration petition.

Approximately a year and a half later, appellant filed a petition under the Post Conviction Hearing Act. The Act of January 25, 1966, P.L. (1965), 1580, § 1 et seq, 19 P.S.A. § 1180-1 et seq. (1981-82). Appellant’s petition was denied without a hearing, and this appeal followed. We affirm.

Under the Post Conviction Hearing Act, an issue is waived if the petitioner knowingly and intelligently failed to raise it and is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. 19 P.S. § 1180-4(b). Because appellant did not assert at sentencing, in his reconsideration petition, or on appeal that (a) he should have been given credit for time served in prison between February 2, 1977 and August 9, 1977; (b) the court below erred when it failed to specify a definite date for the commencement of appellant’s sentence; and (c) the court, at sentencing did not place on the record its reasons for the sentence imposed, those issues are waived. See e.g., Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Morris, 273 Pa. Super. 477, 417 A.2d 748 (1979). Additionally, appellant has not alleged nor does the record support the existence of extraordinary circumstances.

Appellant, however, also has alleged that the court below did not have the power to sentence him on the forgery and theft convictions because “the [commonwealth suffered but one crime when the defendant fraudulently cashed a check.” See Brief for Appellant, at 5. (Emphasis added). The waiver doctrine has not been applied traditionally to this type of sentencing allegation. See Commonwealth v. Walker, 468 Pa. 323, 329, 362 A.2d 227, 230 (1976); Commonwealth v. Boerner, 281 Pa.Super. 505, 515 n. 11, 422 A.2d 583, 588 n. 11 (1980); Commonwealth v. Crocker, 280 Pa.Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980).

To begin with, in order to evaluate appellant’s claim, it is necessary to examine the facts which were set forth in the informations charging appellant with both forgery and theft by deception. With minor variations, the informations contained the following language:

“The acts committed by the accused were: (A) P.C.C. FORGERY, UTTERING FORGED INSTRUMENT. (4101)(a)(2) & (3) and THEFT BY DECEPTION (3922)(a)(l) In that the above named ACTOR did wilfully, knowingly, and feloniously forge and utter a certain check, No. 109 of the NORTHEASTERN BANK OF PENNSYLVANIA of a false and ficticious [sic] account in the name of GEORGE R. WARNER, and did with the intent to defraud the FIRST FEDERAL SAVINGS and LOAN forge and utter said check, receiving in payment the sum of $290.00, to the detriment of FIRST FEDERAL SAVINGS and LOAN.” (Complaint Number, C-417, 1976) (Emphasis added).

In the instant case, we must determine:

“whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act. See Commonwealth v. Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1236-1237 (1980); Commonwealth v. Jackson, 271 Pa.Super. 131, 137 n. 8, 412 A.2d 610, 613 n. 8 (1979); Commonwealth v. Belgrave, 258 Pa.Super. 40, 49, 391 A.2d 662, 667 (1978) CERCONE, P. J., concurring and dissenting (“unique facts”). If there has been but one criminal act, even though it caused several injuries still there has been but one penalty. See Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). Similarly, if there have been several acts but all were part of a single transaction and differed, if at all, only in degree, there may be but one penalty. Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 288, 17 A.2d 190 (1940). See Commonwealth v. Cox, 209 Pa.Super. 457, 228 A.2d 30, allocatur refused, 209 Pa.Super. xxxix (1967) (acts of kissing victim and fondling her breasts part of single criminal act of intercourse.”) Commonwealth v. Crocker, supra, 280 Pa.Super. 470, at 473-6, 421 A.2d 818, at 820-1 (1980) .

A common sense reading of the facts reveals that appellant committed two successive and distinct acts when he signed the forged check without authority and then presented the check, thereby creating a false impression that the check presented was valid and properly executed. See Commonwealth v. Williams, 273 Pa.Super. 578, 417 A.2d 1200 (1980). Therefore, appellant could be sentenced for convictions stemming from both criminal statutes, forgery, and theft by deception.

Order affirmed.

BROSKY, J., files a concurring statement.

BROSKY, Judge,

concurring:

I concur in the result reached by the majority. I am satisfied that the issue raised by Dieterly concerning the power of the trial court to sentence him to separate sentences for forgery and theft by deception is properly before this court. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), and that our decision in Commonwealth v. Williams, 273 Pa.Super. 578, 417 A.2d 1200 (1980), clegrly indicates that the actions of the trial court were proper.

      . 18 Pa.C.S.A. § 3922.

      . 18 Pa.C.S.A. § 4101.

      . Although not raised by either party, this Court may raise the question of waiver sua sponte. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979).

