author: WATKINS, Judge:

text:
    454 A.2d 633
    COMMONWEALTH of Pennsylvania v. Daniel WESTERFER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1980.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied April 15, 1983.

      Brian S. Quinn, Havertown, for appellant.
    Frank Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case concerns the defendant-appellant’s appeal from his conviction by a jury of burglary, theft by unlawful taking and criminal conspiracy as to three separate incidents. The defendant requested a Motion in Arrest of Judgment which was denied by the court below. The defendant was sentenced to a prison term of four and one-half to twelve (4 & lk to 12) years.

On September 25, 1979, four private residences were burglarized in Radnor Township, Delaware County. The burglaries involved the theft of large amounts of personal property including television sets, jewelry, and silver flatware. A pry tool was used in each case to gain entry. Responding to the rash of burglaries, Sergeant Clement of the Lower Merion Township Police Department was assigned to the Villonova area to conduct surveillance for suspects in the burglaries.

At 6:00 P.M., on September 25, 1979, Sergeant Clement observed a white station wagon pass by his stakeout position. It was travelling slowly. The officer decided to follow the vehicle. In doing so he observed the defendant, a passenger in the vehicle, turn around and look at the officer’s vehicle. The defendant then made a shoving motion and crouched down in the station wagon. Clement then stopped the vehicle. While he was talking to its driver, Edmund Pienkos, who was standing outside the station wagon, he saw a large, portable television on its back seat. When Pienkos returned to the vehicle to search for his registration card the officer walked to the passenger side of the vehicle where he observed two packets of cigarettes (Kools and Salems) on the front seat and a green handled screw driver the tip of which had been cut into a “V-shape”, and a white cup containing silver coins and a gold necklace on the floor of the station wagon at the defendant’s feet. Sergeant Clement then called for assistance. The “back-up” officer noticed several screwdrivers in the vehicle. Defendant and Pienkos were then arrested. Pienkos made a statement to the police. Defendant made no statement.

It should also be noted that Pienkos gave the officer defendant’s address while they were talking. However, defendant gave the officer an address different than the one Pienkos gave. The officers also noticed a pillow case protruding from under the vehicle’s seat. It was found to contain items taken during the burglaries. In addition Salem cigarette butts were found at the scene of three of the burglaries.

Defendant’s first contention is that he was denied effective assistance of counsel at his trial. He claims that his trial counsel was ineffective because he failed to file a suppression motion demanding that the evidence found in the vehicle (the stolen goods) be suppressed as the product of an unlawful search and seizure. We do not agree as such a motion would have been meritless. The arresting officer had observed a slow-moving vehicle in a residential area shortly after having received a report of four burglaries in the area. While this did not give him probable cause to stop and search the vehicle, defendant’s subsequent actions in attempting to conceal something after noticing the officer did give him enough reason to take the limited action of stopping the vehicle. See Commonwealth v. DeJesus, 226 Pa.Superior Ct. 79, 310 A.2d 323 (1973). After he stopped the vehicle the officer noticed a large, table-model television set, jewelry, a gold necklace, and a burglary tool in plain view inside the vehicle. Because the officer was lawfully in the position that he was when he made these observations his noticing them was not unlawful. See Commonwealth v. Clelland, 227 Pa.Superior Ct. 384, 323 A.2d 60 (1974).

The suspicious actions of the defendant in attempting to conceal something in the station wagon after noticing the officer, his proximity in time and place to the scene of the burglaries and the description of the items stolen, when coupled with Sergeant Clement’s lawful observation of the contents of the vehicle, and the inconsistency in defendant’s and his partner’s statements to the officer justified the subsequent arrest of the defendant and the search of the vehicle. See Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972) [Cert. denied at 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972)]. Thus, we hold that defendant’s trial counsel was not ineffective for failing to file a suppression motion.

Defendant also contends that his trial counsel was ineffective for failing to request limiting instructions regarding the use of a prior inconsistent statement. Pienkos gave the police a statement incriminating both defendant and himself but later, after talking with defendant, changed his story and gave a statement exculpating defendant of any involvement in the crime. At trial Pienkos denied ever giving a statement inculpating defendant. He was then given an opportunity to refresh his recollection, but insisted that defendant was not involved in the crimes. The Commonwealth then introduced the testimony of two police officers to whom defendant had given the earlier statement inculpating defendant. Pienkos’ signed, written statement inculpating defendant was introduced into evidence at his trial. Defendant now argues that his attorney was ineffective because he failed to request that the jury be instructed to consider Pienkos’ prior, written statement for impeachment purposes only and not as substantive evidence. Defendant’s trial counsel was not ineffective for failing to request the instruction because valid trial strategy may well have been involved in failing to request the instruction as defendant’s trial counsel may have wanted to avoid dwelling on Pienkos’ prior inconsistent statement. Moreover, in Commonwealth v. Loar, 264 Pa.Superior Ct. 398, 399 A.2d 1110 (1979), this Court held that prior inconsistent statements could be used for substantive, as well as impeachment, purposes. In Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982) at 498 Pa. 38, 444 A.2d 656, our Supreme Court, in a footnote, refused the proposition that such statements may be used as substantive evidence. The defendant’s counsel could not be found ineffective for failing to anticipate the Supreme Court’s decision.

Defendant also argues that his counsel was ineffective for failing to request that closing arguments to the jury be recorded because said closing arguments were prejudicial to him. However, he fails to allege what remarks were prejudicial to him and, without a record of the closing argument, we cannot say that the closing arguments were prejudicial.

Next, the defendant argues that the court below erred in failing to discharge a prospective juror for cause because the prospective juror had been the victim of a burglary. The juror in question, Juror 135, was then subject to voir dire in camera. After first stating that his experience vis-a-vis the burglary would affect his judgment in the matter, the juror indicated that he could put aside his personal experience and decide the case on its merits and on the evidence produced at trial. Specifically the juror stated: “I mean I do see him (the defendant) being innocent until being found guilty. His case is a different one than mine.” The excusal of a juror for cause is a matter within the discretion of the trial judge. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). No abuse of that discretion occurred here.

Next, the defendant argues that the court below erred in permitting a policeman, Detective Robert Adams, to testify concerning the stolen property. The prosecutor had asked the following question: “What was the reason that your attempt to recover the unrecovered items failed?” A. “A phone call made by the defendant.” The defendant objected to the answer on the grounds that it required the witness to draw a conclusion without sufficient foundation. The objection was overruled and the defendant’s attorney then proceeded to cross-examine Adams about the phone call. Adams admitted that he didn’t hear what defendant said over the phone but that he was later told by Pienkos that it was Pienkos defendant had called and that he formed his opinion about the phone call from what Pienkos had told him. This was objected to as hearsay. However, subsequent to this Pienkos was called as a witness and was available for cross examination. So that portion of the answer, directed to the detective by defendant’s counsel, was not hearsay. Moreover, prior testimony indicated that Adams had investigated the burglaries, had attempted to recover the stolen property and was familiar with all aspects of the case. This knowledge, including the knowledge as to defendant’s phone call as related to him by Pienkos, enabled him to answer the question. We also note that it was defendant’s counsel who elicited the statements about the phone call which were made to the officer by Pienkos. Trial counsel cannot challenge the inadmissible nature of answers which he himself solicits. Commonwealth v. Payton, 253 Pa.Superior Ct. 422, 385 A.2d 410 (1978). Even if the question lacked the proper foundation when posed by the prosecutor, the defendant provided the necessary foundation for the answer during the cross-examination of the detective.

Judgment of sentence affirmed.

      . The Officer testified that such instruments served no legitimate purpose. Their use is confined to unhinging sliding doors and locks connected thereto.

      . Pienkos told Adams that the defendant told him to hide the stolen goods.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    454 A.2d 637
    A.M. SKIER AGENCY, INC. v. POCONO FUTURES, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed Dec. 30, 1982.
    Henry M. Biglan, Hop Bottom, for appellant.
    Stephen Bresset, Honesdale, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   PER CURIAM:

We are here asked to consider an appeal from the judgment entered in favor of appellee in the amount of $1,800.00, plus interest and costs, as a result of a verdict by a jury after a trial upon the claim of appellee for the commission due it as a real estate broker. We are unable, however, to conduct a meaningful appellate review for a number of reasons but for the very particular reason that the brief of appellant is inadequate. Therefore, we quash the appeal.

While counsel presented oral argument on behalf of appellant, the brief of appellant does not indicate that it is the effort of that counsel but rather that it is the work of the principal of appellant. In any event, the brief is not simply inadequate by reason of any failure of technical compliance. Rather, the brief is essentially defective for the reasons that none of the contentions of appellant are developed, that there is not a single citation of any authority and, while the summary of the argument is composed of twelve lines, the argument portion of the brief itself is less than fourteen lines.

We quash this appeal for the reason that the brief of appellant does not comply with the Pennsylvania Rules of Appellate Procedure. It should also be noted that, in addition, the record which appellant has provided for our examination is also inadequate at the least by reason of the absence of any transcript of the proceedings during which appellant claims error was committed and of the absence of an opinion of the Common Pleas Court.

It should be noted, however, that while we are unable to pursue adequate and meaningful appellate review of the claims of error, the study that can be provided would indicate that the contentions of appellant are totally without merit.

