author: McEWEN, Judge:

text:
    466 A.2d 644
    COMMONWEALTH of Pennsylvania v. Robert H. ABBOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1982.
    Filed Sept. 30, 1983.

      Alan Ellis, Philadelphia, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Wil-liamsport, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.

      . Pa. Const, art. 1, § 10.

   McEWEN, Judge:

This is an appeal brought by a Post Conviction Hearing Act Petitioner from an order which granted the Petitioner the right to withdraw a guilty plea but denied a request to dismiss the charges. Appellant argues that the Common Pleas Court erred when it rejected the contention that section 111 of the Crimes Code, 18 Pa.C.S.A., and principles of double jeopardy require that the charges filed against the appellant be dismissed. We reverse.

I.

Appellant, Robert H. Abbott, a seventy-five year old Doctor of Osteopathy, was arrested and charged on April 17, 1975, with forty-seven violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act . He was so charged after he had unlawfully prescribed and dispensed certain controlled substances and other drugs to four undercover agents during a six month period from October 1974 to April 1975. As a result of certain of these transactions, a Federal Grand Jury indicted appellant on six counts of violations of the federal drug laws. He was found guilty of these federal charges by a jury and on July 11, 1975, was sentenced to a term of imprisonment of fifteen years and fined $90,000. Six months after the federal jury verdict of guilty, on December 5, 1975, a hearing was held upon the state charges at which time the Common Pleas Court granted a motion by the Commonwealth to dismiss twenty of the forty-seven counts in the state bill of indictment and appellant thereupon pleaded guilty to the remaining twenty-seven counts. The Common Pleas Court sentenced appellant to a term of imprisonment of not less than seven and a half years nor more than fifteen years, to run concurrently with the sentence imposed by the federal court, and fined appellant $90,000.00.

When appellant was released from his confinement and transferred to state custody to continue serving the term of imprisonment imposed for the state charges, he filed a series of Post Conviction Hearing Act petitions which alleged, inter alia, that prior counsel was ineffective during the guilty plea proceedings when counsel failed to insure that appellant knowingly and voluntarily pleaded guilty and that prior counsel was ineffective for not pursuing a dismissal of the charges on the basis of federal and state proscriptions against double jeopardy and on the basis of section 111 of the Crimes Code, 42 Pa.C.S.A. The distinguished Judge Thomas C. Raup granted appellant the right to withdraw the guilty plea that had been entered to the twenty-seven counts but found that there was no merit to the contention that prior counsel had been ineffective by reason of his failure to pursue the motion to dismiss those twenty-seven counts, the charges remaining after the Commonwealth had dismissed twenty of the forty-seven charges.

Appellant contends that while prior counsel had filed a motion to dismiss all forty-seven counts of the indictment on double jeopardy grounds, prior counsel became ineffective when he elected to abandon this issue and permitted appellant to plead guilty. Although prior counsel had challenged all forty-seven of the state charges in the motion to dismiss upon grounds of double jeopardy, the Common Pleas Court never ruled on this motion, but instead granted the motion of the Commonwealth, presented at the guilty plea proceeding, to dismiss twenty of the counts of the bill of indictment and accepted the plea of guilty by appellant to the remaining twenty-seven charges. Appellant argues that prior counsel was ineffective for failing to persist in the effort to have the remaining twenty-seven state charges dismissed upon grounds of double jeopardy or upon the basis of the statutory bar to further prosecution.

It would appear considerably more expeditious for this court to treat this post-conviction hearing appeal as though it were an appeal from a denial by the trial court of a petition for dismissal of the charges by reason of the protection against double jeopardy or by reason of the statutory bar to further prosecution. If we were to affirm the order of the hearing court and conclude that the interpretation of the double jeopardy bar and/or the statutory bar against further prosecution had not been so clear in 1975 that plea counsel may not be deemed to have been ineffective, present counsel for appellant would then be obliged to proceed to petition the trial court for dismissal of the charges by reason of the bar against double jeopardy and/or the statutory bar against further prosecution. And it is quite predictable, of course, that whatever the determination of the trial court upon such a petition for dismissal, this case and the basic issue it presents would once again appear in this court in but a slightly different posture. We will, therefore, here rule upon the fundámental issue presented, namely, is the further prosecution of appellant precluded either by the statutes of this Commonwealth or by the constitutional protection against double jeopardy.

Our study requires a careful analysis of the nature and of all of the facts and circumstances surrounding both the federal and state charges. The following distinctions in the proceedings brought by the two sovereigns are to be noted:

While the Commonwealth charged appellant with violations spanning a six month period, from October 27, 1974 through April 10, 1975, the federal prosecution is based upon violations occurring during the six week period between March 6, 1975 and April 17, 1975.
The federal charges related solely to the distribution of phendimetrazine, while the Commonwealth charged appellant with violations involving phendimetrazine as well as quaalude, eskatrol, fastin, sanorex, fendi, dilaudid and dalmene.
Only one undercover agent was involved in the federal charges, whereas the state bills of information included sales to this agent as well as three other agents. The federal charges related solely to the distribution of drugs, while the state bills of information included distribution charges as well as the misbrandinng of drugs and the destruction of labels on drugs.

Despite these differences, both the federal and state charges resulted from one continuing undercover investigation of appellant by one team of the same four state agents.

The Common Pleas Court determined that the state charges to which appellant pleaded guilty were not based upon the same conduct as that for which appellant had been convicted by the federal authorities. The court thereby concluded that there was no bar to a prosecution by the Commonwealth upon the twenty-seven state charges to which appellant had pleaded guilty since each of these charges stemmed from “totally separate episodes involving different drugs and occurring on dates as much as five months apart ... [EJach offense was distinct, separate from the others and the conduct proscribed by the Federal Statute was different from that proscribed by the Commonwealth Statute.”

II.

The principle of double jeopardy has in recent years received careful attention from not only the judiciary but also from our legislature. The Pennsylvania Supreme Court in 1971 provided a further dimension to the principle when it was confronted by a Commonwealth effort to prosecute for criminal behavior for which the federal government had already prosecuted and imposed punishment. That court, in Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971), proclaimed that as long as the initial federal prosecution provides for the protection of the joint interest of both the federal government and of the Commonwealth, a subsequent prosecution by the Commonwealth would be banned. The legislature addressed the issue of double jeopardy the following year when it specified the conditions under which subsequent prosecutions would be barred and in section 111 of the Crimes Code, 1972 Dec. 6, P.L. No. 334, § 1, effective June 6, 1973, decreed the conditions under which a former prosecution in another jurisdiction would serve as a bar to a subsequent prosecution in the Commonwealth. Since that time, appellate study of and expression upon both Mills, supra, and the statute have shaped the current posture of the protection from double jeopardy in Pennsylvania. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978); Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978).

The Pennsylvania Supreme Court in 1978 in Mills, supra, declared that the constitutional protection against double jeopardy is inspired by the self-evident precepts that “[i]t is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harrass him with vexatious prosecution, and wrong to punish him twice for the same offense.” Id. 447 Pa. at 169, 286 A.2d at 641. The Supreme Court, in that opinion further declared that the fundamental notion upon which the constitutional protection against double jeopardy is based, is composed of “three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial.” Id., 447 Pa. at 169, 286 A.2d at 641. While the general principle seems easy enough to grasp, when criminal activity triggers the possibility of successive prosecutions in federal and state courts, the doctrine of “dual sovereignty” comes into play and application of the rule becomes more complex for we must balance on the one hand the notion that the individual should not be twice prosecuted for the same offense while, on the other hand, we must balance the interests of two sovereigns. Id., 447 Pa. at 169, 286 A.2d at 640-41. That balancing process prompted the Supreme Court to hold that:

[Hjenceforth in Pennsylvania, a second prosecution and imposition of punishment for the same offense will not be permitted unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different. In other words, if it appears that the interests of this Commonwealth were not sufficiently protected in the initial prosecution, then a second prosecution and imposition of additional punishment in Pennsylvania will be allowed.

Id., 447 Pa. at 171-72, 286 A.2d at 642. (footnote omitted). The Mills court then (1) determined that the record did not manifest that the interests of Pennsylvania were not fully protected by the initial prosecution in the federal courts for bank robbery and assault and (2) ruled that a subsequent prosecution by the Commonwealth would not be permitted for the crimes of carrying a concealed deadly weapon, carrying a firearm without a license and aggravated robbery.

When the Crimes Code was enacted in 1972, the chapter setting forth the General Provisions included the following sections:

§ 109. When prosecution barred by former prosecution for the same offense
§ 110. When prosecution barred by former prosecution for different offense
§ 111. When prosecution barred by former prosecution in another jurisdiction

We are here, of course, concerned with section 111 which provides:

Section 111. When prosecution barred by former prosecution in another jurisdiction
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is based on the same conduct unless:
(1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted, (emphasis supplied).