      . In Commonwealth v. Walker, supra, our Supreme Court said that the issue of “duplicitous sentences” where both convictions grew out of the same and single act of intercourse, was not waived. The Court said:
      “The lawfulness of those sentences must be viewed together, where as here, the facts set out in the indictment make out but a single act upon which the charges in the indictment rest.” Id., 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3.
      In this case, also, appellant is challenging the lawfulness of his sentence. Therefore, in order to evaluate this claim, it is necessary to examine the facts set forth in the charging document, in this case the information, in order to determine if the facts set forth therein rested upon “a single act”. Hence, appellant has not waged a-disguised attack on the validity of the convictions underlying the sentences, and the merits of the issue can be addressed. Commonwealth v. Walker, Id., 468 Pa. at 330, 362 A.2d at 230.


author: CAVANAUGH, Judge: SHERTZ, Judge,

text:
    439 A.2d 734
    COMMONWEALTH of Pennsylvania, v. Donald KIBLER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed Jan. 5, 1982.

      Richard S. Levine, Pittsburgh, for appellant.

      Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, Donald Kibler, was tried before the Honorable Loran Lewis and a jury and found guilty of five counts of corruption of minors and one count of sexual abuse of children. At trial, the appellant was represented by private counsel, Charles Schwartz, Esquire.

On appeal, appellant was represented by the public defender’s office which filed a brief on his behalf and a member of that office argued before this Court. Appellant also filed a pro se brief in which he raises the issues of denial of effective assistance of counsel, excessive sentence and disparity of sentence between the appellant and his co-defendants, and error of the court below in failing to grant the appellant a continuance so that he could obtain new counsel. In his pro se brief appellant states: “The appellant contends that he was denied effective assistance of counsel when the trial court refused his request to have retained counsel withdraw so that he may retain new counsel.”

Appellant’s counsel on appeal raises entirely different issues. Appellate counsel claimed that the court below erred (1) in failing to suppress evidence seized based on a search warrant allegedly issued without probable cause; (2) in denying a motion for mistrial based on an incident which occurred during trial and witnessed by the jury and (3) in denying a mistrial because of the prosecutor’s closing remarks to the jury.

Since appellant has filed a pro se brief raising the issue of effective assistance of trial counsel, if the appellant had been represented at trial by a public defender as well as on appeal, we would remand for the appointment of new counsel. See Commonwealth v. Bachert, 271 Pa.Super. 72, 412 A.2d 580 (1980). Although in this case, trial counsel and appellate counsel were different, we are nevertheless faced with the question as to whether the appellant has received legal assistance in dealing with the questions that he raised in his pro se brief and whether appellate counsel is ineffective for failing to raise the issues that appellant raised in his own brief. We do not know whether appellate counsel has considered the issues that the appellant raised in his pro se brief.

As a matter of policy this Court will not consider separate briefs filed by counsel and pro se briefs filed by the appellant. The appellant must make a choice as to whether he wants to act on his own behalf or through counsel.

Case remanded to the court below to determine whether appellant wants to act solely on his own behalf or through counsel in his appeal. Appellant must be instructed that if he desires to proceed through counsel, then counsel must present all arguments and he will not be permitted to file a pro se brief.

SHERTZ, J. filed a dissenting opinion.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

SHERTZ, Judge,

dissenting:

The sole issue addressed by the majority is whether this Court will consider an Appellant’s claim of ineffective assistance of trial counsel, raised for the first time in a pro se brief on direct appeal, where Appellant is represented on appeal by counsel other than trial counsel. I conclude that under such circumstances Appellant has waived his right to raise the issue.

The standard for determining whether the issue of ineffective assistance of counsel is properly preserved for appeal was recently reiterated in Commonwealth v. Webster, 490 Pa. 322, 324-325, 416 A.2d 491, 492 (1981).

Issues not raised in postverdict motions. will not be considered on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). An exception exists, however, when ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents appellant. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

In the instant case, Appellant is represented on appeal by counsel different from trial counsel. Therefore, in order to preserve the issue of ineffective trial counsel, it was necessary for appellate counsel to raise it on direct appeal. Although appellate counsel failed to do so, Appellant attempts to do so by way of a pro se brief.

When an appellant raising ineffectiveness of appointed trial counsel is represented on appeal by the same counsel, he is entitled to a remand for appointment of new counsel not associated with trial counsel. In such circumstances it cannot be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled. Commonwealth v. Bachert, 271 Pa.Super.Ct. 72, 412 A.2d 580 (1980). In Bachert, appellant’s trial counsel filed post verdict motions and an appeal but failed to raise ineffectiveness of counsel as an issue. Appellant, still represented by trial counsel at the appeal stage, raised the issue of ineffective assistance of counsel in a pro se brief. Under those circumstances, following Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978), this Court permitted Appellant to raise the ineffectiveness issue for the first time by way of a pro se brief and remanded for appointment of counsel to assist Appellant with his claims of ineffective assistance of former counsel. Id., 271 Pa.Super.Ct. at 84, 412 A.2d at 586.