Pennsylvania Rule of Appellate Procedure No. 2101 provides:

Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed, (emphasis supplied).

See Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

The Pennsylvania Supreme Court in the opinion of the eminent Justice Robert N.C. Nix, Jr., declared in Tagnani v. Lew, 493 Pa. 371, 376, 426 A.2d 595, 597 (1981):

With the the volume and complexities of the matters coming to our judicial system for resolution, it has become imperative that the former paternalistic approach be discarded and a high degree of professionalism insisted upon. Our resources are not unlimited and must be utilized to provide the greatest good to the greatest number. To maximize our efficiency and to maintain and enhance the quality of our dispute resolution process, strict compliance with the procedures designed for issue preservation is essential.

That expression of the reasons for the need of professionalism is certainly applicable to this court as well.

Appeal quashed.


text:
    454 A.2d 638
    COMMONWEALTH of Pennsylvania v. John SPENCER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 1, 1981.
    Filed Dec. 30, 1982.

      Bruce A. Carsia, Pittsburgh, for appellant.
    Albert M. Nichols, District Attorney, Greensburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   PER CURIAM:

Appellant, John Spencer, was tried with a co-defendant before a judge and jury on two violations of the Controlled Substance, Drug, Device and Cosmetic Act and Conspiracy. He was found guilty on all counts. Post-trial motions were filed and denied and appellant was sentenced to a term of imprisonment from eleven and one-half to twenty-three months with sentence suspended on the conspiracy charge. This is an appeal from the judgments of sentence.

The evidence presented at trial established that on October 12, 1978, appellant, in cooperation with one Wayne R. Kapalka, sold approximately eight grams of seven per cent cocaine to undercover Pennsylvania State Trooper Robert Gallagher. Instrumental in the case was the participation of an informant, Alexis Bailey, who testified that she directed and accompanied the trooper to appellant’s home where the drug purchase occurred.

Appellant argues that his conviction should be reversed because the information filed against him was rubber-stamped with the name of the District Attorney of Westmoreland County and initialed by one of his assistants. Appellant asserts that this manner of approving an Information renders it void ab initio because it does not ensure that the District Attorney made a “reasoned evaluation of the advisability of instituting a criminal trial” prior to the filing of the Information, citing Commonwealth v. Belcher, 258 Pa.Superior Ct. 153, 392 A.2d 730 (1978). In Belcher, this court held a District Attorney’s failure to sign an information rendered it void because such failure was in derogation of Pa.R.Crim.P. 225(b) which requires the signature of the District Attorney on every information in order to guarantee its authenticity and reliability. Appellant in this case did not file a pre-trial motion to quash the information based on this defect. Nevertheless, in reliance on Belcher, he urges reversal even without such a motion.

Recently, our court reviewed the issue of whether failure of a District Attorney to comply with the signature requirement of Pa.R.Crim.P. 225 rendered the information void or voidable upon proper filing of a pre-trial motion to quash. In the en banc decision of Commonwealth v. Veneri and Thomas, J. 2396 & 2397/81, (1982), 306 Pa.Superior Ct. 396, 452 A.2d 784; this Court held that a defendant’s failure to file such a pre-trial motion constitutes a waiver of his right to assert in any subsequent proceeding the impropriety in the use of a rubber stamp facsimile of the signature of the District Attorney. Pa.R.Crim.P. 306(e). In deciding that the District Attorney’s signature requirement on the information of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash, this Court specifically overruled Belcher, supra. Therefore, because appellant did not raise the impropriety of the District Attorney’s signature in an appropriate pre-trial motion, we find he has waived this issue and we need not rule on the merits of his contention.

Appellant next argues that his Fifth Amendment due process rights to a fair trial were violated by certain responses made by the witness-informant Alexis Bailey to questions by the Assistant District Attorney regarding her role in the case against appellant. Appellant characterizes the following exchange as giving rise to conclusions in the jurors’ minds that appellant committed other crimes for which he was not then on trial.

Q. In this case were you a paid informant of the Pennsylvania State Police?
A. Yes, I was.
Q. In connection with what is the arrangement between yourself and the Pennsylvania State Police relative to payment?
A. I don’t understand your question.
Q. What did they pay you?
A. It varies upon I think depending upon the quantity of the stuff.
Q. In this case did you receive any promise of money or any money?
A. Not right away, no.
Q. At any time?
A. Yes.
Q. When, and how much?
A. I don’t recall how much because it was for a couple different events.

Almost immediately after this exchange, trial counsel for appellant’s co-defendant moved for a mistrial, which the trial court denied. The denial by a trial court of a motion for mistrial is to be reviewed by the abuse of discretion standard. Commonwealth v. Rodriguez, 291 Pa.Superior Ct. 239, 435 A.2d 888 (1981). Because we fail to perceive how the witness-informant’s testimony could impugn appellant in other criminal episodes in the eyes of the jury, we agree with the lower court’s exercise of discretion.

To warrant a characterization as prejudicial, testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense. Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978); Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973). Prior to the cited segment of testimony, the witness-informant was asked if she was indeed a paid informant of the Pennsylvania State Police. She answered, “Sometimes,” thus casting her assistance as an informant in a broader context than as relating only to the instant case. This face coupled with her unspecific reference to “a couple different events” does not lead a jury reasonably, either expressly or by implication, to infer that appellant engaged in prior criminal activity.

Therefore, for the above reasons, the judgment of sentence is affirmed.

      . 35 P.S. Sec. 780-113(a)(30); 18 Pa.C.S.A. § 903.

      . This procedure of rubber stamping and initialing has been found to be entirely proper if the Commonwealth satisfies this Court that the authority of the District Attorney’s designee to act on behalf of the District Attorney is on file in the office of the County Clerk of Courts. 42 Pa.C.S.A. § 893 l(i); Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981); Commonwealth v. Dupree, 290 Pa.Superior Ct. 202, 434 A.2d 201 (1981); Commonwealth v. Levenson, 282 Pa.Superior Ct. 406, 422 A.2d 1355 (1980). However, the record of the lower court proceedings does not reflect the required proof of the deputy District Attorney’s designation.

      . While the question of waiver has not been raised by the Commonwealth in its brief, this Court may address the issue sua sponte. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

      . The prohibition against such evidence of other crimes is clearly and repeatedly set forth in this Commonwealth. Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975).

      . Cf. Commonwealth v. Warner, 277 Pa.Superior Ct. 598, 419 A.2d 1312 (1980) (this Court found as too speculative appellant’s assertion that the fact of a defense witness’s occupation as a probation officer when the court inadvertently made it known to the jury warranted a mistrial because of inference of prior criminal activity); Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979) (plurality opinion) (detective's response that he knew that defendant's nickname “from other contacts with him” did not violate proscription against other crimes).


text:
    454 A.2d 640
    Thomas JACKSON and Sheridan Jackson, Appellants, v. Earlie SEGARS and John Goodson.
    Superior Court of Pennsylvania.
    Argued April 21, 1982.
    Filed Jan. 14, 1983.
    James L. Womer, Philadelphia, for appellants.
    Robert Land, Philadelphia, for appellees.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   PER CURIAM:

This is an appeal from an order dismissing a complaint for failure to file a certificate of readiness pursuant to the “240 Day Rule” and Philadelphia R.Civ.P. 151. Procedurally the posture of the proceedings in the court below is similar to that in Johnson v. Keystone Insurance Company, 299 Pa.Super. 187, 445 A.2d 517 (1982). There, as here, a hearing had been held before a Master, at which appellant attempted to show good cause for his failure to comply. However, there was no record of that hearing, and the Master did not file a report. A panel of this Court vacated the order dismissing the complaint and remanded so that the trial court could complete and clarify the record. See also: Sunbury v. Home Insurance Company, 303 Pa.Super. 407, 449 A.2d 752 (1982) and Brooks v. Schachtel, 303 Pa.Super. 408, 449 A.2d 752 (1982). For similar reasons, the order in the instant case is vacated, and the case is remanded for further proceedings. Jurisdiction is not retained.


author: ROWLEY, Judge:

text:
    454 A.2d 641
    COMMONWEALTH of Pennsylvania v. Ronald DANDAR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1982.
    Decided Jan. 7, 1983.

      Anthony Vardaro, Meadville, for appellant.
    John M. Dawson, First Assistant District Attorney, Mead-ville, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellant was convicted on November 11, 1976, of two counts of theft by deception and sentenced to one and one-half (IV2) to five (5) years imprisonment. Judgment of Sentence was affirmed on direct appeal in a per curiam order by an en banc panel of this court. Commonwealth v. Dandar, 267 Pa.Super. 623, 408 A.2d 534 (1979).

We will not even attempt to list the numerous petitions and appeals which appellant has filed with the Courts of Common Pleas, the Pennsylvania Appellate Courts and the Federal Courts during the last six years. The present appeal is from an order of January 16, 1980, denying appellant’s petition for relief under the Post-Conviction Hearing Act (PCHA) without hearing. Originally appellant was unrepresented, but on July 7, 1980, this court entered an order directing the PCHA court to appoint counsel to represent appellant. Present counsel was appointed on July 23, 1980.

