text:
    442 A.2d 1133
    COMMONWEALTH of Pennsylvania v. William MIRANDA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1980.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied August 10, 1982.

      Lawrence J. Hracho, Reading, for appellant.
    Charles M. Gruthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM and BROSKY, JJ.
   CERCONE, President Judge:

Appellant, William Miranda, was convicted of one count of attempted murder, two counts of aggravated assault, and two counts of recklessly endangering another person. Post-trial motions were filed and dismissed. Appellant was then sentenced to serve concurrent terms of imprisonment of five to ten years, two to five years and one to three years, respectively. No petition to reconsider the sentence was filed and no direct appeal was perfected. Appellant’s trial counsel subsequently petitioned the Superior Court for permission to file an appeal nunc pro tunc; we denied this petition. Appellant then filed a petition under the Post-Conviction Hearing Act (hereinafter PCHA) alleging inter alia the ineffectiveness of trial counsel for failing to take a direct appeal. The PCHA court reviewed the ineffectiveness claim and granted appellant the right to file an appeal nunc pro tunc. The court, however, did not address the other issues alleged in the PCHA petition. The nunc pro tunc appeal to this Court was filed, and we ordered the case listed for reargument before the en banc court and requested that the parties give primary emphasis in their briefs to the question concerning the scope of review permitted a post conviction hearing court when it determines that the PCHA petitioner has been denied his appellate rights. The central point of contention to be examined is whether the PCHA court is precluded from reaching the merits of other issues raised in the PCHA petition once that court determines that petitioner has been deprived of his direct appeal rights and grants an appeal nunc pro tunc. In accordance with our directive, both appellant and appellee have fully briefed this issue. In this case appellant presents three other claims in addition to the deprivation of appellate rights claim, (1) whether the pre-trial hearing court erred in dismissing appellant’s Rule 1100 application, (2) whether the sentences imposed were illegal insofar as the sentences merged, and (3) whether the sentencing court complied with the provisions of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). All issues presently raised by appellant were properly preserved by specific post-trial motions below.

I. The “Nunc Pro Tunc Problem.”

The problem, then, is to decide what substantive and procedural limitations a PCHA court has when it decides that the PCHA petitioner was denied his appellate rights and thus grants the nunc pro tunc appeal.

A. Discussion of the Problem.

In general, the Post Conviction Hearing Act 19 P.S. § 1180-1 et seq. provides the criminal defendant with the opportunity for collateral relief. Section 2 of the Act clearly sets forth its intended purpose:

This act establishes a post-conviction procedure for providing relief from convictions obtained and sentences imposed without due process of law. The procedure hereby established shall encompass all common law and statutory procedures for the same purpose that exist when this statute takes effect, including habeas corpus and coram nobis. However, nothing in this act limits the availability of remedies in the trial court or on direct appeal.

Where the petitioner’s claims are patently frivolous and are without a trace of support either in the record or from other evidence submitted by petitioner, the PCHA court may dismiss the petition without a hearing. Moreover, even where petitioner alleges facts that, if proven, would entitle him to relief, the petition may still be dismissed if the issue(s) presented could have been raised previously, and petitioner does not allege extraordinary circumstances justifying his failure to do so. Commonwealth v. Porter, 256 Pa.Superior Ct. 163, 166, 389 A.2d 651, 653 (1978). Instantly, we are concerned with the situation where the PCHA petitioner alleges in his petition not only the deprivation of his appellate rights but also several other claims specifically permitted by Section 1180-3 of the Act. Usually, the deprivation of rights claim is premised upon counsel’s ineffectiveness either for having failed to take an appeal, despite petitioner’s request to do so, or for having failed to pursue on appeal an allegedly meritorious claim. See, e.g., Commonwealth v. James, 484 Pa. 180, 398 A.2d 1003 (1979); Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979); Commonwealth v. Dixon, 475 Pa. 365, 380 A.2d 765 (1977); Commonwealth v. Fauntroy, 475 Pa. 287, 380 A.2d 357 (1977). In addition to premising the claim upon ineffectiveness, the PCHA petitioner can assert denial of his appellate rights as they have been defined by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1967). See, e.g., Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979) (where petitioner has not been fully apprised of his appellate rights, the proper remedy is the nunc pro tunc filing of post-trial motions).

The presence of this deprivation of appellate rights claim in the PCHA petition has puzzled the PCHA courts insofar as the proper procedure to be employed in disposing of the petition. The questions facing the PCHA court appear to be (1) whether the court is to review the claim asserting denial of appellate rights, and if meritorious, grant petitioner the right to appeal nunc pro tunc, leaving all other claims asserted in the petition open, or (2) whether the court is to do more than merely find a deprivation of appellate rights; in other words, what is PCHA court to do with respect to other issues raised. There is no consistent pattern followed by PCHA courts in this matter. In some instances, the court will review the deprivation of appellate rights claim, grant the nunc pro tunc appeal and then, as if conducting an independent hearing, it will go on to review and deny the other claims asserted in the PCHA petition. Under these circumstances two appeals result: the petitioner files a nunc pro tunc appeal on the deprivation of appeal rights claim and also an appeal from the order of the PCHA court’s denial of other relief requested. Other times, the PCHA court, reading the case of Commonwealth v. Webster, 466 Pa. 314, 317-18, 353 A.2d 372, 373 (1976), will first review the deprivation of appellate rights claim, decide the issue in petitioner’s favor and grant the nunc pro tunc appeal without considering the other issues raised in the petition. Here, although a single appeal results, that is the nunc pro tunc appeal, we are usually presented with an incomplete record on the additional issues raised. Finally, the PCHA court may review and deny all claims asserted in the PCHA petition, whereupon petitioner would file a single appeal from the order denying relief. Because of the various procedures followed in the courts below, we experience too many instances where unnecessary duplication of appeals find their way to the appellate court, or where too many remands are ordered because of incomplete records. Thus, we direct a procedural course to be followed henceforth, in consonance with our Supreme Court cases.

B. The Procedural Approach to the Problem.

At present, the cases of Commonwealth v. Webster, 466 Pa. 314, 317-18, 353 A.2d 372, 373 (1976), and Commonwealth v. Valezquez, 244 Pa.Superior Ct. 327, 368 A.2d 745 (1976), appear to offer divergent views on the subject under consideration. That is, in Webster, our Pennsylvania Supreme Court held that when a PCHA court determines that a petitioner has been denied his appeal rights, the court should refrain from deciding all other claims alleged in the petition for post-conviction relief and should grant the petitioner the right to file an appeal nunc pro tunc. On the other hand, the Valezquez case written by our Superior Court, has been interpreted as meaning that the PCHA court should first decide the deprivation of appellate rights argument and then go on to address all other underlying claims. By utilizing the Valezquez approach it was believed that “the entire matter [could] be adequately accommodated •within the rubric of the PCHA without any need for the dubious method of having lower court judges ‘relist’ appeals in this court.” Id. 244 Pa.Super. at 330, 368 A.2d at 746. Following this reasoning, the nunc pro tunc appeal based upon the deprivation of appellate rights would be unavailable to petitioner; instead, he would appeal from an adverse order of the PCHA court. Subsequent decisions by our Supreme Court in the area of nunc pro tunc appeals have reaffirmed the procedure outlined in Webster, thereby registering implicit disapproval of the procedure advocated in Valezquez and those cases adopting the Valezquez position.

Thus, when beginning to review a petition alleging the deprivation of appellate rights, the PCHA court must act in accordance with the general procedural framework set forth in Webster. That is, once the PCHA court determines petitioner has been deprived of his appellate rights, it should refrain from ruling upon the merits of the other claims and should grant petitioner the right to file an appeal nunc pro tunc. The Webster holding, however, did not anticipate the problem of an incomplete record on appellate review when the remaining issues were not reviewed by the PCHA courts. The problem was resolved in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). Therein the Supreme Court created an exception to the general rule it had established in Webster when it wrote:

We have since stated that the preferred practice is for a Post Conviction Hearing Court, having determined that petitioner is entitled to a direct appeal, to refrain from ruling upon the merits of the remaining claims for relief because they will be reviewable on the direct appeal process (citation omitted). The only justification for a deviation from this practice is when the trial record is inadequate to provide a basis for review of the claim or where the claim was not ruled upon by the trial court.

Id., 472 Pa. at 140 n. 5, 371 A.2d at 473 n. 5.

With the Sullivan decision, then, it is clear that the PCHA court must address the other claims raised in the PCHA petition when it is necessary to complete the record for appellate review; but under these circumstances, the PCHA court is merely functioning as an evidentiary tribunal. Implicit in Sullhan’s rationale is the directive that proceedings in the PCHA court relating to issues other than the one involving lack of appellate rights, are not to be decided on the merits, but rather the PCHA court is to see to it that the record is made complete on these issues for the purpose of review in the appellate court on the nunc pro tunc appeal. Thus, all supplemental issues raised, reviewed, and ruled upon in the PCHA proceedings would be adequate for review in the nunc pro tunc appeal before us; in other words, only one appeal, the nunc pro tunc appeal from the judgment of sentence, would be presented to us.

