author: POPOVICH, Judge:

text:
    546 A.2d 119
    TYSON METAL PRODUCTS, INC., Appellee, v. Marcie McCANN, an Individual, and Stainless Manufacturing, Inc., a Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued May 5, 1988.
    Filed Aug. 15, 1988.

      Ralph A. Finizio, Pittsburgh, for appellants.
    Harold Gondelman, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County, sitting in equity, granting a preliminary injunction against the appellant/Marcie McCann on motion of the plaintiff/Tyson Metal Products, Inc. We reverse.

The record discloses that a hearing was conducted on August 11-12, 1988, to assess the plaintiffs motion for a preliminary injunction. At the proceeding, the vice-president of Tyson Metal Products, Inc., Harvey Tyson, appeared and testified in substance that, during McCann’s employ with the plaintiff, she had access to prices charged by suppliers to the plaintiff for some 6-20 vital items which went into proposals (“bids”) submitted to its largest customer, Burger King Corporation, which constituted 20-30% of its gross sales of $12,000,000.00 a year in its manufacture of food service equipment.

It was Mr. Tyson’s contention that, with McCann securing employment with its main rival in the business, the appellant/Stainless Manufacturing, Inc., her disclosure of the “price list”, accumulated over the years through adroit negotiations to afford an advantage, would tip the scales in favor of Stainless and negate whatever leverage the plaintiff had over its competition. More particularly, it was the position of the plaintiff that because of the lower price it was able to secure from a supplier on a product, it was able to pass on the savings to its customers and, thus, obtain a larger share of the market.

If Stainless learned of this “price list”, it, supposedly, would contact the supplier to obtain the same low price, equalize the competition and cut into the 2-5 million dollars in sales it had with Burger King Corporation.

Mr. Tyson also testified that he specifically informed McCann that the “price list” was confidential. Yet, during the years of McCann’s employment for the plaintiff, it was only within a “couple of weeks” of the hearing date that availability to the information at issue was restricted.

When McCann took the stand, she recounted how she had never been advised of the confidentiality of the “price list”. Further, when she refused to sign an employment agreement with the plaintiff she was still promoted to Sales Administrator, which encompassed easy access to the forty-one pages, as well as eleven pages of supplementation, making up the “price list”. Finally, McCann stated that she had no intention to disclose such information to Stainless because it could discover this listing on its own if it wanted to do so.

At the completion of the hearing, the Chancellor heard argument and received briefs on behalf of the respective litigants. The next day, the Chancellor entered the following order:

AND NOW, this 12th day of August, 1987, upon consideration of Plaintiffs Motion for Preliminary Injunction and of the testimony and authorities provided by the parties, it is hereby ORDERED that Defendant Marcie McCann is preliminarily enjoined from disclosing the following information to Defendant Stainless Manufacturing, Inc.:
The prices charged to Plaintiff Tyson Metal Products, Inc. for equipment, which prices are used by Tyson in formulating bids and proposals to Burger King Corporation, by equipment suppliers who charge Tyson a lower price for said equipment than they charge all of Tyson’s competitors.
Bond in the sum of $5,000 to be posted.

This appeal ensued and challenges the order on the grounds that (1) the “price list” was not a trade secret, and, even if it were, (2) it was not communicated to McCann under circumstances which created an obligation of secrecy.

The starting point in every case of this sort is not whether there was a confidential relationship, but whether, in fact, there was a trade secret to be misappropriated. Van Products Co. v. General Welding and Fabricating Co., 419 Pa. 248, 213 A.2d 769 (1965). Moreover, this is the course to pursue because there was no evidence that a restrictive covenant was executed between the parties. See Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976).

In Pennsylvania, the courts have adopted the definition of a trade secret given in the Restatement of Torts § 757, Comment b (1939):

A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.

See Felmlee, supra, 466 Pa. at 9, 351 A.2d at 277; Van Products Co., supra, 419 Pa. at 258-59, 213 A.2d at 775. In addition, the Third Circuit in SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244 (1985) offered:

Some factors to be considered in determining whether given information is a trade secret are: (1) the extent to which the information is known outside of the owner’s business; (2) the extent to which it is know by employees and others involved in the owner’s business; (3) the extent of measures taken by the owner to guard the secrecy of the information; (4) the value of the information to the owner and to his competitors; (5) the amount of effort or money expended by the owner in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts § 757 comment b (1939); International Election Systems Corp. v. Shoup, 452 F.Supp. 684, 706 (E.D.P&.1978), affd, 595 F.2d 1212 (3d Cir.1979).

753 F.2d at 1256.

One cannot dispute that the “price list” in the possession of the plaintiff is a “compilation of information which is used in [its] business, and ... gives [it] an opportunity to obtain an advantage over competitors who do not know or use it.” Restatement of Torts § 757. However, that is only the beginning of the inquiry. Like all terminology, it is subject to application premised upon its interpretation, which, in turn, is controlled by the particular facts of the case under review.

As was made mention of in Comment b to Section 757 of the Restatement of Torts, “the ease or difficulty with which the information could be properly acquired or duplicated by others” is a factor in weighing its status as a “trade secret”.

To that end, we observe instantly that, on cross-examination, the vice-president of Tyson admitted that the competition, specifically Stainless, could contact a mutual customer and ask why its bid was rejected in favor of Tyson’s. Once it was discovered that the discrepancy related to a particular item, the competition could proceed to contact the supplier of the item (contained on Tyson’s “price list”) and ask what price it was charging Tyson in contrast to the competitor. Tyson’s vice-president agreed that this could be done. The fact of whether the supplier would disclose its price to Tyson was another matter; nonetheless, the scenario just reconstructed to access the information sought was possible and not improbable.

Thus, if the information the plaintiff seeks to keep confidential could be obtained by legitimate means by its competitors, the enjoining of McCann from disseminating the same information makes little sense, either in law or logic. In other words, “they [‘price lists’] are matters which any industrious person [c]ould learn in [the manufacturing food service] field in [Stainless’] position. [Consequently, t]hey are not of such character as to be classified as trade secrets.” Van Products Co., supra, 419 Pa. at 262, 213 A.2d at 777.

In a context akin to the one before us, the Federal Third Circuit concluded that knowledge of the lower prices charged by suppliers to SI Handling Systems, Inc. would not be recognized as a trade secret. In doing so, it wrote:

Here the information SI wishes to enjoin appellants from using (the identity of the vendors and the price of their merchandise) is already in the hands of third parties — i.e., the bearing suppliers — who have every incentive, and every right, to disclose it to their customers. To prevent appellants from using this information would put an undue burden on the innocent vendors, as well as place an artificial constraint on the free market. As the Pennsylvania Supreme Court recognized in Van Products, supra, “material sources and costs” are “something that would be learned in any productive industry, ...” 419 Pa. at 261, 213 A.2d at 776. See also Jewish Employment and Vocational Service v. Pleasantville Educational Supply Corp., 220 U.S.P.Q. 613, 626-27 (E.D.Pa.1982). The district court erred as a matter of law in holding that knowledge of alternate suppliers of parts, and their prices, is protectible as a trade secret. (Language to the contrary in Sims v. Mack Truck Corp., 488 F.Supp. 592, 601 (E.D.Pa.1980) is not supported by the cases cited therein and we reject that language.)

753 F.2d at 1257. Accord Van Products Co., supra, 419 Pa. at 261, 213 A.2d at 776; United Boiler and Engineering Co. v. Gordon, 50 Erie L.J. 71, 80-82 (1966) (Knowledge and information, such as price lists and costs are not trade secrets).

Instantly, as in SI Handling Systems, Inc., the prices a supplier charges to the plaintiff/customer are known to the supplier, who has every right to disclose this information, if it so chooses, to inquiring competitors of the plaintiff — a fact which even the vice-president of Tyson did not discount as a possible event.