Here Appellant is not represented by trial counsel. This appeal was filed by new counsel, appointed from the public defender’s office, who submitted an appellate brief on Appellant’s behalf. There is no basis on the record for concluding that appeal counsel did not provide zealous advocacy for Appellant’s cause. Furthermore, Appellant, obviously experienced at challenging the competency of counsel, does not contend that appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel, nor has Appellant requested that appellate counsel be dismissed. There is, therefore, no need, as there was in Bachert, for a remand to determine whether Appellant desires to proceed through counsel or on his own.

In this case, the time for raising the issue of ineffective assistance of counsel was when appellate counsel filed his brief with this Court. Commownealth v. Blackburn, 272 Pa.Super.Ct. 1, 414 A.2d 638 (1980), is an analogous case. In Blackburn this Court determined that the issue of ineffectiveness of trial counsel was deemed waived where it was raised for the first time by way of a pro se motion on appeal, where Appellant was represented by new counsel on appeal.

Accordingly, I would not remand to the court below to determine whether Appellant wants to act solely on his own behalf, or through counsel, in his appeal. Rather, I would reach the merits of the issues raised in the appellate brief filed by Appellant’s counsel.

      . Appellant’s pro se brief contends that he was denied effective assistance of trial counsel because the trial court denied his motions to dismiss retained counsel and for a continuance to retain new counsel. The basis for these motions was that he had no confidence in trial counsel’s handling of the case.

      . In Blackburn, Appellant’s pro se motion claimed ineffectiveness of both trial counsel and appellate counsel. This Court reviewed Appellant’s pro se brief only insofar as it alleged ineffectiveness of appellate counsel and found it to be without merit.


author: CAVANAUGH, Judge:

text:
    439 A.2d 737
    Mary Lee BEICHNER v. Keith James BEICHNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1981.
    Filed Jan. 5, 1982.

      Joseph T. Strong, Clarion, for appellant.
    Ralph L. S. Montana, Clarion, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is an appeal from the grant of demurrer to the evidence in a Habeas Corpus proceeding maintaining custody of a minor child with the appellee mother.

On September 8,1980, a summary hearing was held by the Court of Common Pleas of Clarion County on appellee’s petition to confirm custody. On September 9, 1980, the court entered an order confirming custody of the child in the appellee. On September 11, 1980, appellant filed a Petition for Writ of Habeas Corpus. On November 4, 1980, a full hearing was to have been held by the court on the Habeas Corpus Petition for custody of the parties’ minor son, Keith James Beichner, Jr. Upon completion of appellant’s case, appellee’s counsel demurred to the evidence and requested that the petition be dismissed. Appellant objected to the demurrer but the court deferred its ruling. On November 13, 1980, the court below dismissed appellant’s Habeas Corpus Petition, sustaining appellee’s demurrer to the evidence. This appeal followed.

The standard on appellate review of child custody cases was set forth in Lewis v. Lewis, 267 Pa.Super.Ct. 235, 406 A.2d 781 (1979), as follows:

It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Sipe v. Shaffer, 263 Pa.Super.Ct. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In Re Custody of Hernandez, 249 Pa.Super.Ct. 274, 376 A.2d 648 (1977). The award must be based on the facts of the record and not on mere presumption: in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super.Ct. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super.Ct. 225, 363 A.2d 1242 (1976).... In conducting this review, the appellate court will (should) look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super.Ct. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super.Ct. 508, 388 A.2d 1082 (1978).... Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, 259 Pa.Super.Ct. 395, 393 A.2d 885 (1978). Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super.Ct. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra. (Emphasis added).

Id., 267 Pa.Super. at 239-241, 406 A.2d at 783-784.

Appellant argues that the lower court erred in failing to inquire into the circumstances and fitness of each of the parties. We agree and remand to the lower court for further proceedings consistent with this opinion.

In Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), the Pennsylvania Supreme Court held that the “tender years presumption” no longer exists given the enactment of the Equal Rights Amendment to the Pennsylvania Constitution, Pa.Const., art. I (1974). The court stated that:

Whether the tender years doctrine is employed to create a presumption which requires the male parent to overcome its effect by presenting compelling contrary evidence of a particular nature; Commonwealth ex rel. Lucas v. Kreischer, 450 Pa. 352, 299 A.2d 243 (1973); Commonwealth ex rel. Logue v. Logue, 194 Pa.Super. 210, 166 A.2d 60 (1960) or merely as a makeshift where the scales are relatively balanced; Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super. 447, 344 A.2d 613 (1975), such a view is offensive to the concept of the equality of the sexes which we have embraced as a constitutional principle within this jurisdiction. See Pa.Const., art. I, § 28; Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Courts should be wary of deciding matters as sensitive as questions of custody by the invocation of “presumptions”. Instead, we believe that our courts should inquire into the circumstances and relationships of all the parties involved and reach a determination based solely upon the facts of the case then before the court. (Emphasis added).