For example, a situation may arise where the PCHA petitioner in addition to alleging appellate counsel’s ineffectiveness has also alleged several instances of trial counsel’s ineffective stewardship. If a record is incomplete before the PCHA court, and no hearing on the claims raised in connection with trial counsel’s stewardship occurs, then the appellate court would be unable to deal with these claims if they were subsequently raised in the nunc pro tunc appeal. Without the benefit of a complete record, the appellate court would, of course, find it necessary to remand the case for an evidentiary hearing on any possibly meritorious ineffectiveness claim, thereby further complicating and delaying final disposition of the matter.

Another example is where the PCHA petitioner, in addition to alleging denial of appellate rights, also alleges in his petition other errors which, because of extraordinary circumstances, are specifically permitted to be raised for the first time at the PCHA level by virtue of section 1180-3 of the Act, i.e. after discovered evidence, the use of coerced confession, an infringement of the privilege against self incrimination. Where these issues were not presented below, the PCHA court must review them, deciding if the issues are waived, and if not waived, reaching the merits. Absent such a review by the PCHA court, the appellate court, when faced with these same issues in the nunc pro tunc appeal, would be without the benefit of a lower court ruling. Sullivan obviously cures both of the problems outlined in the above two examples.

Where petitioner raises a deprivation of appellate rights claim in his PCHA petition, and the PCHA court finds the claim meritorious, then the function of the court is limited by the procedural guidelines of Webster and Sullivan. That is, once the PCHA court decides the accuracy of the deprivation of appellate rights claim and grants the nunc pro tunc appeal, its review of any remaining claims would not be considered final review of the issues, but would only be seen as serving the evidentiary purpose of completing the record for appellate review. As such, the evidentiary review would not result in a separate appealable order. The outcome of this situation would instead result in the filing of the nunc pro tunc appeal, where petitioner could raise all issues which have been adequately preserved, and where he would have the benefit of final review by the traditional appellate tribunal.

Although appellant may raise in the appeal nunc pro tunc those issues which ordinarily might have been pressed on a timely appeal, Commonwealth v. Faison, 437 Pa. 432, 439, 264 A.2d 394, 398 (1970), the ordinary standards governing the scope of appellate review are complicated by the time interval between the judgment of sentence and the nunc pro tunc appeal: that is, (1) intervening court decisions which declare new rights, constitutional or otherwise, may affect the grounds of appellant’s nunc pro tunc appeal by providing a basis for relief which was not available during appellant’s original appeal period; and (2) post-conviction or collateral proceedings initiated by appellant between sentence and appeal may affect those issues which he may properly press on appeal. Id., 437 Pa. at 440-41, 264 A.2d at 398-99. As to the first factor, the Faison court held that “an appellant may press on a nunc pro tunc appeal an issue premised upon a constitutional right which was enunciated subsequent to his original judgment of sentence, provided that this right has been given such retroactive effect that it would have been available to appellant had an appeal been timely filed.” Id., 437 Pa. at 441, 264 A.2d at 399. Regarding the second problem, the Faison court examined the doctrines of waiver and finality, in relation to intervening collateral proceedings brought by appellant while represented by counsel, and held that “final litigation or a knowing waiver of an issue cognizable in collateral proceedings will preclude consideration of such issues in an appeal nunc pro tunc.” Id.

Researching the instant “Nunc Pro Tunc problem,” we find that the nunc pro tunc appeal is not the exclusive remedy granted when it has been decided that the PCHA petitioner has been denied his appeal rights. In some instances, the more appropriate remedy is to permit the nunc pro tunc filing of post-verdict motions. See Commonwealth v. Webster, supra. Apparently, the proper remedial relief is dictated by the procedural background of the particular case under review by the PCHA court. In this regard, three factual patterns can be isolated.

First Pattern: Post verdict motions filed and denied. Appeal filed and judgment of sentence affirmed. PCHA petition filed alleging, inter alia, ineffectiveness of appellate counsel. Nunc pro tunc appeal granted. See e.g. Commonwealth v. Sullivan, supra. See also Commonwealth v. Valequez, supra,
Second Pattern : Post-verdict motions filed and denied. No appeal taken. PCHA petition filed alleging, inter alia, denial of appellate rights. Nunc pro tunc appeal granted. See e.g. Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979); Commonwealth v. Fauntroy, 475 Pa. 287, 380 A.2d 357 (1977); Commonwealth v. Drummond, 238 Pa.Superior Ct. 311, 357 A.2d 600 (1976).
Third Pattern : No post verdict motions filed. No appeal taken. PCHA petition filed alleging, inter alia, denial of appellate rights. Nunc pro tunc filing of post-trial motions granted. See e.g. Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979); Commonwealth v. Stackpole, 275 Pa.Superior Ct. 255, 418 A.2d 709 (1980).

The filing or the absence of filing of post-verdict motions are the crucial factors in determining remedial relief. The importance assigned to post-verdict motions in this setting is indicative of their significance in the overall appellate scheme. Where post-verdict motions have not been filed, as is the situation outlined in the third factual pattern, the PCHA court, upon determining that petitioner has been denied his appellate rights, is to permit the filing and argument of such post verdict motions. All claims, including counts of trial counsel’s ineffectiveness, which would be cognizable on direct appeal should and must be raised in the nunc pro tunc post verdict motions and counsel should be charged with the knowledge that the appellate court will not consider an issue on appeal that has not been adequately preserved below. With the filing of the nunc pro tunc post-verdict motions, the appeal process would then proceed along its normal course. On the other hand, where post-verdict motions have already been filed and argued, as is the case in the first and second factual patterns, a presumption exists in favor of their validity and correspondingly, in favor of counsel’s effectiveness in preparing them. In this situation, that is where post-verdict motions have been filed, the remedy afforded by the PCHA court is the grant of a nunc pro tunc appeal.

Since the holding of Webster and Sullivan, it is clear that a policy has taken shape, based upon the tenets of the Post Conviction Hearing Act and the principle of finality of judgments. All issues, including those preserved in post verdict motions and those presented in the PCHA petition, are cognizable in the nunc pro tunc appeal, thus allowing petitioner the original benefit of review by an appellate court which was earlier denied him, for one reason or another. Moreover, from Webster and its progeny it is clear that the judiciary, recognizing the importance the appeal process plays in criminal litigation, is determined to ensure the criminal defendant that he will not be deprived an appeal because of faulty stewardship or errors committed by the lower court.

II. Appellant’s Issues on Appeal Other Than Deprivation of Appellate Rights.

The procedural history of the instant case reveals that post-trial motions were filed and denied. Therefore, it was proper for the PCHA court to grant the nunc pro tunc appeal once it determined that petitioner’s deprivation of appellate rights claim was meritorious. Moreover, we have a complete record and can address each of the specific allegations raised by appellant. In this nunc pro tunc appeal, appellant can and has raised issues which he might have ordinarily pressed on a timely appeal. We shall now consider those specific arguments. Appellant first questions the dismissal of his Rule 1100(f) application by the pre-trial hearing judge, who determined that because 108 days were chargeable against appellant due to his unavailability, no infraction of the 180 day rule had occurred. The procedural history of the case follows: A complaint was filed against appellant on June 8, 1976, clocking the Rule 1100 run date at December 5, 1976. The case was listed for trial November 15,1976, at which time appellant petitioned for a remand for a preliminary hearing, which was granted. A hearing was held, the case returned, a new information filed, appellant was arraigned and the case listed for trial on February 14, 1977. Trial was finally conducted on February 23, 1977, or two hundred and sixty days following the filing of the June 8, 1976, criminal complaint. Earlier, on February 10, 1977, appellant had filed a petition to dismiss the charges, alleging a Rule 1100 violation. Thereafter, two hearings were held on the petition, the first on February 14th and the second on February 22nd. The record reflects that the Commonwealth did not file a petition to extend, but rather relied upon the exclusionary provision set forth in Pa.R.Crim.P. 1100(d)(1), asserting that there was full compliance with that Rule. The Rule in pertinent part reads:

(d) in determining the period for commencement of trial, there shall be excluded therefrom such periods of delay in any stage of the proceedings as results from:

(1) the unavailability of the defendant or his attorney. The Commonwealth maintained that appellant’s whereabouts were unknown from the date of the filing of the criminal complaint until September 23, 1976, the date the Commonwealth received notice of his availability for extradition.

