author:
      CAVANAUGH, Judge: SPAETH, President Judge,
      BROSKY, Judge, WIEAND, Judge,

text:
    504 A.2d 869
    COMMONWEALTH of Pennsylvania, Appellee, v. Jeanette Bobi BOND, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1985.
    Filed Jan. 31, 1986.

      Norman A. Oshtry, Philadelphia, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doylestown, for Com., appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILIA, JJ.
   CAVANAUGH, Judge:

Jeanette Bobi Bond was convicted of violating the Pennsylvania obscenity law, 18 Pa.C.S.A. § 5903. She now appeals to this court raising the following questions:

1. Did the trial of the appellant commence more than 180 days from the date the Complaint was filed against the appellant in violation of Pennsylvania Rule of Criminal Procedure No. 1100?
2. Is 18 Pa.C.S.A. § 5903, which prohibits the sale of obscene material unconstitutionally vague and over-broad in that it defines obscene material to include protected speech?
3. Was the Complaint issued without probable cause and without specificity in its charge sufficient to afford appellant proper notice of the charge and an opportunity to prepare a defense, all in violation of appellant’s constitutional rights?
4. Can the material, in the first instance, as a matter of law be classified as hardcore sexual conduct and, therefore, be deemed legally obscene?
5. Did the Trial Court err when within the context of the definition of obscenity, the Court informed the Jury that material may be deemed to be “patently offensive” and not constitute an affront to contemporary community standards?

For the reasons which follow, we affirm the judgment of sentence.

Rule 1100

The Complaint against appellant was filed on February 11, 1981 charging her with a violation of the Pennsylvania obscenity law, 18 Pa.C.S.A. § 5903 (Purdon 1983). Therefore, pursuant to Rule 1100, appellant was required to be brought to trial before August 11, 1981. On July 22, 1981 (day 161), appellant, along with eight other defendants, appeared before the trial court for the purpose of litigating pre-trial motions. Included among those issues raised was appellant’s Motion to discharge the appellant on the grounds, inter alia, that the obscenity statute is unconstitutional. The motion stated six separate claims of unconstitutionality. The trial court reserved judgment on this motion pending the filing of briefs by the parties and the appellant agreed to waive the computation of time under Rule 1100 for thirty-seven days (until August 29, 1981) so that briefs could be filed. The request for time to file briefs was made by appellant’s counsel. Appellant’s new run date was accordingly extended until September 17.

On September 30, 1981, the Commonwealth filed a petition to extend the run date pursuant to Rule 1100(c). A hearing on the petition was scheduled for October 30.

On October 16, the trial court entered its order denying appellant’s Motion to Dismiss. Subsequently on November 18, upon appellant’s motion, the trial court certified for interlocutory appellate review the question of the constitutionality of the obscenity statute. Again appellant waived Rule 1100 for the period from November 9 to December 7, 1981.

On February 10, 1982, the Superior Court denied appellant’s petition for interlocutory appeal. Trial was set for April 19, 1982, but was continued at the request of appellant’s attorney. The case was ultimately called for trial on June 7, 1982.

Pennsylvania Rule of Criminal Procedure 1100 directs that trial “shall commence no later than one hundred eighty (180) days from the day on which the complaint is filed.” In denying appellant’s Rule 1100 challenge, the trial court opined that trial commenced on July 22, 1981, the date on which appellant’s pre-trial motions were litigated. Because this date fell within the 180-day period, the court found no violation of appellant’s right to a speedy trial. We agree with that conclusion.

Rule 1100 expressly provides: “For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea a guilty or nolo contendere." Pa.R.Crim.P. 1100(b). The comments to the Rule, however, explain further:

It is not intended that preliminary calendar calls should constitute commencement of a trial. For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial.

Pa.R.Crim.P. 1100 comments, quoted with approval in Jones v. Commonwealth, 495 Pa. 490, 495, 434 A.2d 1197, 1199 (1981). In an often relied upon Concurring Opinion,' then Chief Justice Eagan embellished on this comment:

The words “some other such” immediately preceding “first step in the trial” clearly indicate that the events specifically referred to in the comment are to be considered first steps in a trial for purposes of Rule 1100, see Commonwealth v. Boyle, 470 Pa. 343, 353, 368 A.2d 661, 666 (1977), even though not all of these events are, strictly speaking, directly involved with the determination of guilt or innocence. For example, if a case were called to trial and, after determining the parties were present, the trial judge held a hearing on a suppression motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principal concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than pro forma, event. Moreover, each of the events specifically referred to in the foregoing portion of the comment represents a degree of commitment of the court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt-determining process is a “first step in the trial” for purposes of Rule 1100.

Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (Eagen, C.J. concurring). See also Commonwealth v. Williams, 250 Pa.Super. 221, 378 A.2d 906 (1977) (trial commences with a “substantial commitment of time and resources of the lower court toward a prompt determination of appellant’s guilt or innocence”).

In applying Rule 1100 under this interpretation, our courts on numerous occasions have considered whether a pretrial suppression hearing constitutes commencement of trial. For example, in Commonwealth v. Dozier, 258 Pa.Super. 367, 392 A.2d 837 (1978), the defendant claimed that his trial counsel was ineffective for failing to assert that Dozier’s Rule 1100 rights had been violated. The criminal complaint had been filed against the defendant on December 28, 1974. Trial under Rule 1100 therefore had to commence by June 26, 1975. On March 12, 1975, Dozier appeared before the trial court for the purpose of entering a guilty plea. Following the colloquy, however, he decided not to plead guilty. The court then directed the parties to proceed on the defendant’s oral motion to suppress evidence. The case was ultimately called to trial on July 21, 1975, 205 days after the filing of the complaint.

On appeal the Commonwealth argued that Rule 1100 was not violated because trial had “commenced” on March 12, the date of the defendant’s suppression hearing. This court rejected that argument, ruling that “a hearing on a motion will mark the commencement of trial under Rule 1100 only if (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing actually leads directly into the guilt-determining process.” Id., 258 Pa.Superior Ct. at 371-72, 392 A.2d at 840. On the facts before it, the Dozier court observed that the suppression hearing had not been explicitly reserved to trial and that the hearing did not lead directly into the guilt-determining process, but rather preceded the selection of the jury by 101 days. Dozier, accordingly, was discharged.

Similarly, in Commonwealth v. Machi, 294 Pa.Super. 338, 439 A.2d 1230 (1982), the court was constrained to discharge the defendant because of the delay between the suppression hearing and the actual trial. The Machi court noted the philosophy that “a suppression hearing will be found to have lead directly into the guilt-determining process only if it triggered a substantial commitment of the court’s time and resources to a determination of the defendant’s guilt.” Id., 294 Pa.Superior Ct. at 342, 439 A.2d at 1232 (citing Commonwealth v. Bethel, 261 Pa.Super. 231, 396 A.2d 372 (1978)). Accord Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978); Commonwealth v. Williams, 250 Pa.Super. 221, 378 A.2d 906 (1977).

Thus, when the Commonwealth has taken the position that the suppression hearing constituted the commencement of trial for Rule 1100 purposes, our courts have focused their inquiry on the temporal proximity of the hearing to the actual trial. Compare Commonwealth v. Machi, supra (185 days between hearing and trial); Commonwealth v. Taylor, 254 Pa.Super. 211, 385 A.2d 984 (1978) (173 days); Commonwealth v. Haddad, 256 Pa.Super. 176, 389 A.2d 658 (1978) (250 days); Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978) (62 days); Commonwealth v. Bethel, 261 Pa.Super. 231, 396 A.2d 372 (1978) (16 days) (all finding that the suppression hearing did not lead directly into the guilt-determining process) with Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681 (1979), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78 (1979). (one day between hearing and jury selection); Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980) (jury selection immediately after suppression hearing); Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977) (one day between hearing and jury selection); Commonwealth v. Fisher, 244 Pa.Super. 361, 368 A.2d 762 (1976) (trial began two days after completion of suppression hearing) (all concluding that trial commenced on date of suppression hearing). Similarly, in Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984), the court considered whether a pre-trial hearing on defendant’s motion for change of venue constituted commencement of trial. Observing that the motion had been reserved for the time of trial and that the guilt-determining process, “with the jury being sworn and testimony taken,” began only two days later, the court in Bell concluded that for the purpose of Rule 1100 trial had commenced on the date of the hearing.