Because the information sought to be kept secret could be discovered through legitimate channels (contacting the suppliers personally) by energetic, conscientious and eager members of the competition, we fail to discern how the prohibition of the disclosure of the identical data through McCann renders it trade secret information subject to protection by means of an injunction.

As for the measures implemented by the plaintiff to guard against any potential pilfering of the “price list”, see SI Handling Systems, Inc., supra, Tyson’s vice-president conceded that the first steps to keep the “price list” confidential transpired a mere “couple of weeks” before the preliminary injunction hearing. Prior thereto, any employee in the company could have made a copy of the information at issue by means of a computer read-out, since there was no mechanism in place to screen those permitted to view this document. .

Accordingly, for the reasons herein stated, we find the Chancellor’s preliminary injunction is unwarranted under the facts and the law.

Order reversed. Jurisdiction relinquished.

      . More particularly, to be entitled to an injunction against use or disclosure of information, under Pennsylvania law, a plaintiff must show:
      (1) that the information constitutes a trade secret; (2) that it was of value to the employer and important in the conduct of his business; (3) that by reason of discovery or ownership the employer had the right to the use and enjoyment of the secret; and (4) that the secret was communicated to the defendant while employed in a position of trust and confidence under such circumstances as to make it inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer.

        SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1255 (3rd Cir.1985) (Citations omitted).


source: Caselaw Access Project

author: HESTER, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    546 A.2d 123
    In the Interest of George BORDEN. Appeal of George BORDEN, Commonwealth of Pennsylvania.
    Superior Court of Pennsylvania.
    Submitted June 22, 1987.
    Filed Jan. 13, 1988.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

This is a direct appeal from a juvenile disposition. Appellant, an eleven-year-old boy, was adjudicated delinquent for committing involuntary deviate sexual intercourse, indecent exposure and indecent assault upon a six-year-old boy. A disposition of “intensive” probation with psychological counseling was entered. Appellant argues that his constitutional rights to confrontation and due process were violated during his adjudicatory hearing. We agree in part and remand for a new hearing.

On January 9,1986, appellant’s adjudicatory hearing commenced. Following the court’s ruling that the child victim was competent to testify, the victim began to have difficulty relating the details of the incident and simply stated that he “forgot.” Notes of Testimony, 1/9/86, at 12-13. The trial court questioned the victim about his fear of testifying in front of appellant, then sua sponte ordered the hearing to be continued so that a closed circuit television could be used in the proceedings.

On January 30, 1986, the adjudicatory hearing resumed. Appellant was placed alone in a room outside the courtroom while the victim testified in the courtroom. Appellant was provided with a closed circuit television to watch and listen to the testimony, as well as an audio device through which he could speak to his counsel. Following the victim’s testimony, appellant was brought back into the courtroom and the remainder of the proceedings took place entirely in appellant’s presence.

Appellant was adjudicated delinquent at the conclusion of the hearing and his disposition was entered on April 24, 1986. Appellant filed this appeal on May 23, 1986.

The record establishes that on August 11,1985, appellant and two other boys physically forced the child victim to perform fellatio upon them. Appellant also threatened the victim with physical harm if he told anyone of the incident.

Appellant’s sole argument is that the trial court erred when it removed him from the courtroom and required him to observe the victim’s testimony over closed circuit television, thereby violating his constitutional rights of confrontation and due process.

The United States Supreme Court decided in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that “a juvenile has a constitutional right to notice of the charges, to counsel, to confrontation and cross-examination of witnesses, and to the privilege against self-incrimination.” In re Bonner, 301 Pa.Super. 431, 434-35, 447 A.2d 1043, 1045 (1982). However, we recently held that

[t]he right to confront does not confer upon an accused the right to intimidate. The reliability of an abused child’s testimony does not depend upon his or her ability to withstand the psychological trauma of testifying in a courtroom____ The reliability of the child’s testimony can be assured in such cases by requiring the child to submit to cross-examination while the jury and the accused observe the demeanor of the witness as he or she responds to questions. In the case sub judice, this was accomplished by closed circuit television.

Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (Pa.Super., 1987) at 463.

Although the victim in Ludwig had previously described the sexual acts her father had perpetrated upon her to social workers and law enforcement officials, she was fearful of testifying in her father’s presence. Therefore, the trial court granted a Commonwealth request to remove the victim from the courtroom and present her testimony via closed circuit television. We held that the trial court in Ludwig did not abuse its discretion, since it “did nothing more than adopt modern technological means to allow the jury to hear testimony which otherwise would have been unavailable. The use thereof did not violate the defendant’s right to confront the witnesses against him. It served only to enhance the fact-finding process.” Ludwig, supra, at 464. Therefore, appellant’s argument that the use of a closed circuit television during a criminal proceeding violates his constitutional rights of confrontation and cross-examination of witnesses is meritless.

Appellant also argues that he was denied his right to due process in that the trial court ordered the use of closed circuit television and removed him from the courtroom sua sponte. We agree.

Pa.R.Crim.P. 1117(a) provides:
Rule 1117. Presence of the Defendant (a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.

It is well settled that “a defendant charged with a felony has a constitutionally protected right to be present at every stage of a trial, i.e., from the arraignment to the rendition of the verdict.” Commonwealth v. McLaurin, 292 Pa.Super. 392, 395, 437 A.2d 440, 442 (1981), citing Lewis v. United States, 146 U.S. 370, 372,13 S.Ct. 136,137, 36 L.Ed. 1011 (1892). Nevertheless, this “right can be relinquished, e.g., it can be waived by one’s words or actions.” McLaurin, supra, 292 Pa.Super. at 396, 437 A.2d at 442. In other words, “a defendant may be removed from the courtroom during his trial when his conduct is so disruptive that the trial cannot proceed in an orderly manner.” Commonwealth v. Henderson, 275 Pa.Super. 350, 356, 418 A.2d 757, 760 (1980).

The United States Supreme Court has long recognized that a defendant needs to be present at any proceeding that “bears, or may fairly be assumed to bear,'a relation, reasonably substantial, to his opportunity to defend.” Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), quoted in McLaurin, supra, 292 Pa.Super. at 397, 437 A.2d at 443. Therefore, a defendant’s right to be present at all stages of his trial does not extend to all procedural matters in preparation for trial such as preliminary pretrial motions and arguments on matters of law, especially where his absence causes no prejudice, but his presence is required when the testimony of witnesses is being given. Id.

Although appellant is a juvenile and is not guaranteed all of the same rights as adult criminal defendants, e.g., trial by jury, we are guided by the principle in Gault which establishes that “[a] proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.” Gault, supra, 387 U.S. at 37, 87 S.Ct. at 1448. Therefore, we hold that a juvenile subject to delinquency proceedings has the right to be present throughout his adjudicatory hearing.

Inasmuch as appellant was ordered sua sponte by the trial court to be removed from the courtroom without any misconduct on his part, we hold that he has been denied his right to due process. Initially, we note that Ludwig does not require a different result. In Ludwig, it was the child witness who was removed from the courtroom, not the accused. Secondly, appellant’s removal did not afford him a full opportunity to maintain unrestricted communication with his counsel. The record is not clear as to what type of audio device was provided to allow appellant to communicate with his counsel, although a reference in the record suggests it may have been a telephone. Whatever device was used, however, could not have replaced the spontaneity and confidentiality of communication that is achieved when counsel and client sit side by side in the courtroom.

Appellant was also denied an opportunity to observe the factfinder’s demeanor so as to determine whether he was finding the witness’s testimony credible. Moreover, appellant could not watch the interplay between counsel, the judge, and the witness as the testimony was given. Furthermore, if appellant desired to speak to his counsel, he would have had to interrupt the testimony in order to do so. We believe that an eleven-year-old juvenile accused would have been inhibited and fearful of interrupting the proceedings in order to converse with his counsel, and would have been more likely to remain silent. Finally, appellant’s removal from the courtroom cannot be justified by the fact that it is more convenient for the court or for the witness, especially in light of Ludwig which permits a witness outside the courtroom to testify via closed circuit television.