It is clear that our analysis of this appeal must commence with a determination of whether section 111 is applicable since we need only consider the double jeopardy complaints if it is determined that section 111 does not require the grant of . the requested relief. See Commonwealth v. Hude, supra, 500 Pa. at 488, 458 A.2d at 180. If we conclude that the subsequent prosecution is not based on the same conduct as the federal prosecution, then our analysis is concluded since the statute makes clear that in such situation subsequent prosecution by the Commonwealth is not barred. If, however, we conclude the subsequent prosecution by the Commonwealth “is based on the same conduct” for which appellant was prosecuted by the federal government, the prosecution can proceed only if both of the following conditions exist: (1) each of the prosecutions requires proof of a fact not required by the other; and (2) the statute upon which the Commonwealth prosecution is based is intended to prevent substantially different harm than is the federal statute. Thus the deter-initiation of the applicability of section 111 requires us to resolve three questions:

Is the prosecution the Commonwealth proposes to undertake “based on the same conduct” for which appellant was prosecuted by the federal government?
Do each of the prosecutions require proof of a fact not required by the other?
Is the law defining the state offense designed to prevent a substantially different harm or evil than the law defining the federal offense?

It would seem that an affirmative answer to the initial inquiry lowers the bar to the subsequent prosecution and that only an affirmative response to both of the remaining inquiries can lift the bar. Our analysis is aided immeasurably by the insight and expression provided by recent appellate study of this issue.

The Pennsylvania Supreme Court in Commonwealth v. Grazier, supra, after concluding that section 111 was inapplicable since the criminal conduct that was the subject of review had occurred prior to the enactment of that statute, reiterated the Mills holding in an opinion of the esteemed former Chief Justice Henry X. O’Brien in which two of the six voting Justices joined, while two Justices concurred and one dissented. The accused in that case had allegedly been a participant in an arson scheme as a result of which he was charged by the federal government with mail fraud and by the Commonwealth with arson. The Commonwealth argued that Mills was inapplicable because the proposed prosecution by the Commonwealth was for a different offense and because the accused had been acquitted of the federal charges. The Superior Court, persuaded by the argument of the Commonwealth, concluded that Mills was limited to a situation where the Federal prosecution resulted in a conviction and opined that “[ajrson and mail fraud are two independent criminal acts, each of which involves different elements of proof and separate volitional conduct on the part of the defendant.” Commonwealth v. Studebaker, 240 Pa.Super. 37, 50, 362 A.2d 336, 345 (1976). The Supreme Court disagreed. Justice O’Brien first declared that the Mills double jeopardy holding was as applicable after an acquittal as after a conviction and then termed the argument of the Commonwealth that the prosecution for arson was for a different offense than was the prosecution for mail fraud as a claim of distinction that placed “form over substance”. He opined:

In terms of the Mills analysis, a second trial will not be permitted if the interests of the Commonwealth are sufficiently protected at the federal trial. While the purpose of the federal mail fraud statute may arguably be to protect the integrity of the mails, when viewed realistically it can be seen that the use of the mails gives jurisdiction to federal authorities over areas in which Congress has not specifically acted____ Instantly, both the federal government and the Commonwealth’s principal interest is against the crime of arson. While federal mail fraud is a different crime from arson, both statutes as used in this case protect the same governmental interest. Under these facts, Mills will act as a bar to a state prosecution for arson following an acquittal in federal court for mail fraud in connection with a scheme to commit arson.

Commonwealth v. Grazier, supra 481 Pa. at 631, 393 A.2d at 339-40 (footnote omitted).

As it barred the subsequent prosecution, the Supreme Court in Grazier (1) explicitly stated that the subsequent prosecution was precluded by reason of the fact that it was based upon a state statute that sought to protect the same governmental interest as did the federal prosecution and (2) implicitly rejected the holding of the Superior Court that the act of setting the blaze and the act of seeking and securing the proceeds of insurance were independent criminal acts. We are, therefore, able to infer that, while the Supreme Court in this plurality opinion found it was precluded from a determination of whether subsequent prosecution by the Commonwealth was barred by section 111, at least the plurality members would have concluded that application of the tests of section 111 would also have prohibited the subsequent prosecution since:

The bar to the subsequent prosecution was lowered when the court implicitly concluded that setting the fire and subsequently seeking the proceeds of insurance from the fire was “the same conduct”.
The court made clear that the bar was not lifted during the second inquiry of the two-step analysis required by section 111 when it explicitly stated that both prosecutions were designed to protect the same governmental interest.

Our distinguished colleague Judge John P. Hester, in Commonwealth v. Mascaro, supra, provided a careful analysis of the Supreme Court opinions in Mills and Grazier before concluding that a subsequent prosecution by the Commonwealth was there barred by “Mills as well as by § 111 of the Crimes Code”. The federal and state charges in Mascaro arose from a scheme that had enabled a corporation substantially controlled by the appellant to fraudulently secure, by the submission of false records to a county, an overpayment of $170,000 under a hauling contract. Appellant was first charged by the state authorities with five counts of theft by deception, five counts of deceptive business practices, one count of unsworn falsification of authorities, and one count of criminal conspiracy, and subsequently by the federal government with four counts of mail fraud, and four counts of false statements. Appellant then proceeded to assert a double jeopardy defense to the state charges. The Common Pleas Court rejected the claim and held:

Although the Federal mail fraud allegations deal with the same deceptive scheme to defraud the County of Delaware by the submission of false records, it is neither identical nor comparable to the State offense of theft by deception.
* * * * * *
Although all charges against the Defendant, both Federal and State, arise from a common and continuing scheme, this fact does not, we feel, bar State action against him for those specific occurrences not covered in the resolution of the Federal prosecution.

Judge Hester, speaking for a unanimous court, rejected that holding and concluded that both prosecutions were based on the same conduct when he opined:

The effect of the Supreme Court holding in Grazier, sufra, was to bar prosecution of appellant on all state charges that had arisen from the “common and continuing scheme” to defraud the county by submission of false records.
Any other holding “would be to apply the 'interest analysis’ test [of Mills ] and section 111 in such a narrow and limiting manner” that dual prosecutions would effectively “be barred only where exact crimes matched exact dates—crime for crime and date for date.”

Judge Hester thereby concluded that the bar of section 111 to the subsequent prosecution had been lowered; nor was the bar lifted as he conducted the second inquiry of the two-step analysis and determined:

The Commonwealth had failed to sustain the Mills burden of proving that the federal charges, to which appellant had pleaded guilty, had failed to adequately protect the interests of the Commonwealth. He so concluded because the federal statutes under which appellant had been prosecuted were designed to guard against theft and fraud, just as had been the state statutes upon which the subsequent prosecution would be based and, therefore, the state and federal statutes employed were designed to protect a similar governmental interest.
The Commonwealth had failed to sustain the burden of proving under section 111 that the federal conviction was based upon substantially different evidence than would be required to convict upon the state charges in the subsequent prosecution.

Thus the Commonwealth in Mascaro was precluded both by Mills and by section 111 from the subsequent prosecution of appellant. It should be emphasized, lest it be obscured by the artful analysis of the opinion, that this court interpreted “the same conduct”, as that term is used in section 111, to mean any and all criminal behavior committed in support of a “common and continuing scheme”.

Our study is further well served by the thoughtful exposition of the eminent Justice Robert N.C. Nix, Jr. upon the companion statute to section 111, namely, section 110, which enumerates the circumstances when a subsequent prosecution is barred by a former prosecution for a different offense in the same jurisdiction. Commonwealth v. Hudge, supra. The appellant there had been arrested and charged with twenty counts of delivery of marijuana as a result of a series of sales alleged to have occurred during a fifteen week period. Three of the charges were dismissed at the preliminary hearing and six other counts were dismissed as a result of pretrial proceedings. The Commonwealth proceeded to trial against the appellant upon the three earliest in date of the remaining eleven charges and appellant was acquitted on all three counts. When the Commonwealth proceeded to the trial of appellant on the remaining eight charges, appellant sought to dismiss those charges on the basis of section 110 of the Crimes Code as well as on the basis of double jeopardy. Section 110, in pertinent part, bars a subsequent prosecution for “... (ii) any offense based on the same conduct or arising from the same criminal episode____” The court noted that the basic question was whether the eleven transactions were properly viewed as a “single criminal episode”, and concluded that the three counts which the Commonwealth sought to make the subject of the subsequent prosecution arose from the same criminal episode since they were so logically interrelated that they essentially involved the same issues of law and fact. As it proceeded to that holding, the court noted:

When considering what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered.
Interpretation of the term “same criminal episode” must be consistent with the purposes sought to be achieved by section 110, namely: (1) to protect a person accused of crimes from the governmental harrassment of being forced to undergo successive trials for offenses stemming from the. same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.
The subsequent prosecution upon the eight remaining drug charges, after appellant had been acquitted of the initial three charges in the first trial, composed harrassment through successive prosecutions.
The prosecutorial tactics of the Commonwealth unduly burdened the judicial process.
The assertion of the Commonwealth, that each alleged sale constituted a separate and distinct criminal episode because they were alleged to have occurred on different dates, would permit eleven separate trials, a result section 110 was obviously designed to avoid.
Where a number of charges are logically and/or temporally related and sharé common issues of law and fact, a single episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources.