In each of these prior cases the court has dealt with a pre-trial hearing which was plainly not part of the guilt-determining process. As Judge Spaeth has articulated,

In a functional sense, a suppression hearing cannot “lead into” the guilt-determining process because it is not part of that process but is simply a way of administering the exclusionary rule. 3 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.2 (1978). Referring to the distinction between a suppression hearing and a trial, the United States Supreme Court has said:
We must remember also that we are not dealing with the trial of the criminal charge itself... . The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment.
McCray v. Illinois, 386 U.S. 300, 307, 87 S.Ct. 1056, 1060, 18 L.Ed.2d 62 (1967).

Commonwealth v. Machi, 294 Pa.Super. 338, 343 n. 3, 439 A.2d 1230, 1232-33 n. 3 (1982). It is likewise true that a motion for change of venue as in Bell, supra, is not part of the guilt-determining process but rather affects only the situs of that process. As a result, it has been the time between that pre-trial hearing and the actual trial which has been held determinative.

The pre-trial hearing in the instant case, however, differs significantly from the suppression hearings and change of venue proceeding in the prior cases. At the pre-trial hearing on July 22, 1981, appellant raised a multifaceted constitutional challenge to 18 Pa.C.S.A. § 5903, the statute under which she had been charged. Unlike a motion to suppress or to change venue, appellant presented a motion to dismiss the complaint lodged against her. If successful, the charges against the appellant would necessarily have been avoided and the appellant discharged. Therefore, consideration of appellant’s constitutional challenge to the obscenity statute was itself a process of promptly determining the appellant’s asserted innocence. As such it constituted a “first step in the trial” for purposes of Rule 1100, tolling the 180-day period. See Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1978) (Eagen, C.J. concurring). Appellant relies heavily on “pretrial” nomenclature used by the court and litigants in describing the July 22 proceedings before Judge Garb in arguing that it was not the commencement of trial. Of course, it is the substance rather than the designation of the proceedings which controls. Otherwise, a trial could never commence for Rule 1100 purposes until the initiation of the actual evidentiary proceedings of the guilt determining process. Appellant freely chose to reach her goal of acquittal by a “first step” which required the court to resolve complicated legal issues which fairly required briefing, deliberation and disposition. Appellant then sought to test an adverse determination on appeal. That the process was necessarily time consuming makes it no less an elected stage which led directly to the guilt determining process.

This is not to say, however, that all pre-trial hearings on a defendant’s motion to dismiss will constitute the commencement of trial under Rule 1100. Unlike, for example, a finding that the Commonwealth failed to assert criminal charges within the applicable statute of limitations period, a ruling that the “violated” statute is unconstitutional indicates that there was no valid prohibition on the defendant’s actions and, a fortiori, no culpable conduct by the defendant. It is more akin to a finding of innocence than a discharge under the statute of limitations which reflects only a legislative determination that it would be unfair to prosecute the defendant for his otherwise culpable behavior.

We now hold that for Rule 1100 purposes appellant’s trial commenced on July 22, 1981, within the 180-day period and accordingly find no violation of appellant’s speedy trial rights as guaranteed by Rule 1100.

Appellant argues that 18 C.Pa.S.A. § 5903 — Obscene and other sexual materials — is unconstitutionally vague and overbroad. Constitutional attacks on this provision have been consistently defeated in opinions by our appellate courts. American Booksellers Ass’n., Inc. v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984); Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984); Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983); Long v. 130 Market St. Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982). Specifically, it is claimed that in the definition of “obscene materials” the term “prurient interest” in subsection (1) is not further defined to refer to a prurient interest “in sex.” Thus, it is argued that the words are unconstitutionally vague or overbroad because they are self-defined and may relate to a prurient interest in something other than sex. The argument must fail on any account. An accepted definition of prurient is “having lascivious thoughts or desires: Lewd” Websters New Collegiate Dictionary. Moreover, any reading of the obscenity statute makes it patently clear that the provision deals with a prurient interest in sex. Most importantly, the Pennsylvania statute had dutifully followed the language suggested by the United States Supreme Court in defining the permissible scope of regulation of works which depict or describe sexual conduct:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, 431, (1973). (Emphasis added.)

It is next argued that the word “lewd” is unconstitutionally vague as used in the following context:

“Sexual conduct.” Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.

Appellant’s argument has no merit. Her attack is upon plain language which by any definition would refer to any licentious depictions of the genitals. Again, the language of the act has been copied from Miller.

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals, (emphasis added.)

Id. at 25, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

The unyielding efforts to constitutionally dismantle obscenity statutes by verbal dissection has not received judicial favor. In a landmark case, the United States Supreme Court stated:

It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. The federal obscenity statute makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy ... or other publication of an indecent character.” The California statute makes punishable, inter alia, the keeping for sale or advertising material that is “obscene or indecent.” The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.
Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. “... [T]he Constitution does not require impossible standards”; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices____”
These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark “... boundaries sufficiently distinct for judges and juries fairly to administer the law ____ That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.

Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, 1499 (1957) (citations omitted) (footnotes omitted). See, also, Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

In a highly generalized argument, appellant urges that the complaint issued in this case violates her rights under the United States Constitution. It is argued that the complaint was not adequate to apprise appellant of what she must prepare to meet. Our examination of the criminal information discloses that it fully complies with statutory and constitutional requirements and that it is adequately descriptive of the offending material found in the copy of the publication “Wedding Orgy” which was purchased from appellant and exhibited to the issuing magistrate. In addition, appellant was given full notice of the time, date and place of the offense. See generally Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Commonwealth v. Tumolo, 455 Pa. 424, 317 A.2d 295 (1974); Commonwealth v. Lee, 454 Pa. 526, 312 A.2d 391 (1973); Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d 763 (1979); Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A.2d 702 (1975); Commonwealth v. Levenson, 225 Pa.Super. 318, 303 A.2d 838 (1973). Similarly, appellant’s argument that the material under consideration in this case is not legally obscene, is simply contradicted by the evidence which contained abundant photographs and descriptions of clearly offensive material under the Miller standards. Appellant’s attack is essentially one of the sufficiency of the evidence under which we are required to review the evidence in a light most favorable to the verdict winner. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978); Commonwealth v. Cotton, 338 Pa.Super. 20, 487 A.2d 830 (1984). Finally, appellant argues that she is entitled to a new trial since the court sustained an objection to a question asked by her counsel to an expert witness called by appellant. The question dealt with the applicability of contemporary community standards as a measure of patent offensiveness. A reading of the record shows that appellant’s argument is totally devoid of merit as the court permitted counsel to question the witness and, in addition, charged the jury in accordance with appellant’s request in this regard. Lastly, we find the court’s charge conformed to the law. McCay v. Philadelphia Elec. Co., 447 Pa. 490, 291 A.2d 759 (1972). Where the subject matter is adequately and properly covered in the charge given, it is not error to fail to charge in the exact language requested. Duffy v. National Janitorial Service, Inc., 429 Pa. 334, 240 A.2d 527 (1968); Donaldson v. Sepesy, 415 Pa. 194, 202 A.2d 823 (1964); Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983).

Judgment of sentence affirmed.

DEL SOLE and McEWEN, JJ., join in this opinion.

SPAETH, President Judge, and BROSKY, J., file concurring opinions.

WIEAND, J., files concurring opinion, in which ROW-LEY, BECK and TAMILIA, JJ., join.

SPAETH, President Judge,

concurring:

I am unable to agree with the majority’s conclusion that for Rule 1100 purposes appellant’s trial “commence[d]” when the hearing was held on her pre-trial motion challenging the constitutionality of the statute she was charged with violating. The majority’s conclusion depends, I suggest, upon an artificial definition of “commence,” and the consequences of accepting the majority’s reasoning persuade me that it is unsound. In the present case, appellant’s trial “commenced,” in the obvious and matter of fact sense of that word, very shortly after we returned the record to the trial court. Suppose, however, that appellant’s trial had not commenced until one year — or two, or even three — after we had returned the record. By the majority’s reasoning, the delay would be immaterial: by asserting her right to challenge the constitutionality of the statute she was charged with violating, appellant would have forfeited her right to a speedy trial.