Inasmuch as appellant’s removal from the courtroom deprived him of due process, we remand for a new adjudicatory hearing. Jurisdiction is relinquished.

DEL SOLE, J., files a concurring & dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

I concur in the Majority’s position that Appellant’s constitutional rights of confrontation and cross-examination were not violated during a criminal proceeding in which closed circuit television was utilized. However, I dissent from the conclusion that since Appellant was removed from the courtroom and placed in a room alone while the victim testified in court, that his due process rights were violated. (Appellant was provided with a closed circuit television to watch and listen to the testimony, as well as an audio device through which he could speak to his counsel).

This Court in the recently decided case of Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987), held that:

[t]he use of closed circuit television in child abuse cases, where the child is unable or reluctant to testify against an adult member of the family, is a minimally intrusive infringement on the right of confrontation. Considerations of public policy require that testimony from the alleged victim of abuse be received without further psychological injury to the child. So long as the right of cross-examination is preserved in such cases and all interested persons can observe the alleged victim as he or she testifies, the use of closed circuit television is not prohibited by the confrontation clause of the federal or state constitution.

Id., 366 Pa.Superior Ct. at 369, 531 A.2d at 463. Additionally, since the trial in Ludwig, the Legislature has provided by statute for receiving the testimony of child abuse victims by closed circuit television for good cause shown. See: 42 Pa.C.S.A. § 5985(a).

In light of the fact that both common and statutory law have recognized that it is not necessary for both the defendant and the testifying victim to be in the courtroom simultaneously in order for the confrontation clause to be satisfied, the question then becomes how can the credibility of a witness best be judged; by the trial court’s direct observation of the testifying witness or the trial court’s observation of the defendant as to whether it finds the witness’s testimony credible. In my concurring opinion in Ludwig, I stated that:

[w]hen faced with the necessity of utilizing televised testimony of a child witness, courts should explore the possibility of keeping the witness in the courtroom before the jury. The defendant can observe the trial via closed circuit television. If possible, the jury should be able to observe the witness, not through the eyes of a television camera, but in person. See: Matter of Appeal in Pinal County Juvenile Action, 147 Ariz. 302, 709 P.2d 1361 (App.1985); Arthur, Child Sexual Abuse, Vol. 37, No. 2, Juv. & Fam.Ct.J. pp. 32-33. (1986).

Id., 366 Pa.Superior Ct. at 379, 531 A.2d at 468.

I do not dispute that a defendant is constitutionally entitled to be present at each critical stage of criminal proceedings against him. Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981). However, I do not find that he was denied due process for the period that he was removed from the courtroom, as he had full view of the proceedings and complete ability to communicate with his attorney. The trial court had the opportunity to directly observe the demeanor of the child witness, without the intimidating presence of the defendant, while concurrently the defendant viewed the testimony and if necessary could directly communicate with his counsel. I believe this procedure properly balances the rights of both parties, and provides a far better opportunity for the court to observe the witness’ deportment and credibility.

Inasmuch as I believe that neither Appellant’s right to confrontation, nor his right to due process were herein violated, I would affirm the judgment of sentence.

      . This is consistent with 42 Pa.C.S. § 6336(d) which provides in part: "The court may temporarily exclude the child [accused juvenile] from the hearing except while allegations of his delinquency are being heard.” (Emphasis added.)


author: ROWLEY, Judge:

text:
    546 A.2d 624
    COMMONWEALTH of Pennsylvania, Appellant, v. William SWEENEY. COMMONWEALTH of Pennsylvania, Appellant, v. Kurt HECKER. COMMONWEALTH of Pennsylvania, Appellant, v. John HARTUNG. COMMONWEALTH of Pennsylvania, Appellant, v. John MATTERO. COMMONWEALTH of Pennsylvania, Appellant, v. Joseph MALLON.
    Superior Court of Pennsylvania.
    Argued March 9, 1988.
    Filed July 14, 1988.
    Reargument Denied Aug. 29, 1988.

      Robert A. Graci, Deputy Attorney General, Media, for Com., appellant.
    Steven C. Leach, Assistant Public Defender, Media, for Sweeney, appellee (at 2104).
    William A. George, Media, for Hecker, appellee (at 2105).
    James P. McHugh, Media, for Hartung, appellee (at 2106).
    Arthur T. Donato, Jr., Media, for Mattero, appellee (at 2107) .
    Robert A. Auve, Ridley Park, for Mallon, appellee (at 2108) .

      Before ROWLEY, WIEAND and MONTEMURO, JJ.
   ROWLEY, Judge:

These consolidated appeals by the Commonwealth are from the trial court’s order dated July 10, 1987, denying appellant’s application for an extension of time for the commencement of trial pursuant to Pa.R.Crim.P. 1100 and granting the appellees’ petitions to dismiss. We reverse.

Although no trial has yet been held, this is the second time these cases have been before our Court on appeal by the Commonwealth. On October 11, 1984, criminal complaints were filed against appellees, Sweeney, Hecker, Hartung, Mattero and Mallon, by the Pennsylvania Attorney General’s Office (“the Commonwealth”) pursuant to a presentment returned on September 20, 1984, by an investigating grand jury sitting in Harrisburg. Following arraignment, the cases were consolidated and trial was scheduled for April 1, 1985. Appellees Hartung and Mattero filed motions to dismiss pursuant to Rule 1100 on March 20 and 21, 1985, respectively. The other appellees joined in the motions. Appellees argued that the 180 days within which the Commonwealth was required to call the case for trial began on September 20, 1984, the date the investigating grand jury returned the presentment. Accordingly, it was their position that the 180-day period under Rule 1100 expired on March 19, 1985. A hearing on the appellees’ motions was held on April 1, 1985, after which the trial court granted the motions and dismissed the charges as to all appellees.

The Commonwealth timely filed notices of appeal on April 18 and 19, 1985, to this court. By opinion and order of August 7, 1986, the trial court’s decision was reversed. Our Court held that the Rule 1100 period began to run when the prosecutor filed the criminal complaints. Accordingly, April 9,1985, was established as the correct run date. Therefore, eight days still remained of the 180-day period when the trial court entered its order dismissing the charges.

On August 15, 1986, eight days after the entry of our order reversing the trial court’s decision, the Commonwealth filed applications for extension of time to commence trial pursuant to Rule 1100(c) and (d) as to each defendant. The applications alleged that the time from the entry of the trial court’s order dismissing the charges on April 1, 1985, until the date of remand of the record from the Superior Court was excludable from the 180-day calculation and that these cases could not be called to trial, despite due diligence, within the eight (8) days remaining under Rule 1100 after the record would be remanded to the trial court. See Pa.R.A.P. 2572. In response to the Commonwealth’s applications for extension of time, each of the appellees, except Mallon, filed a second motion to dismiss the charges. On August 21, 1986, while the Commonwealth’s and appellees’ motions were pending in the trial court, appellees Sweeney, Hecker, Hartung and Mattero filed, in this Court, motions for reargument of this Court’s August 7, 1986, order.

On September 16, 1986, a hearing was held by the trial court on the Commonwealth’s applications for extension of time and appellees’ motions to dismiss. However, all counsel agreed that a decision by the trial court on the matters raised in their respective motions, would be stayed, pending disposition of appellees’ motions in this Court for re-argument. The appellees’ petitions for re-argument were denied on September 30, 1986, by this Court. Appellees then filed petitions for allowance of appeal to the Pennsylvania Supreme Court oh October 27, 1986. These petitions were denied by the Supreme Court by order dated May 18,1987. Counsel for appellees and the Commonwealth were notified of the Supreme Court’s disposition by notice dated June 2, 1987, from the Deputy Prothonotary of the Supreme Court.