The Hude case did not involve the instant circumstance of successive federal and state prosecutions. It may well seem, therefore, that our analysis of Hude and our extended discussion of the term “same criminal episode”, as it appears in section 110, is unrelated to the focus of our study, namely, the term “same conduct” as used in section 111. The fact is, however, that the Hude declarations upon “single criminal episode” are equally applicable to the term “common and continuing scheme”—the definition supplied by this court in Mascaro to the term “same conduct”.

III.

We conclude that the two-step analysis mandated by section 111 precludes the prosecution the Commonwealth proposes to undertake in this case since:

The prosecution by the Commonwealth “is based on the same conduct” as was the federal prosecution.
The laws defining the federal offenses and the state offenses are intended to prevent a substantially similar harm or evil.

We need not, in view of the latter finding, determine whether each prosecution requires proof of a fact not required by the other.

It is indisputable, of course, that the statutes of both the federal government and the Commonwealth outlawing traffic in prohibited substances are designed to banish the dread evil that drugs have inflicted upon the individual victims as well as upon our society. Therefore, the fundamental issue of our study here is whether a prosecution by the Commonwealth based upon the twenty-seven transactions that were not the subject of the federal prosecution and that occurred on dates either prior or subsequent to the period of time embraced by the federal prosecution should be held to be a prosecution “based on the same conduct” as the federal prosecution. The interpretation of section 111 by and the holding of this court in Mascaro, as well as the firm, clear declarations of our Supreme Court in Hude, mandate that we hold the proposed prosecution by the Commonwealth is based on the same conduct as the prosecution that has been completed by the federal government.

As we have noted, Mascaro barred the prosecution by the Commonwealth, after completion of the federal prosecution, on all charges that had arisen from the “common and continuing scheme” that had also been the subject of federal prosecution. While the state offenses in the instant case involved additional types of drugs than those covered by the federal charges and while the state charges arose over a six month period while the federal prosecution concerned only .such violations as occurred during five weeks of that period, both prosecutions were the result of an ongoing investigation on behalf of both sovereigns by undercover agents of the “common and continuing scheme” enunciated by Mascaro.

Nor does consideration of the analysis of our Supreme Court in Hude permit us to allow the Commonwealth to proceed. The Court there soundly rejected the assertion of the Commonwealth that eleven separate trials for each of eleven alleged sales should be permitted since each sale constituted a separate and distinct criminal episode by reason of the fact that each sale occurred on a different date. The Supreme Court instead concluded that all eleven transactions constituted “the same criminal episode”. See also People v. Abbamonte, 43 N.Y.2d 74, 371 N.E.2d 485, 400 N.Y.S.2d 766 (1977) and Matter of Abraham v. Justices of New York Supreme Court of Bronx County, 37 N.Y.2d 560, 338 N.E.2d 597, 376 N.Y.S.2d 79 (1975) (state criminal charges barred by prosecution in federal court for conspiracies to violate drug laws where the substantive offenses and the conspiracy charges were so closely related as to be part of the same criminal venture).

IV.

Our study leads us to conclude that section 111 precludes the further prosecution proposed by the Commonwealth. We have addressed, as we have earlier mentioned, a different aspect of this case than was presented to the hearing court and note, therefore, that we do not reject the conclusion of the hearing judge that plea counsel was not ineffective. Nonetheless, in view of our holding, that portion of the order that denied the discharge of appellant is reversed.

Order reversed.

      . 35 P.S. § 780-101 et seq.

        . 21 U.S.C.A. § 841(a)(1).

      . No appeal was taken from the judgment of sentence imposed by the federal court.

      . U.S. Const, amends. V, XIV.

      . Section 111 of the Crimes Code, 18 Pa.S.C.A., is entitled “When Prosecution barred by former prosecution in another jurisdiction." See p. 648 infra.

      . The Commonwealth had acknowledged that the guilty plea colloquy was defective.

      . Additional grounds were asserted in the motion to dismiss in support of the dismissal of five of the charges.

      . The prosecutor concluded that the Commonwealth could not proceed on the twenty counts since the Federal authorities prosecuted appellant for offenses committed on the same dates as those charged in these twenty state counts.

      . At the time that the Pennsylvania Supreme Court decided Mills, the view of the United States Supreme Court on double jeopardy was as announced in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), namely, that the federal Fifth Amendment provision against double jeopardy was not applicable to the states through the Fourteenth Amendment and that "dual sovereignty” also allowed successive federal and state trials for the same crime. While the United States Supreme Court in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), subsequently ruled that the Fifth Amendment protection was applicable to the states through the Fourteenth Amendment, that Court has not altered its "dual sovereignty” holding. See Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978). In addition, numerous state courts have held that a state prosecution subsequent to federal prosecution does not constitute a violation of a defendant’s constitutional protection against being placed in double jeopardy. Annot., 6 A.L.R.4th 806 (1981).

      . The appeal of co-defendants Studebaker and Grazier was captioned Commonwealth v. Grazier in the Supreme Court and Commonwealth v. Studebaker in this court.

      . The crimes committed in Grazier/Studebaker predated the effective date of the Crimes Code by four years and thus section 111 was not applicable.

      . 18 Pa.C.S.A. § 3922.

      . 18 Pa.C.S.A. § 4107.

      . 18 Pa.C.S.A. § 4904.

      . 18 Pa.C.S.A. § 903.

      . 18 U.S.C.A. § 1341.

      . - 18 U.S.C.A. § 1001.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    466 A.2d 653
    COMMONWEALTH of Pennsylvania v. Richard HAMMOCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 18, 1983.
    Filed Oct. 7, 1983.

      Barry H. Denker, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction for Murder in the First Degree and Possessing an Instrument of a Crime. On appeal appellant raises three issues. First, he argues that his demurrer should have been granted. Second, he argues that the M’Naghten Rule for determining legal insanity should be substituted with the Model Penal Code test. Third, he contends that the Commonwealth failed to prove that he was legally sane when the crimes were committed. We find these arguments to be either waived or without merit and, accordingly, affirm.

The failure of a court below to grant a demurrer is not properly the subject of appeal. “Since however, the defendant did not rest following the adverse ruling, but elected to put in a case in defense, the correctness of the ruling on the demurrer is no longer an available issue.” Commonwealth v. Ilgenfritz, 466 Pa. 345 at 347, 353 A.2d 387 at 388 (1976). Once the trial has proceeded to the presentation of defense evidence, the proper challenge on appeal is to the sufficiency of the evidence. Further, this issue was not raised in the post-verdict motions. As such it is waived. Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975).

The second issue, regarding the propriety of the M’Naghten Rule, is also waived. Not only was it absent from the post-verdict motions, but it was also not argued to the court below. Commonwealth v. Williams, 476 Pa. 557 at 570, 383 A.2d 503 at 509 (1978). This issue is thus doubly waived.

The third and final issue is properly before us. Appellant included in his post-verdict motions and also argued orally before the post-verdict court the issue that the Commonwealth failed to establish beyond a reasonable doubt appellant’s sanity at the time of the commission of the crime.

When a defendant raises the issue of his sanity, the Commonwealth must prove beyond a reasonable doubt that he knew the nature and quality of his act and that he knew it was wrong.

Commonwealth v. Metzler, 300 Pa.Super. 19 at 21, 445 A.2d 1277 at 1278 (1982).

This issue is to be reviewed by us in the same way as other sufficiency of the evidence issues.

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt.

Commonwealth v. Robson, 461 Pa. 615 at 625, 337 A.2d 573 at 578 (1975).

Viewed in this light, the evidence given at trial established that appellant was told that he was short in his bus fare; that he then stabbed the bus driver to death; that, as the passengers tried to get off the bus, he ran to the back of the bus and told one of the passengers, “Don’t tell anybody that I did it,” and threw the knife out the window; that he then got off the bus in a normal manner with the other passengers and, in response to a police officer’s question as to “who did it,” replied “he’s still inside.”

A psychiatrist testified for the prosecution that, in his opinion, at the time of the crime appellant met the M’Naghten test. Specifically, he testified:

that immediately after the incident as evidenced by defendant’s statement to the police, the defendant was oriented, in that he knew who he was, where he was and what was being discussed. He testified further that the acts of the defendant of throwing the knife away, telling the people on the bus not to say anything, and stating to the police that the person who had done the stabbing was still on. the bus were not done in response to a psychotic delusion, but were acts which evidenced a conscious attempt by the defendant to be self-protective. According to DR. KOOL, the defendant was responding to reality and not to a delusion or hallucination.

On the basis of this testimony and from the inferences to be drawn from the facts, the court below, acting as the fact-finder, concluded that appellant was legally sane. Other testimony was given and arguments made that are in appellant’s favor. They will not be considered by us here as the fact-finder was free to discredit all such testimony and to draw inferences only against appellant.