In order to avail itself of the Rule 1100(d)(1) exclusion, the Commonwealth was required to prove by a preponderance of the evidence that appellant’s whereabouts were unknown and that due diligence was utilized in locating and apprehending appellant, Commonwealth v. Brinton, 275 Pa. Superior Ct. 304, 418 A.2d 734 (1979); Commonwealth v. Hinton, 269 Pa.Superior Ct. 43, 409 A.2d 54 (1979). The record in the instant case confirms the lower court’s ruling that duo diligence was exercised by the Commonwealth. In point of fact, testimony offered at the two hearings on appellant’s petition for dismissal established: (1) that the police attempted many times to locate appellant at his last known address as well as at several other addresses subsequently supplied to the police; (2) that the police checked appellant’s place of employment but learned that appellant had failed to return after the June 7,1976 commission of the crime; (3) that the police inquired of appellant’s whereabouts at his mother’s residence; (4) that the police check of appellant’s motor vehicle registration produced yet another address which was investigated with no success; (5) that the police completed a National Crime Information Center teletype on June 8, 1976; (6) that police contacted appellant’s girlfriend in New York and checked several addresses in that state; (8) that on September 23, 1976, the police received information from Holyhoke, Massachusetts that appellant had been taken into custody on an unrelated matter, and a fugitive warrant was issued for him; and (8) that appellant was finally returned to Berks County on October 18, 1976, by the Sheriff’s Department. The Commonwealth is not required to exhaust every conceivable method of locating a defendant. The standard of due diligence demands only that reasonable efforts be undertaken. Commonwealth v. Brinton, supra; Commonwealth v. Hinton, supra; Commonwealth v. Jones, 256 Pa.Superior Ct. 366, 389 A.2d 1167 (1978). This standard has been met in the present case; therefore, the delay prior to arrest was properly excluded. With the exclusion of this period, it is clear that appellant’s trial was commenced within the prescribed time period allowed.

As a second point of error, appellant claims that the sentences imposed were illegal in that the offenses merged. As to crimes directed against the first victim, Haywood Floyd, appellant was sentenced to a term of five to ten years on the charge of criminal attempt (murder), two to five years on the count of aggravated assault and one to three years on the count of recklessly endangering. The sentences imposed on the counts of aggravated assault and recklessly endangering were to run concurrently with the sentence imposed on the charge of criminal attempt (murder). As to the crimes directed against the second victim, Linda Bur-ford, appellant was sentenced to a term of two to five years on the count of aggravated assault and one to three years on the charge of reckless endangerment. Both these sentences were to run concurrently with the sentence imposed on the conviction of the attempted murder of Haywood Floyd.

Critical to determining this issue is a factual recitation of the events of the crime, because whether a merger may be found in the instant case first involves the question of whether there were one or more acts. See Commonwealth v. Buser, 277 Pa.Superior Ct. 451, 419 A.2d 1233 (1980); Commonwealth v. Olsen, 247 Pa.Superior Ct. 513, 372 A.2d 1207 (1977), remanded on other grounds, 487 Pa. 499, 410 A.2d 299 (1980). Succinctly stated, “The merger of sentences doctrine is concerned not with conviction but punishment; its purpose is to preclude the imposition of separate punishments for what in practical effect was but a single criminal act. Thus, in merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is 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.” Commonwealth v. Crocker, 280 Pa.Superior Ct. 470, 475, 421 A.2d 818, 820-21 (1980). Herein, the record reveals that on the evening of June 8, 1976, at approximately 10:00 p. m., appellant stood outside the front door of the home of Linda D. Burford and requested that she let him in to discuss certain personal matters. Ms. Burford stood directly on the other side of the screen door and told appellant that she did not wish to speak to him.

While this confrontation was occurring, Haywood E. Floyd, an acquaintance of Ms. Burford, was taking a bath in the second floor bathroom of the home. When he heard Ms. Burford say, “No, no, no,” in a raised voice, he hurriedly dressed, and joined Ms. Burford at the front door. Mr. Floyd told Ms. Burford to move away from the door and advised appellant that he would not be able to talk with Ms. Burford since she did not wish to speak to him. Appellant said to Mr. Floyd, “I don’t wish to talk with you,” and Mr. Floyd replied, “Well, I’m the only thing standing here at this front door, and I’m the only one you’re going to talk to because she doesn’t wish to talk to you.” Appellant then repeated, “Man, I don’t want to talk to you.” Mr. Floyd, recognizing that appellant was upset, opened the door and began to exit. At this point, appellant stepped back, said to Mr. Floyd, “I’ll kill you mother fucker,” produced a shotgun from behind his back, and shot Floyd in the arm and abdomen. Regarding this first shot, Ms. Burford, who had stepped a few feet inside the house, away from the door, testified that she heard a shot, saw a flash, and “felt like a stinging on the lower part of my body.” She sustained injuries to her lungs, breast and liver.

Mr. Floyd then asked appellant, “Why did you shoot me?” to which appellant replied, “Shut up or I’ll shoot you again.” Floyd said, “Hey man, you don’t have to shoot me. You don’t need a gun to begin with.” Appellant then raised the gun and positioned it as if he were going to take another shot at Mr. Floyd, but instead, he took a couple of steps over to the front window, slammed back the gun bolt and fired at Ms. Burford. Appellant then withdrew the gun, pulled the bolt back again, thrust the gun through the window a second time and fired another shot. Ms. Burford testified that she fell unconscious after the second shot and awoke in a hospital.

The seminal case of Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), established that for crimes to merge, one must “necessarily involve” the other:

The true test of whether one criminal offense has merged into another ... is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The ‘same transaction’ test is valid only when the ‘transaction’ means a single act. When the ‘transaction’ consists of two or more criminal acts, the fact that the two acts are ‘successive’ does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, ... or they may be two distinct crimes which do not merge. Id., 343 Pa. at 104-105, 21 A.2d at 921. (emphasis in original)

Following this test, it has been noted that for two crimes to merge “they must be part of the same act.” Commonwealth v. Wojciechowski, 285 Pa.Superior Ct. 1, 426 A.2d 674 (1981); Commonwealth v. Olsen, supra. In this case, the evidence clearly established that more than one act had taken place. Accordingly, appellant could be prosecuted and sentenced for each separate act. That is, the first act occurred when appellant said, “I’ll kill you,” produced a gun from behind his back, and fired a shot, severely injuring both Mr. Floyd and Ms. Burford; this act supported the sentences imposed for the crime of aggravated assault as to the victim, Ms. Burford, and the crime of attempted murder as to the victim, Mr. Floyd. A second act occurred after Mr. Floyd questioned appellant’s motives for his violent action, and appellant replied, “Shut up or I’ll shoot you again . . . Shut up or I’ll kill you,” positioned the gun as if he were going to fire another shot into Mr. Floyd, but instead, moved a few steps over to the front window, slammed back the gun bolt and fired through the window at Ms. Burford; this act supported the sentences imposed for the crime of recklessly endangering as to the victim, Ms. Burford, as well as to the victim, Mr. Floyd. However, no independent acts can be found to support the sentence imposed for the crime of aggravated assault as to the victim, Mr. Floyd, and appellant’s merger argument is meritorious with respect to the sentence imposed for this crime. Applying the test enunciated in Commonwealth v. Moszczynski, supra to the present facts, it is clear that appellant’s conviction for aggravated assault merges with the conviction for criminal attempt (murder) for sentencing purposes. After the attempt to commit murder was established, no additional facts were required to prove aggravated assault. See Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979) (crimes of aggravated assault and recklessly endangering another are lesser included offenses of murder). Accordingly, the judgment of sentence for aggravated assault must be vacated. In this situation, where we cannot determine whether the declared invalidity of a conviction on one count may have affected the lower court’s sentencing on the remaining counts, we must remand to give the lower court an opportunity to reconsider sentencing on all counts. See Common wealth v. Shilling, supra; Commonwealth v. Lezinsky, 264 Pa.Superior Ct. 476, 400 A.2d 184 (1979); Commonwealth v. Bailey, 250 Pa.Superior Ct. 402, 378 A.2d 998 (1977).

Case remanded to the lower court for resentencing in accordance with this opinion.

      . Crimes Code, 18 Pa.C.S. § 901(a) (1973).

      . Crimes Code, 18 Pa.C.S. § 2702(a)(4) (1973).

      . Crimes Code, 18 Pa.C.S. § 2705 (1973).

      . Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed § 2(a) [1397] of Act 1978, April 28, P.L. 202, No. 53, to take effect June 27, 1980, reinstated Act of June 26, 1980, No. 41 § 1, to June 27, 1982.

      . In Douglas the United States Supreme Court held that the equal protection clause of the fourteenth amendment mandates that an indigent have the right to court-appointed counsel to prepare a first appeal if that appeal is available to him of right.

