text:
    578 A.2d 417
    Margaret W. HITE, Executrix of the Estate of Robert V. Hite, Deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Philip Morris, Inc., the American Tobacco Company, McKeesport Candy Company and B. Lipsitz Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed July 12, 1990.

      Ellen M. Yiakley, Pittsburgh, for appellant.
    Edward F. Mannino, Philadelphia, for American Tobacco, appellee.
    Before ROWLEY, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

The issue of first impression before the Court in this appeal is whether state tort remedies for injury or death caused by cigarette smoking have been preempted by the Federal Cigarette Labeling and Advertising Act which became effective January 1, 1966.

Robert Hite, a pharmacist, died on May 29, 1985, at the age of fifty. The cause of death was lung cancer brought on by cigarette smoking. Margaret W. Hite, the widow of the decedent and administratrix of his estate, commenced wrongful death and survival actions against R.J. Reynolds Tobacco Company, Phillip Morris, Inc. and The American Tobacco Company, the manufacturers of cigarettes smoked by the decedent between 1950 and the date of his death. The complaint contained averments that the defendant tobacco companies had been negligent or were strictly liable because of defectively designed products and/or a failure to warn of the dangers of cigarette smoking. The trial court held, however, that the claim had been preempted, effective January 1, 1966, by the Federal Cigarette Labeling and Advertising Act. Because the decedent had not started smoking cigarettes manufactured by American Tobacco Company until sometime in 1970, therefore, the trial court entered judgment on the pleadings in favor of American Tobacco Company. The present appeal is from the order entering judgment on the pleadings in favor of The American Tobacco Company.

The standard for reviewing a judgment on the pleadings was set forth in Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 565 A.2d 448 (1989), as follows:

Our scope of review is plenary when reviewing a trial court’s decision to grant judgment on the pleadings. Keystone Automated Equipment v. Reliance Insurance Co., 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), allocatur den., 519 Pa. 654, 546 A.2d 59 (1988). Our appellate role is to determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Id.; Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). An appellate court must confine its consideration to the pleadings and relevant documents, accept as true all well pleaded statements of fact by the party against whom judgment was granted, and consider only those facts that the party against whom judgment was granted specifically admits. Keystone Automated Equipment, supra 369 Pa.Super. at 475, 535 A.2d at 649. However, we may not consider conclusions of law or unjustified inferences asserted by either party. Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 216, 514 A.2d 576, 578 (1986), allocatur den., Jan. 15, 1987. Judgment on the pleadings may only be granted where no material facts are in dispute and the case is so free from doubt that a trial would clearly be a fruitless exercise. Keystone Automated Equipment, supra 369 Pa.Super. at 475, 535 A.2d at 649.

Id. 388 Pa.Super. at 204, 565 A.2d at 449. See also: Groff v. Pete Kingsley Bldg., Inc., 374 Pa.Super. 377, 382, 543 A.2d 128, 130 (1988).

The policy of the Congress and the purpose of the Federal Cigarette Labeling and Advertising Act is to

establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby—
(1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and
(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

15 U.S.C. § 1331 (1982).

The Act also preempts state law pertaining to the duty to warn required of cigarette manufacturers and proscribes the imposition of additional notice requirements by the states. The Act provides:

(a) No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.
(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

15 U.S.C. § 1334 (1982).

In Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), the Court of Appeals for the Third Circuit analyzed the preemptive effect of the Labeling Act on state tort claims and concluded that “claims relating to smoking and health that result in liability for noncompliance with warning, advertisement, and promotion obligations other than those prescribed in the Act have the effect of tipping the Act’s balance of purposes and therefore actually conflict with the Act.” Id. at 187. The Court reasoned that the statement of the Act’s purposes represented a

carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the interests of national economy. See [Banzhaf v. F.C.C., 405 F.2d 1082, 1090 (D.C.Cir.1968) ]. Moreover, the preemption provision of section 1334, read together with section 1331, makes clear Congress’s determination that this balance would be upset by either a requirement of a warning other than that prescribed in section 1333 or a requirement or prohibition based on smoking and health “with respect to the advertising or promotion” of cigarettes. See 15 U.S.C. § 1334.

Id. at 187. Further, the Court said, “duties imposed through state common law damage actions have the effect of requirements that are capable of creating ‘an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id., quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581, 587 (1941). Therefore, the Court concluded

[T]he Act preempts those state law damage actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party’s actions with respect to the advertising and promotion of cigarettes. [WJhere the success of a state law damage claim necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages, such claims are preempted as conflicting with the Act.

Id. at 187 (footnote omitted). The reasoning of Cipollone is compelling. See also: Gunsales v. Celotex Corp., 674 F.Supp. 1149 (E.D.Pa.1987) (claims based upon failure to warn of dangers of smoking preempted following effective date of Labeling Act).

Other courts have reached the same conclusion. See: Pennington v. Vistron Corp., 876 F.2d 414 (5th Cir.1989) (Labeling Act impliedly preempts post 1965 claims challenging adequacy of warnings on cigarette packages, or suggesting duty on tobacco companies to provide warnings in addition to warning mandated by Congress, or questioning propriety of tobacco companies’ advertising or promotional activities); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir.1988) (Labeling Act impliedly preempts state law failure to warn claims); Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir.1987) (Labeling Act preempts claim of failure to provide adequate warning of risks associated with smoking); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987) (Labeling Act impliedly preempts state law smoking and health related claims challenging adequacy of Federal warning or propriety of promotion or advertising); Kotler v. American Tobacco Co., 685 F.Supp. 15 (D.Mass.1988) (same); Gianitsis v. American Brands, Inc., 685 F.Supp. 853 (D.N.H.1988) (same); Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655 (Minn.1989) (Labeling Act impliedly preempts state law tort claims based on state imposed duty to warn); Phillips v. R.J. Reynolds Industries, Inc., 769 S.W.2d 488, 490 (Tenn.App.1988) (Labeling Act preempts plaintiff’s product liability action alleging inadequate warning).

We hold, therefore, that health related claims based on a failure to give adequate warning of the dangers inherent in cigarette smoking or on promotional activities of the manufacturer or seller have been impliedly preempted by the Federal Cigarette Labeling and Advertising Act.

Appellant’s design defect claim, however, has not been preempted by the Labeling Act. Courts which have analyzed this question agree that the Labeling Act’s preemptive effect is limited solely to claims based on the adequacy of warnings and advertising or promotional activity of the cigarette manufacturers. See: Pennington v. Vistron Corp., supra; Cipollone v. Liggett Group, Inc., supra (Labeling Act does not preempt all state tort claims); Kotler v. American Tobacco Co., supra (tobacco companies not immune from liability on grounds which do not challenge adequacy of warnings or propriety of advertising or promotional activities); Gianitsis v. American Brands, Inc., supra; Cippollone v. Liggett Group, Inc., 649 F.Supp. 664 (D.N.J.1986); Forster v. R.J. Reynolds Tobacco Co., supra (except for duty to warn, there is no federal preemption of claims based on defective condition of product); Dewey v. Brown & Williamson Tobacco Co., 225 N.J.Super. 375, 542 A.2d 919 (1988) (cause of action alleging design defect not preempted).