Following notice of the Supreme Court’s decision, the Commonwealth filed, on June 11, 1987, a second set of applications for extension of time to commence trial under Rule 1100 with regard to Sweeney, Hecker, Hartung and Mattero. These applications restated the allegations set forth in the applications filed on August 15, 1986. In addition, they set forth the proceedings before the Supreme Court which delayed the remand of the records of the cases to the trial court. Appellees filed answers to the Commonwealth’s applications for extension of time. They also filed a second set of motions to dismiss the charges under Rule 1100. On June 30, 1987, the Commonwealth filed supplemental or amended applications for extension of time asserting additionally that the trial in fact commenced on April 1, 1985, which was the date of the hearing in the trial court on appellees original motions to dismiss. Hecker filed an answer to this allegation.

Finally on July 6, 1987, a hearing was held on the Commonwealth’s applications for extension of time, on appellees’ responses thereto, and on appellees’ motions to dismiss. Following the hearing the trial court, on July 10, 1987, entered the order from which the instant appeal has been taken. In its order the trial court denied the Commonwealth’s August 15, 1986, applications for extension of time as being untimely, and again dismissed the charges as to each of the appellees. The trial court reasoned that because the original run date, as calculated by this Court, was April 9, 1985, the Commonwealth was required to either file: (1) an application for extension of time or (2) its notice of appeal within the eight days remaining after the trial court’s original order dismissing the charges on April 1, 1985. Because no application was filed during that period, and the Commonwealth’s notices of appeal from the April 1, 1985, order were not filed until April 18 and 19, 1985, the trial court concluded that the Commonwealth’s requests for an extension of time, filed August 15, 1986, were late, and the prosecution was barred by Rule 1100. In other words, the trial court concluded that although it had dismissed the charges on April 1, 1985, the Rule 1100 clock continued to run against the Commonwealth until it either filed an appeal or petitioned for an extension of time. Since neither was done, the trial court reasoned, the 180 days expired on April 9, 1985, and as of that date further prosecution was barred by Rule 1100.

On appeal, the Commonwealth contends that the trial court’s order of April 1, 1985, dismissing the charges, effectively terminated the prosecution and tolled the Rule 1100 period. It argues that the only duty remaining on the Commonwealth was to perfect its appeal within 30 days because the time calculated under Rule 1100 stopped running on April 1, 1985. The Commonwealth further argues that the Rule 1100 period did not begin to run again until the record was remanded to the trial court from the Supreme Court which was subsequent to May 18, 1987. Therefore, the Commonwealth argues, its applications for extension of time, filed August 15, 1986, were timely and the trial court erred in denying the applications as untimely and in dismissing the charges.

Appellees counter that the Commonwealth was required to file an application for extension of time before April 9, 1985, the original run date, in order to avoid the effects of Rule 1100. They further argue that Rule 1100 makes no provision to exclude the period of time between the trial court’s order dismissing the charges and when the notice of appeal was filed. Therefore, they argue, the Commonwealth’s applications for extension of time filed on August 15, 1986, were untimely and the trial court did not err in discharging them.

We note initially that our present review only concerns the applications for extension of time filed on August 15, 1986, as those were the applications and motions upon which the trial court entered its order which gives rise to the instant appeal.

This Court recently decided the case of Commonwealth v. Fuchs, 372 Pa.Super. 499, 539 A.2d 1307 (1988). There, the trial court dismissed the charges pursuant to Rule 1100 following the Commonwealth’s appeal of an earlier trial court order dismissing the charges. The trial court had ruled that the Solid Waste Management Act was unconstitutional. The Pennsylvania Supreme Court reversed and remanded the case for further proceedings. Although the issue there differed from that now before us, we had occasion to make reference to the effect of a trial court’s pretrial order dismissing charges. We said:

At that point, no charges remained pending against the defendant to be tried and the Commonwealth had no basis for proceeding in the trial court. It was not until the Supreme Court reversed the trial court's order and remanded the case to the trial court that defendant became available for prosecution. We therefore find that the period from June 13, 1984 until October 27, 1986, was excludable under Pa.R.Crim.P. 1100(d)(3)(i) due to the unavailability of the defendant. Neither the Commonwealth nor the defendant needed to file motions for an extension of time during this period.

Id., 372 Pa.Superior Ct. at 505, 539 A.2d 1310. We concluded that once the charges were dismissed, pretrial, the defendant was no longer available for trial.

The same is true in the instant case. It is clear that once the trial court entered its order of April 1, 1985, dismissing the charges and discharging the appellees, there was nothing left for the Commonwealth to do but appeal. So far as the trial court and the appellees were concerned, the cases were closed. The only recourse available to the Commonwealth at that point was to appeal the trial court’s decision to this Court. Under Pa.R.A.P. 903(a), the Commonwealth had 30 days from the filing of the order in which to file its notice of appeal. That was done timely on April 18 and 19, 1985. Following this Court’s decision of August 7, 1986, the Commonwealth filed its applications for extension of time on August 15, 1986, prior to the remand of the record to the trial court. At the time these applications for extension of time were filed, the cases were still in the appellate system, and the Rule 1100 clock was still tolled. Therefore, the trial court erred in denying them and dismissing the charges.

Our decision today is consistent with the Supreme Court’s decisions in Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979); and Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982). In Johnson, the Commonwealth filed a criminal complaint charging the defendant with murder. When the bill of indictment was presented to the grand jury, the primary witness for the prosecution invoked his fifth amendment privilege against self incrimination, and the grand jury dismissed the indictment for lack of evidence. More than seven months later, after acquiring new evidence and receiving leave of court, the Commonwealth submitted the indictment to a new grand jury which approved the indictment. In deciding whether the Commonwealth had violated Rule 1100, the Supreme Court held that the first grand jury’s dismissal of the indictment effectively terminated the charges against the defendant and stopped the running of the Rule 1100 period. The clock did not begin to run again until the indictment was approved by the second grand jury.

Similarly, in Leatherbury, supra, criminal charges were dismissed following the third scheduled preliminary hearing in which the Commonwealth’s witnesses failed to appear. Four months later, the Commonwealth filed a second complaint charging the defendant with the same crimes contained in the first complaint. In reversing an order of this Court discharging the defendant based upon the Commonwealth’s violation of Rule 1100, the Supreme Court held that the dismissal of the charges in the first complaint tolled the running of the Rule 1100 period until the filing of the second complaint and that the defendant, therefore, was tried in compliance with Rule 1100.

We find no significant distinction between the dismissal of the indictment by the grand jury {Johnson), the dismissal of the charges by a magistrate {Leatherbury), or dismissal by the trial court (this case). In each case an independent authority dismissed the charges and terminated the prosecutions. Such action effectively tolls the running of the Rule 1100 time.

We find further support for our decision in Commonwealth v. Navarro, 499 Pa. 279, 453 A.2d 308 (1982), in which the Commonwealth withdrew the complaint thirty-four days after filing the charges, and filed a second complaint one hundred and fifteen days later. The Supreme Court held that, absent an obvious attempt by the Commonwealth to avoid the requirements of Rule 1100, the withdrawal of the complaint by the Commonwealth effectively terminates the charges. As there was no evidence on the record that the Commonwealth was attempting to avoid the requirements of Rule 1100, the 180-day period was tolled as of the date the complaint was withdrawn.

Based upon the foregoing authorities, it is clear that once the charges are dismissed before trial, the Rule 1100 clock stops to run. Therefore, the trial court erred in finding that the clock continued to run following its order of April 1, 1985, dismissing the charges.