Three issues are raised in this appeal: 1) Was trial counsel ineffective in failing to pursue appellant’s incompetence to stand trial in both his first and second trials?; 2) Did the trial held on November 10, 1976, place appellant twice in jeopardy? and 3) Should the PCHA court have held a hearing on appellant’s allegation concerning after-acquired evidence?

Appellant’s first trial began on September 24, 1976. However, his “bizarre” behavior during opening arguments raised serious doubts in the trial judge’s mind as to his competence to stand trial. Therefore, the court declared a mistrial and ordered a psychiatric examination. An hour after appellant was hospitalized, the court was advised by the psychiatrists that they could find no evidence of mental illness. In their opinion, appellant had been “putting on a show” and was competent to stand trial. The case was continued to the November term of court and trial began on November 10, 1976.

The argument that counsel was ineffective in failing to pursue appellant’s alleged incompetence, with respect to the September 24 trial, is patently frivolous. A mistrial was declared on the date for the very reason that appellant appeared to be incompetent.

With respect to the November 10 trial, the argument is likewise without merit. The record shows that counsel did in fact pursue the competency issue. Prior to that trial, he filed a petition seeking another psychiatric examination, which was denied. The competency issue was raised in post-trial motions and was thoroughly discussed in the trial court’s opinion of March 22, 1977, prior to appellant’s direct appeal.

Appellant next claims that the trial held on November 10, 1976, placed him twice in jeopardy. Appellant continues to maintain that on September 24, 1976, he was unable to understand the nature of the charges against him and was therefore incompetent to stand trial on that date. In spite of that fact, he goes on to argue that there was no “manifest necessity” for the court to declare a mistrial on that date. Therefore, according to appellant, he could not be retried on November 10. This argument is completely ridiculous and does not deserve discussion. Furthermore, the double jeopardy issue could have been raised at the time of the second trial. Since appellant has offered no explanation for his failure to raise this issue previously, it has been waived. 19 P.S. § 1180-4(b).

Appellant finally alleges to have in his possession information acquired after trial indicating he was mentally ill at the time of the crimes and/or trial. No mention was made in his petition or in his brief on appeal as to the nature of this “information”. We therefore conclude that appellant has failed to allege sufficient facts to warrant relief under the PCHA. See Commonwealth v. Ashley, 277 Pa.Super. 287, 419 A.2d 775 (1980); Commonwealth v. Oliver, 280 Pa.Super. 274, 421 A.2d 719 (1980).

Along with his PCHA petition, appellant also filed petitions for appointment of a psychiatrist and a physician to give expert testimony regarding appellant’s incompetence to stand trial in 1976. Such testimony would not constitute “after-acquired evidence”. Furthermore, as we have already pointed out, the issue of appellant’s competency was thoroughly explored at the time of trial.

All of appellant’s allegations are patently frivolous and contradicted by the record. The PCHA court was correct in denying his petition without a hearing. 19 P.S. § 1180-9.

Order affirmed.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed. Act of April 28, 1978, P.L. 202, No. 53, § 2(2) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.


author: HOFFMAN, Judge:

text:
    454 A.2d 643
    COMMONWEALTH of Pennsylvania v. William CANADA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1982.
    Decided Jan. 7, 1983.

      Gary R. Egoville, Assistant Public Defender, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends, inter alia, that the lower court erred in denying his motion to suppress evidence of prior convictions. Because we find that admission of this evidence effectively prevented appellant from testifying, we reverse and remand for a new trial.

Appellant was arrested on June 13, 1980 and charged with simple assault, burglary, criminal trespass, disorderly conduct, criminal conspiracy, criminal attempt, indecent assault, unlawful restraint, false imprisonment and corruption of children. At a preliminary hearing the prosecution withdrew the burglary charge, and the lower court dismissed the criminal trespass charge. Appellant’s pre-trial motion to suppress any use of his prior convictions was denied, and on November 7, 1980, appellant was found guilty by a jury of false imprisonment, criminal conspiracy, and indecent assault. Post-trial motions were denied and appellant received suspended sentences on each charge. This appeal followed.

Appellant contends that the lower court abused its discretion in denying his motion to suppress evidence of prior convictions, resulting in his failure to take the stand and present a defense. “Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions.” Commonwealth v. Bighum, 452 Pa. 554, 567, 307 A.2d 255, 263 (1973). “Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant’s veracity generally as a witness, it is important to limit the convictions so used to crimes involving dishonesty or false statement.” Id., 452 Pa. at 566, 307 A.2d at 262. Once it is established that the prior conviction was a crime involving veracity, the lower court “in making the determination as to the admissibility of a prior conviction for impeachment purposes ... should consider:”

(1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than .provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and (5) the existence of alternative means of attacking the defendant’s credibility.

Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978). “These factors were designed to limit the admission of this type of evidence to situations where its introduction was of essential evidentiary value to the prosecution and not reasonably unfair to the defense.” Id., 482 Pa. at 39, 393 A.2d at 367. Applying these criteria to the present case, we agree with appellant that the Commonwealth’s “need for this evidence” does not overcome “its inherent potential for prejudice.” Id., 482 Pa. at 41, 393 A.2d at 368; see Commonwealth v. Bobko, 453 Pa. 475, 480, 309 A.2d 576, 578-79 (1973). The convictions were five and eight years old. Testimony given by the alleged victim and her sister raises questions as to the voluntariness of the victim’s participation. The alleged victim testified that she accompanied her sister to purchase marijuana and then freely entered a dark, empty house to smoke the contraband with five men she did not know. She accompanied one of the men upstairs but became frightened and ran out of the house, only to voluntarily re-enter. She was then purportedly dragged to the basement and assaulted by three of the men. Of “critical importance” is “the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.” Commonwealth v. Bighum, supra, 452 Pa. at 567, 307 A.2d at 263. Here, the jury’s need to know appellant’s version of the events certainly outweighed the need to know of two remote convictions. Furthermore, the Commonwealth had the testimony of several witnesses including the victim, her sister, and a police officer who spoke with the victim directly after the incident, available to impeach appellant’s credibility. Finally, we cannot find that this “evidence was essential to the success of the prosecution,” Commonwealth v. Roots, supra, 482 Pa. at 42, 393 A.2d at 368, when the jury would have been presented with a clear case of a credibility determination after hearing the facts from both the appellant and the alleged victim.

Therefore, we find that the lower court abused its discretion in holding the evidence of appellant’s prior convictions admissible for impeachment purposes, thereby impeding appellant’s testifying. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

      . Robbery is a crime reflecting appellant’s veracity, Commonwealth v. Campbell, 244 Pa.Superior Ct. 505, 368 A.2d 1299 (1976) (aggravated robbery a crime involving serious moral turpitude).

      . Because of our disposition of this case, we need not address appellant’s remaining contentions.


text:
    454 A.2d 645
    Joseph CHIODO, Appellant, v. GARGLOFF & DOWNHAM TRUCKING COMPANY.
    Superior Court of Pennsylvania.
    Submitted April 12, 1982.
    Decided Jan. 7, 1983.

      Thomas L. Cooper, Pittsburgh, for appellant.
    Matthew R. Wimer, Pittsburgh, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

At noon on May 16, 1975, on a sunny day, when road conditions were dry, the appellant, Joseph Chiodo, was operating his 1967 Chevy, Nova station wagon on Saw Mill Run Boulevard in the City of Pittsburgh. His vehicle was the first to stop in the right hand lane for the traffic light at the juncture of South Main Street and Saw Mill Run Boulevard. Another automobile and a pick-up truck were stopped immediately to the rear of appellant’s vehicle in the same lane of traffic.

All three vehicles waited for a change in the light. Before the light changed, however, an eighteen-wheel tractor-trailer unit operated by Bruce Ezra, while acting within the scope of his employment with the appellee, slammed into the rear of the pick-up truck causing a chain reaction of impacts and pushing the appellant’s station wagon into the center of the intersection.

As a result of the accident, the appellant’s vehicle was damaged in excess of its fair market value. Furthermore, the appellant sustained injury to his head, neck and back which required medical treatment on a regular basis for a period in excess of one year and which prevented him from returning to work for approximately 15 months following the accident.

The appellee’s driver was transporting a load of food at the time of the accident. In spite of checking the braking system on both the tractor and trailer at the beginning of his run at Logansport, Indiana, and finding it to perform soundly, the appellee’s driver began to experience braking problems while descending the Parkway West in Pittsburgh, two or three miles prior to the scene of the accident.

As a result of the accident and injuries sustained therein, the appellant filed a trespass complaint in the Court of Common Pleas of Allegheny County on June 30, 1975. Following a trial by jury, a verdict was returned in favor of the appellee on September 25, 1979. A Motion for a New Trial was filed and subsequently denied. This appeal is taken from the Order denying the new trial and entry of judgment.

The appellant argues that the verdict was clearly against the weight of the evidence. He specifically alleges that the indisputable rear-end collision was “extremely strong evidence of negligence” and that the appellee failed to carry its burden of proving the defense of the “sudden emergency” doctrine rendering the court’s jury instruction on the “sudden emergency” doctrine improper. We agree in part, and thereby reverse and remand for a new trial.