Nevertheless, I agree with the majority that appellant was not denied her right to a speedy trial, although I reach that conclusion by reasoning different from the majority’s. In my view, we may, and should, decide this case on settled principle without resort to a redefinition of “commence.” On settled principle, the period during which the trial court decided appellant’s pre-trial motion and the period during which we decided her petition for leave to appeal are both excludable, and when these periods are excluded, it will be seen that appellant was timely tried.

Rule 1100 is not required by the provision in the Sixth Amendment of the United States Constitution that an accused has a right to a speedy trial, Commonwealth v. Sadler, 301 Pa.Super. 228, 232, 447 A.2d 625, 627 (1982), but it is intended to implement and give substance to that provision. Jones v. Commonwealth, 495 Pa. 490, 499, 434 A.2d 1197, 1201 (1981); Commonwealth v. Mitchell, 283 Pa.Super. 455, 461, 424 A.2d 897, 900, cert. denied sub nom. Mitchell v. Pennsylvania, 454 U.S. 851, 102 S.Ct. 292, 70 L.Ed.2d 141 (1981). Like the Sixth Amendment, Rule 1100 is not one-sided: it is “to protect an accused’s right to a speedy trial and also to protect society’s right to effective prosecution of criminal cases.” Commonwealth v. Jones, 314 Pa.Super. 515, 523, 461 A.2d 276, 280 (1983). The rule is to prevent oppressive pre-trial incarceration, minimize the anxiety of the accused, and limit the possibility that the defense will be impaired. Commonwealth v. Roundtree, 469 Pa. 241, 254, 364 A.2d 1359, 1365 (1976), citing United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). See also Commonwealth v. Bennett, 236 Pa.Super. 509, 516, 345 A.2d 754, 757 (1975) (Rule 1100 helps to ensure to preservation of evidence).

The general requirement of Rule 1100, that the accused must be tried within 180 days, has certain exceptions, stated in the Rule itself and developed in the case law. Thus, in calculating the 180-day period, one does not include a period during which the accused was “unavailable,” Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), or a period representing a continuance granted at the request of the accused, Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982); also, the accused may waive his rights under Rule 1100, Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). The justification for these exceptions derives from general principle: one may not claim that one should be tried and at the same time prevent one’s trial from commencing or agree that it need not commence. See Commonwealth v. Gallo, 276 Pa.Super. 562, 566, 419 A.2d 601, 603 (1980) (“where a defendant is responsible for the delay, he cannot later benefit from the delay that he himself, caused”).

As the majority points out, appellant’s pre-trial motion was of an extraordinary character. Rather than equate the motion to commencement of trial, however, and thereby risk discarding appellant’s right to a speedy trial altogether, I should analogize the motion to our settled Rule 1100 exceptions. The analogy, of course, cannot be exact. In one sense, appellant’s constitutional challenge of the statute she was charged with violating amounted to a request for a continuance; for implicit in her motion was the request that she not be tried until the court ruled upon her motion. See Commonwealth v. Wade, 475 Pa. 399, 405, 380 A.2d 782, 785 (1977) (defendant’s statement to district justice that he intended to obtain a particular attorney as counsel “amounted to a request for a continuance” that remained open-ended until the attorney was retained). In another sense, appellant’s motion amounted to a waiver of her speedy trial rights during the court’s disposition of the motion; for by virtue of her motion, appellant sought not so much to delay trial as to avoid trial altogether as an unconstitutional prosecution. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592, 594 (1981) (“[tjhere are no formal requirements for a valid waiver of Rule 1100” so long as it is informed and voluntary). The critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant’s motion to the date of the trial court’s order denying the motion should therefore be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner. See Commonwealth v. Brown, supra, (Rule 1100 should not be construed so as to encourage gamesmanship on the part of the accused).

The period extending from the date of appellant’s petition for leave to file an interlocutory appeal to the date of our disposition of the petition likewise should be excluded, for by virtue of Pa.R.A.P. Rule 1701(a), the petition precluded the trial court from proceeding with the case. See also Commonwealth v. Paprocki, 327 Pa.Super. 270, 224, 475 A.2d 792, 794 (1984). By filing the petition appellant prevented her trial from commencing as effectively as if she had become ill or had fled the jurisdiction. In terms of Rule 1100, therefore, while we deliberated on her petition, appellant was “unavailable.”

When the period during which the trial court decided appellant’s pre-trial motion and the period during which we decided her petition are thus both excluded, it will be seen that appellant was timely tried.

The complaint was filed on February 11, 1981. On July 15 (Day 154 of the 180-day period), appellant filed her pre-trial motion challenging the constitutionality of the obscenity statute. On July 22, 1981 (the day of the hearing on the motion), appellant executed a 37-day waiver, effective August 29, 1981. On October 16, the trial court denied appellant’s pre-trial motion and scheduled trial for November 9, 1981. Appellant then executed another waiver, for the period from November 9 through December 7, 1981, so that she could file her petition to this court for leave to file an interlocutory appeal. On February 10, 1982, this court denied appellant’s petition. The trial court then scheduled trial for April 19, 1982, but because of continuances requested by the defense, trial did not commence until June 7, 1982.

As I have just explained, I should exclude the period from July 15 through October 16, 1981 (filing of pretrial motion to denial of motion). The 180-day period therefore stopped running on July 14 (day 153). When the trial court denied appellant’s motion on October 16, 1981, the 180-day period started running again, but appellant’s waiver of the period November 9 through December 7, 1981, again stopped the running of the 180-day period, at Day 177. During this waived period, appellant filed her petition for leave to file an interlocutory appeal, and, also as just explained, by that action she made herself “unavailable.” On February 10, 1982, we dismissed appellant’s petition. That action, however, did not at once restart the 180-day period, for under Pa.R.A.P. 2572, we had thirty days to remand the record to the trial court; until we remanded the record, the trial court could not proceed, and appellant therefore remained unavailable. The record does not disclose exactly when we remanded the record, but it was within the thirty day period, for on March 8, 1982, the trial court scheduled trial for April 19, 1982.

It is arguable that since by this calculation the 180-day period stopped running on the 177th day, one of two events had to occur for appellant to be timely tried: either the trial court had to commence appellant’s trial within three days after it got the record back from us on remand; or the Commonwealth, within those three days, had to file a petition for an extension of time within which the trial should commence; and since neither of these events did occur, appellant should be discharged. This argument, however, is not persuasive, for it overlooks settled case law.

In Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982), the Supreme Court was faced with a Rule 1100 challenge in which there was a 16-day interregnum between the end of a defense-requested continuance and the date of trial. The Court rejected the defendant’s contention that the 16 days were not excludable from the 180-day period. The Court relied on the principle that “once it is determined that defendant is unavailable [as the defendant was because of the continuance], the critical inquiry is whether actual delay resulted from defendant’s unavailability. ‘If the “unavailability” results in an actual delay in the proceeding, that delay is automatically excluded.’ ” Id. quoting Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). Since the 16-day delay was the result of a defense-requested continuance, because the continuance required placing the defendant’s trial on “backup status,” it was automatically excluded. See also Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983).

Here, appellant’s petition for leave to file an interlocutory appeal rendered her unavailable for trial. Given that, we must look to see whether appellant’s unavailability resulted in any delay beyond the date on which this court remanded the record to the trial court. Plainly, it did; some delay in scheduling a case for trial is inevitable whenever we remand, for the trial court cannot be expected to drop everything else and proceed at once with the case remanded. Here we do not know from the record exactly how much delay occurred, for as mentioned, the record does not disclose exactly when we remanded the record; but we do know that the delay was slight, for on March 8, 1982, less than thirty days after our decision denying appellant’s petition for leave to file an interlocutory appeal, the trial court scheduled trial for April 19, 1982, and but for appellant’s further request for continuance, trial would have commenced then.

Our cases establish that unavailability cannot be defined precisely but must be determined according to the facts of each case. Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1982). Thus in Commonwealth v. Gorham, 341 Pa.Super. 499, 491 A.2d 1368 (1985), we held that when the defendant failed to appear for trial, the court’s continuance of trial to a date 35 days hence was reasonable and fairly attributable to the defendant’s unavailability. Cf Commonwealth v. Colon, 317 Pa.Super. 412, 427, 464 A.2d 388, 396 (1982) (where only two days left before run date, Commonwealth entitled to extension since “it would have been tantamout to a physical impossibility to have [trial] rescheduled in those two days”). I therefore have no difficulty in finding that the delay from the date of our remand to the trial court to the date set for trial, April 19, 1982, was fairly attributable to appellant’s unavailability. The delay is therefore “automatically excluded,” Commonwealth v. Robinson, supra, from which it follows that appellant was timely tried.