Having found that the trial court erred in dismissing the Commonwealth’s applications for extension of time as being untimely, we do not address the Commonwealth’s alternative argument that the trial in these cases commenced with the hearing on the pretrial motions of April 1, 1985.

Order reversed and cases remanded. Jurisdiction is not retained.

      . The Commonwealth filed notices of appeal as to Sweeney, Mattero, and Mallon on April 18, 1985. Notices of appeal as to Hecker and Hartung were filed by the Commonwealth on April 19, 1985.

      . Commonwealth v. Mallon, 356 Pa.Super. 493, 515 A.2d 1 (1986).

      . The original record reveals that on August 14, 1986, the District Attorney for Delaware County filed applications for extension of time pursuant to Rule 1100 as to each of these appellees. Although captioned “Application of the District Attorney of Delaware County for Order Extending Time for Commencement Rule 1100(c) and 1100(d)”, the applications are virtually identical to those filed by the Attorney General the following day. Attached as "Exhibit A" to the District Attorney’s applications, are copies of the applications filed by the Attorney General the following day. Moreover, the District Attorney’s applications are neither signed nor endorsed by any member of the Delaware County District Attorney’s Office, while the copies of the Attorney General’s applications included in each as “Exhibit A” are signed by John J. Burfete, Jr., Deputy Attorney General, and notarized, giving the appearance in every way of being original applications. These “Exhibits” are identical to the applications filed by the Attorney General on August 15, 1986. It is not entirely clear why the District Attorney filed petitions for extension of time which incorporated the Attorney General’s independently filed petitions for extension of time. However, as the trial court’s opinion in support of its order of July 10, 1987, refers to the “Commonwealth’s Motions to Extend Time for Trial, said motions having been filed on or about August 14, 1986,” (trial court opinion at p. 3), we consider the applications dismissed by the trial court in its order of July 10, 1987, as being the ones filed by the Attorney General, whose office is prosecuting these cases on behalf of the Commonwealth.

      . The original record does not contain a copy of this order; however, the denial of the appeal is noted on the Superior Court docket pages.

      . The record is unclear when the record was remanded to the trial court following the Supreme Court’s denial of the petition for review. However, it is clear that it was subsequent to the Commonwealth’s filing of its applications for extension of time on August 15, 1986.


author: HOFFMAN, Judge:

text:
    546 A.2d 628
    COMMONWEALTH of Pennsylvania v. Todd Charles DIAMOND, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1988.
    Filed July 28, 1988.

      Thomas K. Wynne, Lebanon, for appellant.
    Thomas S. Long, Assistant District Attorney, Lebanon, for Com., appellee.
    Before McEWEN, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for risking a catastrophe, 18 Pa.C.S.A. § 3302(b). Appellant contends that (1) the evidence was insufficient to support the verdict because the Commonwealth did not prove (a) that appellant was the person who started the fire, and (b) that appellant’s conduct “was capable of causing injury or damage so widespread as to constitute an extraordinary disaster”; (2) the court erroneously instructed the jury regarding the elements of the crime of risking a catastrophe; (3) the court erred in refusing to suppress statements that appellant made to the officer who investigated the fire; and (4) the court erred in failing to allow credit towards appellant’s sentence for time he had already served. For the reasons that follow, we vacate the judgment of sentence and remand the case for proceedings consistent with this Opinion.

On February 24, 1982, a fire was discovered in a cell in the Trusty section of the Lebanon County Prison. Appellant, who was incarcerated in the prison at the time of the fire, was later charged with risking a catastrophe. On July 21, 1982, appellant pleaded guilty to the charge. Appellant was thereafter sentenced to an eleven-and-one-half-to-twenty-three-month term of imprisonment, to be served concurrently with the term he was then serving. No appeal was taken from this judgment of sentence.

On December 13,1984, appellant filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551, seeking, inter alia, to withdraw his guilty plea. On October 1,1985, following a hearing and the filing of briefs, the PCHA court issued a Memorandum and Order granting appellant leave to withdraw his guilty plea, and the case was later listed for trial. On January 6, 1986, a hearing was held on appellant’s motion to suppress statements that he had made to the officer who investigated the fire. The motion was denied, and, following a jury trial, appellant was found guilty of risking a catastrophe. Post-trial motions were filed and denied, and on September 10, 1986 appellant was sentenced to a five-to-twelve-month term of imprisonment, to be computed from that date and to run concurrently with any other sentence appellant was serving. A timely Motion for Reconsideration of Sentence Credit was filed and denied, and appellant then filed a timely notice of appeal with this Court.

On January 14, 1987, we dismissed the appeal because appellant failed to file a brief. Appellant then filed his second petition under the PCHA, alleging that trial counsel was ineffective for failing to file an appellate brief. On March 26, 1987, the PCHA court granted appellant’s petition for relief, and he was given thirty days to file a notice of appeal nunc pro tunc. This timely appeal followed.

Appellant first contends that the evidence was insufficient to support the conviction for risking a catastrophe because the Commonwealth did not prove (a) that appellant was the person who started the fire, and (b) that appellant’s conduct “was capable of causing injury or damage so widespread as to constitute an extraordinary disaster.” Brief for Appellant at 12. After carefully reviewing the record and the briefs submitted by the parties, we conclude that the lower court has properly disposed of these contentions in its opinion.

Appellant next contends that the trial court erroneously instructed the jury regarding the elements of the crime of risking a catastrophe. This contention is waived.

The facts related to this claim were summarized by the lower court as follows:

[Appellant] complains that the trial Judge did not properly instruct the jury in response to their request for additional instructions on the charge of risking a catastrophe. Quite frankly we do not follow the argument. It is true that the jury did ask the Court for additional instructions. The Court did respond and give additional instructions and they are reflected on pages 66 through 68 of the notes of testimony. At the conclusion, the trial Judge asked counsel if they cared to call the Court’s attention to .. any misstatements or failure to charge in any manner. Both the District Attorney and counsel for [appellant] responded in the negative____

Id. at 4-5 (emphasis supplied). Because appellant did not timely object to the charge, he has failed to preserve this issue for appellate review. Commonwealth v. Smith, 321 Pa.Super. 170,178, 180-81, 467 A.2d 1307, 1313 (1983). See also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Pa.R.Crim.P. 1119(b).

Appellant next contends that the court erred in refusing to suppress statements that he made to the officer who investigated the fire. More specifically, appellant argues that his statements should have been suppressed because (a) he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) prior to making his statements, and (b) he was coerced into making these statements by a promise that nothing would happen to him if he told the truth. In reviewing a denial of a motion to suppress evidence,

we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact----
In considering whether the record supports the court’s finding[s] of fact we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted---- In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal____

Commonwealth v. Eliff, 300 Pa.Super. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted). See also Commonwealth v. Rispo, 338 Pa.Super. 225, 227-28, 487 A.2d 937, 938 (1985).

Here, the suppression court found “as a fact that [appellant] was advised of his Miranda rights at the interviews of February 24, 25 and March 1st, 1982; and that there were no promises or threats made.” Order, January 7,1986 at 1. These findings are amply supported by the record. At the suppression hearing, Trooper Bainbridge, the officer who investigated the fire, testified that, prior to each of his three interviews with appellant, he advised appellant of his constitutional rights, N.T. January 6, 1986 at 4, 6, 8; that appellant indicated that he understood those rights, id. at 6, 8; that appellant stated that he was willing to talk about the incident in question, id. at 6, 8; and that at no time did appellant indicate that he wanted to stop the interview and have an attorney present. Id. at 9. In addition, both Trooper Bainbridge and Deputy Warden Gerrity, who also was present during all three interviews, testified that appellant was not told that no charges would be brought against him. Id. at 9, 16-17. Although appellant’s version of the three interviews contradicted the testimony of Bainbridge and Gerrity, see id. at 21-24, it is well-settled that “it is the exclusive province of the trier of fact [here, the suppression court] to pass upon credibility.” Commonwealth v. O’Bryant, 479 Pa. 534, 539, 388 A.2d 1059, 1062 (1978). Because the suppression court’s findings of fact are supported by the record, appellant's claim that the court erred in refusing to suppress his statements is meritless. Id. See also Commonwealth v. Eliff, supra.