The only question before us is whether the above-stated testimony, and the inferences that could be drawn from it, could establish beyond a reasonable doubt that appellant was legally sane: whether he could appreciate the nature and quality of his acts or knew right from wrong. What we are not to do is substitute our appraisal of all the evidence for that of the fact-finder. As an appellate court our powers are broad; but when properly exercised these powers are strictly limited to the standard of review applicable to the issue before us. Given this standard of review and the evidence as summarized above, we cannot hold that the court below erred.

Judgment of sentence is, accordingly, affirmed.


author: ROWLEY, Judge:

text:
    466 A.2d 656
    COMMONWEALTH of Pennsylvania, Appellant, v. Titus BURGESS.
    Superior Court of Pennsylvania.
    Argued May 31, 1983.
    Filed Oct. 7, 1983.

      Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Dennis J. Cogan, Philadelphia, submitted a brief on behalf of appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   ROWLEY, Judge:

The Commonwealth appeals from an order granting ap-pellee’s motion to suppress the identification testimony of an eyewitness. The trial court suppressed the evidence on the ground that it was “tainted by unduly suggestive police procedures” and lacked sufficient independent sources to render it admissible. We disagree and, therefore, reverse.

Initially we must determine whether the Commonwealth’s appeal is properly before us. Recently in Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), our Court engaged in an exhaustive discussion of prior case law in this area, and concluded “that an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution.” Id., 311 Pa.Superior Ct. at 270, 457 A.2d at 880. Using this standard, we find the suppression order in this case to be appealable. Appellee is charged with murder. The Commonwealth’s entire case against appellee rests on the identification testimony of James Wyatt, the only eyewitness to the crime. Consequently, any order suppressing his testimony would substantially handicap the. prosecution.

The facts underlying the appeal are as follows. In the early morning hours of September 19, 1980, Elbert Reaves was shot and killed as he sat in the front seat of an automobile parked on a deserted street in the three hundred block of East Chelten Avenue, Philadelphia. The homicide was witnessed by James Wyatt, a resident of the neighborhood. Wyatt, a steel mill worker, had just returned home after a late night shift when his attention was drawn to the street outside his third floor apartment by the sound of two voices arguing. Looking out of his bedroom window to determine the source of the altercation, Wyatt saw two men wrestling in the front seat of a car which was parked under a nearby street light. During the next hour, the argument between the individuals intensified and Wyatt returned to his bedroom window periodically to observe the escalating dispute. Suddenly, Wyatt heard two loud, sharp noises. This time when Wyatt went to the window to survey the scene, he observed that one of the men seated in the automobile had extended his hand out of the driver’s side window of the car and was holding a gun. Prompted to take action by his observation, Wyatt called the police and went outside to await their arrival. Meanwhile, the confrontation between the individuals in the car continued. At one point while looking up the street for signs of the police, Wyatt momentarily turned his back to the car and its occupants. When he re-focused his attention on the car, he saw one of the men standing outside the front passenger’s side door with his hand pointed into the interior of the automobile. Immediately thereafter, shots rang out. Fearful for his own safety, Wyatt quickly retreated to the entrance of his apartment building. Keeping the door to the entrance way slightly ajar, Wyatt observed the man who had fired the shots slowly turn and begin to walk in the direction of Wyatt’s building. As the gunman approached, Wyatt closed the entrance door. It was from this vantage point that Wyatt observed the gunman’s face, according to the suppression court’s findings of fact, “at close range (five feet) for the time that it took that person to walk five steps under good nighttime lighting conditions.” A short while later, the police arrived, but the gunman had already fled.

Later that morning, two detectives investigating Elbert Reaves’ murder showed a photographic array to the victims co-worker, Gus Spruell, who identified appellee as a friend of the victim. At the request of the police, Spruell signed and dated the back of the photograph. On September 24, 1980, the identical photographic array was shown to Wyatt. Wyatt also picked out appellee’s photograph identifying him as the victim’s assailant. At the direction of the police, Wyatt likewise turned appellee’s photograph over and affixed his name and date on the back. Thereafter, appellee was arrested and charged with Reaves’ murder.

Appellee’s preliminary hearing was held on October 8, 1980. Wyatt testified at that hearing, but was unable to identify appellee and the charges were dismissed. In February of 1981, Wyatt met one of the investigating detectives in the Reaves’ murder on the street. Wyatt indicated to the detective that he was prepared to identify appellee as Reaves’ murderer in court, and that he had failed to identify appellee at the October 8, 1980, preliminary hearing only because he was frightened and unfamiliar with court proceedings. Appellee was thereafter rearrested, charged with Reaves’ murder, and bound over for trial. Prior to trial, appellee filed an omnibus pretrial motion wherein he sought to suppress certain statements he made to the police, along with other “improperly obtained physical and identification evidence.” After a hearing, the suppression court granted appellee’s motion with respect to certain oral statements made by him to the police, and with respect to the identification testimony of Wyatt. The suppression court suppressed Wyatt’s identification testimony on the ground that it had been tainted by the photographic array held on September 24,1980, and by the street meeting between the detective and Wyatt in February of 1981. Furthermore/the trial court held that there was no basis for the identification of appellee by Wyatt that was independent of these “tainted” procedures.

On appeal, the Commonwealth makes three arguments:

I. Appellee waived his right to challenge Wyatt’s identification testimony by his failure to comply with Pa.R.Crim.P. 323(d);
II. The procedure employed with respect to the photographic array was not unduly suggestive;
III. There were sufficient facts to establish an independent basis for Wyatt’s identification of appellee even if taint is presumed.

The Commonwealth’s first argument, not having been raised below, has been waived. Consequently, our discussion here will focus only on the issues raised by II and III.

Our scope of review in this case is limited to determining whether the factual findings of the suppression court are supported by the record, and whether the legal conclusions drawn therefrom are correct. Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980).

The suppression court’s legal conclusion that the photographic array shown to Wyatt on September 24, 1980, was “unduly suggestive” is based on the assumption that Wyatt’s identification of appellee was unfairly reinforced by the presence of Spruell’s dated signature on the back of appellee’s photograph. Although Wyatt had testified at the suppression hearing that he did not notice or see Spruell’s notations when he signed his own name and date on the back of appellee’s photograph, the suppression court discounted Wyatt's testimony in this regard and concluded that he had to have seen Spruell’s signature and date when he turned the photograph over. Nevertheless, it was undisputed that it was only after Wyatt had identified appellee as the murderer that he had the opportunity to see Spruell’s notations. It was also undisputed that in all other respects the photographic array was fair.

While the presence of Spruell’s signature and date on the back of appellee’s photograph may have reinforced Wyatt’s identification of appellee, that possibility alone did not render the photographic array “unduly suggestive.” Factors to be considered when evaluating the suggestiveness of an identification procedure include: the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of certainty demonstrated by the witness at confrontation; and the length of time between the crime and the confrontation. Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979). An evaluation of the above criteria in conjunction with the record in this case convinces us that the totality of the circumstances surrounding Wyatt’s identification of appellee at the photographic array assured that it was reliable and not the product of suggestion.

Although the Commonwealth does not challenge the suppression court’s second conclusion, i.e. that Wyatt’s identification of appellee was tainted by the street meeting between the detective and Wyatt in February of 1981, we find it necessary to address it here, if only to observe that there is no foundation in the record for that conclusion. Merely because Wyatt and the detective met at one point on the street and discussed the Reaves’ murder does not automatically lead to the conclusion that Wyatt was coerced or unduly influenced into testifying. The suppression court in making its findings of fact found no evidence of coercion, and none can be presumed.

Having determined that no unduly suggestive police procedures occurred which tainted Wyatt’s identification testimony, we need not reach the question of whether there was a sufficient independent basis for Wyatt’s identification of appellee.

Order reversed. Case remanded.

Jurisdiction is relinquished.

WIEAND, J., concurred in the result.

      . In perfecting this appeal, the Commonwealth has only pursued the suppression of Wyatt’s identification testimony.

      . The Commonwealth does not challenge on appeal the suppression court’s conclusion that the meeting between Wyatt and the detective in February of 1981 tainted Wyatt’s identification of appellee. See discussion, infra, for resolution of this issue.


text:
    466 A.2d 660
    COMMONWEALTH of Pennsylvania v. Charles McDUFFIE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1983.
    Filed Oct. 7, 1983.

      Jeremy T. Ross, Philadelphia, for appellant.

      Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   ROWLEY, Judge:

This is a direct appeal from the judgment of sentence of a total of nine years probation imposed following a non-jury trial at which appellant was found guilty of robbery, possessing instruments of crime, theft, simple assault and criminal conspiracy. We affirm.