The “sudden emergency” doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately. Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 409 A.2d 37 (1979); Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978). The doctrine is successfully applied as a defense where the defendant proves that he did not create the emergency, Westerman v. Stout, 232 Pa.Super. 195, 335 A.2d 741 (1975); Toff v. Rohde, 208 Pa.Super. 411, 222 A.2d 434 (1966), and where he responded in a reasonable fashion. Westerman, supra; Johnson v. Pennsylvania Railroad Company, 399 Pa. 436, 160 A.2d 694 (1960). The party confronting the peril simply is not expected to exercise that same degree of care mandated by normal and foreseeable circumstances. In fact, he is not required to exercise the highest or even an ordinary degree of judgment; therefore, he will not be responsible for any mistake of judgment in extricating himself from the impending dangerous situation.

In Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978), the plaintiff was a rear seat passenger in an automobile operated by the defendant. The defendant was traveling at a lawful rate of speed when he encountered a curve, applied the brakes and slid on gravel forcing his vehicle off the road, through a barbed wire fence and toward a frontal impact with a tree. On appeal in Brown, supra, the plaintiff argued that the Court erred in instructing the jury on the “sudden emergency” doctrine because the instruction tarnished the jury’s understanding and consideration of whether the defendant violated the “assured clear distance ahead” rule.

At the outset of its analysis, the Brown court considered the role that both rules play. The “assured clear distance ahead” rule requires that a driver operate his vehicle in such a fashion that he is always able to stop within the distance he can clearly see. Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960). Where, however, a sudden emergency arises inside this range, then the “assured clear distance ahead” rule is inapplicable. Hollern v. Verhovsek, 220 Pa.Super. 343, 287 A.2d 145 (1971). The Brown court, citing Unangst v. Whitehouse, 235 Pa.Super. 458, 344 A.2d 695 (1975), concluded that the “assured clear distance ahead” rule applied to those situations where the defendant’s vehicle was approaching a stationary object, whereas the “sudden emergency” doctrine applied to objects that were unforeseeably thrust into the driver’s path. In accordance with this guideline, the Brown court held that the gravel was a stationary object dictating application of the “assured clear distance ahead” rule; hence, the lower court was reversed for having erred in instructing the jury on the “sudden emergency” doctrine. The same result was reached in Hanlon v. Sorenson, 289 Pa.Super. 268, 433 A.2d 60 (1981).

The lower court here properly instructed the jury on the “assured clear distance ahead” rule; no objects were suddenly and unexpectedly thrust in front of the appellee’s vehicle thereby compelling him to react to the appellant’s detriment. The “sudden emergency” doctrine was not designed for the purpose of aiding the operator of a vehicle developing unforeseen defective mechanisms. These defects were not those types of unforeseen occurrences contemplated by the “sudden emergency” doctrine. Whether these defects are attributed to any negligence on the appellee’s part is determined by regular standards of duty of care and breach thereof.

Order denying post trial motions is reversed; judgment is reversed, and a new trial ordered.


text:
    454 A.2d 647
    Sherry HILL, George Hill and Mary Hill, Appellants, v. William M. CRAWFORD.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1982.
    Decided Jan. 7, 1983.

      Alan L. Carb, Pittsburgh, for appellants.
    Daniel Paul Carroll, Pittsburgh, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   PER CURIAM:

Appellants, Sherry Hill and her parents, George Hill and Mary Hill, have appealed the Order of the Court of Common Pleas of Allegheny County, sitting en banc, dated October 20, 1980, which refused to remove a compulsory non-suit, which had been entered by the trial judge at the close of appellants’ case.

For the purpose of our review, we will view the evidence in the light most favorable to appellants, giving them the benefit of every fact and every reasonable inference of fact arising from the evidence, thereby resolving any conflicts in their favor. Deaver v. Miller, 260 Pa.Super. 173, 393 A.2d 1209 (1978); Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970).

On March 5, 1975, Sherry Hill, who was then 17 years old, and three of her friends were on their way home from school when they were offered a ride by appellee William M. Crawford in his pick-up truck. The three friends crowded into the cab of the truck, but Miss Hill refused to ride inside since one of the other girls would have had to sit on her lap. Crawford instructed her on how to ride on the running board by placing one hand on the tire brakcet and one hand inside the cab. Accordingly, she stood on the running board on the driver’s side of the truck. Crawford then proceeded to drive the truck up a steep, rough, narrow road. He admitted that he was travelling at approximately 20 m.p.h. He also admitted that he may have been going faster. Crawford was not sure whether he shifted gears. Crawford then started to turn right into a side street at which time Sherry Hill fell from the truck. Although the testimony was conflicting, the jury could find that he did not slow down as he made the turn and that the truck finally stopped partially on the wrong side of the street into which it was turning.

The present cause of action arose prior to the enactment of Pennsylvania’s Comparative Negligence Statute, Act of July 9, 1976, P.L. 855 No. 152, as amended, 42 Pa.C.S.A. Section 7102. The lower court concluded that Miss Hill, who was a licensed driver, by voluntarily riding on the running board of the truck in violation of the statute, 75 P.S. Section 1024 (superseded), was contributorially negligent as a matter of law, and that she was totally barred from recovery. D’Ambrosio v. Philadelphia, 354 Pa. 403, 47 A.2d 256 (1946). Appellants contend that she was not contributorily negligent as a matter of law since she was not a trespasser, but a guest of the driver. DiGiuseppe v. Hrivnak, 859 Pa. 408, 59 A.2d 164 (1948); Mount v. Bulifant, 438 Pa. 265, 265 A.2d 627 (1970); Harris v. Seiavitch, 336 Pa. 294, 9 A.2d 375 (1939).

We agree with the lower court that Miss Hill’s conduct constitutes contributory negligence per se. However, under the circumstances of this case, we do not agree that her contributory negligence operates to bar her recovery, as a matter of law.

It is undisputed that Crawford was aware that Miss Hill was riding on the running board on the driver’s side of the truck. Of course, Crawford also violated a statute, 75 P.S. Section 1024 (superseded), by permitting her ride on the running board. The question which the jury must decide is whether Crawford’s conduct in driving up the hill and making the right hand turn into the side street is of such a nature as to remove the bar of plaintiff’s contributory negligence. The jury could so find for the plaintiff if it decides either that plaintiff’s injury was proximately caused by the willful or wanton misconduct of Crawford (reckless disregard of plaintiff’s safety) Mount, supra, 265 A.2d at 630; Williams v. Philadelphia Transportation Company, 219 Pa.Super. 134, 137, 280 A.2d 612, 614 (1971); or that Crawford had the last clear chance to avoid injuring plaintiff, who was in a known position of peril; Lehman v. McCleary, 229 Pa.Super. 508, 329 A.2d 862, 864 (1974); Restatement of Torts (Second), Section 479; Polhemus v. Water Island, Inc., 252 F.2d 924, 927 (C.A. 3, 1958).

The appellants presented sufficient evidence for the jury to decide these questions.

Order Reversed and remanded to the jurisdiction of the lower court for further proceedings consistent with this Opinion.


author: CIRILLO, Judge:

text:
    454 A.2d 1012
    Maria Bianco BALDINO and Raymond Baldino v. Armand CASTAGNA, M.D., Cibageigy Corporation and Morris Park Pharmacy. Appeal of Maria Bianco BALDINO.
    Superior Court of Pennsylvania.
    Argued June 3, 1982.
    Filed Nov. 19, 1982.
    Reargument Denied Feb. 3, 1983.
    Petition for Allowance of Appeal Granted June 2, 1983.

      Tom P. Monteverde, Philadelphia, for appellant.
    Sidney L. Wickenhaver, Philadelphia, for Ciba-Geigy, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Maria Bianco Baldino (appellant) appeals from a judgment entered in favor of appellee Ciba-Geigy Corporation (Ciba). The facts which gave rise to the instant appeal are as follows.

On November 27, 1973, appellant consulted Dr. Armand Castagna, a general practitioner, for treatment of lower back pain. After a brief examination, Dr. Castagna diagnosed her condition as an inflamed coccyx and prescribed Butazolidin-Alka (Butazolidin), a drug manufactured by Ciba. Appellant took the prescribed dosage for ten days and obtained relief. The pain re-occurred, however, and appellant telephoned Dr. Castagna and requested a prescription refill. The refill was granted over the telephone without any additional examination of appellant.

In January, 1974, appellant consulted Dr. Herbert Lipkin, complaining of fatigue, sore throat, swollen glands and bruising. These symptoms are consistent with developing aplastic anemia which can be caused by Butazolidin treatment. Appellant did not inform Dr. Lipkin that she had taken this drug, however, because she was not aware of the significance of these symptoms. She was treated for a respiratory infection, but when her symptoms did not abate, Dr. Lipkin ordered blood tests. The results showed an abnormally low level of hemoglobin. Appellant was immediately admitted to the hospital and remained there for eleven days. During that time, her condition was diagnosed as aplastic anemia caused by Butazolidin.