Appellant last contends that the court erred in failing to allow credit towards appellant’s sentence for time he already had served. Appellant notes that, at the time of his jury trial below, he already had served the entire eleven- and-one-half-to-twenty-three-month that was imposed after he pleaded guilty. Appellant maintains that, in computing his new sentence, the court below was required to credit him with the twenty-three months he already had served. We agree. 42 Pa.C.S.A. § 9760 provides in relevant part:

[T]he court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.

Id. § 9760(l)-(2) (emphases supplied). See also Pa.R. Crim.P. 1406(b).

Here, appellant was charged with risking a catastrophe and initially pleaded guilty to that charge on July 21, 1982. On September 28, 1982, he was sentenced to an eleven-and-one-half-to-twenty-three-month term of imprisonment. The court specified that this sentence was to be computed from September 28, 1982 and was to be served concurrently with a term of imprisonment that appellant was then serving for criminal mischief. The maximum term of the sentence was thus set to expire on or about August 28, 1984. On August 25, 1983, however, appellant escaped from prison and was not reincarcerated until September 24, 1983. The thirty-one days that appellant remained free extended the time necessary for him to complete his entire sentence on the instant charge; thus appellant could not complete serving his sentence until September 28, 1984. The record reflects that appellant in fact remained in prison from the time he was reincarcerated until at least the time of his trial in January, 1986. See Probation Report, Progress of Supervision at 1.

In light of the facts summarized above, it is clear that appellant completed his initial sentence on the risking a catastrophe charge on or about September 28, 1984. The court below, however, made no mention of crediting appellant with time that he had already served. Because appellant spent the entire twenty-three month maximum term of his prior sentence in custody, the court should have credited him with that time when it computed his new sentence. 42 Pa.C.S.A. § 9760(2). See also Commonwealth v. Walker, 286 Pa.Super. 239, 428 A.2d 661 (1981); Commonwealth v. Cappiello, 284 Pa.Super. 476, 426 A.2d 146 (1981); Commonwealth v. Scheetz, 217 Pa.Super. 76, 268 A.2d 193 (1970). Moreover, because the new sentence imposed on appellant was for a term of five-to-twelve months, and because appellant is entitled to a credit of twenty-three months, it would appear that appellant is entitled to be released on the risking a catastrophe charge.

For the foregoing reasons, we vacate the judgment of sentence and remand the case so that the sentencing court may correct the sentence in accordance with this Opinion. Jurisdiction is relinquished.

Judgment of sentence vacated and case remanded. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3302(b) provides:
      (b) Risking catastrophe. — A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section [relating to causing a catastrophe].

        Id.

      . We note that appellant, who is now represented by counsel other than trial counsel, does not allege that trial counsel was ineffective for failing to object to the jury instruction.

      . The Commonwealth argues that appellant has waived his sentencing argument because he has not complied with the mandates of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We disagree. First, we note that the legality of a sentence is an issue that can never be waived. See, e.g., Commonwealth v. Fulton, 315 Pa.Super. 420, 422 n. 4, 462 A.2d 265, 266 n. 4 (1983); Commonwealth v. Thomas, 291 Pa.Super. 263, 268, 435 A.2d 901, 903 (1981). See also Commonwealth v. Ragoli, 362 Pa.Super. 390, 402 n. 7, 524 A.2d 933, 939 n. 7 (1987) ("The issue of the propriety and manner in which the sentence was imposed is one which may be raised sua sponte by an appellate court.”). Moreover, we note that both Pa.R. A.P. 2119(f) and Commonwealth v. Tuladziecki, supra are concerned with claims related to the discretionary aspects of sentencing. In such circumstances, the appellant must comply with the procedural requirements of 42 Pa.C.S.A. § 9781(b) and Pa.R.A.P. 2119(f). When, as here, the claim involves the legality of a sentence, however, a defendant may appeal as of right. See 42 Pa.C.S.A. § 9781(a).

      . On April 24, 1984, appellant was sentenced to a three-to-seven-year term of imprisonment for escape. Probation Report, Progress of Supervision at 1. Appellant was not eligible for parole on this charge until April 1987. Thus, the time that appellant spent in custody from September 28, 1984 until the time of trial resulted solely from the sentence imposed on the escape charge.


author: CAVANAUGH, Judge:

text:
    546 A.2d 632
    COMMONWEALTH of Pennsylvania, Appellant, v. Russell L. VANCE, Appellee.
    Superior Court of Pennsylvania.
    Argued April 27, 1988.
    Filed Aug. 1, 1988.

      George S. Leone, Philadelphia, for Com., appellee.
    Thomas L. McGill, Jr., Philadelphia, for appellant.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   CAVANAUGH, Judge:

The primary issue in this appeal is whether the revocation by the Supreme Court of defense counsel’s admission to the bar of Pennsylvania, after the defendant’s criminal trial had been completed, renders counsel ineffective.

The background of this case is most important. The defendant, Russell L. Vance, was arrested on February 4, 1985 and charged with murder and possession of an instrument of crime. He confessed to the crime and his statement established that he had shot Isaiah Anderson nine times with three different weapons, apparently in a dispute over rent payments. The shooting occurred in the basement of the house which defendant rented from Mr. Anderson at 2938 W. Girard Avenue, Philadelphia, Pennsylvania. After shooting the victim, the defendant wrapped his body in trash bags, having bound his arms and legs with wire. The defendant then drove the body to an isolated spot in South Philadelphia and disposed of it.

Mr. Vance was represented by Richard Potack from about April, 1985 until he was sentenced on February 5, 1986. During this time counsel actively sought to protect his client’s interests, including the filing of a motion to suppress evidence on which two days of hearings were held. Defense counsel unsuccessfully sought to have bail reinstated for his client and sought psychiatric evaluations to establish that the defendant was suffering from post-traumatic stress disorder resulting from his activities in Viet Nam. The defendant was a Viet Nam veteran and claimed that he had shot and killed civilians who were trying to steal garbage.

The defendant’s mental condition at the time of the offense was an essential part of the case. The court directed that the defendant be examined at the Veteran’s Hospital at Coatesville by Dr. William Racek. The case was then listed for a status hearing on October 28, 1985, and on that date defense counsel informed the court that he had not yet received the report of Dr. Racek’s examination of the defendant. Rule 1100 was waived until January 31, 1986, and the matter was continued for trial to the earliest date possible consistent with the court’s calendar and the defense counsel’s schedule.

On December 17, 1985, defense counsel filed another petition for bail. The court scheduled a hearing and bail was denied. The court then directed a psychiatric examination of the defendant by the Psychiatric Unit of the Probation Department and the case was continued to January 21, 1986. The court also ordered defense counsel to provide the Commonwealth with defendant’s medical and psychiatric records. The case was then listed for jury trial on January 27, 1986.

On the date set for jury trial, defense counsel moved to re-open the suppression hearing for the limited purpose of additional testimony regarding physical evidence. The court permitted the introduction of this testimony, but denied defense counsel’s motion to suppress the evidence. A Motion for Redaction of Defense Psychiatric Report was granted. The court denied a defense motion for the jury not to be death qualified. Jury selection began that day and was completed on January 31, 1986 and court was recessed until February 3, 1986.