Id., 470 Pa. at 299-300, 368 A.2d at 639-640. See also Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); Commonwealth ex rel. Weber v. Weber, 272 Pa.Super. 88, 414 A.2d 682 (1979).

In In Re Custody of Hernandez, supra, our court then reasoned that, in light of Carson, supra:

The burden of proof is shared equally by the contesting parents; thus, the hearing judge awards custody according to what the preponderance of the evidence shows. By virtue of each having joined in creating the child, each parent is regarded as having an equal interest in the child’s welfare. The state functions as arbiter, in the person of the hearing judge, rather than as interested participant.

Id., 249 Pa.Super. at 280-281, 376 A.2d at 651-652. See also Ellerbe v. Hooks, supra; McCann v. McCann, 270 Pa. Super. 171, 411 A.2d 234 (1979). Therefore, each party bears the burden of proving that custody in that party is in the best interests of the child. (Emphasis added).

In the present case, the record and the opinion of the court below are insufficient to determine that custody by the appellee in the best interests of the child. No evidence whatsoever was presented to the trial court to support its conclusion that the child’s interests would be better served by the appellee. Since the appellee failed to sustain her equal burden of proof under Hernandez, the lower court erred in failing to make a comprehensive inquiry to develop an adequate record. Cox, supra. Since the scope of our review cannot be fulfilled unless “all the pertinent facts and circumstances of the contesting parties have been fully explored and developed,” Sipe v. Shaffer, supra; L. D. v. B. D., 291 Pa.Super. 589, 436 A.2d 657 (1981), we must remand this case to the lower court for proceedings to determine the fitness of each party requesting custody of the child, Valentino v. Valentino, supra.

Order Vacated and case remanded for further proceedings, consistent with this opinion.

Upon completion of those proceedings, a new appeal may be taken as provided by law.

      . In light of our disposition of this case, we need not answer appellant’s argument that, in light of Lewis, a demurrer would never be appropriate in a Habeas Corpus involving child custody.

      . The record lacks any evidence that the appellee is better able to care for the child. Valentino v. Valentino, supra, required that disinterested testimony (in that case, a social worker) be heard on remand. The testimony that appellant presented was insufficient to prove that appellee’s custody of the child would be in his best interests.


author: WICKERSHAM, Judge:

text:
    439 A.2d 739
    Delia RIVERA, Appellant, v. SELFON HOME REPAIRS AND IMPROVEMENTS COMPANY.
    Superior Court of Pennsylvania.
    Argued March 3, 1981.
    Filed Jan. 5, 1982.

      David L. Ashworth, Lancaster, for appellant.
    George C. Werner, Lancaster, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   WICKERSHAM, Judge:

On September 20, 1976 at about 10:00 a.m. appellant, Delia Rivera, stepped onto a wooden landing at the top of a wooden stairway which provided means of ingress and egress to her apartment at 529 Terrace Road, Lancaster, Lancaster County, Pennsylvania. She fell through the landing onto the pavement below and sustained serious personal injuries. The owner of the property was the appellee herein, Selfon Home Repairs and Improvements Company (hereinafter Selfon) and Delia Rivera was a tenant at that location. In March of 1978 she filed a complaint in trespass alleging, inter alia, that her fall and consequent injuries were caused by Selfon in failing to properly maintain the residence, failing to provide a satisfactory means of ingress and egress to the apartment and permitting the wooden structure of the stairway and landing to become decayed, rotten and otherwise unstable and in failing to provide a workman to repair this condition despite previous requests to do so. Complaint, paras. 1-7.

On October 16, 1978, Delia Rivera’s case came to trial before the Honorable Paul A. Mueller, Jr. and a jury and the lower court granted defendant’s motion for compulsory non-suit after Delia Rivera rested on liability. A subsequent motion to take off the nonsuit and a companion motion for reconsideration of a motion to amend the complaint were denied on August 11, 1980 with an opinion filed by the Lancaster County Court en banc. On September 8, 1980, judgment was entered on the order of August 11, and this appeal followed.

At trial, Delia Rivera and her friend, Mrs. Flora Rivera testified. Flora testified that she accompanied Delia to the office of Selfon where they met Mr. Selfon and discussed the possibility of leasing a property at 529 Terrace Road, Lancaster. After looking at the property, Flora testified they returned to see Mr. Selfon and,

Q. Well, was there any mention about the condition at 529 to Mr. Selfon?
A. Just we mentioned to him the stairs and we also mentioned to him about the condition of the house as far as painting, and he said to us that he was going to send somebody over to take a look at it.