Subsequently, appellant has had to receive blood transfusions every two months and consume male hormones which have deepened her voice and caused unsightly body hair. She has been ordered not to become pregnant because she does not have enough blood to support herself, and it would be fatal to her if she carried a child. Appellant has an 80% chance of dying from aplastic anemia. Appellant and her husband instituted the present action against Dr. Castagna,

Ciba and Morris Park Pharmacy. After a fifteen day jury trial, the jury found the following:

1. Butazolidin was a substantial factor in causing appellant to contract aplastic anemia;
2. Dr. Castagna was negligent in prescribing Butazolidin for appellant, or in failing to advise her to report any symptoms or side effects to him, or failing to comply with the prevailing medical standards for prescribing the drug;
3. Ciba did not negligently market the drug in such a way as to encourage physicians to prescribe it in instances where it was not medically appropriate, and Ciba did not negligently encourage physicians to prescribe Butazolidin without taking proper precautions.

After appellant’s post-verdict motions were denied, she filed the instant appeal.

Appellant’s first contention on appeal is that the verdict in favor of Ciba was against the weight of the evidence and, as such, the lower court erred in denying her motion for a new trial. The law regarding appellate review of the grant or denial of a new trial on the ground that a verdict is against the weight of the evidence is well established in this Commonwealth:

[T]he decision to either grant or deny a motion for a new trial is within the sound discretion of the trial court and will be reversed on appeal only if the trial court palpably abused its discretion... [A] new trial should only be granted where the verdict is so contrary to the evidence as to shock one’s sense of justice [and] ... not where the evidence is conflicting and the jury might have found for either party, nor where the trial judge might have reached a different conclusion on the same facts, (citations omitted).

Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980). See also, Peair v. Home Association of Enola, 287 Pa.Super. 400, 430 A.2d 665 (1981); Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa.Super. 84, 428 A.2d 583 (1981). In determining whether a verdict is against the weight of the evidence, we must consider all the evidence, Ditz v. Marshall, 259 Pa.Super. 31, 393 A.2d 701 (1978), and not merely the evidence in the light most favorable to the verdict winner. If a court finds that the verdict is so greatly against the weight of the evidence as to shock the judicial conscience, it has the duty to disagree with the jury and to overturn its verdict, no matter how many new trials need be had in order to insure that justice is done. Weaver v. Firestone Tire and Rubber Co., 267 Pa.Super. 548, 407 A.2d 45 (1979).

During the lengthy trial, it was established that Butazolidin is the brand name of a prescription drug, the generic name of which is phenylbutazone. Ciba has manufactured and marketed this drug since 1952. It is an anti-inflammatory medication used in the treatment of certain arthritic and rheumatic diseases. It does not attack the disease process itself, but rather, it provides symptomatic relief by reducing swelling and inflammation and alleviating the pain associated with these symptoms.

The principal medium for informing the medical profession about the nature and characteristics of prescription drugs is material published each year in the Physicians Desk Reference (PDR), which all doctors receive free of charge. The same information is provided in inserts furnished with each package of a drug supplied by the manufacturer. The contents of this prescribing information are closely regulated by the Federal Food and Drug Administration (FDA). In 1971, two years before Butazolidin was prescribed for appellant, the FDA required Ciba to modify its prescribing information for the drug and to include a new section on “warnings” which referred, for the first time, to “serious, even fatal blood dyscrasias,” (aplastic anemia is a form of this disease), and added over thirty entries to the list of adverse reactions.

Appellant attempted to show that the printed warnings which contained this information were, in effect, counteracted by the promotional and marketing methods Ciba employed to increase sales of Butazolidin. In marketing this drug, Ciba utilized promotional tactics common to the drug industry. These methods included the use of salesmen, known in the trade as detailmen, who visited physicians at regular intervals throughout the year. Ciba also published advertisements and articles in professional journals and corresponded with physicians through the mail.

Appellant introduced evidence to prove that Ciba’s marketing methods were geared to lead physicians to believe that Butazolidin was safe for short-term use and that prior testing of a patient’s blood to determine his propensity for blood dyscrasias was unnecessary in such a case. Four physicians who testified stated that the detailmen had made such representations to them. One of these physicians, Dr. Lipkin, stated that the detailmen informed him that if adverse side effects occurred, that they would disappear upon cessation of the drug. A host of exhibits in the form of advertisements, and an article published by Ciba were introduced into evidence in support of this testimony. The advertisements carried the slogan, “If it doesn’t work in a week, forget it!”, implying that Butazolidin was safe for short-term use. While warnings were published in these multi-paged advertisements, they were left to the last page and were printed in miniscule type.

Additionally, during the trial, it was established that since Butazolidin afforded only symptomatic relief, yet had the potential to cause adverse side effects, that the FDA had limited the conditions for which Ciba could promote the drug. Appellant introduced testimonial and documentary evidence which showed that in 1973, the drug was being widely prescribed by general practitioners for conditions not provided for in the prescribing information, in an effort to prove that Ciba was encouraging physicians to ignore the warnings and prescribe the drug for general inflammatory conditions, without first trying other treatment, such as aspirin or other pain relievers. Appellant also produced documentary and testimonial evidence to the effect that in 1973 doctors were not being informed of the changes which had been made in the prescribing information in 1971. Appellant also attempted to show that the detailmen were an effective medium for conveying this information but, upon instructions from Ciba, the detailmen were not permitted to discuss this with doctors and were told to give evasive answers when doctors posed questions on side effects or the toxicity of the drug. Finally, appellant introduced documentary evidence which showed that despite the stronger warnings published in the prescribing information starting in 1971, that sales of Butazolidin increased steadily to the point where it became Ciba’s number one seller, and that Ciba’s advertising budget increased correspondingly with the rise in sales.

Ciba produced little evidence on the issue of whether it had negligently overpromoted Butazolidin. Two detailmen, who worked for Ciba in 1973, testified that they never told physicians that the drug was safe for short-term use and that they had informed physicians of both the 1971 changes made in the prescribing information and of adverse side effects associated with Butazolidin use. This testimony was contradicted by material printed in the training manuals which Ciba gave these detailmen. In these manuals, the detailmen were instructed not to tell physicians of the changes made in the prescribing information. Rather, they were instructed to leave “file cards”, actually multi-page booklets which contained the new prescribing information and to “suggest” that the doctor review it at his convenience. When leaving these file cards, the detailmen were specifically instructed to tell physicians that the relationship between the adverse reactions mentioned in the file cards and Butazolidin had not been conclusively established. Moreover, Ciba admitted that its detailmen were never provided with journal articles or reports on the topic of blood dyscrasias associated with the use of Butazolidin.

Ciba’s training manuals also contained hypothetical questions from doctors and suggested responses for the detail-men. One such scenario is as follows:

Doctor: I don’t use Butazolidin, it is too toxic.
[Suggested Response:] Doctor, with Butazolidin-Alka, usually you get a response in three or four days and in many cases, you wouldn’t have to use the drug for more than a week.

In none of the training manuals was it even intimated that the detailmen inform physicians of the importance of performing blood tests before prescribing the drug.

Mr. 0. Darrell Hayes, Ciba’s Vice-President of Sales, attempted to explain the discrepancy between the detail-men’s testimony and the material contained in Ciba’s training manuals. He testified that whenever a doctor had a question regarding Butazolidin’s toxicity, or adverse reactions that could result from its use, the detailmen forwarded the inquiries to Ciba who then addressed the physician’s concerns. The following letter, dated November 8, 1973, is but one example of the manner in which Ciba responded to such inquiries:

Our sales representative, ... has indicated your interest in documented cases of aplastic anemia associated with short-term (7-10 days) usage of Butazolidin alka.
During the treatment of individuals with Butazolidin alka, there have been reports of aplastic anemia, but their association with short vs long-term therapy has not been established. We are attempting to research this aspect and, therefore, require careful reporting and documentation of such cases. We would be interested to know if you have such a patient, and if so, please indicate the situation so that we are able to give you the necessary additional information you may require.

Other examples of correspondence obtained from Ciba’s files contained the same type of evasive, non-responsive replies.

Ciba also produced as witnesses two specialists who practiced rheumatology who testified that they were not misled by the prescribing information or by the representations made by the detailmen, regarding the safety of the drug for short-term use or for conditions for which its use had not been approved by the FDA. One of them testified, however, that he read a great deal on the drug because he prescribed it often in his specialized practice. Unlike appellant, Ciba offered no general practitioners as witnesses on this issue.

Ciba also disputed appellant’s contention that Butazolidin was commonly prescribed for conditions for which its use had not been approved by the FDA. However, a situation analysis summary that Ciba prepared showed that in 1972, 33.9% of all the Butazolidin sold had been prescribed to treat conditions for which the promotion of the drug had not been approved by the FDA.

It is clear to this court, after a thorough review of the entire record, including the notes of testimony, that the evidence appellant produced was either not contradicted by Ciba, or was corroborated by material obtained from Ciba’s files. As such, we find that the verdict in favor of Ciba was against the weight of the evidence. The judgment in favor of Ciba is, therefore, reversed and the case is remanded for a new trial.