Prior to the defendant’s appearance in court on February 3, 1986, defense counsel made two motions which the court denied. He then indicated that the defendant wished to examine the physical evidence. When the defendant arrived at the courtroom, he was permitted to do so and the court then took a brief recess. When all parties returned to the courtroom, defense counsel requested another recess because the defendant had indicated that he was considering the entry of a guilty plea. When the court reconvened, defense counsel informed it that the defendant would plead guilty to murder generally and possessing an instrument of crime generally. After an extensive colloquy, the court accepted the defendant’s guilty plea. The degree of guilt hearing began immediately thereafter and testimony as to the degree of guilt concluded on February 5, 1986. The defendant was adjudicated guilty of murder in the first degree and guilty of possessing an instrument of crime generally. He was immediately sentenced to a term of life imprisonment on the murder charge and a concurrent term of two and one-half to five years for possessing an instrument of crime.

On February 10, 1986, the defendant filed pro se motions to withdraw his guilty plea and for modification and reconsideration of sentence. On March 11, 1986, the court ordered the appointment of new counsel for the defendant and Thomas L. McGill, Esq., the appellant’s present counsel was appointed.

On June 24, 1986 an evidentiary hearing on the defendant’s allegations of ineffective assistance of counsel was held. Richard Potack, trial counsel, testified at the hearing and the appellant was represented by Mr. McGill. On September 23, 1986, the trial court was advised by the Disciplinary Board of the Supreme Court of Pennsylvania that Mr. Potack’s admission to the Pennsylvania Bar had been revoked on April 16, 1986.

The issue before the lower court was whether the appellant should have been allowed to withdraw his guilty plea after sentence had been imposed. In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant. Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984). A defendant who attempts to withdraw a guilty plea after sentencing must carry the substantial burden of showing manifest injustice which is imposed in recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Allegations of ineffectiveness of counsel in connection with withdrawal of a guilty plea provide a basis for withdrawal only if there is a nexus between counsel’s ineffectiveness and an involuntary or unknowing plea. Commonwealth v. West, supra. Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). The court below allowed the defendant to withdraw his guilty plea on the grounds that he was denied the effective assistance of counsel. The basis for this determination was that “the defendant was represented by counsel who was not a duly licensed member of the bar and who was abusing cocaine during the course of his representation.” (Slip opinion page 30).

The thrust of the opinion of the court below is not that the defendant’s guilty plea was unknowing or involuntary, but goes rather to the conduct of defendant’s counsel unrelated to the substantive efficacy of the proceedings before the court. The first premise of the court below, that defendant’s counsel was not a duly licensed member of the bar, is not supported by the evidence. Mr. Potack had been a member of the bar of California since 1975. Because of improper conduct in the representation of clients there and also for the alleged passing of bad checks, proceedings were commenced in California to discipline Mr. Potack. Apparently, he voluntarily ceased practicing law in California. In February, 1984, he took the Pennsylvania Bar examination and passed. In May, 1984, he was admitted to the bar of the Commonwealth of Pennsylvania. On or about January 10, 1986, the Pennsylvania Board of Law Examiners petitioned the Supreme Court of Pennsylvania to revoke Mr. Potack’s admission to the bar on the grounds of false statements in his application for admission to the Bar of the Commonwealth of Pennsylvania and that he was not of good character. On April 16, 1986, the Supreme Court entered an order stating “Petition to Revoke Admission to Bar granted.”

Mr. Potack was a duly licensed lawyer in Pennsylvania from May, 1984 to April 16, 1986. The admission of an attorney to practice before a court is a judicial act as is the revocation of admission to the bar. In re Shigon, 462 Pa. 1, 329 A.2d 235 (1974). At the time Mr. Potack represented the defendant, he was a member of the Pennsylvania Bar.

The court below based its analysis that the defendant was denied his constitutional right under the Sixth Amendment to the United States Constitution on the conclusion that the “Supreme Court’s order of April 16, 1986 revoking Potack’s admission to the bar has the effect of making his membership in the Pennsylvania Bar void ab initio.” If this were the case, then the result decreed by the trial court that the appellant did not have counsel would be achieved without difficulty. However, there is nothing in the law that states a grant of a petition to revoke admission to the bar is equivalent to a person never having been a member of the bar.

The court below relies on several cases which developed a rule voiding convictions of defendants who were represented by persons who had not been admitted to practice law in any jurisdiction. We are not called on to justify this rule as the defendant’s counsel was admitted to practice law in Pennsylvania during the time of his representation of the defendant. The court below relied on Solina v. United States, 709 F.2d 160 (2d Cir.1983) which set forth a pro se rule that a defendant’s Sixth Amendment rights are violated where his representative is not authorized to practice law in any state. Similarly, in Huckelbury v. State, District Court of Appeals of Florida, 337 So.2d 400 (1976) the court held that an indigent defendant is entitled to be represented by counsel certified by the state. In Huckelbury, supra, the defendant’s representative in a first degree murder case worked for the public defender’s office, but was not a lawyer. The court vacated a judgment of conviction based on a guilty plea on the basis that the plea was not knowing or voluntary since the defendant was advised by a non-lawyer.

In People v. Felder, 47 N.Y.2d 287, 418 N.Y.S.2d 295, 391 N.E.2d 1274 (1979) the Court of Appeals of New York held that representation by one who was not, and had never been, admitted to the Bar of New York or any other state or jurisdiction did not constitute representation by counsel under the Constitution.

The court below also relied on Waterhouse v. Rodriquez, 660 F.Supp. 319 (E.D. New York, 1987) reversed by Waterhouse v. Rodriguez, 848 F.2d 375 (2 Cir.1988), in which the defendant was represented by counsel who had been a member of the bar but was disbarred in the midst of a suppression hearing at which he represented the defendant. The United States District Court held that the defendant was denied effective assistance of counsel. The court below also alluded to People v. Williams, 93 Ill.2d 309, 67 Ill.Dec. 97, 444 N.E.2d 136 (1982), in which the Supreme Court of Illinois granted a new trial where the defendant was found guilty of murder and other offenses, as trial counsel’s misconduct in an unrelated matter at the time he was representing the defendant led to his subsequent disbarment. However, the court limited its determination to the unique circumstances of the case. In People v. Williams, 138 Ill.App.3d 1041, 93 Ill.Dec. 569, 487 N.E.2d 13 (1985), the defendant was convicted of murder and contended that he was denied effective assistance of counsel as his attorney was under indictment and allegedly preparing his own defense at the same time he was representing the defendant. The court held that the record indicated that counsel acted competently and that People v. Williams, 93 Ill.2d 309, 67 Ill.Dec. 97, 444 N.E.2d 136 (1982) did not set down a rule requiring a presumption of incompetence where counsel is concerned with allegations of his own misconduct while representing a criminal defendant. See also People v. Lieberman, 149 Ill.App.3d 1052, 103 Ill.Dec. 480, 501 N.E.2d 797 (1986), which held that censure of trial counsel by the Attorney Registration and Disciplinary Commission was totally irrelevant as the censure concerned different clients and totally unrelated issues.

We limit our decision in this case to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character.

In United States v. Hoffman, 733 F.2d 596 (9th Cir.1984), the United States Court of Appeals was confronted with the issue whether representation by an attorney suspended from the Florida Bar during trial, but not suspended from practice before the Federal District Court until after trial, constituted representation by counsel within the confines of the Sixth Amendment, and held that it did even though counsel did not inform the court of his suspension.

Even where an attorney has already been disbarred at the time he represents a defendant in a criminal trial, there is no per se rule that the defendant has not been represented by counsel. In United States v. Mouzin, 785 F.2d 682 (9th Cir.1986), trial counsel was disbarred from practicing in the 9th Circuit for conduct unbecoming a member of the bar in unrelated cases. He was in the midst of a trial when he was disbarred and the court held that the disbarment of defense counsel during trial did not violate the defendant’s Sixth Amendment rights to effective assistance of counsel as the record did not show a failure to effectively represent his client despite his disbarment.