      . Thus, it is evident that denial of appellate rights may result for varied reasons, including, inter alia, the ineffectiveness of appellate counsel, as was the case in Commonwealth v. Webster, 466 Pa. 314, 317-18, 353 A.2d 372, 373 (1976), or a procedural error committed by the lower court, such as the failure of the court to inform defendant of his appeal rights. Because most of the cases developing the law in the area of nunc pro tunc appeals arise within the context of ineffective appellate counsel claims, our opinion appears to deal with this subject almost exclusively; however, the impact and scope of this opinion is intended to be broader and more general, explaining the proper procedure to be utilized by a PCHA court faced with a claim asserting denial of appellate rights, for whatever reason, together with other claims properly raised.

      . The appellant in Webster had been sentenced prior to the filing of post-trial motions. Although post-trial motions were subsequently filed, the lower court en banc entered an order striking the motions after finding that “these motions had not been properly prosecuted and were therefore abandoned.” Commonwealth v. Webster, 466 at 318, 353 A.2d at 374. No appeal was taken from this lower court order. Seemingly, these circumstances prompted the Supreme Court to state that the preferable procedure would have been to allow appellant the opportunity to file post-trial motions with the lower court. In this respect, the Supreme Court remains consistent with later cases in which no post-trial motions were filed. See e.g., Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979); Commonwealth v. Stackpole, 275 Pa.Superior Ct. 255, 418 A.2d 709 (1980). However, the Webster Court, citing judicial economy as the motivating factor, entertained the appeal and treated the PCHA court’s order denying the other issues raised in the PCHA petition as if it were an order denying post-trial motions.

      . In this event, although one appeal is possible by the petitioner, the remaining issues may be inadequate on the record for final disposition, making it necessary for a remand to be ordered so that an adequate record is made.

      . See, e.g., Commonwealth v. James, 484 Pa. 180, 398 A.2d 1003 (1979); Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979); Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979); Commonwealth v. Dixon, 475 Pa. 365, 380 A.2d 765 (1977); Commonwealth v. Fauntroy, 475 Pa. 287, 380 A.2d 357 (1977); Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). See also Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

      . To date, only two cases apply the procedure advocated in Valezquez: Commonwealth v. Harper, 273 Pa.Superior Ct. 426, 417 A.2d 722 (1980); and Commonwealth v. Butler, 261 Pa.Superior Ct. 486, 395 A.2d 1015 (1978).

      . The progenitors of Webster aid in explaining the underlying rationale for the procedural approach advocated in Webster, including the remedial grant of the nunc pro tunc appeal. From these early cases, we can resolve that the PCHA court is permitted to function as the court of last review in the Valesquez sense only in the very limited set of circumstances where the claims raised are equally cognizable on direct review and on PCHA review. In all other instances, the petitioner is to be afforded full review by the appellate court, thus assuring that petitioner will not be deprived of his right to a direct appeal. See e.g., Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970); Commonwealth v. Musser, 437 Pa. 131, 262 A.2d 678 (1970); Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970).

      . Following the decision in Webster, the authority of the PCHA court to grant appeal rights, nunc pro tunc was seriously questioned. The question, however, was decided in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977), where the Pennsylvania Supreme Court held that “the proper remedy is to afford appellant a new appeal in which he may reassert the issues adversely affected” by the original denial of his appellate rights. Id., 472 Pa. at 143-44, 371 A.2d at 475-76. See Commonwealth v. Lee, 494 Pa. 216, 431 A.2d 226 (1981) (PCHA court may grant nunc pro tunc rights); Commonwealth v. James, 484 Pa. 180, 398 A.2d 1003 (1979) (trial court does have authority to determine appellate counsel’s ineffectiveness; Commonwealth v. Faison, 437 Pa. 432, 436 n. 4, 264 A.2d 394, 396 n. 4 (1970) (where there has been a judicial determination that appellant has been denied his appeal rights, a nunc pro tunc appeal is in order. See also Commonwealth v. Reidenbaugh, 266 Pa.Superior Ct. 315, 404 A.2d 697 (1978) (nunc pro tunc rights the proper remedy to be afforded by PCHA court); Commonwealth v. Cute, 249 Superior Ct. 492, 500 n. 11, 378 A.2d 403, 407 n. 11 (1977) (PCHA court possesses authority to grant motions or petitions nunc pro tunc).

      . In Sullivan, appellant was convicted of two counts of murder in the first degree and was sentenced, filed post trial motions which were denied, took an appeal to the Pennsylvania Supreme Court which affirmed the judgments of sentence, filed a PCHA petition alleging, inter alia, ineffectiveness of appellate counsel, and was granted the right to file an appeal nunc pro tunc.

      . And, failure to raise trial counsel’s ineffectiveness at this point in the nunc pro tunc appeal, would be viewed as a waiver in any subsequent court proceedings, since the nunc pro tunc appeal would be technically considered the first available opportunity to present the matter. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

      . These issues permitted by Section 1180-3 of the Act are examples of issues “cognizable in collateral review” of which Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970), spoke. Failure to raise them in the PCHA petition would, according to Faison, be a “knowing waiver” and preclude further appellate review.

      . Charging the 108 days appellant was unavailable against appellant extends the trial date to March 23, 1977. Appellant came to trial on February 23, 1977.

      . Because illegality of sentence is not a waivable issue, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Guenzer, 255 Pa.Superior Ct. 587, 389 A.2d 133 (1978), appellant’s failure to raise this issue below does not preclude our present consideration of it. Commonwealth v. Usher, 246 Pa.Superior Ct. 602, 371 A.2d 995 (1977); Commonwealth v. Welch, 291 Pa.Superior Ct. 1, 435 A.2d 189 (1981).

      . Aggravated Assault is defined as:
      A person is guilty of aggravated assault if he: (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon, 18 Pa.C.S. § 2702(a)(4) (1973).

      . Criminal attempt is defined as:
      A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901(a) (1973).
      Criminal Homicide is defined as:
      A person is guilty of criminal homicide if he intentionally, know-, ingly, recklessly or negligently causes the death of another. 18 Pa.C.S. § 2501(a).
      Murder is defined as:
      (a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by means of poison, or by lying in wait, or by any other kinds of willful, deliberate, and premeditated killing. A criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping.
      (b) Murder of the second degree.—All other kinds of murder shall be of the second degree. Murder of the second degree is a felony of the first degree. 18 Pa.C.S. § 2502.

      . Our resolution of appellant’s merger issue eliminates the necessity of reviewing appellant’s final point of error asserting the failure of the lower court to comply with the sentencing procedures outlined in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). We do note, however, that when reconsidering the sentence on remand the lower court must follow the Riggins’, on the record disclosure rule.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    442 A.2d 1144
    Thomas C. SWIFT v. Robert MILNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1981.
    Filed March 12, 1982.

      Heywood Eric Becker, New Hope, for appellant.
    John Mongiovi, Lancaster, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   WICKERSHAM, Judge:

Thomas C. Swift, appellee, brought suit in assumpsit against Robert Milner in the Court of Common Pleas of Lancaster County alleging, inter alia, that they had entered into an agreement to purchase properties at the tax sale to be held at the Lancaster County Courthouse on October 16, 1976 and become equal owners of the properties so purchased. Pursuant to such agreement, a certain sixteen acre tract of land was purchased by the said Robert Milner for the purchase price of $128.89. The complaint alleged further that it had been understood and agreed between appellant and appellee (and three other partners in the venture) that property bought at the tax sale of October 16, 1976 could be purchased in the name of one individual, yet at the same time all of the parties would be equal owners of the property purchased. It was further alleged in the complaint that contrary to the agreement of the parties, Robert Milner, after the tax sale of October 16, 1976, obtained title in his own name and appropriated the sixteen acre tract of land to his own use and denied the other four partners any use or interest therein. Finally, it was alleged that the value of the purchase was at least $5,000.00 per acre and damages were sought by the said Thomas C. Swift in the amount of one-fifth of the value of the land referred to. Robert Milner filed preliminary objections which were dismissed by the Honorable Wayne G. Hummer, Jr. on July 10, 1980 with leave granted to Robert Milner to file a responsive pleading. Thereafter, defendant filed an answer with new matter, to which a reply was filed. A motion for judgment on the pleadings was thereafter filed by Thomas C. Swift. By order dated February 3, 1981 the Honorable Paul A. Mueller, Jr., entered judgment in favor of plaintiff, Thomas C. Swift, and against defendant, Robert Milner, but ordered that a trial should be held limited to the question of the value of the real estate to determine the value of plaintiff’s one-fifth interest. In its order, the court pointed out that defendant’s attorney had failed to respond in any way or file an opposing brief within ten days after service of plaintiff’s brief following the filing of the motion for entry of judgment. Local Rule 31(B) of the Lancaster Rules of Court provided that under such circumstances, “[a]ny respondent who fails to comply with this rule shall be deemed not to oppose” the request for judgment.

It was from such order of February 3, 1981 of Judge Mueller that this direct appeal was taken. At the same time, Robert Milner filed with the lower court a document entitled petition to open judgment on the pleadings and on February 24, 1981, Judge Mueller denied defendant’s petition.