The facts were ably summarized by the trial court as follows:

On November 21, 1979, at approximately 2:00-3:00 A.M., Ruben Garnet, the complainant, was driving on an expressway in Philadelphia. Complainant was driving a Dodge and a friend of his named “Junior” was driving behind him in a 1954 Mercury.
A blue Pinto occupied by defendant and a Mr. Orlando Warren drove beside complainant and one of the occupants signalled him to pull over. Complainant pulled off the road beside the Pinto and “Junior” continued down the highway.
When complainant noticed that “Junior” had not also pulled off the highway, he drove back onto the road and followed him. After passing “Junior’s” car, complainant was again forced to pull over to the shoulder of the highway by the occupants of the blue Pinto. [Complainant testified that the reason he stopped was that the passenger in the Pinto identified himself as a police officer, pointed a gun at him, showed a badge and told him to pull over.] “Junior” pulled over behind complainant and the Pinto stopped abreast of the driver’s side of complainant’s car.
One of the men alighting from the Pinto pulled a gun (later identified as a .25 caliber automatic), presented a badge and demanded complainant’s driver’s license and owner’s card. When complainant attempted to comply, the gunman snatched his wallet which contained approximately $1,900.00 in cash and 20 Pennsylvania lottery tickets.

Shortly after these events transpired, the police located the blue Pinto and arrested the two occupants. A search of the occupants and the car uncovered the cash and other items which had been stolen. Appellant had been driving the car at the time it was stopped by the police.

Appellant was charged in five separate informations with robbery, possession of instruments of crime generally, theft by unlawful taking or disposition, theft by receiving stolen property, simple assault and conspiracy. Appellant was tried before the Honorable Louis G. Hill, sitting without a jury, and found guilty of these charges. After post-trial motions were filed and denied, appellant was sentenced on the robbery conviction to nine years probation on condition that he comply with therapy and treatment programs to be recommended by the Adult Probation Department; the theft and simple assault convictions were held to have merged in the robbery conviction for the purposes of sentencing; appellant also received a five-year probationary term for possession of instruments of crime and a nine-year term of probation for conspiracy. All probationary terms were made concurrent. This appeal followed.

Appellant’s first argument is that the court erred in finding him guilty of the charges as an accomplice. He argues that he was charged in the informations as “a principal in the commission of the crimes alleged.” Imposing criminal liability on him as an accomplice, he argues, constitutes a “fatal variation ... between the allegations and proof.” This “variance” entitles him to be discharged, he claims.

A similar argument was made in Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979). There an equally divided court affirmed the appellant’s conviction and judgment of sentence. The justices voting for affirmance expressed the opinion that “a person could be held guilty as an accomplice even though charged only as a perpetrator.” 485 Pa. at 290, 401 A.2d at 1321. Mr. Justice [later Chief Justice] O’Brien, in his opinion in support of affirmance, made reference to the comments to § 206 of the Model Penal Code. There it is pointed out that distinctions between different modes of complicity do not have a procedural significance. According to the comments, a charge of commission of a crime would be sufficient to warrant conviction as an accomplice.

Moreover, we are of the opinion that the facts in this case may be distinguished from the circumstances relied upon by the justices who voted to reverse the conviction in Perkins. In his opinion in support of reversal, Justice [now Chief Justice] Roberts emphasized that throughout the proceedings “the Commonwealth expressly rejected a theory of accomplice liability.” He went on to point out that “the Commonwealth expressly represented it would not and did not pursue [a theory of accomplice liability] at trial. Appellant, on this record, could and did rely upon the Commonwealth’s representation.” Unlike the situation in Perkins, there was no express rejection by the Commonwealth of a theory of accomplice liability in this case. Moreover, the record before us shows that appellant should have been aware that liability might be imposed on him for the acts and conduct of Mr. Warren. In the initial complaint charging him with robbery, it was asserted that appellant “did with another hold up point of gun [sic] Claude Richardson”. (Emphasis supplied.) Also in the complaint the other participant is identified as Orlando Warren. Finally, in Information No. 381, appellant is charged with two counts of criminal conspiracy. It is charged there that he “did agree with another person or persons that they or one” of them would commit the crime of robbery and also that he “did agree to aid another person or persons in the planning or commission of” the crime of robbery. Thus, appellant was clearly put on notice from the very outset that the Commonwealth claimed that he and Mr. Warren carried out the acts in question together and that they had agreed to act jointly and to aid one another in the commission of the crimes charged. Such notice was clearly adequate to alert appellant to the potential imposition of criminal liability as an accomplice of Mr. Warren.

Appellant’s remaining claim on appeal is that the court erred in permitting an amendment to Information No. 381 of 1980 which changed the name of the victim from Claude Richardson, referred to as “Junior” by the trial court, to Ruben Garnett, referred to by the trial court as the complainant. We do not agree that the amendment was improper. Rule 229 of the Rules of Criminal Procedure states:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

In Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), affirmed, 498 Pa. 326, 446 A.2d 583 (1982), this court articulated the following standards for assessing the propriety of permitting an amendment to an information.

The purpose of Rule 229 is to insure that a defendant is fully appraised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.
Id. 265 Pa.Super. at 212-213, 401 A.2d at 1175 (footnotes and citations omitted).

In the present case, no new or different crime was charged and appellant suffered no unfair surprise as a result of the amendment. Of the five informations on which appellant was found guilty, four alleged that the victim was Ruben Garnett. Appellant was, therefore, fully aware that Mr. Garnett was in fact the alleged victim in this set of crimes. Furthermore, the amendment effected no change in the crimes charged and did not necessitate defending against any new or different elements. Appellant’s defense in this case was that he thought he was helping Orlando Warren collect a debt. It is immaterial with respect to this defense whether Warren attempted to collect the “debt” from Garnett or from Richardson. Moreover, the change did not alter in the slightest degree the “factual situation” in which these crimes were committed. The events of the early morning hours of November 21, 1979, are not significantly altered by the change in the name of the victim because the two persons, Garnett and Richardson, were at all relevant times in close proximity to each other during the commission of these crimes. Finally, we note that on October 23, 1981, the trial court held a hearing on the Commonwealth’s motion to amend Information No. 381. At the hearing, the assistant district attorney stated:

I would suggest then if there is a feeling that there was prejudice [to the defendant] that the defense be allowed to reopen it’s [sic] case and take whatever remedies they wish if they feel they can show prejudice at some time.

At no time did defense counsel show any inclination to take advantage of this option. Also, as noted above, appellant’s defense was such that the amendment did not prejudice him. For these reasons, we conclude that permitting the amendment of the information after the completion of the testimony was not error.

Judgment of sentence affirmed.

      . Appellant was acquitted of a second count of robbery, two counts of theft, simple assault and firearms violations charged in four other informations.


text:
    466 A.2d 663
    William A. TOTTEN, and Jean Totten, h/w v. Robert LAMPENFELD, individually and d/b/a Robert Lampenfeld, Painting-Decoration, Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1983.
    Filed Oct. 7, 1983.

      James Oliver Hunter, Pittsburgh, for appellant.
    William A. Totten, in propria persona.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

This is an appeal from the judgment entered after a court en banc dismissed exceptions taken from the general decision rendered by the trial judge after a nonjury trial. For the reasons more fully set forth below, we affirm in part and reverse in part.

Appellees William A. Totten and Jean N. Totten commenced this action in assumpsit on December 12, 1979. Appellees sought to recover from Appellant Robert Lam-penfeld the amount of $3,500.00 plus interest and costs due to appellant’s alleged wrongful failure to complete painting and redecoration work which appellant had agreed to perform. In his answer, Lampenfeld denied liability and in a counterclaim sought the amount of $2,862.16 as compensation for services performed. The Tottens denied liability, claiming that payment had already been made. On March 18,1980, the matter was submitted to a board of arbitrators pursuant to 42 Pa.C.S.A. § 7361 and Pa.R.C.P. Nos. 1301 et seq. The board found in favor of Lampenfeld on both the complaint and the counterclaim and awarded him $2,100.00. The Tottens filed a timely appeal to the court of common pleas.

A non-jury trial de novo was held before the Honorable Robert A. Doyle on December 11, 1980. The trial judge entered a general decision unaccompanied by findings of fact but disposing of all claims for relief. See Pa.R.C.P. No. 1038(b). The trial judge found in favor of the Tottens on the complaint in the amount of $5,376.00 and in favor of Lampenfeld on the counterclaim in the amount of $2,600.00. Lampenfeld filed exceptions to the decision of the trial judge. The exceptions were dismissed by order of a court en banc, which included the trial judge, on April 23, 1981. Lampenfeld thereafter perfected the instant appeal.