Although design defect causes of action have not been preempted by the Federal Act, Pennsylvania courts have refused to recognize causes of action for products which are legal and not defectively manufactured, but inherently dangerous, except in those cases in which there has been a failure to warn of the dangerous qualities thereof. Section 402A of the Restatement (Second) of Torts was adopted by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). “Section 402A recognizes liability without fault and properly limits such liability to defective products. The seller of a product is not responsible for harm caused by such inherently dangerous products as whiskey or knives that despite perfection in manufacture, design or distribution, can cause injury.” Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 95, 337 A.2d 893, 899 (1975) (plurality opinion). These insights were based on comment i to Section 402A, which instructs as follows:

i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug, necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous, (emphasis added).

See also: Pegg v. General Motors Corp., 258 Pa.Super. 59, 391 A.2d. 1074 (1978) (equally divided court held manufacturer not liable because product inherently dangerous); Gianitsis v. American Brands, Inc., supra; Dewey v. Brown & Williamson Tobacco Co., supra.

Appellant in the instant case does not contend that a better design is available for the cigarette company’s product. She contends only that appellee’s product is so inherently dangerous that the manufacturer should be made liable for the mischief it causes. She would accomplish this by applying the risk-utility approach to design defect cases. Thus far, however, the Pennsylvania courts have resisted such an approach in design defect cases.

In Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court held that the “words ‘unreasonably dangerous’ have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed on the supplier.” Id., 480 Pa. at 556, 391 A.2d at 1025. Whether the risk of loss is to be placed on the supplier is a question of law for the court. Id. See also: Mackowick v. Westinghouse Electric Corp., — Pa. —, 575 A.2d 100 (1990). However, as we have observed, Berkebile suggests that the risk of loss will not be placed on the supplier or manufacturer where an inherent danger is within the contemplation of the buyer, i.e., where there is no element which will remove the risks inherent in its intended use.

In Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987), the Supreme Court acknowledged that the risk-utility approach has been adopted by some courts in design defect cases. However, in Pennsylvania, the Court said, the approach to design defect cases is that articulated in Azzarello v. Black Bros. Co., supra. Id., 515 Pa. at 340, 528 A.2d at 593. The risk-utility approach was not embraced.

The federal courts have recognized the Pennsylvania Supreme Court’s refusal to embrace the risk-utility analysis and have held that cigarette claims based upon such an approach are not cognizable in Pennsylvania. In Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485 (E.D.Pa.1988), the court held that under Pennsylvania law the risk-utility theory of liability was inapplicable; and, therefore, an action against a cigarette manufacturer for death caused by cigarette smoking on grounds that cigarettes gave no benefit to society but imposed great risk could not be maintained. Similarly, in Gunsales v. Celotex Corp., supra, the United States District Court for the Eastern District of Pennsylvania reasoned that the risk-utility test had not been adopted in Pennsylvania and held that tobacco was not per se a “defective” product merely because it caused or increased the risk of lung cancer and other life threatening diseases. Id. at 1158-1159.

Under the present state of Pennsylvania law, therefore, the only cognizable claim asserted by appellant is the failure of The American Tobacco Company to give adequate warning of the dangers of cigarette smoking. This is so whether she proceeds on theories of negligence or strict liability. Such a claim, however, cannot be pursued because notice requirements have been preempted by the Federal Cigarette Labeling and Advertising Act. Therefore, the trial court properly entered judgment on the pleadings in favor of The American Tobacco Company.

Judgment affirmed.

      . 15 U.S.C. §§ 1331 et seq.

      . The final order entered by the trial court was as follows:
      The order of June 13, 1988 as to the defendant The American Tobacco Company is amended to read as follows:
      It is ORDERED, ADJUDGED AND DECREED that the motion of the defendants for judgment on the pleadings be and the same hereby is granted; however, the second amended complaint of the plaintiff against The American Tobacco Company is dismissed as to it but shall continue as a complaint against all the other defendants as to pre-January 1, 1966 conduct of said remaining defendants. Further, the Prothonotary is directed to enter Judgment in favor of
      The American Tobacco Company and against the Plaintiff upon payment of the appropriate fee, if any.

      . The original warning required was as follows: "Caution: Cigarette Smoking May Be Hazardous to Your Health,” 15 U.S.C. § 1333 (1970). Congress amended the Act in 1969 to require the warning to read: “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” 15 U.S.C. § 1333 (1976). In 1984, Congress replaced prior warning requirements with rotational warnings providing:
      SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And may Complicate Pregnancy. SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.
      SURGEON GENERAL’S WARNING: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight. SURGEON GENERAL’S WARNING: Cigarette Smoke Contains Carbon- Monoxide.
      See: 15 U.S.C. § 1333(a)(1).

      . Congress has recently enacted a law requiring warning labels on packages of smokeless tobacco, and this law specifically provides that it does not relieve any person from liability at common law or under state law. See: 15 U.S.C. § 4406(c).

      . A risk-utility analysis was articulated and espoused by the Dissenting Opinion in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 71, 485 A.2d 408, 434 (1984).


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    578 A.2d 422
    COMMONWEALTH of Pennsylvania v. Charles Lamont THOMAS, a/k/a Charles Lamount, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1989.
    Filed July 11, 1990.

      Cuthbert A. Johnson, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CAVANAUGH, WIEAND and KELLY, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether a second PCRA petition must be reviewed under the standard of Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), when the second PCRA petition is identical to a first PCRA petition dismissed on grounds of procedural default, except in raising a claim of ineffectiveness with respect to prior PCRA counsel’s procedural default. We find that a second petition must be treated as a first petition nunc pro tunc in such circumstances, and falls outside the ambit of the restrictive standard for review of second or subsequent PCRA petitions set forth in Commonwealth v. Lawson, supra.

We are also called upon to determine whether prior counsel provided ineffective assistance in failing to raise and preserve an objection to a portion of police “course of conduct” hearsay testimony which indicated a third party who did not testify at trial, knew appellant, was present when the offense occurred, and identified appellant as the perpetrator. We agree with appellant that the course of conduct testimony constituted impermissible oblique narrative, that counsel was ineffective in failing to raise and preserve an objection to that evidence, and that counsel’s ineffectiveness in this respect was of a type which would undermine one’s confidence in the reliability of the verdict. Consequently, we reverse, vacate judgment of sentence, and remand for a new trial.

The following evidence was adduced at trial. Brooker Greene, age 60, testified that on December 14, 1987, at around 8:00 p.m. he experienced car trouble while driving alone in the Hill district of Pittsburgh. About twenty-five minutes after stopping to identify the problem, two young men, whom Mr. Greene did not know, approached the car and offered their assistance. The two strangers worked on Mr. Greene’s car for about 30 minutes before the heavier of the two men got into the car and explained that he was going to check “how the brakes were.” N.T. 6/23/88 at 24. The heavier man then started it and drove away. The slighter of the two men, who identified himself as Dale Harris, assured Mr. Greene of the return of his car, and waited with Mr. Greene for roughly an hour (until about 10:00 p.m.) before summoning the police. The car was not returned.