Before we may consider the merits of this appeal, we must determine whether it is properly before us. Although the appellee did not raise this issue, the appealability of an order is a question of jurisdiction and may be raised sua sponte. Williams v. Williams, 253 Pa.Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976); 42 Pa.C.S. § 704(b)(2). Our court’s appellate jurisdiction is generally limited to appeals from final orders of courts of common pleas. 42 Pa.C.S. § 742. A final order is generally one which terminates the litigation, disposes of the entire case, or effectively puts the litigant out of court. Adoption of G.M., 484 Pa. 24, 398 A.2d 642 (1979); In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979). “The reason for prohibiting appeals from interlocutory orders is ‘to preclude piecemeal determinations and the consequent protraction of litigation.’ ” Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 406, 319 A.2d 677, 678 (1974); quoting from Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). Orders which do not dispose of the entire case may be deemed final and appealable, however, if postponement of appeal until after final judgment might result in the irreparable loss of the right asserted. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), construing Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Hall v. Lee, 285 Pa.Super. 542, 544, 428 A.2d 178, 179 (1981).

We believe that the instant appeal is from an interlocutory order and that the postponement of appeal until after final judgment will not result in irreparable loss of the right asserted. Moreover, were we to consider the merits of the appeal at this juncture, and were we to affirm the action of the lower court, the case would go back to Lancaster County for trial on the issue of damage which is a part of the order of Judge Mueller, dated February 3, 1981. Following a determination of damages, the case could again come back to- us on appeal. As we previously stated, the reason for prohibiting appeals from interlocutory orders, such as the instant order, is to preclude piecemeal determinations and the consequent protraction of litigation. This case is similar to Newill v. Piccolomini, 228 Pa. Super. 220, 323 A.2d 40 (1974). In Newill, our court stated that

For the purposes of this opinion the action divides itself into an issue of ownership of certain coal rights and, assuming ownership of such coal rights to be in the appellees, the damages to which appellees may be entitled for the alleged wrongful taking of this coal by appellants.
On September 17, 1973 the lower court granted appellees’ Motion for Summary Judgment as to the issue of ownership of the coal rights only. This order reads as follows:
AND NOW, this 17th day of October 1973, it is hereby ORDERED, ADJUDGED AND DECREED that Plaintiffs’ Motion for Summary Judgment as to the Issue of Ownership is granted. The Prothonotary is directed to place this case on the next trial list for the purpose of assessing damages.
This order is entered in accordance with Rule 1035 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix. Rule 1035(b) specifically authorized the entry of Summary Judgment in the nature of a split judgment. Rule 1035(b) states in part ‘. . . a summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages’.
It is clear that the order of October 17, 1973 which forms the basis of this appeal is interlocutory; and, therefore, the appeal must be quashed.

Id., 228 Pa.Super. at 221, 323 A.2d at 41.

Although the instant case involves a judgment on the pleadings rather than a summary judgment, we believe that the reasoning employed by our court in Newill is equally applicable to the instant case. We accordingly quash this appeal.

Appeal quashed.


author: WIEAND, Judge:

text:
    442 A.2d 1147
    COMMONWEALTH of Pennsylvania, v. Santo Anthony BELLACCHIO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied July 9, 1982.

      Stephen H. Serota, Philadelphia, for appellant.
    Prank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge and HESTER and WIEAND, JJ.
   WIEAND, Judge:

Santo Anthony Bellacchio, the appellant herein, was tried jointly with his brother, Michael Bellacchio, on charges of burglary, theft by unlawful taking, theft by receiving stolen property, and criminal conspiracy with one Reba Walker to receive stolen property. He was found guilty of theft by receiving stolen property and conspiracy. After post trial motions had been denied and sentence imposed, trial counsel withdrew his appearance for appellant. Present counsel thereupon entered his appearance and has pursued this direct appeal. In addition to several alleged trial errors, appellant contends that trial counsel was constitutionally ineffective. We find no merit in any of these contentions; and, therefore, we affirm the judgments of sentence.

On February 7, 1978, at approximately 6:30 a. m., appellant and his brother, Michael, together with Vincent Card and Robert Meade, were observed walking through a snow storm carrying television and stereo sets. When Officer Richard J. Burke, Upper Darby Police, attempted to investigate, the young men dropped the items which they were carrying and ran. All were subsequently apprehended, and the items which they had been carrying were determined to have been removed from the Vanleer I. Bond Department Store, Drexel Hill, during a burglary which had occurred shortly after midnight. A search of appellant’s home disclosed additional stolen television sets and a stolen radio. It also disclosed that the home was occupied by Reba Walker, who was then living with appellant.

This evidence was sufficient to prove defendant’s guilt of theft by receiving stolen property, and the trial court properly refused a motion in arrest of judgment.

Appellant contends that the trial court erred in permitting Vincent Card and Robert Meade to assert the Fifth Amendment privilege against self-incrimination when called as defense witnesses. Card, a juvenile, had previously given testimony during proceedings in which he was certified for trial as an adult; and Meade had entered pleas of guilty to charges of burglary and criminal conspiracy but had not yet been sentenced for his part in the burglary. Both had exonerated appellant from participating in the burglary.

The waiver of the privilege against self-incrimination in one proceeding does not affect the right to invoke it in an independent proceeding. Commonwealth v. Rodgers, 472 Pa. 435, 451 n.6, 372 A.2d 771, 778 n.6 (1977). See, e.g., United States v. Yurasovich, 580 F.2d 1212, 1220 (3rd Cir. 1978); United States v. Housand, 550 F.2d 818, 821, n.3 (2nd Cir. 1977), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977); United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976). However, a witness who invokes the privilege against self-incrimination is unavailable for purposes of the hearsay exception permitting the introduction of the notes of testimony from a prior judicial proceeding. Commonwealth v. Rodgers, supra, 472 Pa. at 453, 372 A.2d at 779; Commonwealth v. Colon, 461 Pa. 577, 583, 337 A.2d 554, 557 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). In the instant case, the trial court permitted Card to assert the privilege against self-incrimination but allowed defense counsel to read to the jury the record of Card’s prior testimony. We perceive no error in this ruling of the trial judge.

A witness may invoke the privilege against self-incrimination if his conviction has not been finalized by the imposition of sentence. Commonwealth v. Sanabria, 478 Pa. 22, 29, 385 A.2d 1292, 1295 (1978); Commonwealth v. Garland, 475 Pa. 389, 395, 380 A.2d 777, 779-780 (1977). See also: Mills v. United States, 281 F.2d 736, 741 (4th Cir. 1960); Steinberger v. District Court of Tenth Judicial District, 198 Colo. 59, 61, 596 P.2d 755, 757 (1979); People v. Smith, 34 Mich.App. 205, 211, 191 N.W.2d 392, 394-395 (1971), aff’d, 396 Mich. 362, 240 N.W.2d 245 (1976); State v. Tyson, 43 N.J. 411, 416, 204 A.2d 864, 867 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965); State v. Corbin, 48 N.C.App. 194, -, 268 S.E.2d 260, 262, pet. denied, 301 N.C. 97, 273 S.E.2d 301 (1980). Therefore, the trial court properly refused to allow appellant to call Meade to the stand after the trial judge had been advised in chambers by Meade and his attorney that Meade would invoke the Fifth Amendment if called as a witness. A witness should not be placed on the stand solely for the purpose of having him exercise his privilege against self-incrimination before the jury. “If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege ...” United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973). See also: Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Commonwealth v. Greene, 445 Pa. 228, 231-232, 285 A.2d 865, 867 (1971); Commonwealth v. Pritchard, 270 Pa.Superior Ct. 461, 468, 411 A.2d 810, 814 (1979); Commonwealth v. Hackett, 225 Pa.Superior Ct. 22, 24 n.2, 307 A.2d 334, 335 n.2 (1973).

Appellant also contends that the trial court erred in refusing a continuance after Meade had asserted the privilege against self-incrimination and had refused to testify. There is no merit in this contention. In the first place, the alleged error was not complained of in appellant’s motion for new trial. Therefore, the issue has been waived. Commonwealth v. Twiggs, 485 Pa. 481, 402 A.2d 1374 (1979); Commonwealth v. Blair, 460 Pa. 31, 33 n.1, 331 A.2d 213, 214 n.1 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 636, 331 A.2d 171, 172 (1975); Commonwealth v. Kearney, 459 Pa. 603, 606, 331 A.2d 156, 157 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Rinier, 255 Pa.Superior Ct. 166, 171-172, 386 A.2d 560, 563 (1978).