Appellant’s second contention is that the trial court improperly restricted the evidence she was permitted to introduce with respect to Ciba’s overpromotion of Butazolidin, and adverse reactions to the drug. In the instant case, appellant was not permitted to introduce documentary evidence on these matters which pre-dated November, 1968, which was five years before Butazolidin was prescribed for her. Appellant maintains that she should have been allowed to introduce supplemental evidence on these matters for the years 1952 through 1967, an additional sixteen-year period. We disagree with this assertion. The introduction of evidence is controlled by the trial court, and its decisions in this regard will not be reversed on appeal absent an abuse of discretion. Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977). The exclusion of arguably relevant evidence is not erroneous where the admission of that evidence would serve to confuse or mislead the jury. Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). In the instant case, it was incumbent on the trial judge to place reasonable limits on the evidence to be presented. Even with the restrictions appellant complains of, the trial lasted for fifteen working days and produced five volumes of testimony in addition to a large amount of trial exhibits.

The trial court was flexible in permitting appellant to introduce pre-1968 evidence when it was necessary to do so in order to prove a point for which post-1968 evidence would have been inadequate. For example, appellant was allowed to introduce evidence of adverse reactions to Butazolidin for the years 1952 through 1973. It is clear, however, that the evidence that appellant argues it was error to exclude was merely cumulative to the evidence it was permitted to introduce at the trial. It is not error for a trial court to preclude a party from introducing evidence at a trial where that party has already introduced similar evidence of the same facts. Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973). Therefore, the trial court did not err in restricting appellant’s evidence in the instant case to a reasonable period of time. Compare, Lambert v. Durallium Products Corp., 364 Pa. 284, 72 A.2d 66 (1950) (exclusion of evidence which might have affected the verdict was error); Fox v. Cox, 195 Pa.Super. 119, 169 A.2d 345 (1961) (error to exclude evidence which would establish a defense to action). See also, Commonwealth ex rel. Amoroso v. Amoroso, 212 Pa.Super. 94, 239 A.2d 878 (1978).

Appellant’s third contention is that the trial court erred in refusing to admit into evidence a 1955 article published in the New England Medical Journal in which Ciba was criticized for overpromoting Butazolidin. We find this argument to be without merit for the reasons stated above and, also, because of the remoteness of this evidence. It is well established that questions of remoteness of evidence are properly vested in the trial court and its decisions in this regard will not be reversed on appeal absent a clear abuse of discretion. Tolentino v. Bailey, 230 Pa.Super. 8, 326 A.2d 920 (1974). The article which appellant claims was erroneously excluded from evidence criticized Ciba for promotional practices which were in effect more than eighteen years before Butazolidin was prescribed for her. Under these circumstances, we cannot say that the trial court committed an abuse of discretion in refusing to admit this article into evidence.

Appellant’s fourth contention is that the trial court erred in refusing to allow Drs. Lipkin and Castagna to testify that they changed their procedures for prescribing Butazolidin after they learned that appellant had contracted aplastic anemia. Appellant relies on Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) in support of this assertion. Incollingo held that evidence of post-accident precautions is admissible for purposes other than proving a defendant’s antecedent negligence so long as its use is qualified by proper jury instructions. Appellant argues that under this rule of law, her proffered testimony was admissible to show that the doctors had been misled by the detailmen and, had they been warned of the potential side effects of Butazolidin, they would have adjusted their prescribing practices accordingly. The admissibility of this type of evidence, however, was not contemplated in Incollingo. In that case, the Pennsylvania Supreme Court held that subsequent warnings of a drug manufacturer were properly admitted into evidence to show that it would not have been burdensome for the company to provide these warnings at an earlier time. In the instant case, the proffered testimony would have had no bearing on Ciba’s actions with respect to its duty to warn doctors about the adverse side effects of Butazolidin.

Moreover, Drs. Lipkin and Castagna had already testified that the detailmen had misled them by misrepresenting the safety of Butazolidin for short-term use. As such, the proffered testimony on what they would have done had they been informed of the possibility of side effects was merely corroborative of their earlier testimony on this issue. As a general rule, prior declarations of a witness which are consistent with his in-court testimony are admissible to corroborate this testimony only where it is alleged that the in-court testimony has been recently fabricated, or that the witness is testifying from corrupt motives. Commonwealth v. Hutchinson, 269 Pa.Super. 24, 409 A.2d 45 (1979). The decision of whether to admit such corroborative testimony lies within the sound discretion of the trial judge. Commonwealth v. Gore, 262 Pa.Super. 540, 396 A.2d 1302 (1978). In the instant case, there was no allegation of recent fabrication or corrupt motive on the part of the doctors. Therefore, the trial judge did not err in refusing to allow the doctors to testify that they altered their prescribing practices after learning that appellant contracted aplastic anemia.

Appellant’s fifth contention is that the trial court erroneously allowed Ciba to introduce hearsay into evidence. This allegation involves the testimony of two Ciba witnesses who offered explanations of documents and graphs contained in Ciba’s files.

The first witness, Dr. Martin A. Sternberg, Associate Director of Medical Services for Ciba since 1974, was permitted to testify as to the company’s dealings with the FDA from the time Butazolidin was first introduced on the market in 1952, until the time of the trial. The second witness, Mr. Richard Hartman, Ciba’s Senior Medical Research Associate, was allowed to testify about two graphs which were prepared at his request by Ciba employees prior to the institution of the present action. These graphs showed the trend of the ratio of adverse reactions to sales of Butazolidin for the years 1952 through 1972. This evidence was offered by Ciba on the issue of its duty to provide adequate warnings to doctors, in an attempt to show that when Ciba made its marketing decisions, it was operating under the belief that Butazolidin was safe and effective.

Ciba offered this evidence to rebut similar evidence appellant produced earlier in the trial. Appellant’s evidence, which had also consisted of documents obtained from Ciba’s files, was intended to show that when Ciba made its marketing decisions, it did not give due consideration to information it possessed regarding adverse reactions that could be caused by Butazolidin treatment.

Hearsay evidence is defined as in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion. Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 240 A.2d 71 (1968); Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976). Such evidence is inadmissible unless it falls within an exception to the hearsay rule. See, In re Gillen, 236 Pa.Super. 521, 344 A.2d 706 (1975). In the instant case, however, it is clear that the testimony of Dr. Sternberg and Mr. Hartman was not offered to establish the accuracy of the documents they discussed while on the witness stand. Their testimony was offered solely to determine whether Ciba ignored information that it possessed regarding adverse reactions to Butazolidin when it formulated its plans for marketing the drug. As such, the testimony was not hearsay and was admissible on the issue of whether Ciba breached its duty to exercise reasonable care in providing warnings about the potential adverse side effects of Butazolidin. See, Webb v. Fuller Brush Co., 378 F.2d 500 (3rd Cir.1967); Mawn v. Civil Service Commission, 17 Pa.Commw. 9, 330 A.2d 271 (1975). Therefore, the trial court did not err in admitting this testimony into evidence.

Appellant’s final contention is that the lower court erred in reading, as submitted, Ciba’s proposed point for charge number nine, which dealt with the law of negligence per se. The challenged point reads as follows:

All prescribing information for a prescription drug must be approved by the Federal Food and Drug Administration in accordance with the Federal Food and Drug Act. Such prescribing information for Butazolidin-Alka is contained in the PDR, package inserts, and other printed materials, [and] includes among other things, warnings as to adverse reactions and warnings as to its use. You may consider the FDA’s approval of such printed material as evidence that the warnings given by the defendant Ciba-Geigy Corporation in connection with this drug were adequate.

Appellant does not contend that this statement is incorrect as a matter of law but, rather, asserts that standing alone, the point could be construed as implying that the FDA’s approval of the prescribing information established the adequacy of the warnings given. It is axiomatic that, in reviewing the adequacy of the jury charge, we must view the charge in its entirety. McKay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972). The primary function of a charge is to clarify the issues so that the jury may comprehend the issues they are to decide. Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). This court will not reverse on the basis that a portion of a jury charge is misleading if, taken in its entirety, the charge correctly states the applicable law. McAvenue v. Bryn Mawr Hospital, 245 Pa.Super. 507, 369 A.2d 743 (1976).

Reviewing the charge in its entirety, we find that it correctly stated the applicable law. While compliance with a law or regulation relieves the actor from liability under a theory of negligence per se, it does not establish, as a matter of law, that the actor exercised reasonable care. Berkebile v. Brantly Helicoptor Corp., 219 Pa.Super. 479, 281 A.2d 707 (1971). In the instant case, the jury was informed that they could find Ciba negligent regardless of whether they found that the prescribing information for Butazolidin complied with the FDA’s regulations. Therefore, appellant’s contention that the jury was misled by the charge in the instant case is without merit.

Judgment reversed and case remanded.

JOHNSON, J., concurs in the result.

      . Appellant consumed a total of thirty-three Butazolidin capsules over an eleven-day period.

      . The jury also returned a verdict in favor of Morris Park Pharmacy. Appellant does not challenge the propriety of this verdict on appeal.

      . The fact that Butazolidin is capable of causing adverse reactions, including aplastic anemia, was established in the instant case by articles and studies appellant obtained from Ciba’s files and by other sources. We also note that the jury reached this conclusion in returning a verdict in favor of appellant against Dr. Castagna.

      . Dr. Lipkin also testified that due to the detailmen’s representation of the drug's safety for short-term use, he prescribed it for relatives, including his wife and mother, without conducting preliminary blood tests.