This court has recently articulated the scope of its review when the trial judge, after a nonjury trial, renders a general decision unaccompanied by specific findings of fact which is in turn reviewed by the court en banc which likewise makes no factual findings. Merion Spring Com pany v. Muelles Hnos. Garcia Torres, S.A., 315 Pa.Super. 469, 477-481, 462 A.2d 686, 690-693 (1983). We there held that such a decision would be accorded the same weight and effect as if the decision had been rendered by a jury. Id. The present case presents for our review one of the situations specifically distinguished in Merion Spring, namely, “where the court en banc has entered its own findings of fact when none were entered by the trial judge.” Id., 315 Pa.Superior Ct. at 479 n. 4, 462 A.2d at 692 n. 4. Not only did the court en banc specifically make certain findings of fact, it did so with the support of the trial judge who heard the witnesses and rendered the original decision. We therefore conclude that these findings, if they are supported by competent evidence and if the court committed no error of law or abuse of discretion, are entitled to the weight of a jury verdict and will not be disturbed on appeal. See, e.g., First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa.Super. 198, 203, 422 A.2d 1074, 1076 (1980). See also: First Pennsylvania Savings Association v. Four Seasons Racquet Club, Inc., 287 Pa.Super. 180, 182, 429 A.2d 1160, 1161 (1981) (Trial judge may, as a member of a court en banc, alter findings of fact made at the conclusion of trial, so long as contrary finding is supported by sufficient evidence), and cases there cited. It continues to be true, of course, that this court “is in no way bound by the trial court’s conclusions of law based on those findings of fact.” First Pennsylvania Banking and Trust Co. v. Liberati, supra.

The facts as found by the court en banc are as follows: For several years, William A. Totten, husband-appellee, had contracted with appellant to paint and do other work at his car dealership in the city of Pittsburgh. Early in the Spring of 1979, husband orally engaged appellant to paint the outside of appellees’ suburban Pittsburgh home, remove and install new wallpaper in the interior of the dwelling, and paint the interior ceilings and trim. At the same time, a similar arrangement was concluded with respect to the car dealership. Appellant charged and appellees agreed to pay $6,000.00 for these renovations.

The work was to be performed during the Spring and early Summer of 1979. During much of this time, appellees were away from their home on a vacation in New England. When they returned, husband-appellee disapproved of appellant’s work on the exterior of the house and refused to tender any payment for that work. Appellant thereupon refused to complete any further work under the contract and refused to correct the exterior work which áppellees disapproved. Appellees engaged another contractor who completed some of this work at a cost of $5,376.00. The value placed on the work completed by appellant was $2,600.00. The court specifically found that the work performed by appellant ■ on the exterior of the house “was performed in a good and workmanlike manner____” Furthermore, the court also found that appellees “had agreed to pay [appellant] as his work progressed and that they failed to pay [to appellant these] progressive payments.” The court concluded that appellant was “entitled ... to discontinue work until [appellees] had delivered the agreed interim payments.” Tr.Ct.Op.' at 2. The court en banc thereupon sustained the award of $2,600.00 in favor of appellant. The court also sustained the award of $5,376.00 in favor of the appellees. Appellant challenges the propriety of this award to appellees on three grounds, but our resolution of the first of appellant’s arguments makes it unnecessary to consider or discuss the others.

The award in favor of the appellant is fully supported by the record and the law. The court en banc specifically found that appellees’ failure to make “interim payments” during the course of appellant’s performance “entitled [appellant] to discontinue work until [appellees] had delivered” the money. This conclusion is supported by the court’s findings that appellees had agreed to pay for the work as it progressed and that the work was in fact performed in a good and workmanlike manner. Upon the appellees’ continued failure to tender the payments as promised, appellant was excused from performing any further work contemplated by the contract and is entitled to the value of the work actually performed under the contract. Harton v. Hildebrand, 230 Pa. 335, 79 A. 571 (1911).

However, appellant’s justifiable refusal to complete the contract did not make him liable in damages to the appellees, the parties found to be in breach of the contract. Although the record could conceivably support an award to the appellees, the court en banc failed to enter any findings in support of such an award. The finding that the work was performed in a good and workmanlike manner completely undercuts appellees’ claim that the contractor breached the contract. Hartón v. Hildebrand, supra. This finding is supported by the record and is therefore binding upon us. From this finding we cannot but conclude that the appellees have not shown that they are legally entitled to the award of damages made in their favor in the trial court.

For these reasons, that part of the award in favor of William A. Totten and Jean Totten, his wife, in the amount of $5,376.00 is reversed; in all other respects, the judgment of the trial court is affirmed.

      . Appellant claims that the award in favor of appellees was improper because (1) appellant’s performance was excused by a material breach of the contract by appellees; (2) the damages awarded to the appellees were erroneously calculated; and (3) the verdict is not supported by the pleadings.


author: WIEAND, Judge: WICKERSHAM, Judge,

text:
    466 A.2d 666
    COMMONWEALTH of Pennsylvania v. Alfred ELLIOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1982.
    Filed Oct. 7, 1983.

      Richard A. Ash, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Alfred Elliott was tried by jury and convicted of rape. The conviction and judgment of sentence were affirmed on direct appeal by this Court. Commonwealth v. Elliott, 228 Pa.Super. 753, 312 A.2d 801 (1973). Allocatur was denied. Elliott then filed a pro se petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. New counsel was appointed and filed an amended petition, in which the effectiveness of prior counsel’s representation was challenged. Following evidentiary hearings, the P.C. H.A. court dismissed the P.C.H.A. petition. This appeal followed.

Appellant’s P.C.H.A. petition recited numerous instances of alleged ineffectiveness of counsel during pretrial proceedings, at trial, and on direct appeal. These averments included (1) an alleged failure to conduct pretrial discovery or otherwise make an adequate investigation of the facts; (2) a failure to call as part of the defense a known and available alibi witness; (3) a failure to show the distance between the site of the crime and the place where appellant testified he had been at the time of the crime; (4) a failure to demonstrate the differences between the vehicle in which appellant was arrested and the vehicle described by the victim as the place of the rape; (5) a failure to move pre-trial to suppress evidence obtained allegedly as a result of an unlawful search and seizure; (6) a failure to make various objections during trial; (7) joining a request for a curative instruction after the jury had heard evidence of an unrelated auto theft; and (8) failing to file an adequate appellate brief in support of appellant’s direct appeal. Evi-dentiary hearings were held on five separate dates, to wit: November 20, 1978, December 18, 1978, March 5, 1979, March 6, 1979 and November 2, 1979. An opinion filed February 17, 1981 was accompanied by an order denying relief. The opinion contained no specific findings of fact but concluded generally as follows:

We have reviewed this record in its entirety and we are convinced and find as a fact that the defendant was not deprived of his constitutional right to representation by competent and effective counsel. On the contrary, we conclude as a matter of law that defendant’s counsel competently and effectively did represent this defendant.

On appeal from the order denying P.C.H.A. relief, appellant contends, inter alia, that the court’s opinion was inadequate because it failed to contain findings of fact, and that, in any event, the court erred in finding trial counsel effective.

We agree that the hearing court’s opinion is inadequate. Although the opinion contains an accurate recitation of applicable legal principles, it does not contain findings of fact and does not resolve fundamental conflicts in the evidence. Without findings of fact, this Court cannot fulfill in a meaningful way its responsibility to conduct appellate review.

Several illustrations will demonstrate the impossibility of conducting appellate review in this case. Appellant testified at the P.C.H.A. hearing that he had informed trial counsel in advance of trial that Bernard Broomer was an alibi witness. Broomer testified at the P.C.H.A. hearing that he had been with Elliott at the time the crime was allegedly committed. He also testified that he had given this information to appellant’s trial counsel and had offered to appear and testify as an alibi witness. He testified that he had heard nothing further from counsel. Counsel testified, however, that he had not been given Broomer’s name prior to trial and was not aware that he had relevant information. This presented a clear conflict, the resolution of which was essential to a decision. If trial counsel failed to obtain favorable testimony of a known alibi witness, his failure suggests ineffectiveness which will probably require a new trial. See: Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983); Commonwealth v. Sawyer, 309 Pa.Super. 72, 77, 454 A.2d 1088, 1090 (1982); Commonwealth v. Williams, 271 Pa.Super. 114, 120-121, 412 A.2d 601, 605 (1979). See also: Commonwealth v. Wade, 501 Pa. 331, 332, 461 A.2d 613, 614 (1983); Commonwealth v. Leonard, 499 Pa. 357, 361, 453 A.2d 587, 589 (1982); Commonwealth v. Casner, 315 Pa.Super. 12, 21, 461 A.2d 324, 328 (1983); Commonwealth v. Stafford, 307 Pa.Super. 278, 288, 453 A.2d 351, 355-356 (1982). There can be no ineffectiveness, however, if the existence of the alibi witness was not disclosed to counsel. See: Commonwealth v. Owens, 454 Pa. 268, 272-273, 312 A.2d 378, 381-382 (1973); Commonwealth v. Blackwell, 312 Pa.Super. 117, 122, 458 A.2d 541, 544 (1983); Commonwealth v. Williams, 310 Pa.Super. 501, 516, 456 A.2d 1047, 1055 (1983); Commonwealth v. Oliver, 280 Pa.Super. 274, 277, 421 A.2d 719, 721 (1980); Commonwealth v. Williams, 274 Pa.Super. 464, 472, 418 A.2d 499, 504 (1980).