Appellant argues, however, that trial counsel was ineffective for failing to list the court’s refusal of a continuance as a reason for new trial. Because the issue lacks arguable merit, counsel will not be held ineffective for failing to preserve it. The granting or refusing of a continuance depends upon the exercise of discretion by the trial judge, and his or her decision will not be reversed in the absence of an abuse thereof. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970); Commonwealth v. Howard, 466 Pa. 445, 447, 353 A.2d 438, 438 (1976); Commonwealth v. DiPasquale, 431 Pa. 536, 541, 246 A.2d 430, 432 (1968); Commonwealth v. Richardson, 392 Pa. 528, 540, 140 A.2d 828, 835 (1958); Commonwealth v. Minifield, 225 Pa.Superior Ct. 149, 158, 310 A.2d 366, 370 (1973). There was no abuse of discretion in the instant case. The trial had already commenced and the Commonwealth’s evidence had been fully presented. The trial court properly refused a request for an indefinite continuance thereafter in the hope that Meade’s conviction would become final and he could be forced to testify as a defense witness.

After it became apparent that Meade would not testify, defense counsel extracted from the District Attorney a stipulation that Meade had entered pleas of guilty to charges of burglary and conspiracy. The purpose apparently was to suggest by implication that Meade committed the burglary rather than appellant. This stipulation was communicated to the jury by instructing as follows:

“Now, as to Robert Meade, counsel for defendant, in the presence of these defendants, themselves, says that he wants stipulated and stipulates of record, even though Meade is in court, that Robert Meade entered a plea of guilty to burglary of the Bond’s Store and also he entered a plea of guilty to conspiracy.
“Now, Members of the Jury, you have that for your consideration. In other words, even the defendants asked that this testimony be produced, and the testimony as to Meade, as to he in this court in the presence of these defendants pleaded guilty to this burglary. Now, the defense contends that since Robert Meade pled guilty to burglary, that exculpates him. That’s a .part of their defense, Meade did it. He didn’t do it. Now, you are going to determine it, ladies and gentlemen. You will remember what Card said and you will remember about his association with Meade and Meade’s association with these defendants. He pleaded guilty, not to buying it, but he pleaded guilty to burglarizing the Bond’s Store and also pleaded guilty to conspiracy. Now, that comes in the defendant’s case. They offered that themselves. You will take that into consideration, ladies and gentlemen.”

At the close of the jury instructions, the trial court asked for suggestions or corrections. None were offered with respect to the above portion of the charge. Appellate counsel argues that it was error for the trial judge to expand upon the stipulation of counsel and that the charge thereon was distorted and confusing. He also contends that appellant’s trial counsel was ineffective for failing to take exception thereto and preserve the issue by including it in the written motion for new trial. We find no merit in these arguments.

The charge correctly recited the stipulation regarding Meade’s guilty plea and also stated defense counsel’s reasons for wanting the jury to know of the plea. The trial judge correctly placed the stipulation before the jury, and his charge contained nothing prejudicial. Counsel will not be held ineffective for failing to make meritless objections. Commonwealth v. Johnson, 490 Pa. 312, 316, 416 A.2d 485, 487 (1980); Commonwealth v. Weathers El, 485 Pa. 28, 32, 400 A.2d 1295, 1297 (1979); Commonwealth v. Taggart, 291 Pa.Superior Ct. 133, 135, 435 A.2d 604, 605 (1981); Commonwealth v. Harris, 286 Pa.Superior Ct. 135, 137, 428 A.2d 609, 610 (1981); Commonwealth v. Crawford, 285 Pa. Superior Ct. 169, 182, 427 A.2d 166, 173 (1981).

Appellant raises two additional trial rulings which are alleged to constitute error. First, he argues that it was error to permit Detective Bratsis to testify as a rebuttal witness for the Commonwealth. At the beginning of the trial the court had sequestered witnesses, but Bratsis was not deemed to be a witness by the Commonwealth and was present in the courtroom during the trial. He did not give evidence of any kind until, on rebuttal, the Commonwealth proposed to call Bratsis for the sole purpose of showing that appellant had made to him a pre-trial statement inconsistent with a portion of his trial testimony. The trial court, over objection, permitted him to testify for this limited purpose.

The trial court did not commit error. The question of sequestering witnesses is left largely to the discretion of the trial judge, and his decision in such matters will be reversed only for a clear abuse of discretion. Commonwealth v. Holland, 480 Pa. 202, 213, 389 A.2d 1026, 1031 (1978); Commonwealth v. Martin, 479 Pa. 609, 616-617, 388 A.2d 1361, 1365 (1978); Commonwealth v. Yount, 455 Pa. 303, 318, 314 A.2d 242, 250 (1974); Commonwealth v. Kravitz, 400 Pa. 198, 218, 161 A.2d 861, 870 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961). There was no abuse of discretion in the instant matter. Detective Bratsis was permitted to give testimony limited in scope and of a nature that could not realistically be conformed to the testimony of prior witnesses.

Secondly, appellant argues that it was error to allow testimony that searching police officers found in appellant’s garage a radio stolen from Bond’s but not listed in the information. Appellant cites no authority to support this argument, and we perceive no merit therein. The fact that evidence may not be recited in an information is not determinative that it is inadmissible. Any competent evidence is admissible if it is relevant, and this is so whether or not it has been recited in the information.

Generally speaking, evidence is relevant which tends to establish or negate the facts in issue in a case. Commonwealth v. Davenport, 462 Pa. 543, 555, 342 A.2d 67, 72 (1975); Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975); Commonwealth v. Hickman, 453 Pa. 427, 433, 309 A.2d 564, 567-568 (1973); Commonwealth v. Krajci, 283 Pa.Superior Ct. 488, 495, 424 A.2d 914, 918 (1981); Commonwealth v. Barber, 275 Pa.Superior Ct. 144, 155, 418 A.2d 653, 658-659 (1980). Any legally competent evidence which, when taken alone or in connection with other evidence, affords reasonable inferences upon the matter in issue, tends to prove or disprove a material fact, or sheds light upon the issues in such a way as to enable the jury to draw a logical inference with respect to the principal fact in issue is relevant. See: Sum.Pa.Jur. Evidence, § 15.

That the finding of another stolen radio, one taken from the very store which appellant was accused of burglarizing, afforded reasonable inferences pertaining to appellant’s culpability with respect to one or more of the crimes charged cannot seriously be questioned. There was no error in allowing the jury to consider it.

Trial counsel, moreover, was not ineffective for failing to request an instruction that the jury should disregard the finding of the radio during its deliberations. This is so for two reasons. In the first place, as we have seen, the evidence was properly received and could most certainly be considered by the jury in determining appellant’s guilt or innocence. Secondly, trial counsel had already objected to the admissibility of the evidence and had argued that it was not properly for the jury’s consideration. His argument had been rejected and the objection overruled by the trial judge. It was not necessary to renew the objection in the form of a requested instruction to the jury to ignore it. The issue was properly preserved for review by counsel’s timely objection. It cannot be required of trial counsel that he repeat all objections to evidence by requesting subsequent instructions that the jury ignore evidence previously ruled admissible.

Finally, appellant contends that the trial court’s sentence improperly considered that appellant was the older brother, had a prior criminal record and demonstrated “callous indifference” in permitting his brother to become involved with him in criminal activity. These facts are fully supported by the record and were properly considered by the trial judge.

Finding no merit in any of appellant’s many contentions, we affirm the judgments of sentence.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. §§ 903, 3925.

      . Appellant’s complaint that the privilege was asserted by Card’s counsel is not supported by the record. Moreover, it is entirely proper that counsel advise a witness to refuse to answer questions tending to incriminate him. Evans v. Metropolitan Life Ins. Co., 294 Pa. 406, 412, 144 A. 294, 296 (1928).

      . Appellant and his brother testified that they had gone out into the snow to catch appellant’s dog which had escaped. They said they had been throwing snowballs when Card and Meade came along. They denied any other association at the time of their arrest. Card’s testimony was that he and Meade had been shovelling snow to earn money when they met three men and a woman who sold them a radio and a television set.

      . Appellant had not been charged with being a part of the conspiracy to burglarize Bond’s Store.

      . Counsel’s strategy, if somewhat unorthodox, was nevertheless successful. The jury acquitted appellant of burglary and theft by unlawful taking.

      . Appellate counsel also contends that trial counsel was ineffective for failing to request special instructions pertaining to the credibility of the witness because of his having been in the courtroom during trial. There is no merit in this contention. The jury was instructed generally concerning the credibility of witnesses, and under the circumstances of this case there was no need for a special instruction that Bratsis’ credibility was suspect because he had been in the courtroom during the entire trial.

      . Michael Bellacchio was only 16 years of age at the time the crimes were committed; appellant was 30.


author: POPOVICH, Judge:

text:
    442 A.2d 1153
    COMMONWEALTH of Pennsylvania v. Robert GRAEFF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1981.
    Filed March 12, 1982.
    Petition for Allowance of Appeal Denied Sept. 10, 1982.