As to the majority’s disposition of the remaining issues, I join.

SPAETH, President Judge, wrote the concurring opinion before the expiration of his term on the court.

BROSKY, Judge,

concurring:

I join in the Concurring Opinion of President Judge Spaeth. I would only add that I have a different and, perhaps, more fundamental reason for disagreeing with the majority’s conclusion that appellant’s trial commenced for Rule 1100 purposes when the hearing was held on her pre-trial motion challenging the constitutionality of 18 Pa. C.S. § 5903.

As noted by the majority, the comment to Rule 1100 states the following:

It is not intended that preliminary calendar calls should constitute commencement of a trial. For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial (emphasis added).

I agree with the majority that case law has interpreted this comment as setting forth two requirements which must be met before a hearing on a motion can be considered to mark the commencement of trial under Rule 1100: (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing actually leads directly into the guilt-determining process. See Commonwealth v. Dozier, 258 Pa.Super. 367, 392 A.2d 837 (1978). The majority’s analysis focuses solely on the second requirement and leads it to the conclusion that a hearing on the type of motion involved in the instant case intrinsically leads into the guilt-determining process. Whether or not this conclusion is correct, the fact remains that the majority’s analysis overlooks the first requirement that the hearing on the motion be reserved for time of trial and that the defendant be adequately warned of such reservation.

I believe the record is clear that the hearing of appellant’s pre-trial motion was not reserved for time of trial. Since Dozier’s first requirement was thus not satisfied, I must disagree with the majority’s conclusion that trial commenced when the hearing was held on appellant’s pre-trial motion.

WIEAND, Judge,

concurring:

The members of this Court are agreed that appellant is not entitled to have her conviction set aside on grounds that she failed to receive a speedy trial in accordance with Pa.R.Crim.P. 1100. The record discloses a criminal action for violation of the obscenity laws which was prosecuted diligently by the Commonwealth. The delay was caused solely by the defense. Therefore, I concur in the Court’s determination that appellant is not entitled to be discharged on Rule 1100 grounds.

Assuming, without deciding, that the constitutionality of a criminal statute can properly be challenged by an omnibus pre-trial motion filed pursuant to Pa.R.Crim.P. 306, it seems clear, in any event, that a pre-trial hearing on an omnibus motion can be equated with the commencement of trial only by creating a fiction regarding the commencement of trial. This, in my judgment, is unwise. I agree with President Judge Spaeth that the trial in this case did not commence when the court began to hear the pre-trial omnibus motion.

I agree also that appellant sought to delay the trial in order to obtain a ruling on the constitutional issue and thereby, in a practical sense, obtained a postponement or continuance of the trial. The fact that appellant was able to delay the trial by continuance, however, did not result in excludable time for purposes of computing the time for trial in accordance with Rule 1100. The amendment to paragraph (d) of Rule 1100, which excluded “any continuance granted at the request of the defendant or his attorney,” became effective and applied only to continuances requested on or after January 1, 1982. The postponement in this case for the purpose of allowing the court to decide the constitutional issue came to an end with the court’s decision on October 16, 1981:

The criminal complaint was signed on February 11, 1981. The pre-trial hearing was commenced on July 22, 1981, the 161st day. On that day, appellant waived Rule 1100 for a period of thirty-seven days. The adjusted run date, therefore, became September 16, 1981. However, trial could not be commenced until some time after October 16, when the trial court rendered a decision on appellant’s pre-trial motions. In the interim, as President Judge Spaeth has observed, appellant’s pre-trial motion had, in effect, rendered her unavailable for trial.

In the meantime, the Commonwealth had also filed a petition for an extension of time, as permitted by Pa.R. Crim.P. 1100(c), because of the undecided pre-trial motions, and the court had set a hearing on the petition for October 30, 1981. On or about October 20, 1981, the parties were notified that trial would commence on November 9, 1981 and that the hearing on the Commonwealth’s petition for extension would be heard immediately prior to trial. Subsequently, both the trial and the extension hearing were continued until December 7, 1981; and appellant agreed to waive Rule 1100 for the period from November 9, 1981 through December 7, 1981. This continuance was made necessary by appellant’s announced intention to file a petition in the Superior Court to allow an appeal from the interlocutory order denying the relief requested in the pretrial motion.

The mischief for Rule 1100 purposes was caused by appellant’s attempt to file an interlocutory appeal. On November 18, 1981, at appellant’s request, the trial court certified the constitutional issue for appellate review and entered a supersedeas which stayed all further proceedings in the trial court. As a consequence, trial did not commence on December 7, 1981, and the Commonwealth’s pending extension petition was not heard. A petition for special allowance of an appeal was filed in the Superior Court, but this Court, on February 10, 1981, denied the petition and rejected the appeal. The case was thereupon remanded for trial. Trial was scheduled for April 19, 1982, but commencement of trial, because of defense requested continuances, was further delayed until June 7, 1982.

When the Superior Court denied appellant’s petition for allowance of an appeal, a petition for an extension of time within which to commence trial under Rule 1100 .was pending in the trial court. This petition was not heard before trial. In my judgment, a hearing thereon was unnecessary. After February 10, 1982, the Commonwealth had a period of 120 days within which to commence trial. Appellant was tried within that time. The trial, therefore, was timely.

Pa.R.Crim.P. 1100(e) provides as follows:

(e)(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.
(2) When an appellate court has granted a new trial, or has affirmed an order of a trial court granting a new trial, the new trial shall commence-within one hundred and twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.

The comment to the rule suggests that the rule has application also to the “withdrawal, rejection of, or a successful challenge to a guilty plea” and to “the period for commencing trial following the declaration of a mistrial.” The same considerations which make the rule necessary in these enumerated situations require that a period of 120 days be extended for the commencement of trial after an appellate court, for whatever reason, has remanded the action to the trial court to start again the guilt determining process. It makes no sense to me to hold that an additional 120 days is necessary to commence trial in response to an award of a new trial but unnecessary where the case has been remanded for trial after denial of a petition for allowance of an appeal. To require the Commonwealth in such a situation to commence trial immediately upon remand because the 180 day period is about to expire, or, at least to file an immediate petition for extension, does not serve either to protect the accused’s right to a speedy trial or to protect society’s right to effective prosecution in criminal cases. Instead, it can serve only to create a trap for the unwary and thereby encourage the various forms of Rule 1100 gamesmanship which this Court has consistently decried.

The broad interpretation which I would place upon Rule 1100(e) has the advantage of establishing a straightforward, uniformly applied method for insuring a speedy trial in criminal cases which, for whatever reason, have been before an appellate court and are remanded for trial. In all such cases, trial must begin within 120 days after remand.

To the extent that the panel decision in Commonwealth v. Paprocki, 327 Pa.Super. 270, 475 A.2d 792 (1984) suggests a different rule, I would cause it to be overruled. To hold that a petition for allowance of an appeal has no other effect than to stay the running of Rule 1100 temporarily can serve only to encourage manipulation of the rule to avoid trial. If a petition for allowance of appeal can be filed on the 179th day, such a rule would require that the Commonwealth either commence trial on the day following denial of the petition or file a petition for extension. I do not believe that the Supreme Court intended this type of gamesmanship. I would hold that upon remand for trial the Commonwealth in all instances is to have a period of 120 days within which to commence trial.

In other respects, I join the opinion of the majority and its decision to affirm the judgment of sentence.

ROWLEY, BECK and TAMILIA, JJ., join in this concurring opinion.

      . We ultimately decide herein that the trial "commenced” for Rule 1100 purposes on July 22, 1981. We need not decide what speedy trial rights existed thereafter since it is clear that scheduling the case sixty-eight days after the appellate court order which returned the case for trial was in no event unreasonable. See Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981).