The police who responded testified that after arriving at the scene, they questioned both Mr. Greene and Dale Harris, who had remained with Mr. Greene to inform the police of the heavier man’s identity after the car was not returned. Harris named appellant as the man who stole Mr. Greene’s car, and provided them with an address at which appellant resided. The police later verified this address by speaking to a woman at that residence who identified herself as appellant’s mother. Based on this evidence, the police subsequently arrested appellant and charged him with one count of Theft by Unlawful Taking or Disposition, one count of Unauthorized Use of an Automobile and one count of Criminal Mischief.

At trial, Mr. Greene positively identified appellant as the man who stole his car. Dale Harris did not testify. The jury found appellant guilty of Theft by Unlawful Taking and Unauthorized Use of an Automobile. Post-trial motions were argued and denied. Appellant was sentenced to to 7 years incarceration. No direct appeal from the judgment of sentence was filed.

Appellant, thereafter, filed a PCRA petition pro se. After appointing new counsel to represent appellant, the court denied his petition for relief. Although notice of appeal from this denial was filed, counsel for appellant failed to file briefs in support of the appeal. Consequently, this Court dismissed that appeal, without prejudice.

Finally, after appointment of third counsel, appellant filed a second petition for post conviction relief, identical in all respects to his first. Finding no distinction in the subsequent petition, the lower court denied this petition on the same grounds as the first. An appeal of that order is now before us.

Initially we must determine the appropriate standard for reviewing this claim. Although this is technically an appeal from appellant’s second petition for post-conviction relief, under the peculiar circumstances from which this appeal arises, the standard for reviewing ineffective assistance of counsel claims espoused in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988) does not apply. In Lawson, after observing that “a second post-conviction appeal should be the exception, not, as is presently the case, the rule,” 549 A.2d at 110-11, our Supreme Court held,

Today we have reached a consensus which proved so elusive in Commonwealth v. Alexander, [495 Pa. 26, 432 A.2d 182 (1981) ] and Commonwealth v. Watlington, [491 Pa. 241, 420 A.2d 431 (1980)]. This accommodation has been reached by the realization that we cannot permit our continuing concern for assuring that persons charged with crime receive competent representation in their defense to be exploited as a ploy to destroy the finality of judgments fairly reached. We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.

Id. at 111-12 (emphasis added); Commonwealth v. Hagood, 516 Pa. 340, 532 A.2d 424 (1987); see also Commonwealth v. Miller, 375 Pa.Super. 437, 441-42, 544 A.2d 1000, 1001-1003 (1988) (per Kelly, J.; discussing Hagood, supra; Alexander, supra; and Waltington, supra).

Here, unlike in Lawson, appellant’s first request was denied, due to counsel’s procedural default, without prejudice. Appellant, in his second petition for relief, merely seeks review of the merits of the exact claim asserted in his first. The purpose for applying the Lawson standard, i.e. to discourage the exploitation of the post-conviction review process, is not furthered here. Moreover, to apply a more rigorous standard to an appeal following dismissal based on counsel’s failure to file timely briefs would be inconsistent with the reasoning of holdings in this Court which provide nunc pro tunc relief where procedural non-compliance was due to counsel’s default. See Commonwealth v. Ciotto, 382 Pa.Super. 458, 555 A.2d 930 (1989) (failure to file briefs constitutes per se ineffectiveness); Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989) (same). Cf. Commonwealth v. Albert, 522 Pa. 331, 334, 561 A.2d 736, 738 (1989) (“Where counsel’s representation is deemed to be inadequate, it is inappropriate to allow the proceedings in which it was rendered to be binding on the defendant’s rights.”). Hence, we find the Lawson standard inapplicable herein.

The appropriate standard of review here is the same as that of claims asserting ineffective assistance in initial post-conviction relief attempts. In this regard, the PCRA provides in pertinent part:

(a) General rule.—To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of the following:
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S.A. § 9543(a). (Emphasis added). The emphasized portion of the PCRA provision adds an additional requirement not present in its predecessor provision in the PCHA. Under the PCRA a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type “which in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilty or innocence could have taken place.” This is a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.

The new statute mandates a two step analysis. First, we must apply the well-settled three prong standard for ineffectiveness to determine if counsel was ineffective. Second, we must determine if any ineffectiveness proven so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.

The standard for determining if counsel was ineffective is well settled:

In order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce, 515 Pa. 153 [157-158], 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, 516 Pa. 407, [413], 532 A.2d 796, 799 (1987). (“The standard of review is that there must be a reasonable probability that but for counsel’s unprofessional errors, the result of the trial would have been different.”).

Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987); see also Commonwealth v. Swavely, 382 Pa.Super. 59, 64, 554 A.2d 946, 948 (1989); Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 110 (1989); Commonwealth v. Carelli, 377 Pa.Super. 117, 125, 546 A.2d 1185, 1188 (1988), allocatur denied, 521 Pa. 609, 557 A.2d 341 (1989).

Appellant contends that trial counsel was ineffective for failing to object to and preserve through post-trial motions, the Commonwealth’s introduction of certain alleged hearsay statements. The testimony appellant challenges was offered by the Commonwealth during direct examination of Officer Greiner, one of two police officers involved in the investigation of the stolen car. Appellant argues that although the testimony adduced from Officer Greiner was largely used merely to explain his “course of conduct” during the investigation, the Commonwealth also adduced highly incriminating hearsay testimony which went beyond mere explanation of the officers’ course of conduct, to wit:

Q. Now, you spoke that evening with ... a gentleman named Dale Harris?
A. Correct.
Q. Now, you can’t tell us what Dale Harris said. What did you do, what action did you take as a result of the conversation you had with Dale Harris?
A. Information that I received from Dale Harris.
Q. Be careful not to tell us what that information was.
MR. SWEM: Objection. I ask he ask question, [sic]. If there is an answer that is objectionable, I will make it. He says repeatedly that a witness can or cannot do. [sic].
THE COURT: Well, I suppose the District Attorney is trying to be super cautious about eliminating the possibility for inadmissible information, hearsay testimony to be heard by the jury. Of course, you are right. You are attentive and you are ready, willing, and able to object when you think it is proper. Go ahead.
MR. MERRICK: What did Dale Harris tell you?
MR. SWEM: Objection.
THE COURT: Sustained.

BY MR. MERRICK:

Q. After you had a conversation with Dale Harris, what did you do?
A. I wrote it down while I was gathering the information.
Q. And, as a result of the conversation with Dale Harris, what was your next action?
A. I spoke with Mr. Greene, gathered his information.
Q. With information from both of these individuals, what did you do?
A. I wrote an affidavit for arrest warrant for [defendant ].
Q. Now, that evening before you got, before you actually had written out the warrant, when you left it, when you left the dwelling, St. Clair Village, did you do something that evening as a result of the conversation with Dale Harris?
A. Yes I did two things. No. 1, I put a description of the automobile out on the air, and the license plate number. The plate was, I do believe, or the license plate number from the owner’s card. I made a general broadcast on Channel 1, Channel 2. Channel 2 is South Side. And West End area. Channel 1 is at that time the Hill District. 3 District, 4 and 5 District. After I put that broadcast out on the radio, I received—
Q. Don’t tell us what you received.
Now, other than putting it out on the radio, did you not also visit a residence that evening?
A. Yes, I did.
Q. What was the address?
A. 21—2521—excuse me. I am sorry. 2194 Elmore Square.
Q. Did you speak with someone there?
A. Yes, I did.
Q. Describe the person you spoke with. Describe her. A. She was an older black female in her, I believe late 40’s, early 50’s.
Q. Identify herself?
A. Yes, she did.
Q. Her name?
A. Her name is—
MR. SWEM: Objection.
THE COURT: Overruled.