      George E. Goldstein, Pottstown, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

On June 19, 1979, appellant, Robert J. Graeff, was found guilty by a jury of Delivery of a Controlled Substance (methamphetamine). Post-trial motions were timely filed and denied. Thereafter, appellant was sentenced to a term of imprisonment of eleven and one-half (IIV2) to twenty-three (23) months in the Lancaster County Prison. On appeal, appellant complains that the evidence was not sufficient to sustain his conviction. More particularly, appellant protests that the Commonwealth, by its failure to establish that “the quantity of th[e controlled] substance involved had a potential for abuse associated with a stimulant effect upon the [central] nervous system[,]” fell short of proving all the essential elements of the offense charged. We disagree and, accordingly, affirm the judgment of sentence.

Before reaching the merits of appellant’s claim, we need to discuss the trial court’s and the Commonwealth’s contention that the issue raised cannot be addressed “because it was waived and not preserved at trial[,]” since the appellant omitted to enter a demurrer at the close of the Commonwealth’s case-in-chief. Such proposition is predicated upon Commonwealth v. Keysock, 236 Pa.Super. 474; 345 A.2d 767 (1975), wherein it was noted that a litigant must make a timely, specific objection at trial and raise the issue on post-trial motion in order to preserve it. We observe that such requirement is codified in Pa.R.Crim.P. 1123(a), which provides that, in reviewing written motions for a new trial and in arrest of judgment, a trial judge may consider “[o]nly. those grounds . . . which were raised in pre-trial proceedings or at trial,” unless he, upon cause shown, allows otherwise.

Initially, it must be conceded that Rule 1123, despite its directive, “does not suspend” the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871, (see Comment to Rule 1123), which reads:

“Hereinafter, in all criminal prosecutions in this Commonwealth in which the jury shall have rendered a verdict against the defendant, the defendant may, in addition to making a motion in arrest of judgment on the grounds that there is error appearing on the face of the record, may make a motion in arrest of judgment on the grounds that the evidence was insufficient to sustain the charge, and if the court, after consideration of the entire record, shall decide that there is not sufficient evidence to sustain the conviction, it shall forthwith discharge the defendant and dismiss the case.”

Prior to the promulgation of the aforecited Act, the rule was that a motion in arrest of judgment would be granted only for causes appearing upon the face of the record, which consisted of the indictment, the plea and issue and verdict, and the insufficiency of the evidence gave no support to such a motion. Commonwealth v. Haimbach, 151 Pa.Super. 581, 30 A.2d 653 (1943); accord Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959); Commonwealth v. Samuel, 168 Pa.Super. 592, 80 A.2d 863 (1951). Therefore, when the legislature for the first time passed an act relating to a motion in arrest of judgment (19 P.S. § 871) it clearly took cognizance of the fact there was then in existence the motion in arrest of judgment and simply added the insufficiency of evidence as an additional ground. Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979). Thus, were we to hold, as the trial court and the Commonwealth would have us do, that the appellant’s failure to demurrer to the evidence (see Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979)) precludes him from attacking the sufficiency of the evidence, Section 871 would be rendered a nullity. This we cannot do. The General Assembly intends that a statute be effective and certain, and does not intend a result that is absurd or unreasonable. 1 Pa.C.S.A. § 1922(1) & (2) (Supp.1964-80); Commonwealth v. Herstine, supra.

Consequently, we find that, under the statutory provision of Section 871, appellant preserved an assault on his conviction on the ground of insufficiency of the evidence. By so doing, “ ‘it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged.’ ” (Citations omitted) Commonwealth v. Meadows, 471 Pa. 201, 204, 369 A.2d 1266, 1268 (1977).

Consistent with the dictates of Meadows, we will review the sufficiency claim, and, additionally, respond to appellant’s protestation that the Commonwealth was remiss in not proving that: 1) the quantity of methamphetamine sold by him had a potential for abuse; and 2) he was not registered under the Drug Act. 35 P.S. § 780-101 et seq.

After reviewing the entire trial record, we find the following: On April 28, 1978, at approximately 7:15 p.m., Robert M. Roderick, a state narcotic agent, and Daniel Krushinsky, a paid informant whose function it was “to set up buys” with people targeted by the Pennsylvania Bureau of Drug Control, met the appellant in the parking lot of the Lancaster Shopping Center, Manheim Township, Lancaster, Pennsylvania. The trio entered the appellant’s Jeep and rode around the area. In the course thereof, appellant handed a clear plastic bag to Krushinsky, who in turn gave it to Agent Roderick. The Agent opened the bag, smelled the substance and then placed it in his mouth—it was later tested and found to be methamphetamine. The Agent and Krushinsky proceeded to combine their monies and paid the appellant $3,600 for the two ounce bag. By this time, appellant had made his way back to the shopping center and dropped off the Agent and Krushinsky. Before leaving the lot for a rendezvous with the surveillance team (made up of Agents Gibson, Campbell and Detectives Walters and Geesey of the Lancaster City Police) for debriefing purposes, Agent Roderick managed to secure the license number of the appellant’s Jeep. Sometime thereafter, the appellant was arrested.

As for the question of identification, all of the Commonwealth’s witnesses unequivocally selected the appellant as the individual involved in the drug sale on the evening of April 28, 1978. This point was buttressed by the fact, which was undisputed by the accused, that Mr. Krushinsky, Agent Gibson and Det. Geesey had known the appellant prior to the incident in question—Krushinsky had worked for the appellant; Agent Gibson knew the appellant for some 10 to 20 years; and Det. Geesey knew the appellant “for several years.” Also, the Jeep’s license number checked out to be registered to the appellant.

Appellant’s defense to the charge was one of alibi. He testified that he was in Atlantic City, New Jersey, with his wife, a Doctor and Mrs. Ducker, and a friend, Miss Easter, on the day and time in question. All of the individuals mentioned testified and corroborated the appellant’s version of the group making their way to New Jersey for an evening of enjoyment.

As we have stated in the past, “[gjiven the divergency in the testimony of the witnesses, and since it is within the prerogative of the fact finder to believe all, part or none of the testimony of any witness, ‘we will not engage on appeal in a weighing of the evidence in an attempt to second-guess the jury, for such is not our function.’ ” (Citations omitted) Commonwealth v. Tumminello, 292 Pa.Super. 381, 387, 437 A.2d 435, 438 (1981). Moreover, the witnesses’ opportunity for identification was good and was not weakened by a prior failure to identify, ¿nd, even after cross-examination, remained positive and unqualified. For example, Agent Roderick and Mr. Krushinsky engaged in a face-to-face conversation with the appellant, and were in his company for approximately 15 minutes before effectuating the drug transaction. Additionally, Agents Gibson and Campbell, who were two members of the four man surveillance team, followed the Jeep during its drive around the area, and, when they passed the Jeep, the two Agents “saw it was Graeff” operating the vehicle. (N.T. 123, 133-34) Det. Geesey also testified that the individual he observed in the company of Roderick and Krushinsky was the appellant. He was sure of his identification, for he had known the appellant for “[s]everal years before[]” and had gone to “the same insitution [sic] of higher learning that Mr. Graeff” had attended. (N.T. 144) In such situations, the cases say that a witness’ “ ‘ “[positive] testimony as to identity may be treated as the statement of a fact” ’. For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.” (Citations omitted) Commonwealth v. Kloiber, 378 Pa. 412, 422, 106 A.2d 820, 826 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Thus, because the identification testimony was neither speculative nor weakened on cross-examination, we find that the witnesses’ positive, unqualified identification was sufficient for conviction even though the appellant, and the witnesses presented on his behalf, testified to an alibi. Id.; Commonwealth v. Harrison, 290 Pa.Super. 389, 434 A.2d 808 (1981). To do otherwise, in light of the facts presented, would be to invade the bailiwick of the trier of fact in the absence of “evidence ... so unreliable and/or contradictory as to make any verdict based thereon pure conjecture . . . . ” (Citations omitted) Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1956); Commonwealth v. Harrison, supra; Commonwealth v. Gomori, 192 Pa.Super. 325, 329, 161 A.2d 649, 651 (1960) (Facts and circumstances to warrant conviction need not rise to the level of “beyond moral certainty nor as being absolutely incompatible with . . . innocence, but at least beyond a reasonable doubt.” [Citation omitted]); see also Commonwealth v. Adams, 234 Pa.Super. 387, 394, 338 A.2d 642, 645 (1975). This Court finds no reason to alter the jury’s verdict.