Another of appellant’s contentions is that trial counsel failed to discover and, therefore, was unable to use at trial a statement made by the victim and appearing in police files that the glove compartment of the vehicle in which the rape occurred contained an inscription which began with the letter “G” or “C.” In fact, as was demonstrated by photographic evidence introduced at the P.C.H.A. hearing, the glove compartment of the vehicle driven by appellant contained the word “Thunderbird.” Appellant contends further that the Commonwealth had in its possession exculpatory, scientific evidence which trial counsel failed to discover because of pre-trial ineffectiveness. We cannot make an evaluation of the merits of these contentions. We can only review the hearing court’s order if it will first fulfill its responsibility to make necessary findings of fact. See: Pa.R.Crim.P. ^(^).

On prior occasions we have remanded for findings of fact where the P.C.H.A. hearing court failed to resolve conflicts in the evidence or determine issues of credibility. See: Commonwealth v. Whittman, 306 Pa.Super. 174, 175, 452 A.2d 271, 272 (1982); Commonwealth v. Reed, 298 Pa.Super. 480, 482-483, 444 A.2d 1285, 1285-1286 (1982). See also: Commonwealth v. Howell, 290 Pa.Super. 144, 434 A.2d 171 (1981); Commonwealth v. Sims, 265 Pa.Super. 55, 401 A.2d 797 (1979); Commonwealth v. Diggs, 254 Pa.Super. 262, 385 A.2d 1010 (1978). This is another case which must be remanded.

Remanded with directions to the hearing court to promptly make findings of fact. Meanwhile, jurisdiction is retained.

WICKERSHAM, J., filed a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

This is an appeal from a court order denying relief requested in a petition filed pursuant to the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541-51 (hereinafter PCHA). The pertinent facts are as follows:

On January 29, 1972 appellant Alfred Elliott forced a thirteen year old girl into a stolen car and then raped her. The victim immediately reported the crime and provided the police with a description of Elliott and the car. Elliott was arrested on February 12, 1972 and was subsequently identified by the victim as her assailant; the victim also identified the car as the one in which she was raped. Elliott moved to suppress the identification of himself and the automobile but the motion was denied. A trial was held before the Honorable Joseph C. Bruno and a jury and Elliott was found guilty of rape. Post-verdict motions were filed and denied; Elliott was subsequently sentenced to a minimum of eight years and a maximum of twenty years imprisonment. Direct appeal was taken and sentence affirmed by this court without published opinion in Commonwealth v. Elliott, 228 Pa.Super. 753, 312 A.2d 801 (1973). A petition for allocatur to the Pennsylvania Supreme Court was denied.

On September 15, 1977, Elliott filed a petition for relief under the PCHA. Counsel was appointed and an amended petition filed. After hearings, the petition was denied. This appeal followed.

Appellant Elliott states the first question involved as follows:

Where defense counsel fails to carry out any pretrial investigation with regard to a known Commonwealth key item of evidence, fails to move to suppress key Commonwealth evidence as the product of an unlawful search and seizure, fails to move for the production of exculpatory evidence in the prosecution file, fails to request a copy of the complainant’s formal statement until midtrial after she left the witness stand, fails to object to the use of highly prejudicial and inadmissible evidence throughout the trial, joins in a statement to the jury which taints their impartiality, fails to call a requested key alibi witness, fails to place on the record key facts necessary to the defense and does these things without any possible showing that they are in furtherance of any legitimate trial strategy—has the defendant been provided with constitutionally guaranteed competent defense counsel?

Brief for Appellant at 2.

Elliott contends that his trial counsel failed to properly investigate and examine the interior of the car in which the rape occurred, which examination might have aided him in his attempts to impeach the victim. Elliott argues that the victim told police that on the glove compartment of the automobile in which she was raped was a word beginning with the letter “G” or “C” and that, in fact, emblazoned on the glove compartment was the word “Thunderbird” written in cursive script. In view of the extremely insignificant value such trivial impeachment could possibly have, I find any possibility of error in this regard to be harmless.

Elliott’s next claim is that his trial counsel was ineffective for failing to move to suppress the victim’s identification of Elliott as her attacker on the grounds that Elliott was arrested without probable cause and subsequent identification of ■ him was “fruit of the poisoned tree.” Elliott’s arrest was supported by probable cause. Two weeks after the crime an off-duty police officer, James Weldon, observed a young girl leap back from the car Elliott was driving and hurry away. Weldon then observed Elliott as he rode further down the street and made comments to a woman on the sidewalk. Weldon immediately recalled the similarity between Elliott and the auto he was driving and a description of the rape suspect and his vehicle; he told the officer on duty in that area, Officer Gress, of his observations. Gress also noted the similarity between Elliott and the car he was driving and the description of the rape suspect and his auto. Gress stopped Elliott and asked for his owner’s card and license; upon noting a discrepancy in the two documents, Gress held Elliott for further investigation; the car was confirmed to be stolen. Elliott was later charged with the rape. Counsel can hardly be faulted for failing to challenge a valid arrest.

Elliott next faults his trial counsel for failing to move for the production of certain allegedly exculpatory evidence, specifically, a tire tread comparison test and an analysis of the sweepings of the interior of the car where the rape took place. Neither item was relevant however. The tire tread comparison test merely indicated that a tread chosen for comparison from the heavily travelled area around the rape scene did not match the tread of the vehicle Elliott drove. Similarly, the analysis of the sweepings taken from the interior of the car established only that no hair or blood of the victim was present in the samples taken over two weeks from the time of the incident. The remoteness in time of the crime negates the relevancy of this test as exculpatory evidence. Because the test results were irrelevant, I find their non-disclosure could not have affected the outcome of the trial. See generally Commonwealth v. Wallace, 500 Pa. 270, 279, 455 A.2d 1187, 1192 (1983) (nondisclosure of requested material mandates a new trial where material might have affected outcome of trial).

Elliott also argues that his trial counsel was ineffective for failing to request a copy of the victim’s statement to the police until after her testimony was completed. This is alleged to have resulted in trial counsel’s inability to cross-examine the victim concerning her description of the car in which she was raped. The inconsistencies Elliott advances as the missed opportunity for impeachment (Brief for Appellant at 23) were so trivial in comparison to the victim’s positive identification of Elliott and the vehicle as to be, at most, harmless error.

Trial counsel also is alleged to be ineffective for failing to object in eight specific instances to testimony characterized as inadmissible. These claims are waived as they were not presented to the lower court in the PCHA petition. See Commonwealth v. Pettus, 492 Pa. 558, 564, 424 A.2d 1332, 1335 (1981) (specific claims of ineffectiveness not enumerated in a counseled PCHA petition are waived).

Trial counsel was also allegedly ineffective for asking for a curative instruction (which was given) rather than a mistrial when a witness made reference to Elliott in connection with a stolen automobile. I find trial counsel’s decision to request a curative instruction rather than a mistrial to be within the realm of effective trial tactics in this case. See generally Commonwealth v. Brown, 274 Pa.Super. 609, 612-13, 418 A.2d 573, 575 (1980) (reasonable for defense counsel not to object or seek mistrial for improper comment by prosecutor when he thought case was going well).

Trial counsel also allegedly failed to call an alibi witness, one Bernard Broomer. Trial counsel denied that Elliott ever mentioned Broomer as an alibi witness before trial (Record, 3/6/79, 49-50) even though Broomer testified he had been a friend of Elliott for years and supposedly spent four hours with him covering the time period of the rape. I find no error here.

Trial counsel also is alleged to have been ineffective for failing to establish the distance between the site where alibi witnesses claimed to have seen Elliott near the time of the rape and the location of the rape. I note that Elliott’s alibi witnesses testified only as to the approximate times they saw Elliott and that establishing the exact distance of the crime site away from the locations where he was seen may well have undermined the alibi defense by showing there was sufficient time for Elliott to have committed the crime and still have been seen at the approximate times and places his alibi witnesses claimed to have seen him.

Appellant Elliott frames the next issue involved as follows:

Where an entirely inadequate brief is used on appeal— has a defendant been provided competent counsel in connection with his appeal?

Brief for Appellant at 2.

Elliott argues that his prior counsel was ineffective for filing a brief on appeal virtually identical to that filed in support of post-trial motions in the lower court as that brief failed to conform to the formal requirements for an appellate brief and was not responsive to the lower court opinion. My review of the brief reveals no harm to Elliott as a result of its filing. Elliott does not allege that the brief was stricken as a result of its procedural noncompliance or that it fails to discuss the authorities relevant to the points preserved for appeal.

Elliott also maintains that prior counsel was ineffective because the brief he filed on direct appeal did not raise the issue that Elliott could not have waived his right to counsel at his lineup because he was not informed at the time of the lineup of the nature of the crime for which he was being investigated. I find no merit in these contentions.

Appellant Elliott frames his final question involved as:

Did the court exclude admissible evidence?