      . In Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), a two and one-half year period intervened between the suppression hearing and the actual trial. The supreme court, however, agreed with the Commonwealth's argument that for Rule 1100 purposes trial commenced on the date of the suppression hearing “since that Motion [to Suppress] was made ‘returnable at the time of trial before the trial judge’ and since the trial court thus took a substantial ‘first step’ leading directly into the guilt determining process." Id., 495 Pa. at 496, 434 A.2d at 1200. The court further observed that the prosecution was prepared to proceed to trial but for the suppression hearing and that "[t]hese facts reflect that the time and resources of the trial court and the prosecution were committed in a substantive, rather than a pro forma, manner to the commencement of trial----” Id. Additionally, in Jones the Commonwealth had appealed from the grant of the suppression motion. The supreme court held that the appeal was an "automatic supercedeas of the operation of Rule 1100” because its effect was to deprive the trial court of jurisdiction to proceed with the trial.

      . Appellant, in her brief, while purporting to repeat the Miller definition, has inaccurately added the words "in sex."

      . At the conclusion of the charge, the following was stated to the jury after an off-the-record discussion:
      THE COURT: When I talked about patently offensive, I mean, does it exceed the limits of contemporary society standards.
      Does everybody agree now? At least, does everybody agree to that?
      MR. OSHTRY: [Counsel for appellant] Yes.
      MR. WILLIAMS: [Asst. District Atty.] Yes.

      . I emphasize that the analogy to a continuance is not exact because, as JUDGE WIEAND notes, the rule on how the period of continuance is to be treated in calculating the 180-day period has been changed since 1981 when appellant filed her pre-trial motion.

      . Pa.R.A.P. Rule 1701(a) states: “Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”

      . Pa.R.A.P. 2572(a)(1) states: "The record shall be remanded to the court or other tribunal from which it was certified at the expiration of 30 days after the entry of the judgment or other final order of the appellate court possessed of the record.”

      . As noted, trial was not actually held until June 7, 1982, as a result of continuances requested by appellant. This period of delay, however, is all excludable time.

      . The Commonwealth contends that appellant, on September 15, 1981, filed a waiver of Rule 1100 until November 15, 1981 (Appellee’s Brief at pp. 4 and 5). However, my examination of the record fails to produce factual support for this contention.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    504 A.2d 883
    COMMONWEALTH of Pennsylvania v. Robert BLAGMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 26, 1985.
    Filed Jan. 31, 1986.

      Regina B. Glerin, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com. appellee.
    Before BROSKY, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the denial of appellant’s Post Conviction Hearing Act (PCHA) petition without a hearing after the appointment of counsel. The court held that appellant waived his right to PCHA relief by waiting nine and one-half years before bringing this collateral attack on his judgment of sentence. Although the court erred in finding a waiver, we affirm the denial of relief due to the frivolity of appellant’s PCHA petition.

Appellant was sixteen years old when arrested for first degree murder and other offenses. He was convicted by a jury and sentenced to life imprisonment. On direct appeal, his judgment of sentence was affirmed by the Pennsylvania Supreme Court on October 16, 1974. Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974). Appellant initiated this PCHA proceeding on March 8, 1984. The PCHA court held a hearing on the Commonwealth’s motion to dismiss on the basis of the unexplained delay of more than nine years.

Appellant’s excuses for the delay included his youth at the time of trial, his IQ of eighty-seven, his family’s inability to afford counsel for him, his second-grade reading level and his ignorance of the law and how to prepare a petition. On the other hand, appellant was twenty years old when first incarcerated at Camp Hill in 1973. When he arrived, the law clinic told him to wait until a decision was made on his direct appeal. In 1978, appellant obtained a high school equivalency diploma, yet did nothing for five more years until he was transferred to Pittsburgh in 1983. While at Camp Hill, appellant used both the legal clinic and the law library, but never filed a postconviction petition until March, 1984.

After the hearing, the court concluded as a matter of law that appellant’s “delay of approximately nine and one-half years bars consideration of [his] petition for relief.” The court cited Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), as authority for invoking the doctrine of laches.

This was error. “The concept of laches ... has no place in the criminal law.” Commonwealth v. Doria, 468 Pa. 534, 542, 364 A.2d 322, 326 (1976). This court recently held that “a reading of the plain language of the [Post Conviction Hearing Act] compels the conclusion that a defendant’s first PCHA petition can be filed at any time following conviction.” Commonwealth v. Taylor, 348 Pa. Super. 256, —, 502 A.2d 195, 197, (1985). The Taylor court went on to say that

an unexplained delay in filing a PCHA petition is a factor to be considered in assessing the merits of the issues raised in the petition____ We should take care, then, to distinguish between finding a petitioner’s claims meritless based, in part, on delay in filing a PCHA petition, and dismissing a first PCHA petition without considering the claims raised therein____ The latter is inappropriate.

Id., 348 Pa.Superior Ct. at— - —, 502 A.2d at 197-198, (citations and footnote omitted) (emphasis in original).

The cases relied upon by the Commonwealth and by the PCHA court do not support the conclusion that a delay in filing may constitute a waiver of the right to file a first PCHA petition. The cases, instead, involved waiver of the right to withdraw a guilty plea due to unexplained delay following sentencing or involved waiver of a specific issue rather than waiver of the right to file a PCHA petition. See Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) (waiver of issues raised in sixth PCHA petition filed twenty-four years after entry of guilty plea); Commonwealth v. Thompson, 343 Pa.Super. 468, 495 A.2d 560 (1985) (specific issue of failure to make notes of testimony of sentencing hearing part of the record waived due to unexplained delay of five and one-half years in challenging sentence); Commonwealth v. Tyler, 335 Pa.Super. 301, 484 A.2d 144 (1984) (waiver of right to withdraw negotiated guilty plea due to delay of more than seven years); Commonwealth v. Rodriguez, 322 Pa.Super. 17, 468 A.2d 1137 (1983) (waiver of right to challenge alleged Rule 1100 violation due to delay of seven years); Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983) (waiver of right to withdraw guilty plea due to delay of seven and one-half years). We hold that the instant delay of nine and one-half years cannot preclude the filing of appellant’s first PCHA petition.

We must therefore consider the merits of appellant’s PCHA petition and determine whether he is entitled to a hearing on any of the claims raised therein. A hearing is required when “a petition alleges facts that, if proven, would entitle the petitioner to relief”; no hearing is necessary “if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.” 42 Pa.C.S. § 9549. Inasmuch as appellant’s claims are patently frivolous and without a trace of support, no hearing is required to deny the relief requested in his petition.

Appellant’s postconviction petition challenged trial counsel’s effectiveness on five grounds: 1) failure to challenge confessions which were the product of unnecessary delay between arrest and arraignment, 2) failure to raise the issue of the voluntariness of his confession when he was a sixteen-year-old juvenile with a second-grade reading level, 3) failure to object to improper prosecutorial remarks and to preserve this issue on appeal, 4) failure to object to the inadequacy of the jury charge, and 5) failure to call a crucial witness to testify at trial.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or meritless action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant. Commonwealth v. Clemmons, 505 Pa. 356, 360-62, 479 A.2d 955, 957-58 (1984); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Garrity, 331 Pa.Super. 475, 480 A.2d 1133 (1984); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984).

The first two issues have been finally litigated' adversely to appellant. The arguments made by appellant were considered and rejected by the supreme court on direct appeal ten years ago. Commonwealth v. Blagman, supra, 458 Pa. at 434-37, 326 A.2d at 297-300.

Appellant’s remaining allegations of ineffectiveness of counsel provide no grounds for relief. “Where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

The third issue is a spurious claim that trial counsel was inéffective in failing to object to unspecified prejudicial remarks during the prosecutor’s closing statement at trial. Appellant’s argument is that counsel did not raise the issue of prejudicial prosecutorial remarks either at trial or on direct appeal, and his failure to do so constituted ineffective assistance. Appellant, however, provides absolutely no basis for us to assume that any prejudicial comments were actually made during closing argument.

The fourth issue is that counsel was ineffective for failing to object to the inadequacy of the jury charge at appellant’s trial. He makes specific reference to the absence of instructions on appellant’s own testimony, on circumstantial evidence and on expert opinion testimony, as well as a failure to charge the jury on the burden of proof as to the voluntariness of his confession.

Where a charge to the jury adequately states the law and creates no likelihood of confusion, counsel will not be deemed ineffective in failing to oppose the charge. Commonwealth v. Rowles, 501 Pa. 514, 462 A.2d 619 (1983). In reviewing a jury’s instruction we must look to the whole charge, and not just isolated excerpts therefrom. Commonwealth v. Waller, 322 Pa.Super. 11, 468 A.2d 1134 (1983).