We now turn our attention to the appellant’s argument, which is part and parcel of the sufficiency issue, that the Commonwealth failed to prove an essential element of the offense of Delivery of a Controlled Substance, i.e., that the quantity of methamphetamine sold to the undercover agents had a potential for abuse. The appellant avers that such assertion is in accordance with Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979) and our own decision in Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975). However, a close reading of Teada, which was approved by the Court in Driscoll, undermines appellant’s position. To elucidate, in Teada the accused was charged with selling phencyclidine, a cortrolled substance under Schedule III of the Drug Act, 35 P.S. § 780-104(3)(i)(7). The significant language in Schedule III provides:

“(i) Any material, compound, mixture, or preparation . . . which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
1. Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid.
2. Chorhexadol.
3. Glutethimide.
4. Lysergic acid.
5. Lysergic acid amide.
6. Methyprylon.
7. Phencyclidine.
8. Sulfondiethylmethane.
9. Sulfonethylmethane.
10. Sulfonmethane.”

(Emphasis added)

35 P.S. § 780-104(3)(i).

At trial, the prosecution established that the substance sold to the agent contained a quantity of phencyclidine; however, the prosecution did not establish the amount of phencyclidine contained in the substance sold. Furthermore, the prosecution presented no evidence that the quantity of phencyclidine contained in the substance sold would have “... a potential for abuse associated with a depressant effect on the central nervous system.”

The Teada Court held that the Drug Act manifested a legislative intent to proscribe the possession and delivery of certain substances only if they were present in sufficient quantity to have a depressant effect on the central nervous system. If such was not the case, possession or delivery of such substances was not criminal under the Drug Act.

With this in mind, the Court found the reference to “any quantity” in discussing barbituric acid (35 P.S. § 780-104(3)(i)(l)—which is schematically similar to the set-up under Schedule II of the Drug Act concerning methamphetamine) demonstrated that the legislature clearly intended the quantitative requirement when it prohibited the delivery or possession of said substance. But by the legislature not specifying that any quantity of the substance set forth in numbers 2 through 10 be prohibited, unless the substances had a “potential for abuse associated with a depressant effect on the central nervous system,” the Court interpreted that to mean that the prosecution would have the burden of proving that the substances itemized in Schedule III(i)(2—10) of the Drug Act have a potential for abuse as a condition precedent to establishing a violation of same, but that the legislature specifically excepted from such group any substance which contained “any quantity” of barbituric acid. Thus, since phencyclidine was not a derivative of barbituric acid, the failure by the Commonwealth to show that the quantity of the drug sold by the accused “had a potential for abuse on the central nervous system,” the lower court’s grant of the accused’s demurrer was affirmed.

Moreover, the Teada court, in making its ruling, engaged in a discussion of statutory construction regarding Schedule II of the Drug Act which is germane to the disposition of appellant’s claim; viz.:

“Schedule I of the Act, supra, lists those substances which have a high abuse potential and no accepted medical use such as heroin and marijuana. The sale or possession of these substances is illegal without regard to quantity. Since these substances have no legitimate use no inquiry into the quantity delivered or possessed is necessary in order to establish its illegality. Schedule II of the Act involves those substances which have a high abuse potential, but for which there is an accepted medical use. Subsection (i) and (ii) of Schedule II list various substances without regard to quantity. However, subsection (iii) lists four substances stating that the quantity of these substances must have a ‘potential for abuse associated with a stimulant effect on the central nervous system.’ Furthermore that subsection goes on to proscribe the possession or delivery of one particular substance, methamphetamine, without regard to quantity. See, 35 P.S. 780- 104(2)(iii). Obviously the legislature enacted this subsection because it considered methamphetamine in any quantity to be more dangerous than the other substances enumerated in Schedule II. The statutory scheme is one of imposing greater restrictions on the more dangerous substances and of imposing greater proof requirements on the prosecution as the criminal inquiry moves from the most dangerous substances to the least dangerous ones.” (Emphasis added) Id., 235 Pa.Super. at 440, 344 A.2d at 683-84.

We find the remarks in Teada to be persuasive and not at odds with the ruling in Driscoll. To explicate, the accused in Driscoll, as here, was convicted of selling a controlled substance listed under subsection (iii) of Schedule II of the Drug Act. However, the substance the accused in Driscoll was charged with selling (amphetamine) is enumerated in a separate and distinct category in the statutory scheme of the Drug Act vis-a-vis the drug with which the appellant was charged with selling (methamphetamine). To illustrate, the pertinent subsection reads:

“. . . any material, compound, mixture or preparation which contains any quantity of the following substances, having a potential for abuse associated with the stimulant effect on the central nervous system:
1. Amphetamine, its salts, optical isomers, and salts of its optical isomers.
2. Phenmetramine and its salts.
3. Methylphenidate.
4. Any substance which contains any quantity of methamphetamine including its salts, isomers and salts of isomers.”

(Emphasis added)

35 P.S. § 780—104(2)(iii).

Given the delineation of amphetamine and methamphetamine in individual paragraphs, as was the case in Teada with regard to barbituric acid and phencyclidine, it is clear that the legislature intentionally created a separate category for methamphetamine in Schedule II, subsection (iii)(4) “because it considered methamphetamine in any quantity to be more dangerous than the other substances enumerated in Schedule II.” Commonwealth v. Teada, supra, 235 Pa.Super. at 442, 344 A.2d at 684. Thus, we agree with the Commonwealth that it was required to prove no more than that some quantity of methamphetamine was sold by the appellant, as compared with having to show that it also had a potential for abuse. The Commonwealth did just that by getting the appellant to stipulate that had the chemist who analyzed the substance appeared he would have testified that the powder contained methamphetamine hydrochloride, and that the total weight of the powder was “fifty-four point seven eight grams.” (N.T.154) Couple this with the Commonwealth’s witnesses’ testimony linking the appellant with the sale of the drug, and we conclude that sufficient evidence was presented to sustain appellant’s conviction.

The last prong of appellant’s sufficiency of evidence argument centers around the averment that the Commonwealth failed to prove that he was not licensed in accordance with the law to possess or otherwise deal in drugs.

Appellant concedes that this Court’s ruling in Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), wherein we held that unless the accused comes forward with some evidence of authorization the Commonwealth need not disprove authorization beyond a reasonable doubt, controls the case sub judice. Nevertheless, he submits that the Court should “reexamine its ... decision and require the Commonwealth to meet what is clearly its burden of proof.” We disagree. The appellant’s contentions, which were dealt with in Sojourner, do not persuade us to alter the ruling in Sojourner, nor to embark on a reevaluation of the rationale for such decision.

At trial, the appellant neglected to produce any evidence of licensure; thus, it was not necessary for the Commonwealth to prove his non-licensure beyond a reasonable doubt.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(30). The prosecution entered a nolle prosequi for Possession With Intent to Deliver a Controlled Substance. Id.

      . The Act was repealed by the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, 42 P.S. § 20002(a)[1275] (eff. June 27, 1980).

      . Appellant set forth in his motion for a new trial and in arrest of judgment that “[t]he verdict was contrary to the weight of the evidence and was not in accordance with the law.” On this point, we observe that:
      “ ‘Although the assertion that the verdict is against the weight of the evidence is not a proper consideration in passing on a motion in arrest of judgment, a criminal defendant may be given a new trial on that ground, and this is true, even where the evidence is legally sufficient to sustain a guilty verdict.’ ” Commonwealth v. Ponder, 260 Pa.Super. 225, 226, 393 A.2d 1235, 1236 (1978); see also Commonwealth v. Davis, 477 Pa. 197, 203, 383 A.2d 891, 894 (1978) (that “the verdict is contrary to the weight of the evidence” is a proper ground for relief in a motion for a new trial).

      . We note that even if the appellant had entered a demurrer to the evidence, when you couple the presentation of a defense with the likelihood of a denial of said motion, the validity of the ruling thereon would have been waived. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 347 n. *, 353 A.2d 387, 388 n. * (1976). In such instance, we treat an accused’s challenge on this issue as one directed to the sufficiency of the evidence, see Commonwealth v. Dussinger, 478 Pa. 182, 187, 386 A.2d 500, 502 (1978), which we are doing in the case at bar, since “[a] demurrer and a claim of insufficiency of the evidence differ only with respect to the stage of the proceedings at which they are raised.” Commonwealth v. Duncan, 473 Pa. 62, 66 n. 2, 373 A.2d 1051, 1052-53 n. 2 (1977). Accord Commonwealth v. Niemetz, 282 Pa.Super. 431, 436 n. 5, 422 A.2d 1369, 1371 n. 5 (1980).

      . It is to be noted that such standard of proof is now applicable to all the substances listed in subsection (iii) of Schedule II of the Drug Act; to-wit:
      “(iii) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances [is considered to be a controlled substance]:
      1. Amphetamine, its salts, optical isomers, and salts of its optical isomers.
      2. Phenmetrazine and its salts.
      3. Methylphenidate.

        4. Methamphetamine including its salts, isomers and salts of isomers.”
      (Emphasis added)
      35 P.S. § 780-104(2)(iii), as amended Nov. 26, 1978, P.L. 1392, No. 328, § 1, eff. in 60 days (Supp. 1981-82).