Trial Transcript at 20.

Flora Rivera testified further that:

Q What was next done with respect to lease arrangements for 529 Terrace Avenue or Terrace Road? Did you sign a lease or did Mrs. Rivera sign a lease?
A Well, when we went back to his office, Mr. Selfon’s office,—
Q. Where is that office incidentally?
A. It is in the pawn shop here on West King Street. Q Is that where you met with Mr. Selfon?
A Yes.
Q And did you sign a paper on that day?
A Yes, we signed a lease.
Q And is there a date on there?
A The twenty-third of August of 1976.

Trial Transcript at 21-23.

Flora Rivera also testified as follows:

Q Mrs. Rivera, did you at some time assist Delia Rivera because of a fall that she had at 529?
A Yes, I did.
A It was about 8:00 o’clock in the morning.
Q What day of the week?
A I don’t remember. It was during the week but I can’t remember.
Q Okay.
A And she was home that day because they were going to install her telephone that same day, so somebody had to be home.
I went to take her kids to school but then I call back for a cup of coffee; and when I knocked on the door, nobody answered but I heard a scream from the back, and she was calling me, you know, and crying. I went through the back and I saw her just laying there. I saw what happened and I said, oh, my God, you know, what happened. She said, well, I fell. So I looked up and I saw, you know. the hole and everything broken down. She was just laying there. She couldn’t move.

Trial Transcript at 27-29.

Delia Rivera testified:

A On our way back up I mentioned to Flora that the stairs were kind of shaky and she kidded me about it. She said it was just that I wasn’t use to wood stairs coming from the city; and I said, well, they just don’t seem right, but that was the house that I had decided to rent and we went back to Mr. Self on.
A We went back to Mr. Self on and told him that I had made a decision that I wanted 529. and I asked him then if he would paint for me, and he said no, he had painted the house not too long before that and that I would have to be responsible for paint.
I then also mentioned the stairs and told him that they were kind of shaky ....

Trial Transcript at 47, 48-49.

Delia then testified as follows concerning the accident of September 20, 1976:

THE WITNESS: I stayed in the house; and since by then my girls had dirtied some of the clothes and things, I decided to do a load of wash. Flora’s brother had come in to my washing machine, so I took some clothes downstairs. Then I remembered that I hadn’t emptied—excuse me— my children’s hamper, so I went upstairs again and took their things and started out the door. When I stepped on the landing, it just gave way and it fell away from the house, and I just sank through.
After that, I was found by Flora.
Q Where—or let me ask first—how did you land when you fell through the landing?
A I think on my feet. I went straight down. I remember thinking, oh, my God, my legs, and trying to think of something to grab onto but there wasn’t anything.
Q What was the surface underneath?
A Concrete.
Q When you landed, did you remain standing?
A No, I fell over.
Q How did you fall?
A On my chest.

Trial Transcript at 67.

In Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979), decided more than a year before the decision of the lower court en banc denying plaintiff’s motion to take off the nonsuit and motion for reconsideration of the motion to amend plaintiff’s complaint, our supreme court adopted an implied warranty of habitability in residential leases. The court said:

‘The implied warranty is designed to insure that a landlord will provide facilities and services vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes. King v. Moorehead, at 495 S.W.2d 75.’ Pugh v. Holmes, [253 Pa.Super. 87], 384 A.2d at 1240. This warranty is applicable both at the beginning of the lease and throughout its duration. Id. citing Old Town Development Co. v. Langford, 349 N.E.2d 744, 764 (Ind.App.1976) and Mease v. Fox, 200 N.W.2d 791, 796 (Iowa 1972).
Additionally, we agree with the Superior Court that, to assert a breach of the implied warranty of habitability, a tenant must prove he or she gave notice to the landlord of the defect or condition, that he (the landlord) had a reasonable opportunity to make the necessary repairs, and that he failed to do so. [253 Pa. Super. 88], 384 A.2d at 1241.

Id. 486 Pa. at 289, 290, 405 A.2d at 905, 906.

Instantly, the evidence would support a factual finding by the trier of fact that a dangerous condition existed with respect to the premises to be leased, that the landlord was aware of the dangerous condition and failed to exercise reasonable care to repair the condition and finally that the existence of the condition is a violation of an implied warranty of habitability. This is precisely the subject of the Restatement, Second, Property (Landlord and Tenant) § 17.6, Comment a, b, c (1977), representing the modern weight of authority in this area of the law:

Landlord Under Legal Duty to Repair Dangerous Condition

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.