Commonwealth v. Davis, 331 Pa.Super. 285, 301-02, 480 A.2d 1035, 1043 (1984). After reviewing the trial court’s entire charge, we hold that it accurately and fairly reflected the law as it applied to the present case and that counsel cannot be deemed ineffective in failing to oppose the charge.

Finally, appellant challenges trial counsel’s effectiveness for failing to call “a crucial witness” to testify at trial. Not only has appellant neglected to explain how the testimony was crucial to appellant’s case, he has failed to identify the witness. In 1981, the Supreme Court of Pennsylvania stated:

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). More recently, this court has held that in seeking to establish that counsel was ineffective for failing to call witnesses, “appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in- which the witnesses would have been helpful to his cause.” Commonwealth v. Polk, 347 Pa.Super. 265, 271-273, 500 A.2d 825, 828-829 (1985). Appellant has utterly failed to allege any of these elements, and this claim is also patently frivolous.

For the foregoing reasons, we affirm the order denying appellant’s petition for postconviction relief.

      . The record does not contain a transcript of the closing arguments during appellant’s trial. We are informed that the court reporter’s death during the intervening ten years has rendered the notes of testimony permanently unavailable. It is this sort of possibility which makes delay in raising a claim an important factor in evaluating the merits of the claim.


author: WICKERSHAM, Judge:

text:
    504 A.2d 886
    COMMONWEALTH of Pennsylvania v. Jimmy GONZALES, Appellant.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Filed Feb. 3, 1986.

      Jeremy Ross, Philadelphia, for appellant.
    Rona S. Totoki, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, WICKERSHAM and ANDERSON, JJ.

       Judge Levy Anderson, Senior Judge, of the Court of Common Pleas of Philadelphia County is sitting by designation.

   WICKERSHAM, Judge:

Jimmy Gonzales appeals from the judgment of sentence imposed on his conviction for third degree murder while in visible possession of a firearm.

On March 17, 1983, appellant was convicted of third degree murder and possessing an instrument of crime in a waiver trial before the Honorable Juanita Kidd Stout. On September 29, 1983, the trial court sentenced defendant to imprisonment for three (3) to twelve (12) years under the mitigated sentencing guideline range for the third degree murder conviction. The court also sentenced appellant to serve a concurrent term of two and a half (2½) to five (5) years for the possession charge.

On October 7, 1983, the trial court sua sponte reconvened to vacate its sentence of September 29 on the murder charge. The court then resentenced appellant to five (5) to twelve (12) years’ incarceration pursuant to the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. § 9712. Some five months prior to conviction the Commonwealth had served appellant’s counsel with notice, pursuant to section 9712(b), of its intention to proceed under the Act.

In the instant appeal, Gonzales presents the following three issues:

I. Was appellant’s state and federal right to be free from double jeopardy violated when, after he had originally been sentenced and had begun to serve that sentence, he was subjected to a second sentencing proceeding at which his original sentence was increased?
II. Is section 9712 of the Sentencing Code, under which appellant was resentenced, unconstitutional in that (A) it alters the burden of proof as to an element of the crime charged and (B) it constitutes an impermissible delegation of legislative power to the executive?
III. Was section 9712 of the Sentencing Code erroneously applied to appellant?

Brief for Appellant at 3.

Appellant first asserts that by resentencing him to a term of imprisonment where the minimum was increased after he began serving the court’s initial sentence, the trial court violated his double jeopardy rights. After careful consideration of the record, we conclude that no such abuse has occurred.

It has long been recognized that the constitutional guarantee barring double jeopardy protects against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ex parte Lange, 85 U.S. (18 Wall) 163, 21 L.Ed 872 (1874); Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985); Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983); Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Henderson, 482 Pa. 359, 393 A.2d 1146 (1978).

The question is whether and to what extent the United States Supreme Court’s decision in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) has eroded the general rule. In DiFrancesco, the Supreme Court, upholding a statute which gave the government a right to appeal certain sentencing decisions, rejected a broad interpretation of the Double Jeopardy Clause. Several courts of appeal have since followed the lead of DiFrancesco. See, e.g., United States v. Sales, 725 F.2d 458 (8th Cir.1984); United States v. Raimondo, 721 F.2d 476 (4th Cir.1983); United States v. Jefferson, 714 F.2d 689 (7th Cir.1983); United States v. Lopez, 706 F.2d 108 (2d Cir.1983); McClain v. United States, 676 F.2d 915 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982); United States v. Busic, 639 F.2d 940 (3d Cir.1981), on remand from 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). DiFrancesco has also been followed by this Court. See, e.g., Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218 (1985); Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985); Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982).

DiFrancesco advances two basic tenets. First, the Double Jeopardy Clause bars multiple punishment, i.e. punishment in excess of that permitted by law. United States v. DiFrancesco, supra 449 U.S. at 139, 101 S.Ct. at 438, 66 L.Ed.2d at 347. Second, that clause respects the defendant’s “legitimate expectations” regarding the length of his sentence: Id. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346.

Addressing the first principle, the Court noted the federal court practice, derived from common law, of permitting the sentencing judge to recall the defendant to increase the sentence “at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence.” Id. at 134, 101 S.Ct. at 435-36, 66 L.Ed.2d at 344.

While we know from this language that a defendant’s sentence may be increased “at least” before he begins to serve that sentence, see id., here we find that appellant Gonzales had begun to serve his sentence. Since the court in DiFrancesco however, “venture[d] no comment as to [the pre-service] limitation,” derived from common law, it is at first unclear whether appellant’s sentence was properly enhanced on resentencing.

Returning to DiFrancesco for further guidance, we observe the Court’s discussion of the often cited dictum regarding resentencing in United States v. Benz, 282 U.S. 304, 307-08, 51 S.Ct. 113, 114, 75 L.Ed. 354, 356-57 (1931), which in turn relied on Ex parte Lange, supra. Many lower courts since Benz had construed the language of Benz to flatly preclude sentence enhancement once service begins. The Supreme Court, in DiFrancesco clarified that: “[T]he dictum’s source, Ex parte Lange, states no such principle____ No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment even though that is multiple punishment” United States v. DiFrancesco, supra, 449 U.S. at 138-39, 101 S.Ct. at 438, 66 L.Ed.2d at 347. Lange therefore, enunciated a rule no broader than that “a defendant may not receive a greater sentence than the legislature has authorized.” Id. at 139, 101 S.Ct. at 438, 66 L.Ed.2d at 347. Because the government had a statutory right of appeal, the Court in DiFrancesco remanded the case for reconsideration and possible enhancement of sentence notwithstanding the fact that the defendant had begun serving the ten year sentence originally imposed. Id. at 151 n. 12, 101 S.Ct. at 444 n. 12, 66 L.Ed.2d at 355 n. 12 (Brennan, J., dissenting). Similarly, we find the fact that appellant had begun to serve his sentence in this case does not impinge on his right to be protected from double jeopardy. since unlike the Lange defendant, who paid a fine and thereby completed punishment under a valid sentence, appellant had not fully satisfied his sentence. See United States v. Busic, supra.

Concerning the second principle of a defendant’s expectations protected by the Double Jeopardy Clause, the Supreme Court looked to the considerations underlying that clause and found them inapplicable to the statutorily granted right to review a sentence in that case. United States v. DiFrancesco, supra at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 345. It further found that the Double Jeopardy Clause did not provide a defendant with the right to perceive the length of his sentence as finally determined at the time he begins to serve it where the legislature has specified that the sentence is subject to appeal. Id. at 139-40, 101 S.Ct. at 438-39, 66 L.Ed.2d at 347-48. See United States v. Busic, supra.

We find that the principles set forth in DiFrancesco apply here and so reject appellant’s double jeopardy claim. Appellant was not “punished in excess of that permitted by law” when he was sentenced correctly for the first time in compliance with section 9712 on October 7, 1983. Nor did appellant have a legitimate expectation of receiving his initial sentence for three reasons: the first of these being the general lack of finality accorded to sentences; the second being the statutory right afforded the sentencing judge to modify a sentence within thirty days of imposition; and finally, appellant’s awareness that the Mandatory Minimum Sentencing Act and its relevant appeal provisions could be applied in this case. “The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” United States v. DiFrancesco, supra at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346.