      . The opening pages of these file cards also reinforced the notion that Butazolidin was safe for short-term use. For example, a booklet similar to the one given to Dr. Castagna in 1973 provided the following information on the first page:
      PROMPT ANTI-INFLAMMATORY EFFECTIVENESS
      Action usually evident within three or four days. Helps relieve pain and stiffness. Helps increase joint mobility.
      SHORT TRIAL PERIOD
      Only seven days. You don’t wait a month for results—neither does your patient.
      These booklets did contain information on adverse reactions, but it was printed in small type on the latter pages of the booklets.

      . There were other contradictions in the evidence that Ciba presented at the trial. One Ciba witness contended that the detailmen gave physicians adequate information on adverse reactions. Another Ciba witness stated that the detailmen were not qualified to discuss this matter with physicians. Ciba’s National Sales Manager indicated, however, that the company only employed detailmen who possessed impressive qualifications. He testified that in 1973, "99%” of Ciba’s detailmen were college graduates, that the "vast majority” had educations which included a background in the biological sciences, and that a “great number" were pharmacists.

      . The record contains a table which Ciba prepared, dated November 8, 1971, which reports cases of adverse reactions associated with phenylbutazone, the generic name for Butazolidin, dating from 1952. This table contained information on incidents of aplastic anemia associated with short-term use of this drug.

      . For example, in response to an inquiry from a physician, dated 1973, requesting information on the incidence of blood dyscrasias associated with Butazolidin treatment, Ciba cited a report from 1967 in which blood dyscrasias was reported at a rate of three cases per one million patients. Ciba concluded its letter to the physician with the statement, "... our blood dyscrasias incidents figures are quite low.” Ciba offered no explanation as to why it responded to an inquiry from a physician with data that was six years old. Reports from 1971, 1972 and 1973 dealing with the subject matter of the physician’s inquiry, were contained in Ciba’s files.


author: HESTER, Judge:

text:
    454 A.2d 1020
    COMMONWEALTH of Pennsylvania v. John Guy CARELLI, Jr., and Kathleen M. Carelli, Appellants.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed Nov. 30, 1982.
    Reargument Denied Feb. 11, 1983.
    Petition for Allowance of Appeal Denied June 21, 1983.

      Allen N. Brunwasser, Pittsburgh, for appellants.
    David L. Cook, District Attorney, Butler, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This appeal arises from a guilty plea entered into by appellants in the Court of Common Pleas of Butler County on September 18, 1980, and the subsequent denial by that court of appellants’ Petition to Withdraw said pleas.

A procedural and factual history of the case is as follows.

On January 17, 1980, a search warrant was issued for appellants’ residence for the purpose of searching for various items of furniture stolen from Mr. John E. George of North American Van Lines. Upon arriving at the appellants’ residence, the Cranberry Township police officers were admitted by appellant Kathleen Corelli. They immediately informed her that they had a search warrant for the premises. Two officers, upon a brief search of the game-room and garage area, located one vehicle that had been entirely stripped, five license plates, and various auto parts. The officers ran a check on the license plates which resulted in the finding that all the plates had been registered as stolen. With this information, the officers returned to the magistrate’s office to obtain a second warrant in order to search the appellants’ residence for stolen motor vehicle parts. Upon issuance of this second warrant, the officers returned to the appellants’ premises and located eight stolen vehicles. It required days to inventory the stolen motor vehicle parts located in appellants’ premises. The estimated value of the stolen property totalled one hundred fifty thousand ($150,000.00) dollars.

As a result of this investigation, the following charges were brought against appellants on January 18, 1980: 1) possessing instruments of crime , receiving stolen property (9 counts), removal or falsification of identification number (8 counts), and dealing in vehicles with removed or falsified numbers (8 counts). Appellant, John Guy Carelli, Jr., additionally was charged with burglary and theft by unlawful taking or disposition.

Subsequently, on March 28, 1980, the date set for their preliminary hearings, the appellants waived their cases to court. Appellants’ cases were consolidated for trial and trial was set for June 20, 1980. However, appellants’ second counsel filed a Motion for Continuance requesting that the court continue the case to the September term of court. Appellants individually executed sworn written waivers of their Rule 1100 rights, and these were incorporated into the continuance motion.

On June 16, 1980, appellants’ motion was granted. On the first day of trial, appellants entered into a plea agreement and a guilty plea colloquy was conducted on September 18, 1980. Under the plea agreement, appellant Kathleen Carelli pled guilty to one count of receiving stolen property in exchange for a one year probationary term while her husband pled guilty to nine counts of receiving stolen property for terms of three to seven years imprisonment, said terms to run concurrently. Sentencing was scheduled for November 6, 1980.

On November 3, 1980, appellants third counsel filed a Petition to Withdraw Pleas of Guilty and for Pa.R.Crim.P. 1100(a)(2) discharge. This petition was denied by the court the same day. Appellants new counsel, then on November 7, 1980, filed a Petition for Writ of Habeas Corpus, Mandamus, Prohibition and other Relief with this Court. On November 6, 1980 the appellants appeared before Judge Dillon. Appellants’ counsel, Attorney Brunwasser, did not appear for this proceeding. In a letter dated November 5, 1980 to the lower court he stated that the Notice of Appeal he filed with this Court on November 5, removed the matter from the jurisdiction of the lower court. However, appellants’ second counsel did appear for the proceeding, but requested that he be excused since he believed that he had been discharged by appellants. Judge Dillon, after asking appellants whether they had retained Attorney Brunwasser and receiving an affirmative response, committed both appellants to the Butler County Prison until such time as the Court could “arrange a sentence period.” The court explained to the appellants that it was prepared to impose sentence, but since appellants were entitled to be represented by counsel at sentencing, he would commit them to prison until an appropriate sentencing date could be set.

On November 7, 1980 this Court granted appellants’ Petition for Writ of Habeas Corpus.

Judge Dillon, on December 11, accepted the plea arrangement and sentenced the appellants accordingly. A hearing on appellants’ Petition to Withdraw their Guilty Plea was scheduled for January 8, 1981, but upon appellants’ motion, was continued to March 12, 1981. After the March 12 hearing on appellants’ Petition, the Court issued an Order on May 5, denying appellants’ Rule 321 motion.

It is from the above orders of November 3, 1980, December 11, 1980, and May 5, 1981 that appellants take this appeal.

The first allegation of error raised in this appeal is whether “the Lower Court erred when it refused the defendants’ November 3, 1980 motion to withdraw their plea bargain offer before it was accepted and before they had been sentenced?” The standard used in determining whether a defendant should be allowed to withdraw his guilty plea before sentencing is as follows:

“While a pre-sentence withdrawal request should be liberally considered (a) defendant must present a fair and just reason for withdrawing the plea. Even if a viable reason is asserted for withdrawal, withdrawal is only permitted if the Commonwealth has not been substantially prejudiced by reliance on the plea. Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975); Commonwealth v. Mosley, 283 Pa.Super. 28, 31, 423 A.2d 427, 428 (1980); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

See also ABA Standards Relating to Pleas of Guilty [ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft 1968) ].

The appellants in their Petition to Withdraw Pleas of Guilty raise twenty-five (25) allegations of error as fair and just reasons why they should be allowed to withdraw their guilty plea. These allegations concern three areas of the proceedings below: 1) the search warrants; 2) violation of Pa.R.Crim.P. 1100; and 3) guilty plea colloquy.

As to the question of whether the search warrant contained insufficient probable cause, the initial search warrant sets forth the following facts and circumstances:

“On January 4, 1980, Mr. John E. George of North American Van Lines, reported to the Cranberry Township Police that the above items were stolen sometime between August 15, 1979, and January 2, 1980. On January 2, 1980, Mr. George discovered vehicle tracks in a field which leads from the property of North American Van Lines to a barn being leased to the defendant John Guy Carelli. These tracks were made by a dual wheel vehicle. The defendant operates a dual wheel truck owned by Kathleen M. Carelli. The record division of the Pennsylvania State Police indicate that the defendant has been arrested for theft and receiving stolen property, dealing in titles and plates for stolen vehicles and attempted auto theft. On the 2nd of January, 1980, at 0735 hrs. an unknown intruder was discovered inside the building of North American Van Lines. The intruder was observed fleeing in the direction of the defendants’ barn.

For a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance. Commonwealth v. Stamps, 493 Pa. 530, 535, 427 A.2d 141, 143 (1981); U.S. Const, amend. IV; Pa. Const., Art. I, § 8. Probable cause exists where the facts and circumstances within the affiant’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted. Commonwealth v. Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (1972). In determining whether the affidavit is sufficient to establish probable cause, one must recognize that affidavits supporting search warrants normally are prepared “... by nonlawyers in the midst and haste of a criminal investigation.” United States v. Vantresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); Commonwealth v. Stamps, 493 Pa. 530, 537, 427 A.2d 141, 143 (1981). They, therefore, should be interpreted in a “common sense and realistic” fashion rather than in a hypertechnical manner. Vantresca, 380 U.S. at 108, 85 S.Ct. at 745; Stamps, 493 Pa. at 537, 427 A.2d at 144; Commonwealth v. Greco, 465 Pa. 400, 406, 350 A.2d 826, 829 (1976). Moreover, the probable determination of the issuing authority must be accorded great deference. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Ventresca, 380 U.S. at 108-09, 85 S.Ct. at 745-746; see Stamps, 493 Pa. at 537, 427 A.2d at 144.