Cf. Ford v. Ja-Sin. Del.Super., 420 A.2d 184, 187 n.4 (1980) (The court held that a tenant’s guest could recover for her personal injuries against the landlord upon a showing of simple negligence under the Delaware Landlord-Tenant Code, 25 Del.C. § 5101 et seq., 58 Del.Laws, c. 472, effective September 27, 1972, which is entirely consistent with Restatement, Second, Property (Landlord and Tenant) § 17.6 (1977)).

We hold that under the authority of Pugh and the Restatement, Second, Property (Landlord and Tenant) § 17.6 (1977), and under the specific and particular facts of the instant case, it was a matter for the fact finder to determine whether or not the landlord was subject to liability for physical harm caused to the plaintiff, Delia Rivera, based upon an alleged dangerous condition existing before the tenant had taken possession; further a question for the fact finder as to whether or not the landlord failed to exercise reasonable care to repair the condition and whether or not the existence of the condition was in violation of an implied warranty of habitability.

As we have seen, in the modern view expressed in Pugh and the Restatement, Second, Property (Landlord and Tenant) § 17.6 (1977), plaintiff had a valid cause of action for submission to the fact finder as pleaded in her original complaint; specifically, that the defendant Selfon negligently had failed to properly maintain the residence at 529 Terrace Road; negligently failed to satisfactorily provide a means of ingress and egress to the apartment; negligently permitted the wooden structure of the stairway and landing to become decayed, rotten and otherwise unstable, and negligently failed to provide a workman to repair this condition despite previous requests to do so.

Order of the lower court en banc is reversed and the case is remanded for trial consistent with this opinion.

      . Before Judges Eckman, Buckwalter and Mueller of the Court of Common Pleas of Lancaster County.

      . In Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981) (Opinion by Hoffman, J.), this court held that judgment must be entered on the docket before an order denying a motion to remove a nonsuit is properly appealable. On appeal, Delia Rivera frames the issues as follows:
      1. Did not the trial judge err in granting defendants motion for nonsuit, thus denying plaintiff the opportunity to present her case to the jury under the traditional negligence principle requiring the exercise of due care?
      2. Did not the trial judge err in not permitting plaintiff to present evidence of an implied agreement to repair the premises owned by defendant?
      3. Did not the trial judge err in refusing to allow the complaint to be amended, before the expiration of the applicable statute of limitations, in order to allege an express agreement to repair and a breach of an implied warranty of habitability?
      Brief for Appellant at 3.

      . Paragraphs 5 and 6 of Delia Rivera’s Complaint provide as follows:
      5. On or about September 20, 1976, at approximately 10:00 a.m., Plaintiff, Delia Rivera, stepped onto a wooden landing at the top of a wooden stairway which provided means of ingress and egress to her apartment at 529 Terrace Road when she fell through the landing onto the pavement below, sustaining personal injuries more particularly set forth hereafter.
      6. The aforesaid fall was caused solely by the carelessness, recklessness and negligence of the Defendant, Selfon Home Repairs and Improvements Company, which consisted, inter alia, of the following:
      a. failing to properly maintain the residence at 529 Terrace Road, Lancaster, Pennsylvania;
      b. failing to provide a satisfactory means of ingress and egress to said apartment;
      c. permitting the wooden structure of the stairway and landing to become decayed, rotten and otherwise unstable;
      d. failing to provide a workman to repair this condition despite previous requests to do so;
      e. failing to have due regard for the rights and safety of the Plaintiff herein; and
      f. being otherwise careless, reckless and negligent.
      Complaint at 2.


text:
    439 A.2d 743
    COMMONWEALTH of Pennsylvania, v. Kenneth DIXON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1981.
    Filed Jan. 5, 1982.
    Marc Reuben, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   WICKERSHAM, Judge:

On May 7, 1977, appellant Kenneth Dixon pled guilty to charges of burglary and attempted burglary arising out of two separate incidents. On June 7, 1977 the court imposed sentences of three years probation on both bills, to run concurrently. No direct appeal was filed.

On September 18, 1979, a hearing was held before the court on an alleged violation of probation. The court revoked probation and imposed concurrent sentences of imprisonment of not less than five nor more than ten years on each of the bills.

On March 12, 1980, defendant filed a pro se petition for relief pursuant to the Post Conviction Hearing Act. Appellant alleged indigency and requested appointment of counsel. On December 1,1980, the defendant’s petition for relief under the Post Conviction Hearing Act was denied, without a hearing and without counsel having been appointed. Thereafter, the court appointed counsel to aid appellant in this appeal, which was taken from the order of December 1, 1980. We must, of course, reverse and remand.