As the Supreme Court concluded in DiFrancesco, quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947): “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” United States v. DiFrancesco, supra 449 U.S. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 344.

Appellant next claims that section 9712 of the Sentencing Code is unconstitutional because it first, creates a new crime of visibly possessing a firearm during the commission of other offenses, and second, delegates legislative power to the prosecutor.

The Supreme Court of this Commonwealth has recently upheld the constitutionality of section 9712, however, specifically rejecting the same issues raised by appellant. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). See Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985); Commonwealth v. Bannister, 345 Pa.Super. 178, 497 A.2d 1362 (1985). Finding Wright to be dispositive of appellant’s constitutional issues, we believe that further discussion here would be only superfluous.

In his final argument, appellant contends that the sentencing court erred in holding the evidence sufficient to find that appellant “visibly possessed a firearm during the commission of the offense”, within the meaning of 42 Pa.C.S. § 9712, because the only witness to the shooting never saw appellant’s gun.

The facts of this case are closely analogous to those in Commonwealth v. Woodlyn, 345 Pa.Super. 200, 497 A.2d 1374 (1985), which concerned section 9712 in the context of an aggravated assault. Citing Commonwealth v. Healey, 343 Pa.Super. 323, 494 A.2d 869 (1985) (construing the meaning of the statutory language “visibly possessed a firearm”), our court held that possession was manifested in the process of the crime: by smoke, the sound of gunfire and a gunshot wound, although the victim and sole witness never actually saw the gun. See Commonwealth v. Woodlyn, supra 345 Pa.Super. at 202, 497 A.2d at 1375. We therefore find appellant’s argument to be meritless.

Accordingly, the judgment of sentence is affirmed.

      . That sentence is not at issue in this action.

      . 42 Pa.C.S.A. § 5505 provides: "a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” The trial court here acted within 30 days and prior to the expiration of the 10 day time period during which the Commonwealth could petition for modification pursuant to Pa.R.Crim.P. 1410.

      . 42 Pa.C.S. § 9712 provides that a minimum sentence must be imposed for certain offenses including that of murder of the third degree, while the actor visibly possessed a firearm. The statute reads in pertinent part:
      § 9712. Sentences for offenses committed with firearms
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      (b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
      (c) Authority of court In sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission of Sentencing shall not supersede the mandatory sentences provided in this section.
      (d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

      . See Brief for Appellant at 10 n. 3.

      . Although appellant did not raise these issues at sentencing or in a motion to modify sentence, his claims go to the legality of his sentence and therefore cannot be waived. Commonwealth v. Norris, 498 Pa. 308, 319 n. 9, 446 A.2d 246, 251 n. 9 (1982); Commonwealth v. Cooke, 342 Pa.Super. 58, 68 n. 1, 492 A.2d 63, 69 n. 1 (1985).

      . In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the double jeopardy clause of the fifth amendment to the United States Constitution was applied to the states through the fourteenth amendment. Article I, § 10 of the Pennsylvania Constitution provides co-extensive protection. See Commonwealth v. Zoller, 507 Pa. 344, 348 n. 1, 490 A.2d 394, 396 n. 1 (1985); Commonwealth v. Klobuchir, 486 Pa. 241, 254 n. 12, 405 A.2d 881, 887-88 n. 12 (1979). We therefore address appellant’s rights under the state and federal constitutions together in the following discussion.

      . We note that the Pennsylvania Supreme Court case of Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985) was reversed and remanded for reconsideration in light of DiFrancesco by the United States Supreme Court in Pennsylvania v. Goldhammer, 474 U.S. —, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam).

      . 18 U.S.C. § 3576, as it read at the time of the DiFrancesco opinion, stated in pertinent part:
      [A] review of the sentence on the record of the sentencing court may be taken by the defendant or the United States to a court of appeals____Review of the sentence shall include review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court’s discretion was abused. The court of appeals on review of the sentence may, after considering the record, including the entire presentence report, information submitted during the trial of such felony and the sentencing hearing, and the findings and reasons of the sentencing court, affirm the sentence, impose or direct the imposition of any sentence which the sentencing court could originally have imposed, or remand for further sentencing proceedings and imposition of sentence, except that a sentence may be made more severe only on review of the sentence taken by the United States and after hearing.
      Pub.L. 98-473, Title II, c. II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1987, repealed this section effective Nov. 1, 1986.

      . See Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985) (applying DiFrancesco where sentence increased upon petitions for modification).

      . We note that in the companion cases to Commonwealth v. Wright, supra, e.g., Commonwealth v. McMillan, No. 28 Ed., Appeal Dkt. 1984, Commonwealth v. Peterson, No. 62 Ed., Appeal Dkt. 1984, Commonwealth v. Dennison, No. 106 Ed., Appeal Dkt. 1984, and Commonwealth v. Smalls, No. 106 Ed., Appeal Dkt. 1984, the Supreme Court of Pennsylvania remanded for resentencing in accordance with the Mandatory Minimum Sentencing Act without consideration of whether the defendants had begun service of their sentences.


author: POPOVICH, Judge:

text:
    504 A.2d 891
    COMMONWEALTH of Pennsylvania v. Joseph BERTHESI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1985.
    Filed Feb. 3, 1986.

      David S. Wolf, Philadelphia, for Berthesi, appellant.

      Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, POPOVICH and ROBERTS, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying the Post-Conviction Hearing Act (PCHA) petition of the appellant, Joseph Berthesi. We affirm.

On December 27, 1967, the appellant pleaded guilty to conspiracy, aggravated robbery, simple assault and battery involving one Robert Timm. The victim was restrained, beaten and robbed of eleven dollars by a trio of individuals, one of whom was the appellant. As a result of the attack, the victim was treated for cuts and bruises at the hospital and lost a day’s wages.

The appellant took the stand, admitted to stopping the victim and receiving eleven dollars taken from the victim by one of the other assailants.

During the plea it was revealed that in 1964 the appellant was convicted of burglary and passing worthless checks. Also, the court noted that there were no other convictions, “but plenty of trouble.” Nonetheless, the court decided to sentence the appellant to five years probation for aggravated robbery and suspended sentence on the remaining charges. No motion to withdraw the plea or direct appeal was filed.

On June 17, 1970, the probation was revoked and the appellant was committed to the State Correctional Institution at Graterford for eighteen months to three years. No appeal followed. However, on July 23,1981, fourteen years after his guilty plea and eight years following the completion of his sentence for the 1967 robbery, the appellant filed a pro se PCHA petition claiming the ineffectiveness of guilty plea counsel and the denial of his right to appeal. An amended PCHA petition, filed by appointed counsel unassociated with guilty plea counsel, reaffirmed the appellant’s contention that prior counsel was ineffective in not informing the accused “at any time of his right to appeal.”

The Commonwealth’s answer to the amended petition asserted: First, the allegations had been waived or finally litigated. Second, the unexplained delay between the plea and the PCHA petition barred review. Third, the petitioner’s failure to allege that he was “currently suffering any civil or criminal consequence from his 1967 conviction”, when coupled with the fact that his sentence had already been served, precluded him from seeking relief. At the PCHA hearing, save for the waiver and finally litigated arguments, the Commonwealth asserted its former positions as a basis for the court’s dismissal of the petition.

To rebut the Commonwealth’s laches contention, the appellant testified, under cross-examination, that, “If [he] knew that [he] had a right to appeal, then [he] would have appealed____ You can believe that____” He continued, if it had not been for a law clinic in Holmesburg Prison in 1981 — he was serving a seven and one-half to twenty-five year sentence for robbery, he never would have been cognizant of his appellate rights. Further, as to the effect of the 1967 plea of guilty the appellant stated that it was a stigma on his record and “may” have caused him to receive a “more severe sentence” for the 1981 robbery.

At the conclusion of the hearing, the PCHA court found it “very difficult” to believe the appellant’s version, and, thus, dismissed the petition. In the opinion that followed, the PCHA court substantiated its determination that the appellant had waived his right to assault the 1967 plea on the ground that he “failed to carry his burden of proving the merits of his contentions regarding the denial and obstruction of his appellate rights____” Also, the PCHA court premised its denial on the appellant’s “unsatisfactorily” explained delay between the entry of the plea and the filing of the PCHA petition.