Brief for Appellant at 2.

Elliott alleges the PCHA court erred when it excluded several affidavits concerning the lettering on the glove compartments of various vehicles and the present unavailability of the Thunderbird in which the rape took place. These affidavits were produced to show that trial counsel was ineffective for failing to attempt to impeach the victim as to the lettering on the glove compartment of the car in which she was raped. I find no error in trial counsel’s failure to attempt to impeach the victim on this trivial point and, accordingly, find no error in the exclusion of affidavits offered in support of such contention.

I would affirm the order of the P.C.H.A. court.

      . Pa.R.Crim.P. 1506 provides:
      When the court grants a post conviction hearing, it shall:

        (5) Cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth its findings of fact and its conclusions of law[.]

      . The majority opinion holds that the PCHA court failed to expressly resolve conflicts in the evidence and to determine issues of credibility, and that the case must be remanded for findings of fact.
      Although there are some conflicts in the evidence which the PCHA court failed to specifically resolve, I think that the lower court’s opinion implicitly states what evidence was believed to be credible and what was not believed.
      Other “conflicting” evidence seems insignificant and therefore any error that may have occurred was harmless (i.e.—victim’s report to police that the word on the glove compartment began with a "G” or “C,” when the word actually was "Thunderbird”).
      I believe that the PCHA court’s opinion sufficiently indicates to us how the PCHA court believed the conflict in the evidence should be solved.


author: WIEAND, Judge:

text:
    466 A.2d 671
    COMMONWEALTH of Pennsylvania v. Marion JACOBS, a/k/a Frank Davis, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1983.
    Filed Oct. 7, 1983.

      Gary Neil Asteak, Assistant Public Defender, Easton, for appellant.
    James J. Narlesky, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal from an order granting extradition of Marion Jacobs, a/k/a Frank Davis, to New Jersey, the appellant complains that he was not permitted to apply for a writ of habeas corpus to test the legality of his arrest. Our review of the record suggests that appellant is correct; and, therefore, we reverse and remand.

Jacobs was being held in the Northampton County prison in default of bail on criminal charges pending against him in Pennsylvania when, on October 23, 1981, New Jersey authorities lodged a detainer against him. On November 5, 1981, the District Attorney of Northampton County petitioned for an extension of sixty days within which to file the documents necessary to effect Davis’ extradition to New Jersey. See: 42 Pa.C.S. § 9138. This petition was granted and bail was set at $20,000.00 following an in-camera conference participated in by counsel for the parties, but at which appellant was not personally present. His first appearance in court was for an extradition hearing on January 20, 1982. At that time, his counsel requested an opportunity to file an application for writ of habeas corpus. His request was denied, and the court ordered extradition. Jacobs appealed.

The Uniform Criminal Extradition Act has been adopted in Pennsylvania and codified at 42 Pa.C.S. §§ 9121 to 9148. Section 10 thereof (42 Pa.C.S. § 9131) provides as follows:

§ 9131. Rights of accused person

No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this Commonwealth who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand and procure legal counsel, and, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof and of the time and place of hearing thereon shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to the said agent of the demanding state, (emphasis added).

This section establishes the means by which a detainee may test the legality of his arrest. Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 425-426, 321 A.2d 637, 639 (1974); Commonwealth v. Bell, 222 Pa.Super. 190, 194, 293 A.2d 74, 76 (1972). See also: Feilke v. Governor, State of New Jersey, 414 F.Supp. 10, 11 (E.D.Pa. 1976); Ex Parte Chapman, 601 S.W.2d 380, 382-383 (Tex. Cr.App.1980). The procedural safeguards guaranteed to a person whose extradition is sought are applicable without regard to whether the person is incarcerated in the asylum state on other charges. Commonwealth ex rel. Knowles v. Lester, supra. See also: People ex rel. Lehman v. Frye, 35 Ill.2d 343, 220 N.E.2d 235 (1966), cert. denied, 385 U.S. 1015, 87 S.Ct. 732, 17 L.Ed.2d 552 (1967). The lodging of a detainer against one already in custody on other charges is an “arrest.” Commonwealth ex rel. Knowles v. Lester, supra, 456 Pa. at 426, 321 A.2d at 639-640; Commonwealth ex rel. Coffman v. Aytch, 238 Pa.Super. 584, 587, 361 A.2d 652, 654 (1976). See also: Commonwealth v. Quackenbush, 291 Pa.Super. 209, 213, 435 A.2d 872, 874 (1981).

In Commonwealth v. Bell, supra, this Court encountered a case factually analogous to the case sub judice. Bell had been arrested on November 2, 1971 as a fugitive on a Delaware burglary charge and was thereafter brought before a Philadelphia Municipal Court judge, who advised him of the purpose for his arrest and his right to counsel. Bell appeared in court with counsel three times, and on all occasions the Commonwealth obtained a continuance. Finally, on January 28, 1972, Bell appeared and the Commonwealth was ready with the necessary warrants and evidence. Only then was Bell told that he was wanted in Delaware for a burglary allegedly committed on May 13, 1971. Counsel requested leave to file a writ of habeas corpus to challenge the legality of his arrest. The court denied the request and ordered extradition. On appeal, this Court found such procedure improper. It said:

The rights and safeguards enumerated in this section should have been made available to this appellant despite the fact that he was originally subjected to the court’s jurisdiction under a magistrate’s warrant rather than under the Governor’s warrant. Our Supreme Court has said that, although there need be no formal rearrest on a Governor’s warrant once a prisoner is properly in custody under a magistrate’s warrant, before an extradition may be effected, the “essential particulars” of the Act must be complied with. Commonwealth ex rel. Osburn, Appellant v. Haas, 439 Pa. 341, 268 A.2d 85 (1970). This language means that a prisoner must be afforded a full opportunity, within the limitations provided by the Act, to challenge his extradition, including the opportunity to file for and be heard on a petition for habeas corpus.

Id. 222 Pa.Super. at 193-194, 293 A.2d at 76. See also: Commonwealth ex rel. Bleecher v. Rundle, 207 Pa.Super. 443, 447, 217 A.2d 772, 775 (1966).

The argument made by the Commonwealth in this case that appellant had advance notice of the extradition hearing and ample time within which to file an application for habeas corpus prior to the hearing was also made in Bell. The Court rejected the argument, observing “the statute, by its language, assumes that the first reasonable opportunity to challenge the proceedings is when a judge of a court of record ha[s] advised the arrestee of the demand made on him and the nature of the charge against him in the demanding state.” Id. 222 Pa.Super. at 195, 293 A.2d at 77. See also: Feilke v. Governor, State of New Jersey, supra at 11; Payne v. Askew, 350 So.2d 831, 832 (Fla.Dist.Ct.App. 1977).

The facts of the instant case demonstrate even more clearly why it is necessary to allow a reasonable time to apply for a writ of habeas corpus after the person to be extradited has appeared in a court of record. The only prior proceeding was the in-camera proceeding on the District Attorney’s petition to extend the period of detention. Appellant was not then present, and the recorded arguments by counsel evidence uncertainty regarding whether appellant was to be extradited to face a new robbery charge, a charge of parole violation, or both. The Governor’s warrant had not then arrived, and it was not until January 20, 1982 that appellant first appeared in court and was advised formally of the charges pending in New Jersey and the procedure available to challenge the validity of the extradition proceedings.

It may ultimately be shown that appellant’s challenge lacks merit. The courts of the asylum state have a very limited right of review in extradition matters. Extradition is a constitutionally mandated process and must be ordered if the subject of the extradition (1) is charged with a crime in the demanding state; (2) is a fugitive from the demanding state; (3) was present in the demanding state at the time the crime was committed; and (4) if the requisition papers are in order. Commonwealth ex rel. Banks v. Hendrick, 430 Pa. 575, 577, 243 A.2d 438, 439 (1968); Commonwealth v. Inadi, 303 Pa.Super. 409, 411, 449 A.2d 753, 754 (1982); Commonwealth v. Brown, 281 Pa.Super. 31, 37, 421 A.2d 1131, 1134 (1980); Commonwealth ex rel. Berry v. Aytch, 253 Pa.Super. 312, 316, 385 A.2d 354, 356 (1978). Nevertheless, the statute requires that once the appellant has communicated his intent to challenge the legality of his arrest, the court must grant him a reasonable time within which to file an application for habeas corpus. This is a right conferred by statute regardless of the merit or lack of merit in the challenge. Commonwealth v. Bell, supra 222 Pa.Super. at 195, 293 A.2d at 77.

Because the trial court failed to follow the statutory mandate, we are required to reverse its order, at least for the time being, and remand for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction is not retained.

      . In the absence of a court allowed extension, a person detained on a warrant from another state can be confined for only thirty days.' 42 Pa.C.S. § 9136.

      . This was in addition to bail of $100,000.00 which had been set on the Pennsylvania charges.

      . The codification of Section 10 of the Uniform Act was then found at 19 P.S. § 191.10.