In Commonwealth v. Blair, 470 Pa. 598, 369 A.2d 1153 (1977), the issue before the Supreme Court of Pennsylvania was whether the hearing court erred in summarily dismissing appellant’s uncounselled PCHA petition. The court stated:

The Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1976-77) requires the appointment of counsel for indigent petitioners except where the claim is patently frivolous and without trace of support in the record. See 19 P.S. § 1180-12 (Supp.1976-77). Restated under the Act, the right of the trial court to summarily dismiss an uncoun-selled petition is contingent upon the substantive claim raised therein. However, this section of the Post Conviction Hearing Act has been superseded by Pennsylvania

Rule of Criminal Procedure 1503 (Adopted January 24, 1968. Effective August 1, 1968.)

Under the terms of Rule 1503(a)* [*Rule 1503(a) provides in pertinent part as follows: ‘Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him.’] the Court is mandated to provide counsel, upon request, in Post Conviction proceedings once petitioner satisfies the Court of his financial inability to obtain counsel. The only exception to this mandatory requirement is set forth in Rule 1504 which provides:

‘Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.’

Our prior caselaw has consistently adopted a strict construction of the language of the Rule. As stated in Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976) in considering a similar claim we held:

‘Without reaching the merits of appellant’s substantive claims, we hold that the summary dismissal of the petition in this case without appointment of counsel was error. Pa.R.Crim.P. 1503(a), suspending in part and superseding Section 12 of the Post Conviction Hearing Act, places an affirmative duty on the hearing court to appoint counsel for an indigent petitioner before disposition of his petition. Commonwealth v. Schmidt, 436 Pa. 139, 259 A.2d 460 (1969); accord, Commonwealth v. Conner, 462 Pa. 278, 341 A.2d 79 (1975); Commonwealth v. Minnick, 427 Pa. 399, 235 A.2d 150 (1969). Summary disposition of a petition, without appointment of counsel, is permitted only ‘when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he . . . was represented by counsel in proceedings thereon.’ Pa.R.Crim.P. 1504. See Commonwealth v. Smith, 459 Pa. 583, 330 A.2d 851 (1975); Commonwealth v. Haynes, 234 Pa.Super. 556, 340 A.2d 462 (1975).' (Footnote omitted) Id. at 821-22.
See also Commonwealth v. Triplett, 467 Pa. 510, 359 A.2d 392 (1976).

Id. 470 Pa. at 599-601, 369 A.2d at 1153-54.

Since appellant did allege indigency and requested appointment of counsel, it was incumbent upon the hearing court to determine whether Dixon was indigent and, if so, counsel should have been appointed to assist him. Accordingly, the matter is remanded to the trial court for further proceedings consistent with this opinion. Moreover, if it is determined that appellant is entitled to the appointment of counsel, he may, upon request, amend his petition.

It is so ordered.

      . Act of January 25, 1966, P.L. (1965) 1580 § 1 et seq.: 19 P.S. § 1180-1 et seq.


text:
    439 A.2d 745
    COMMONWEALTH of Pennsylvania, v. Kirk Alan HUNTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1981.
    Filed Jan. 5, 1982.
    Petition for Allowance of Appeal Denied June 11, 1982.

      Raymond H. Bogaty, Grove City, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WICKERSHAM, Judge:

This appeal involves a construction of the provisions of the Pennsylvania Rules of Criminal Procedure relating to accelerated rehabilitative disposition.

Rule 175 of the Pa.R.Crim.P. provides:

After a defendant is held for court by an issuing authority, the attorney for the Commonwealth, upon his own motion or upon request of the defendant’s attorney, may submit the transcript returned by the issuing authority to a judge empowered to try cases on information or indictment and may move that the case be considered for accelerated rehabilitative disposition.

Rule 179(c) of the Pa.R.Crim.P. provides:

After hearing the facts of the case, if the judge believes that it warrants accelerated rehabilitative disposition, he shall order the stenographer to reopen the record and he shall state to the parties the conditions of the program.

Kirk Alan Hunter was charged with criminal offenses, including burglary, receiving stolen property and criminal conspiracy. An application by the district attorney, in which Hunter joined, was duly made for accelerated rehabilitative disposition and a hearing held by the Honorable Albert E. Acker of the Mercer County Court of Common Pleas. After hearing the facts of the case, Judge Acker denied accelerated rehabilitative disposition by order filed December 23, 1980. Kirk Alan Hunter took this direct appeal.

The threshold question in this appeal is whether this court has jurisdiction to hear an appeal from an order denying a motion to have a defendant’s criminal charges entertained under the accelerated rehabilitative disposition program. Pa.R.Crim.P. 175-85. Although neither party challenged the jurisdiction of this court, we can address the issue sua sponte, as neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Giannini v. Foy 279 Pa. Superior Ct. 553, 421 A.2d 338 (1980). This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” 42 Pa.C.S. § 742. “It is a fundamental axiom of appellate court jurisdiction that an appeal will lie only from a definitive order, decree or judgment which finally terminates the action.” Commonwealth v. Defelice, 248 Pa. Superior Ct. 516, 521, 375 A.2d 360, 362 (1977). The failure of an appellee to object to the jurisdiction of an appellate court shall not operate to perfect appellate jurisdiction of an appeal from an interlocutory order. 42 Pa.C.S. § 704(a), (b)(2).