BY MR. MERRICK:

Q. Her name?
A. Her name is Mrs. Thomas.
Q. Did she have a relationship to the accused?
A. Her son.

N.T. 6/13/88 at 63-66 (emphasis added).

Essentially, appellant argues that the Commonwealth, through this testimony, introduced statements in the form of oblique narratives to prove that Dale Harris, who knew and could reliably identify appellant, accused appellant of committing the crime. As Harris himself was not available for cross examination, appellant claims he was prejudiced by not having the opportunity to confront and cross-examine his accuser. We are constrained to agree.

Recently, in Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808 (1989), our Supreme Court recently reviewed a similar challenge to testimony which the prosecution claimed was justifiably introduced to explain police conduct. There, the Supreme Court observed,

It is, of course, well established that certain out-of-court statements offered to explain a course of police conduct are admissible. Such statements do not constitute hearsay since they are not offered for the truth of the matters asserted; rather, they are offered merely to show the information upon which police acted. Commonwealth v. Sneed, 514 Pa. 597, 606-07, 526 A.2d 749, 754 (1987); Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032 (1980) (police responded to radio call reporting a disturbance); Commonwealth v. Sampson, 454 Pa. 215, 219, 311 A.2d 624, 626 (1973) (police declined to arrest an individual who asserted his innocence); Commonwealth v. Tselepis, 198 Pa.Super. 449, 452, 181 A.2d 710, 712 (1962) (police acted upon informant’s tip that defendant was conducting a lottery. See also Commonwealth v. Underwood, 347 Pa.Super. 256, 261, 500 A.2d 820, 822 (1985) (“This Court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest.”).
Nevertheless, it cannot be said that every out-of-court statement having bearing upon subsequent police conduct is to be admitted, for there is great risk that, despite cautionary jury instructions, certain types of statements will be considered by the jury as substantive evidence of guilt. Further, the police conduct rule does not open the door to unbounded admission of testimony, for such would nullify an accused’s right to cross-examine and confront the witnesses against him.

Commonwealth v. Palsa, supra, 555 A.2d at 811, 812 (footnotes omitted). The Palsa court, after noting that the challenged statements were likely to be understood by the jury as themselves proving the elements of the crime for which the defendant was charged, concluded,

In this case, the police easily could have explained the course of their conduct pertaining to the investigation and arrest of appellant ... without resorting to the full and explicit statements given by [the informant]. It is the prosecutor’s duty to avoid the introduction of out-of-court statements that go beyond what is reasonably necessary to explain police conduct.... The statements could have been attenuated in other ways, too, to lessen their prejudicial impact. Thus, an adequate explanation for police conduct could have been provided, while minimizing the introduction of statements made by a person who was not under oath and who was not available for cross-examination.

Palsa, supra, 555 A.2d at 812 (emphasis added).

Applying this rationale instantly, we find that the testimony challenged herein constitutes inadmissible hearsay. Here, the fact that the crime had been committed was not questioned; the sole issue at trial was one of identity. The prosecution sought to buttress the in court identification of appellant made by the victim (who had never seen appellant before the incident in question) with another, far more reliable out of court identification made by a person who knew the name of the individual, with whom the person had been with when they happened upon the victim’s disabled car, which the individual fixed and then promptly stole. Though couched in terms of course of conduct testimony ostensibly in compliance with the hearsay rule, the challenged testimony conveyed the impression that Dale Harris identified appellant as the perpetrator and constituted impermissible “oblique narrative.” See Commonwealth v. Farris, 251 Pa.Super. 277, 380 A.2d 486 (1977).

In some previous cases, course of conduct hearsay evidence was permitted despite similarity to impermissible oblique narrative when there was need to explain the course of conduct, and the potential prejudicial impact of the limited oblique narrative type hearsay involved was minimal. In Commonwealth v. Underwood, supra, the Commonwealth was permitted to explain the course of conduct by the police by disclosing that an unidentified bystander had implicated the defendant. Similarly, in Commonwealth v. Carelli, 377 Pa.Super. 117, 132, 546 A.2d 1185, 1198 (1988), the Commonwealth was permitted to explain the course of conduct by the police by disclosing that an anonymous tip had implicated the defendant. Because the source of the oblique narrative type hearsay was anonymous in both cases, the juries in those cases would be unlikely to accord inappropriate weight to the hearsay statements derived from those anonymous persons related during course of conduct testimony. In both cases, the out of court identification was essentially harmless, and was offered merely to fill a gap in the narrative, rather than to buttress the proof of one of the critical elements of the offense.

Here, on the other hand, the manner in which the evidence was presented focused impermissibly on its oblique narrative aspect, and in fact emphasized the reliability of an out of court identification of a witness who was not presented to testify and to be cross-examined in this case. Given that the “Good Samaritan gone bad” had arrived with Dale Harris, a jury might understandably attach special relevance to Dale Harris’ identification of appellant as the thief, especially in light of the victim’s partially impeached identification of appellant. While either identification might be accepted or rejected separately, together the identification of appellant by the victim and Dale Harris corroborated each other and considerably enhanced the case for accepting the identification of appellant as the thief. The introduction of statements allegedly made by appellant’s mother at the address Harris gave the police as that of his companion (the perpetrator of the offense) would similarly be seen to corroborate Harris’ out-of-court accusation against appellant.

While it may have been necessary to explain to the jury why the police arrested appellant and not someone else, the combined effect of the introduction of statements allegedly made by both Harris and appellant’s mother, in the context in which they were offered, was to provide proof of appellant’s guilt through a person not under oath, nor available for cross-examination. Notwithstanding the Commonwealth’s professed intent to comply with evidentiary mandates, we find that the statements were not so attenuated as to sufficiently limit their prejudicial impact. See Palsa, supra. As such, we conclude they constituted inadmissible hearsay, and should have been excluded. See also Commonwealth v. Thomas, 372 Pa.Super. 349, 539 A.2d 829 (1988); Commonwealth v. Whiting, 358 Pa.Super. 465, 517 A.2d 1327 (1986); Commonwealth v. Parks, 273 Pa.Super. 506, 417 A.2d 1163 (1979).

The inadmissible hearsay was objected to by counsel at trial, but the objections were not preserved for appeal through appropriate post-verdict motions. No plausible tactical basis could exist for the waiver of such a challenge by counsel; consequently, we find it unnecessary to remand for a hearing as to whether a reasonable basis existed to pursue the course pursued by counsel. Cf. Commonwealth v. Petras, supra, 534 A.2d at 485 (ordinarily the Commonwealth is entitled to an evidentiary hearing to rebut an arguable assertion of ineffective assistance when no hearing on the issue was conducted in the trial court).