In this case, the tracks from a dual wheel vehicle led from the Van Lines property to the appellants’ barn; the fact that the appellants own a dual wheel vehicle; and, the observance of an intruder fleeing from the Van Lines premises toward the appellants’ barn was more than sufficient “to warrant a man of reasonable caution to believe that a search should have been conducted" on appellants’ premises for the stolen Van Lines property. Thomas, 448 Pa. at 52, 292 A.2d at 357.

Regarding the second warrant, it was based upon the information shortly following the officers arrival at appellants’ property pursuant to the first search warrant. Its’ basis for probable cause is indisputable.

As to appellants’ second major area of error, appellants’ claim that their second counsel was ineffective for not moving for a Pa.R.Crim.P. 1100 dismissal. The standard for determining whether appellants’ second counsel was ineffective is well established.

“[0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.” Commonwealth v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967). (emphasis in original).

As to ineffective assistance of counsel regarding Rule 1100, this Court, in Commonwealth v. Nagel, 246 Pa.Super. 576, 580, 371 A.2d 983, 985 (1979), stated:

“In order to prove ineffective assistance of counsel, appellant must prove that counsel did not inform him of the right, that counsel’s action had no reasonable basis designed to effectuate his client’s interest, and that had counsel so informed him, appellant’s potential for success would have been substantially greater.”

See also, Commonwealth v. Daniels, 288 Pa.Super. 69, 73, 431 A.2d 291, 293 (1981).

In appellants’ case, both appellants signed a written waiver of their Rule 1100 rights and joined in their second counsel’s Motion for Continuance. Also, it is to be noted that these actions were sworn to before a notary public. Moreover, appellants’ counsel needed additional time in which to prepare appellants’ defense due to his late retention by appellants.

Here, it is thus certain that appellants knowingly and voluntarily entered into this waiver and employed the proper vehicle to accomplish this waiver. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Daniels, 288 Pa.Super. 69, 431 A.2d 291 (1981).

Therefore, this contention is meritless.

Appellants’ third major contention is that their guilty plea colloquy was defective. The six mandated areas of inquiry during a guilty plea colloquy are:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Commonwealth v. Willis, 471 Pa. 50, 51-52, 369 A.2d 1189, 1190 (1977); Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 826-27 (1976); Commonwealth v. Ingram, 455 Pa. 198, 204-205 n. 5, 316 A.2d 77, 81 n. 5 (1974); Pa.R.Crim.P. 319 (Comment).

The colloquy conducted by the court in this instance, covered all aspects of the requirements for a judicially sound guilty plea colloquy. First, the court explained the nature of the charges, and appellants expressed that they understood their nature. Also, Sergeant Widdowson testified as to the facts supporting the charges which were more than sufficient to justify appellants’ guilty pleas. Next, Judge Dillon explained the right to trial by jury and their presumption of innocence if the appellants would have elected to exercise these rights. The court also noted the permissible range of sentences and fines for the offenses charged. Furthermore, Judge Dillon explained that he was not bound by the plea agreement unless he accepted it. In concluding the colloquy, the Court was specifically informed by the appellants that their pleas were voluntary, intelligent, and understanding acts and were satisfied with the representation rendered them by their second counsel.

We find no fair and just reason for appellants’ withdrawal of their guilty pleas.

Also, it must be noted, as brought forth by the lower court, that on September 18, 1980, the day set for trial, all of the' Commonwealth’s witnesses were present in court. Many of these witnesses had travelled great distances for the trial and, in addition, were required to take leave from their various places of employment.

Thus, it is obvious that substantial prejudice would result to the Commonwealth if it was forced to recall all of its witnesses for trial. See United States v. Crowley, 529 F.2d 1066 (3rd Cir.1976), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976).

Appellants’ next contention is that their November 5, 1980 appeal terminated the lower court’s jurisdiction to impose its’ December 11, 1980 sentences. This contention is meritless. Appellants failed to follow the proper procedure for perfecting that appeal. The comment to Pa.R.Crim.P. 320 specifically states that: “a denial of a motion to withdraw a guilty plea under this rule may not be appealed until such denial has first been challenged pursuant to Rule 321.” Pa.R.Crim.P. 320 (Comment). Pursuant to Rule 320, Rule 321(a) reads: “a motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.” Pa.R. Crim.P. 321(a). The Note to Rule 343 of the Rules of Appellate Procedure, which governs appellants’ allegation, is as follows:

In the event an appeal from the judgment of a plea of guilty has been filed before a timely motion under Pa.R. Crim.P. 321 has been made, the filing of such motion acts as an automatic grant of reconsideration under Rule 1701(b)(3) (authority of lower court or agency after appeal), so as to render inoperative the prior appeal. In such event, as appeal could be filed anew after disposition of the Pa.R.Crim.P. 321 motion. Pa.R.A.P. 343 (Note).

Thus, appellants’ November 5, 1980 appeal did not oust the lower court of jurisdiction since it was inoperative.

Appellants’ third allegation of error concerns whether a colloquy must be conducted in addition to the filing of a written waiver when a defendant waives his Rule 1100 right. As previously stated, there is no requirement that a colloquy be conducted when a defendant waives his rights under Rule 1100, nor would it serve any purpose when the court is presented with a sworn written waiver and joinder to his counsel’s motion for continuance as is the case here.

Therefore, appellants’ waiver was informed and voluntary. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Daniels, 280 Pa.Super. 69, 431 A.2d 291 (1981).

Appellants’ final allegation of error regards the issues raised in its Rule 320 appeal. As stated above, an appeal which does not follow the mandates set forth in Rules 320 and 321 of the Rules of Criminal Procedure is deemed inoperative by Rule 343 of our Rules of Appellate Procedure.

The appeal alleging a violation of Rule 320 of the Rules of Criminal Procedure is not properly before this Court.

Order affirmed.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 3925.

      . 75 Pa.C.S.A. § 7102.

      . 75 Pa.C.S.A. § 7103.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3921.

      . The reason for the long delay in the scheduling of the preliminary hearing was that numerous continuances were granted to both the appellants initial counsel and the Commonwealth.

      . Appellants’ counsel asked for the extension due to his late retention as counsel and the very complicated and voluminous facts comprising appellants’ case.

      . It is to be noted that the many Commonwealth witnesses who had been victimized by the appellants were present for trial and had travelled great distances.

      . The Court’s Order is as follows:
      ORDER OF COURT
      Now, November 3, 1980, after consideration of the defendant’s petition to withdraw their pleas of guilty, and after review of the colloquy of their guilty pleas of September 18, 1980, being their trial date, this Court finds no fair nor just reason to allow said withdrawal and, therefore, denies the petition of John Guy Carelli, Jr., and Kathleen M. Carelli to withdraw their respective guilty pleas. See Commonwealth v. Rose Lee Hall, 275 Pa.Super. 85, 418 A.2d 623. BY THE COURT, John C. Dillon, J.

      . The Notice of Appeal was taken from the denial of appellants’ Pa.R.Crim.P. 320. Petition. See n. 10.

      . Judge Brosky’s .Order is as follows:
      ORDER
      Now, to-wit, this 7th day of November, 1980, after argument, with all counsel present, on the Defendants’ petition to writ of habeas corpus, it appearing to this Court, after review of the order of the Trial Court dated November 3, 1980; review of the proceedings before the Honorable John C. Dillon on November 6, 1980—it appearing that Defendants have sought a withdrawal of their guilty pleas—and it appearing the Trial Court’s order does not present us with a showing of substantial prejudice to the Commonwealth in accordance with the holding of Commonwealth v. Rose Lee Hall, 275 Pa.Super. 85, 418 A.2d 623 (1980); it further appearing that bond has been set by the court and never revoked; and it appearing the trial court has not provided a definite date for the sentencing of the said parties—it is hereby ordered, adjudged, and decreed that petitioners John Guy Carelli, Jr. and Kathleen M. Carelli be released from Butler County Jail forthwith pending the imposition of sentence. This order is without prejudice to the parties to file any additional motions they deem appropriate before the lower court or to raise any issue, including those herein, on appeal.

      . Rule 1100(a)(2) is as follows:
      Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . Appellants do not make any assertion of innocence in their Petition for Withdrawal which has been found to be a fair and just reason by this Court for withdrawing a guilty plea. Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977).

      . Mention must be made of the manner in which appellants filed their Petition to Withdraw their guilty pleas. Appellants’ third counsel, while admitting to possessing the transcript of the colloquy since October 8, 1980, waited until November 3, three days prior to sentencing to file this Petition with the Court.

      . In a similar case, the United States Court of Appeals for the Third Circuit Court held that permitting a defendant to withdraw his guilty plea would not have been fair and just where he failed to assert his innocence to the charge and the Government would be prejudiced by the defendant’s having entered the plea on the day of trial when the jurors, witnesses, and court personnel had been assembled for the trial. United States v. Crowley, supra.

      . We also note that the appellants’ sentencing hearing held on December 11, 1980 was in compliance with the dictates of 42 Pa.C.S.A. 9721-9725.