We conclude that the court below erred in determining that the defendant was not represented by an attorney. On the contrary, the defendant was at all times during the course of his trial and sentencing procedure represented by a member of the bar. The fact that his counsel’s admission to the bar was subsequently revoked for activities not related to his conduct at trial does not mean that he was unrepresented by counsel at trial.

This does not conclude our inquiry as we must also determine if counsel was effective. The trial court during the course of the proceedings believed that counsel was performing in a satisfactory manner. The lower court praised defense counsel’s efforts. The court said that it “couldn’t think of a lawyer who has done a better job for a client than Mr. Potack has for [the defendant].” The court told defendant that defense counsel had been “wonderful”, saying “[h]e has done nothing but work for you.” The court later reiterated that defense counsel was “a terrifically good lawyer” who was “doing a very good job.” In the guilty plea colloquy, the court again emphasized that defense counsel had been “very energetic and industrious,” had given defendant “wonderful, loyal” representation, had “done an able job,” and had “done everything that he could possibly do.”

It was not until after new counsel had been appointed that the court was informed of the disciplinary proceedings against defense counsel in California and Pennsylvania. It was only then that it became concerned that Mr. Potack was a user of cocaine which might have adversely affected his performance at trial. There is nothing in the record to indicate that Mr. Potack was under the influence of cocaine during his representation of the defendant to an extent that his representation was impaired. The use of cocaine by Mr. Potack was based on the testimony of Lewis Small, Esq. with whom Mr. Potack had been associated for about 6 months. Mr. Small testified that a client told him that he had seen Potack purchase cocaine and another client told him that Potack looked like a cocaine user, and he also testified that Mr. Potack told him he used cocaine. Also, Mr. Small testified that Mr. Potack looked drawn and tired when he worked for him.

Even if Mr. Potack was a cocaine user during the trial, it would not per se render him ineffective. The use of alcohol during a trial by counsel who stated he drank every morning for forty years did not of itself render counsel ineffective. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980):

... [T]he fact that an attorney used drugs is not, in and of itself, relevant to an effective assistance claim. The critical issue is whether, for whatever reason, counsel’s performance was deficient and whether the deficiency prejudiced the defendant.

Berry v. King, 765 F.2d 451, 454 (5th Cir.1985).

The thrust of the opinion of the court below is that Mr. Potack should not have been admitted to practice law in Pennsylvania and was admitted only because he made false representations on his application for admission and did not disclose the serious complaints that had been filed against him in California, including criminal charges for issuing bad checks. The court was also concerned that counsel was a cocaine user. However, there was no indication that the use of cocaine affected the quality of counsel’s representation. In fact, the court was very favorably impressed with the manner in which Mr. Potack represented the defendant.

The court did state its opinion that even apart from counsel’s fraudulent misrepresentations, bad moral character and drug abuse, he was ineffective in two respects: (1) in allowing the defendant to plead guilty to a murder charge after a jury had been selected without requesting a continuance of even one day and (2) in advising the defendant that in his opinion the court would find the defendant guilty only of 3rd degree murder.

With respect to the claim of ineffectiveness, counsel is presumed to be effective and the burden of proving ineffectiveness rests on the defendant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). In our opinion, the appellant has not carried this burden. The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the rule that even if counsel is ineffective, relief is mandated only where there is a reasonable possibility that the result would have been different if it had not been for counsel’s errors. As our Supreme Court observed in Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987), “Strickland, therefore, directs the review of the appellate court at the reliability of the verdict rather than at the quality of counsel’s performance.” In addition, since the defendant is attempting to withdraw a guilty plea after sentencing, the ineffectiveness, if any, must go to the narrow issue of whether it caused the entry of an unknowing or involuntary plea.

There is no requirement that there be a continuance before entering a guilty plea after a not guilty plea has been entered. In Commonwealth v. Butler, 454 Pa. 95, 309 A.2d 720 (1973), the defendant entered a guilty plea to murder twenty minutes after he had pled not guilty. Defense counsel is not ineffective simply because the period of consultation with his client is brief before the guilty plea is entered. Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978).

In the case before us, a death-qualified jury was selected over a period of five days and the Commonwealth had opened its case. The appellant had a weekend to consider the strength of the case against him and the prosecution’s refusal to accept a guilty plea of 3rd degree murder. The court below stated that it was its “distinct impression that Mr. Vance was changing his plea because he was terrified that he would get the death penalty from that jury,” particularly after hearing the “very powerful” opening of the Commonwealth. We are convinced that the plea was voluntary and knowing, as was the court below before it accepted the plea.

The trial court also found that counsel was ineffective for expressing his belief to the defendant that the case was a 3rd degree murder case and a neutral judge would see it as 3rd degree. In Commonwealth v. Price, 306 Pa.Super. 507, 452 A.2d 840 (1982) we found that counsel was not ineffective for expressing his opinion that the court would more likely find his client guilty of murder in the 3rd degree because of intoxication. The court found the defendant guilty of murder in the 1st degree, but we found no basis for determining that counsel’s advice was not designed to further the interests of his client. In the instant case, there was evidence presented by defense counsel that his client was suffering from post-traumatic stress disorder because of his activities in Viet Nam. Counsel had good reason to believe that the court might well have found the defendant guilty of 3rd degree murder. During the degree of guilt hearing, the trial court stated that it was “struggling” with the question of whether the crime involved 1st degree or 3rd degree murder. After determining the degree of guilt, the court indicated that it might still be able to “conjure” up a 3rd degree verdict stating “Fve tried, believe you me.”

Disappointment by a defendant in his sentence does not justify withdrawal of a guilty plea. Commonwealth v. West, supra. Dissatisfaction with the trial court’s finding regarding degree of guilt and the subsequent sentence imposed does not constitute the required prejudice in the nature of manifest injustice. Commonwealth v. Refile, 353 Pa.Super. 190, 509 A.2d 400 (1986). We find that trial counsel was effective in his representation of the defendant and the defendant’s guilty plea was voluntarily and intelligently entered. Although the court below found counsel to be ineffective in his representation, the heart of the court’s opinion goes to conduct not related to activity at trial, namely the misrepresentations which formed the basis of his admission to the Pennsylvania Bar and its belief that “[w]hile representing a client in a capital case, he was under the influence of a highly addictive and illicit drug.” (Slip opinion page 45). The trial court’s own observations of Mr. Potack over an extended period of time in representing the defendant revealed that defense counsel acted in the best interests of his client.

Order allowing the defendant to withdraw guilty plea reversed and judgment of sentence affirmed.

      . The court stated in Solina v. United States, 709 F.2d at 167 that the right to assistance of counsel could mean nothing less than the “representation by a licensed practitioner." The court also stated at 709 F.2d 167:

      . In People v. Williams, supra, defense counsel was involved with charges of mishandling an estate at the time he represented the defendant which ultimately led to his disbarment after the trial. The court stated at 93 IU.2d 309, 67 Ill.Dec. 97, 104, 444 N.E.2d 136, 143:
      We believe, however, considering the unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated, that the interests of justice require that Dennis Williams be granted a new trial.

      . In Commonwealth v. Burton, supra, the trial court detected a strong odor of alcohol on counsel’s breath during trial and asked counsel to limit his drinking during the trial so that the court would not be offended by his breath.

      . The court stated at page 31 of its slip opinion:

        Unknown to the court or to the defendant, defense counsel’s status as a duly licensed attorney was in serious doubt during the period of his representation. Two months after the defendant entered his plea, defense counsel's admission to the Pennsylvania Bar was revoked. Defense counsel was a cocaine abuser at the time of his representation.

      . The appellee did not raise any other issues of ineffectiveness beyond those discussed by the trial court.