Finally, while we in no way suggest that the evidence against appellant was insufficient to sustain the verdict, we have no hesitation in concluding that the improper oblique narrative evidence was prejudicial in this case. Without the improper oblique narrative evidence, the jury might very well have found reasonable doubt in this case.

No finger prints or other demonstrative evidence was made a part of the prosecution’s case. The victim did not previously identify appellant either from an array of photographs or in a lineup. The sole admissible identification evidence was the victim’s in court identification of appellant while seated at defense table in the front of the court and next to defense counsel. Further, although the victim testified that he had ample opportunity to view the appellant while working on the car, the victim’s recollection of, or ability to perceive, the subject events was called into question by several seemingly inconsistent or implausible statements he made at trial. See e.g., N.T. 6/23/88 at 42-45 (the victim’s steadfast claim of day light at 8:30 p.m. in Pittsburgh, Pennsylvania, in December).

We find error, the absence of a reasonable basis designed to promote appellant’s interests for the conduct, and actual prejudice to the accused. Thus, counsel was in fact ineffective. See Commonwealth v. Petras, supra.

We still must determine whether the ineffectiveness was of a type which would undermine one’s confidence in the verdict. We have no doubts on this point. A verdict based in any material respect on inadmissible hearsay is unreliable, because inadmissible hearsay is by definition unreliable. As noted above, we find that the verdict here quite likely was based in a material respect on the improper oblique narrative evidence. Hence, we find that counsel’s ineffectiveness in failing to properly preserve an objection to the improper oblique narrative evidence in this case was of a type which undermines confidence in the verdict. Accordingly, we find that appellant is entitled to a new trial.

Judgment of sentence is Reversed, and a New Trial Granted. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

      . Although appellant has captioned this petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. 9541 et seq., it is clear that as the petition was brought after the effective date of the Post Conviction Relief Act, 42 Pa.C.S.A. 9541 et seq., April 13, 1988, it should have been captioned under the new act. However, we will construe the petition as if appropriately entitled, and treat it accordingly.

      . The record establishes that Mr. Greene had not seen the perpetrator before or after the crime, until he viewed and identified the appellant as the perpetrator at trial. See N.T. 6/23/88 at 48-50.

      . The Commonwealth urges, as the lower court found, that appellant has knowingly and understandingly waived his right to bring the instant claim of post-conviction relief because appellant failed to take a direct appeal following denial of post-verdict relief, and has not alleged that he communicated desire for a direct appeal which was frustrated or ignored by his counsel. Appellant’s failure to file direct appeal or to assert a frustrated effort to do so, however, is of no consequence. “The law is clear that a claim of ineffectiveness must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant.” Commonwealth v. Yabor, 376 Pa.Super. 356, 368, 546 A.2d 67, 73 (1988) (quoting Commonwealth v. House, 371 Pa.Super. 23, 27, 537 A.2d 361, 363 (1988); see also Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982). The instant claim was brought at appellant’s first counseled opportunity. This is all that is necessary to timely preserve for review an ineffective assistance claim. See Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n. 6, 372 A.2d 687, 695 n. 6 (1977); Commonwealth v. Strachan, 460 Pa. 407, 410, 333 A.2d 790, 791 (1975); Commonwealth v. Colpo, 367 Pa.Super. 223, 225, 532 A.2d 870, 871 (1987); Commonwealth v. Evans, 343 Pa.Super. 118, 122 n. 2, 494 A.2d 383, 385 n. 2 (1985); Commonwealth v. Johnson, 309 Pa.Super. 117, 119 n. 2, 454 A.2d 1111, 1112 n. 2 (1983).

      . The question of whether a counsel’s ineffectiveness “undermines the truth determining process" is similar in many cases to the question of prejudice in determining whether counsel was ineffective. However, there are a wide variety of ineffectiveness claims which involve prejudicial errors which have nothing to do with the reliability of the guilt determination. Ineffectiveness findings regarding Rule 1100 claims, Fourth Amendment suppression claims, and certain Miranda claims may demonstrate the distinction envisioned by our legislature in imposing the new restriction. We leave such distinctions to be drawn on a case by case basis as such cases arise.


author: HUDOCK, Judge: POPOVICH, Judge,

text:
    578 A.2d 429
    COMMONWEALTH of Pennsylvania, Appellee, v. Randall J. CHILCOTE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed July 20, 1990.

      David M. McGlaughlin, Philadelphia, for appellant.
    Stewart L. Kurtz, Dist. Atty., Huntingdon, for Com.
    Before ROWLEY, POPOVICH and HUDOCK, JJ.
   HUDOCK, Judge:

Following a nonjury trial, Appellant was found guilty of four counts of possession of a controlled substance with intent to deliver. Timely filed post-trial motions were denied. Appellant’s original sentence of 8 to 20 years imprisonment was reduced to an aggregate term of 7 years in response to his motion to modify sentence. Appellant was also ordered to pay: (1) the costs of prosecution; (2) the sum of $1,750 as restitution for the money advanced for undercover police activities in connection with these cases; and (3) a fine of $2,000. A second motion to modify was denied and this appeal follows. For the reasons set forth below, we affirm.

Appellant’s instant appeal raises the following issues for our review:

(1) The trial court erred in denying Appellant’s motion to dismiss the prosecutions pursuant to Pa.R.Crim.P. 1100(f).
(2) The trial court erred in denying the motion to dismiss on the basis of a violation of Appellant’s due process rights under the federal and state constitutions.
(3) The trial court erred in refusing to grant a motion for recusal based on participation of the trial judge in plea negotiations in contravention of Pa.R.Crim.P. 319(b)(1).
(4) 42 Pa.C.S.A. § 9781 is unconstitutional as it is in direct conflict with Article V, §§ 9 and 10(c) of the Pennsylvania Constitution.
(5) The sentence imposed by the trial court is harsh, excessive and a gross abuse of discretion and otherwise unconstitutional under the federal and state constitutions.

The facts of the case were summarized by the trial court as follows. Following the sale of controlled substances by Appellant to Trooper Ranee N. Morey, an undercover agent for the Pennsylvania State Police, three criminal complaints were filed against Appellant on December 23, 1981. The first complaint alleged that Appellant delivered a Schedule II controlled substance, cocaine. The second complaint alleged that Appellant possessed with intent to deliver a non-narcotic Schedule I controlled substance, approximately two pounds of marijuana. The third complaint alleged that Appellant possessed with intent to deliver a Schedule II non-narcotic substance, one ounce of methamphetamine. Criminal informations were filed in connection with these offenses at No. 6 C.A., 1982.

On March 24, 1982, another criminal complaint was filed against Appellant, alleging that he possessed with intent to deliver a Schedule II non-narcotic controlled substance, cocaine, and that he also possessed with intent to deliver a Schedule I non-narcotic controlled substance, marijuana. This complaint was the result of a controlled purchase from Appellant by Trooper Morey of approximately 1½ ounces of cocaine and 1½ pounds of marijuana. Criminal informations were filed at No. 141 C.A., 1982 with regard to these offenses.