Counsel for the appellant presents five issues for our review. The first three relate to the purported failure of the appellant to be advised of his appellate rights and prior counsel’s ineffectiveness in failing to insure that his client was informed of said rights. The fourth claim charges that the guilty plea was defective. The fifth question deals with a supposed destruction of some of the notes of testimony, “thus depriving petitioner of his opportunity to bring forth more evidence of ineffective assistance of counsel, unlawful arrest, and unlawful search or seizure”.

Before reaching the merits of the appellant’s allegations, we must address the arguments of the Commonwealth and the PCHA court that the issues proffered need not be reviewed because (1) the appellant failed to carry his burden of proving “his contentions regarding the denial and obstruction of his appellate rights”, and (2) the appellant did not explain his delay in seeking available post-conviction relief. Thus, they go on, the PCHA petition is subject to dismissal on the ground of laches.

It is axiomatic that in our scheme of justice an accused has the right to appeal his sentence and to the assistance of appointed counsel, if indigent, in doing so. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Concomitantly, the accused has the ability to “waive” his right to counsel and to an appeal. As our Supreme Court capsulized in Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971):

In determining whether a defendant has waived a constitutional right it is well settled that the federal standards of waiver first enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) apply. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). The waiver of a constitutional right must be “an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464, 58 S.Ct. at 1023. The presumption must always be against the waiver of a constitutional right. Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 463-465, 86 L.Ed. 680 (1942). Nor can waiver be presumed in a silent record case. The United States Supreme Court explicitly ruled in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962):
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (Emphasis added).
Id. at 516, 82 S.Ct. at 890. Thus this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth. Whether defendant was represented by private or court-appointed counsel, or whether his trial took place before or after the Douglas decision, are distinctions with no legal significance. Commonwealth v. Ezell, [431 Pa. 101, 244 A.2d 646 (1968)]; Commonwealth ex rel Stevens v. Myers, [419 Pa. 1, 213 A.2d 613 (1965)].

477 Pa. at 221-222, 285 A.2d at 526. As an adjunct to the aforesaid, we wish to note that “simply because a man can afford to hire private counsel does not mean that he forfeits his right to be told of the availability of the appellate process. Commonwealth v. Payton, 431 Pa. 105, 107, 244 A.2d 644, 645 (1968) (Emphasis in original). Furthermore, the Commonwealth’s burden of proving waiver of one’s appellate rights by a preponderance of the evidence, in silent record cases, has been settled law in this jurisdiction since 1968. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). This would seem to lay to rest the erroneous views of the PCHA court and the Commonwealth on this subject.

As to the protestation of the same two parties that laches is a viable tool for rendering impotent the appellant’s request for relief under the PCHA, eighteen years after his plea, we are not persuaded to embrace such a proposition. We do so on the strength of Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976), wherein the Court wrote:

The prosecution also argues that appellant should be estopped from raising the alleged invalidity of the 1960 conviction on a theory of laches because he waited fourteen years before seeking such relief. The concept of laches is a defense applicable only to equity proceedings. Bauer v. P.A. Cutri Co., 434 Pa. 305, 253 A.2d 252 (1969). It has no place in the criminal law.

468 Pa. at 542, 364 A.2d at 326. See also Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973) (12 years had elapsed since murder conviction, plus an appeal had already been taken, yet PCHA petition questioning right to appeal was held not waived); Commonwealth v. Falcone, 440 Pa. 61, 269 A.2d 669 (1970) (1955 conviction for murder not questioned until 1969 PCHA petition; Court found right to appeal not waived and remanded for filing of post-verdict motions); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970) (1952 murder conviction first questioned in 1968 PCHA petition raising denial of appeal rights; no waiver and case remanded for filing post-trial motions).

With the preceding precepts in mind, we can now turn to the record and find a total absence of any mention of the appellant’s Douglas rights. Not only does a Douglas denial preclude a finding of waiver under Section 4 of the PCHA, Commonwealth v. Holmes, 468 Pa. 409, 417 n. 7, 364 A.2d 259, 263 n. 7 (1976), but this requirement cannot be inferred from the appellant’s possession of a prior criminal record. Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 200-201, 236-A.2d 781, 785 (1968); Commonwealth ex rel. Gordon v. Myers, 424 Pa. 352, 354, 227 A.2d 640, 642 (1967).

Although the findings of the PCHA court are to be accorded “great deference”, this Court will not blindly affirm if they are not supported by the record. Compare Commonwealth v. Porta, 297 Pa.Super. 298, 443 A.2d 845 (1982) (POPOVICH, J.), allocatur denied September 1, 1982.

Instantly, the 1967 guilty plea colloquy makes no mention of the rights referred to in Douglas, nor was the appellant tentative — on the contrary, he was emphatic — in his reaffirmation of the denial of his right to appeal, by both court and counsel, during his testimony at the 1983 PCHA hearing. Therefore, we fail to detect what facts of record are supportive of the PCHA ruling, especially is this so since we have found flawed the PCHA court’s reliance upon the ill-fated doctrine of laches and the misapplication of the burden of proof, in the face of a silent record, to buttress its decision.

We feel it prudent to make mention of the position of the Commonwealth, advanced at the hearing below, that the appellant’s completion of his 1967 sentence renders moot his present complaint.

In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), our Supreme Court enunciated the “collateral criminal consequences” rule and allowed the defendant to attack his satisfied sentence upon a showing that it directly affected a subsequent criminal conviction. The Sheehan Court held that a possibility that the defendant might be classified as a recidivist and open to a harsher penalty was itself a collateral criminal consequence sufficient to prevent his PCHA petition from being moot.

At bar, the appellant was convicted of a second robbery in 1981, and the sentence (7½ to 25 years) he is presently serving, we believe it fair to say, had the possibility of being impacted by the 1967 plea/robbery. With the requirements under our Sentencing Code that the court secure a pre-sentence report reflective of all the accused’s criminal activity, we would be taking a myopic view of the facts to conclude that the 1981 sentencing court was not exposed to the 1967 robbery and utilized it in formulating the form and length of punishment to be imposed upon the appellant. See Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985). Thus, we do not hold the right-to-appeal issue to be moot.

From an examination of the record, it is clear that the appellant’s allegation that his right to appeal had been impaired has merit and that he is entitled to appeal as if timely. This is confirmed from a reading of the guilty plea record which shows that Berthesi was not advised of his right to appeal (or to his right to free counsel on such an appeal) nor did the Commonwealth at the PCHA hearing produce any evidence to rebut (by a preponderance of evidence) the appellant’s unawareness of such a right. As the burden of proving waiver of the federal constitutional right announced in Douglas is on the government, Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971), it follows inextricably that the appellant would, if it were not for the facts at bar, be granted leave to file an appeal from his judgment of sentence as if timely filed. Compare Commonwealth v. Crowson, 450 Pa. 218, 299 A.2d 318 (1973).

We see no reason to remand to allow the Commonwealth to proffer evidence on the question of waiver, inasmuch as it was given such an “opportunity” and fell short of the mark. Compare Commonwealth v. Norman, supra; Commonwealth v. Ezell, 431 Pa. 101, 244 A.2d 646 (1968). Further, inasmuch as the issues subject to review following the entry of a guilty plea are limited to the voluntariness of the plea and the legality of the sentence, Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985) (en banc) (Opinion In Support Of Reversal by POPO-VICH, J.), the fact that the appellant has raised (properly) only the voluntariness question limits our review to just that issue. Stated differently, the posture of the case, i.e., the record being complete on the appeal issue, obviates the need for a remand. See Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983); Commonwealth v. Brown, supra.

We have scrutinized the record in regard to the voluntariness question and we find that the December 27, 1967 plea was proper and elicited from the appellant that he was knowingly, intelligently and voluntarily pleading guilty. See Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161, 165, 199 A.2d 424, 426 (1964).

No other issues being properly before us for review, and since we have the authority to uphold the decision of the court below for reasons other than those advanced by the original jurist, Commonwealth v. Tunnell, 463 Pa. 462, 464 n. 2, 345 A.2d 611, 612 n. 2 (1975), we have concluded that the appellant has not established his right to relief.

Order affirmed.

      . 19 P.S. § 1180-1 et seq., repealed; reenacted at 42 Pa.C.S.A. §§ 9541-9551.

      . Presently, in Pennsylvania, Pa.R.Crim.P. 1405(c)(1) deals with one’s appellate rights as enunciated in Douglas.