We agree with Judge Acker’s conclusion in his supplemental opinion filed on January 28, 1981, that an order denying acceptance into the accelerated rehabilitative disposition program is interlocutory and unappealable. Our conclusion is supported by the following rules of criminal procedure concerning accelerated rehabilitation:

When a defendant is accepted into the program of accelerated rehabilitative disposition after information or indictment, the judge shall order that further proceedings on the charges shall be postponed during the term of the program.

Pa.R.Crim.P. 181.

When the defendant is brought before the Court, the judge shall afford him an opportunity to be heard. If the judge finds that the defendant has committed a violation of a condition of the program, he may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law. No appeal shall be allowed from such order.

Pa.R.Crim.P. 184(c).

Under the above-quoted rules, where a defendant has been accepted into the ARD program, further proceedings on the charges against him are postponed during the term of the program. If the defendant later commits a violation of a condition of the program the court may order, when appropriate, that the program be terminated and that the attorney for the Commonwealth shall proceed on the charges as provided by law. No appeal shall be allowed from such order. In like fashion, we are here dealing with an unap-pealable order of the lower court when, in exercising his discretion pursuant to Pa.R.Crim.P. 179(c), if the judge does not believe that the case warrants accelerated rehabilitative disposition, the proper and mandated procedural step is for the attorney for the Commonwealth to proceed on the charges as provided by law.

In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), the supreme court outlined the exceptional circumstances where an appeal before the judgment of sentence will be permitted in a criminal case.

Generally, a criminal defendant may appeal only from a judgment of sentence. E.g., Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968). This rule prevents undue delay and avoids the disruption of criminal cases by piecemeal appellate review. See generally Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); In re Grand Jury Proceedings, 525 F.2d 151 (3d Cir. 1975). However, this Court has recognized that the final judgment rule is neither absolute nor inflexible. An appeal before judgment of sentence will be permitted when the need for immediate review outweighs the purposes of the final judgment rule.
Exceptional circumstances exist
‘. . . (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved.’

Id., 472 Pa. at 610-611, 373 A.2d at 93-94 (citations omitted).

This court summarized the factors which render an order denying an application for discharge prior to trial appealable in Commonwealth v. Schroeck, 273 Pa. Superior Ct. 386, 417 A.2d 702 (1980).

As a general rule, an order denying a pre-trial petition for habeas corpus is interlocutory. In the absence of exceptional circumstances, statutory authorization, or jurisdictional challenge, an order denying an application for discharge prior to trial, particularly where it is based upon the alleged insufficiency of evidence to establish a prima facie case before the magistrate, is unappealable.

Id., 273 Pa.Super. at 388, 417 A.2d at 703 (citations omitted).

We find none of the criteria explicated in Bolden here present, see Commonwealth v. Novak, 384 Pa. 237, 120 A.2d 543 (1956), cert. denied, 352 U.S. 825, 77 S.Ct. 35, 1 L.Ed.2d 48 (1956), and appellant does not raise a jurisdictional issue, nor is there statutory authorization for this appeal. We note further that appellant did not invoke proper appellate procedure for seeking our review of the interlocutory order. See Pa.R.A.P. 1311 and Note. This appeal must therefore be quashed.

Appeal quashed.

      . Appellant presents the issues on appeal as follows:
      1. Whether the trial court erred in denying the Commonwealth of Pennsylvania’s Petition to have the appellant placed on the Accelerated Rehabilitative Disposition Program.
      2. Whether under the facts and circumstances of this situation, the trial court improperly considered a previous juvenile conviction in reaching its determination that defendant was ineligible for the Accelerated Rehabilitative Disposition Program.
      Appellant’s Brief at 3.

      . A very recent supreme court case which lends support to our conclusion that the order in the instant case is interlocutory and that appellant did not follow proper appellate procedure is Pyle v. Court of Common Pleas of Cumberland County, 494 Pa. 322, 431 A.2d 876 (1981). In the Pyle case, the three petitioners were first time offenders charged with non-violent crimes. The court refused their motions to have their cases accepted for accelerated rehabilitative disposition and, further, refused to certify the questions for interlocu

        tory appeal. The Supreme Court of Pennsylvania heard the cases upon transfer from The Superior Court of Pennsylvania which had granted a temporary stay of the orders scheduling the cases for trial and had ordered that briefs be filed. The supreme court held that petitioners’ claims were without merit and remanded the cases for trial.