On April 22, 1982, Appellant filed a request for the appointment of a physician pursuant to 35 P.S. § 780-118, disposition in lieu of trial or criminal punishment. The trial court entered an order reflecting its refusal of Appellant’s request on September 7, 1982. Appellant’s appeal from that order was quashed as being interlocutory. Allocatur was subsequently granted by our Supreme Court. However, Appellant withdrew his appeal when the Commonwealth agreed to permit Appellant to be examined by a physician in accordance with 35 P.S. § 780-118. The record was returned to the trial court from our Supreme Court on May 3, 1985.

Because the Commonwealth had never filed a motion for extension of time within which to commence trial under Pa.R.Crim.P. 1100(c), Appellant filed two motions to dismiss on July 8, 1985, based on Pa.R.Crim.P. 1100(f) and on a claimed due process violation. The trial court held these motions until the trial date fixed for the following week, July 15, 1985. On that date, the court entered an order denying both motions, and trial commenced immediately thereafter. We will address the multiplicity of issues raised by Appellant seriatim.

In his brief, Appellant argues that the two cases underlying this appeal should be dismissed for violation of his right to a speedy trial pursuant to Pa.R.Crim.P. 1100, 42 Pa.C.S.A. Rule 1100(a)(2), at the time the within criminal complaints were filed, provided that a trial in a court case in which a written complaint is filed against the defendant shall commence no later than 180 days from the date on which the complaint is filed. Appellant summarizes his position as follows. The complaint in No. 6 C.A., 1982 was filed on December 23, 1981 while the Complaint in No. 141 C.A., 1982 was filed on March 24, 1982. Appellant calculates the period of time between the filing of the complaints and his trial as being 1,300 and 1,209 days respectively. Appellant contends that only 81 days, resulting from a limited waiver of his Rule 1100 right, for the period of May 3, 1982 to July 23, 1982, are excludable in connection with No. 6 C.A., 1982. He concedes, however, that the period of delay for the appeal process, calculated to be 966 days, is excludable. With respect to the calculation of the Rule 1100 time period regarding the charges at No. 141 C.A., 1982, Appellant maintains that only the 966-day appeal period is excludable. Based on the following discussion, we find that Appellant’s contentions are erroneous.

Initially, we note that Rule 1100(d), effective during all periods of time relevant to this case, mandated that any period of delay at any stage of the proceedings that results from the unavailability of the defendant or his attorney must be excluded when determining the period for commencement of trial. Commonwealth v. Riffert, 379 Pa.Super. 1, 10, 549 A.2d 566, 571 (1988). Further, we observe that the time intervening between a defendant’s filing of pre-trial motions and the trial court’s disposing of such motions is also time which is properly excluded from the computation of the 180-day period under Rule 1100 due to the unavailability of the defendant. Commonwealth v. Riffert, supra (defendant’s trial could not commence until his omnibus pretrial motion was disposed of by the trial court; thus, he was unavailable to be tried while his motion was pending). Additionally, the time period that a case is on appeal is properly excluded from the Rule 1100 computation. Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981) (timely appellate procedures clearly divest the trial court of authority to proceed, and thus act as an automatic supersedeas of the operation of Rule 1100).

Appellant filed a pre-trial motion on April 22, 1982, requesting the appointment of a physician pursuant to 35 P.S. § 780-118(a). In effect, Appellant was requesting that the criminal charges against him be disposed of under this section and that he be permitted drug dependency treatment in lieu of a trial, possible criminal conviction, and consequential incarceration. On September 7, 1982, the trial court refused Appellant’s request, which led to his appeal to this Court and subsequently to our Supreme Court. The appellate process was completed when Appellant withdrew his appeal to our Supreme Court on May 2, 1985. Through the filing of his pre-trial motion and subsequent appeals, Appellant implicitly requested that trial be delayed until the issue was resolved since a favorable decision could, ultimately, eliminate the necessity of a criminal trial. See, Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989). We therefore conclude that for purposes of calculating the 180-day period, Appellant was unavailable for trial for the period of time in which the issue of whether a physician would be appointed under 35 P.S. § 780-118(a) was pending before the trial court as a pretrial motion. Additionally, the period of time that Appellant’s appeal was pending before this Court and our Supreme Court is also excludable. Thus, the periods of time from April 22, 1982 until September 7, 1982 (138 days), the period the motion was pending in the trial court, and from September 10, 1982 until May 3, 1985 (966 days), the appeal period, must be excluded from the computation.

Further, we note that in his concurring opinion in Commonwealth v. Bond, 350 Pa.Super. 341, 504 A.2d 869 (1986), then President Judge Spaeth considered a similar situation in which it was necessary for a criminal defendant to be tried following the remand of her case after this Court denied her permission to file an interlocutory appeal. The majority had concluded that “for Rule 1100 purposes appellant’s trial ‘commence[d]’ when the hearing was held on her pre-trial motion challenging the constitutionality of the statute she was charged with violating.” Id., 350 Pa.Superior Ct. at 355, 504 A.2d at 877. Instead of accepting the majority’s conclusion which he suggested depends “upon an artificial definition of ‘commence’ ”, former President Judge Spaeth concluded that the appellant’s trial had “ ‘commenced,’ in the obvious and matter of fact sense of that word, very shortly after we returned the record to the trial court.” Id. In agreeing with the majority that the appellant was not denied her right to a speedy trial, past President Judge Spaeth first noted that the purpose of “[t]he rule is to prevent oppressive pre-trial incarceration, minimize the anxiety of the accused, and limit the possibility that the defense will be impaired” and reasoned:

Here, appellant’s petition for leave to file an interlocutory appeal rendered her unavailable for trial. Given that, we must look to see whether appellant’s unavailability resulted in any delay beyond the date on which this court remanded the record to the trial court. Plainly, it did; some delay in scheduling a case for trial is inevitable whenever we remand, for the trial court cannot be expected to drop everything else and proceed at once with the case remanded. Here we do not know from the record exactly how much delay occurred, for as mentioned, the record does not disclose exactly when we remanded the record; but we do know that the delay was slight, for on March 8, 1982, less than thirty days after our decision denying appellant’s petition for leave to file an interlocutory appeal, the trial court scheduled trial for April 19, 1982, and but for appellant’s further request for continuance, trial would have commenced then.
Our cases establish that unavailability cannot be defined precisely but must be determined according to the facts of each case____ I therefore have no difficulty in finding that the delay from the date of our remand to the trial court to the date set for trial, April 19, 1982, was fairly attributable to appellant’s unavailability. The delay is therefore “automatically excluded,” ... from which it follows that appellant was timely tried. (Citations omitted)

Id., 350 Pa.Superior Ct. at 360-61, 504 A.2d at 880. Thus, we conclude that the delay from the date of remand to the trial court from our Supreme Court following the withdrawal of Appellant’s appeal, May 3, 1985, to the date set for Appellant’s trial, July 15, 1985, was attributable to Appellant’s unavailability and that this period of time (66 days) is therefore automatically excluded from the computation of the Rule 1100 run date.

Accordingly, we calculate the period of time that Appellant was available for trial with reference to No. 6 C.A., 1982, to be 123 days. Our calculations show that trial on the charges listed at No. 141 C.A., 1982 commenced within the Rule 1100 time period as trial began 32 countable days after the complaint was filed. Because we find that, based on his availability for trial, Appellant was tried within the 180-day mandate of Rule 1100, we conclude that Appellant is not entitled to have the two cases underlying this appeal dismissed.

Appellant next contends that the trial court erred in denying his motion to dismiss on the basis of a violation of his due process rights under the federal and state constitutions. This argument is predicated on what he argues was the trial court’s and Commonwealth’s intentional and illegal frustration of his rights under § 780-118(a) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. Because of this alleged violation of due process, Appellant claims he is entitled to a dismissal of the criminal charges against him. For the following reasons, we find this contention of Appellant to be totally without merit.

The constitutional protection upon which Appellant relies is independently based in the due process clause of the United States Constitution and the law of the land clause of the Pennsylvania Constitution. U.S. Const. Amend. XIV; Pa. Const. art. I, § 9. These provisions guarantee that a person is not to be deprived of life, liberty, or property without due process of law (14th Amendment) or unless by the law of the land (art. I, § 9). The terms “law of the land” and “due process of law” are legal equivalents. Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), affirmed 517 Pa. 192, 535 A.2d 575 (1987) (citation omitted).

Due process of law insures respect for those personal immunities so rooted in the traditions and conscience of our people as to be ranked as fundamental, or those implicit in the concept of ordered liberty. Id. (citation omitted). In order for Appellant to claim a violation of the due process clauses of the federal and state constitutions, which would entitle him to relief, there must be an intentional and illegal frustration by a governmental body of a fundamental constitutional right of Appellant. U.S. ex rel. Darcy v. Handy, 97 F.Supp. 930 (1951), rev’d on other grounds, 203 F.2d 407 (1953).

Our research reveals very little case law in this Commonwealth discussing § 780-118. However, in Commonwealth v. Snyder, 385 Pa.Super. 58, 560 A.2d 165 (1989), disposition of a criminal action under the drug dependent statute was analogized to disposition under accelerated rehabilitative disposition (ARD). The rules for ARD are a variation or extension of the use of probation, and acceptance in the program is not a fundamental constitutional right.

In analogizing § 780-118 to ARD, the Snyder Court opined that, like ARD, the drug dependent statute is aimed at nonviolent offenders in cases where treatment or rehabilitation is preferable in lieu of criminal prosecution, and that the choice to pursue a disposition under the drug dependent statute is subject to the discretion of the prosecuting attorney. Id., 385 Pa.Superior Ct. at 67, 560 A.2d at 170.

Further, in Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989), this Court concluded that while a recommendation for placement in an ARD program is solely within the province of the prosecutor, admission of an offender into the program is by grace of the trial court upon the Commonwealth’s motion. Therefore, an accused has no right to demand acceptance into the program and cannot complain when he is precluded from participation. Accord, Commonwealth v. Ayers, 363 Pa.Super. 232, 525 A.2d 804 (1987). Likewise, by analogy, acceptance of an accused into the program of disposition in lieu of trial or criminal punishment under § 780-118 is by grace of the trial court on the Commonwealth’s motion. Accordingly, we find that there was no violation of Appellant’s due process rights under the federal and state constitutions as disposition under § 780-118 is not a fundamental constitutional right.

Before reaching the questions which Appellant raises concerning his sentence, we must first address his arguments that 42 Pa.C.S.A. § 9781 is violative of the Pennsylvania Constitution. Appellant contends that § 9781, as interpreted in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) “limit[s] appellate jurisdiction in cases where the issue is a review of the discretionary aspects of sentence.” (Appellant’s brief at 29.) This, he maintains, is in direct conflict with art. V, § 9, of the Pennsylvania Constitution. We acknowledge that Appellant’s argument echoes the concerns of our distinguished colleague, Judge Del Sole. See, Commonwealth v. Barnes, 388 Pa.Super. 327, 565 A.2d 777 (1989) (en banc) (Del Sole, J. concurring); Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989) (Del Sole, J. concurring). Nevertheless, our analysis convinces us that the statutory scheme controlling appellate review of sentences does not conflict with the provisions of our State Constitution.

Our analysis commences by recalling that we are obliged to exercise every reasonable attempt to vindicate the constitutionality of a statute and uphold its provisions. Commonwealth v. Trill, 374 Pa.Super. 549, 569, 543 A.2d 1106, 1116 (1988) (citation omitted), allocatur denied 522 Pa. 603, 562 A.2d 826 (1989); Commonwealth v. Jones, 374 Pa.Super. 431, 543 A.2d 548 (1988), appeal denied 522 Pa. 574, 559 A.2d 35 (1989). Moreover, basic tenets of statutory construction mandate “that a strong presumption of constitutionality attaches to the acts of the General Assembly, and a heavy burden of persuasion falls on any party seeking to rebut that presumption.” Commonwealth v. Trill, 374 Pa.Super. at 569, 543 A.2d at 1116. (Citations omitted) “ ‘Legislation will not be invalidated unless it clearly, palpably, and plainly violates the Constitution, and any doubts are to be resolved in favor of a finding of constitutionality.’ ” Id., quoting Pennsylvania Liquor Control Board v. The Spa Athletic Club, 506 Pa. 364, 370, 485 A.2d 732, 735 (1984). See also, Commonwealth v. Santiago, 376 Pa.Super. 54, 545 A.2d 316 (1988), appeal denied 522 Pa. 595, 562 A.2d 320 (1989).

The Pennsylvania Constitution guarantees an individual’s right of appeal.

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be provided by law; and there shall be other such rights of appeal as may be provided by law.

art. V, § 9. As already noted, Appellant maintains that this right is restricted by 42 Pa.C.S.A. § 9781 which, in pertinent part provides:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

We do not view the language of § 9781(b) as limiting, restricting, or relinquishing a convicted defendant’s right to appeal to this Court. An appellant’s access to this Court remains undisturbed. Rather, we find § 9781(b) to be a legislative enactment establishing a threshold burden which an appellant, who is appealing from the discretionary aspects of sentence, must first satisfy before we will consider the merits of the appeal. This de minimis threshold burden does not defeat this Court’s jurisdiction to entertain such appeals. Rather, it places a procedural mechanism whereby we are able to determine whether the questions posed are of sufficient import to warrant further review. In adopting § 9781(b), the Legislature has clearly acknowledged the deep-rooted tradition that trial courts are given wide latitude in fashioning sentences, and, yet, it has balanced that discretion with a review process recognizing that such discretion is not completely unfettered.

[T]he statutory scheme recognizes the uniqueness of the exercise of discretion that is encompassed in the sentencing decision. Section 9781(b) provides the defendant or the Commonwealth with only a limited appeal in an attack upon the discretionary aspects of a legal sentence to [this appellate court], [footnote omitted] Thus the statutory-law reflects the long standing case law, recognizing that the trial court’s prerogative in sentencing should not be unduly fettered. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

Commonwealth v. Jones, 523 Pa. 138, 142-43, 565 A.2d 732, 734 (1989).

Appellant also argues the procedural prerequisites imposed on an appellant by 42 Pa.C.S.A. § 9781 conflict with art. V, § 10(c) of our State Constitution and infringe upon the Supreme Court’s rule-making authority. Appellant cites to Pa.R.A.P. 2116(b), requiring “any questions to the discretionary aspects of the sentence imposed ...” to be included in an appellant’s “Statement of Questions Involved on Appeal”, as an example of such a conflict. He maintains that the Supreme Court has specifically provided for appeals from the discretionary aspects of sentence in promulgating Rule 2116(b), but such appeals have been unduly restricted by the Legislature’s adoption of § 9781.

The pertinent part of art. V, § 10(c) of the Pennsylvania Constitution provides:

The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court....

(Emphasis supplied)

It is clear from the language quoted above that the Supreme Court’s rule-making authority is not absolute. The general rules promulgated by the Supreme Court may not “affect the right of the General Assembly to determine the jurisdiction of any court.” Thus, we find there is no conflict between 42 Pa.C.S.A. § 9781, wherein the General Assembly determined this court’s jurisdiction to hear appeals from the discretionary aspects of sentence, and the Supreme Court’s rule-making authority. The rules fashioned by the Supreme Court simply cannot constitutionally supercede the legislatively determined jurisdiction of this Court.

In his third and final constitutional challenge to § 9781, Appellant argues that subsection (f), which “denies absolutely the right to a petition for allowance of appeal in the Supreme Court of any unsuccessful sentence challenge in the Superior Court[,]” also conflicts with art. V, § 9 of the State Constitution. (Appellant’s brief at 30.) We find Appellant’s argument wholly lacking in merit. As previously discussed, the Pennsylvania Constitution guarantees “a right of appeal from a court of record ... to aw appellate court, the selection of such court to be provided by law.” art. V, § 9. (Emphasis supplied) In providing that “[t]he Superior Court shall have exclusive appellate jurisdiction of all appeals ... except such classes of appeals as are ... within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court[,]” the legislature selected this Court as the appellate court to which a convicted defendant has the right to appeal. 42 Pa.C.S.A. § 742. The Constitution requires nothing more.

For the foregoing reasons, we conclude that 42 Pa.C.S.A. § 9781 does not clearly, palpably, and plainly violate our State Constitution.

We now address Appellant’s arguments relating to his sentence. In the statement of questions involved section of his brief, Appellant queries whether the sentence imposed by the trial court in this case was harsh, excessive and a gross abuse of discretion and otherwise unconstitutional under the federal and state constitutions in that:

(a) The trial court focused solely on the nature of the charges and utterly failed to consider the individual characteristics of the Appellant and that of his family situation in it fashioning an appropriate sentence;
(b) The sentence is cruel and unusual punishment and disproportional to the nature and seriousness of the offenses, and also disproportional to the sentence of the co-defendant;
(c) The trial court failed to adequately and properly consider the statutory and social factors which favor a sentence of probation;
(d) The sentence imposed violates the spirit of the legislatively imposed sentencing guidelines in that it is grossly out of line with the then-applicable sentencing guidelines for the type of offense for which sentenced;
(e) The trial court failed to state sufficient reasons justifying a sentence of total incarceration of this duration;
(f) The trial court failed to determine Appellant’s ability to pay fines and costs especially since he will be incarcerated for a lengthy period of time; and
(g) The trial court made statements regarding Appellant’s rehabilitation and drug activities which are totally unsupported by the record and which, in fact, were contrary to the record in this case; and further, held him responsible for nebulous and unspecified drug sales for which he was not charged or convicted.

(Appellant’s brief at pp. 8-9.)

As Appellant only makes a bald assertion that the sentence imposed is “otherwise unconstitutional under the federal and state constitutions”, and because he does not assail the legality of his sentence by claiming that it exceeds the statutory limits, we view his argument as a challenge to the discretionary aspects of his sentence. Therefore, an appeal in this case is not taken as of right, and Appellant’s appeal concerning the sentence imposed must be considered as a petition for permission to appeal. Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989). Appellant has complied with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, supra, 513 Pa. at 511-12, 522 A.2d at 19, by including in his brief a separate statement of the reasons relied upon for such an appeal.

We must therefore consider whether Appellant has demonstrated, as he must if we are to grant his petition for permission to appeal, that there exists “a substantial question that the sentence imposed is not appropriate” under the Sentencing Code. Commonwealth v. Williams, supra, citing 42 Pa.C.S. § 9781(b). “It is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Id., quoting Commonwealth v. Tuladziecki, supra, 513 Pa. at 515, 522 A.2d at 20. Whether a substantial .question exists is evaluated on a case-by-case basis, but generally, a substantial question is present “ ‘where an appellant advances a color-able argument that the trial judge’s actions were 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.’ ” Commonwealth v. Thomas, 387 Pa. Super. 191, 194, 563 A.2d 1249, 1250 (1989), quoting Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

Therefore, where Appellant’s Rule 2119(f) statement “contains no factual averments which suggest that the sentencing scheme as a whole has been compromised, but instead merely paraphrases appellant’s argument as to why the sentencing court abused its discretion in imposing the allegedly excessive sentence, the petition for permission to appeal must be denied.” Commonwealth v. Williams, supra 386 Pa.Super. at 328, 562 A.2d at 1389.

Prior to determining whether Appellant’s 2119(f) statement demonstrates a substantial question concerning the appropriateness of his sentence, we note that a cursory comparison of this statement with the statement of questions involved reveals fatal flaws. Appellant’s 2119(f) statement, entitled “Notice Regarding Discretionary Aspects of Sentence Pursuant to 42 Pa.C.S.A. § 9781”, reads as follows:

Here, the lower court ignored five years of infraction free behavior from the appellant, and myriad factors which suggested that Mr. Chilcote had become a productive member of society and had, in fact, earned a sentence of probation. Included among those myriad factors were that Mr. Chilcote was married and raising a family, had found a very well paying job much to his liking, and most importantly of all, there did not appear to be any indication of his resuming his previous illegal activity related to controlled substances.
Also, over fifty people in letters and as witnesses offered favorable comments on behalf of Mr. Chilcote to the court, and it is without doubt that a co-defendant in this matter received a time served and probationary sentence whereas Mr. Chilcote received seven to twenty years.
In fashioning the sentence it did, the lower court focused solely and exclusively on the nature of the offenses involved, and worse yet, even ascribed unspecified and debulous [sic] drug activity to Mr. Chilcote.
Lastly, the sentence was way beyond the sentencing guidelines applicable at the time even though the case was not controlled by the sentencing guidelines themselves.
All of these factors combined to strongly support the claim that this sentence was extremely harsh and excessive and an abuse of the sentencing discretion vested in our trial courts.

As is readily apparent, Appellant has omitted from his 2119(f) statement several of the allegations presented in his statement of questions involved concerning his sentence. See supra at 437-438. These omitted allegations include contentions that the trial court failed to consider the individual characteristics of Appellant when fashioning the sentence; that the sentence is cruel and unusual punishment, and disproportional to the nature and seriousness of the offenses; that the sentence imposed violates the spirit of the sentencing guidelines; that sufficient justification for the length of sentence imposed was not stated; and that the sentencing court failed to determine Appellant’s ability to pay fines and costs.

With reference to required Rule 2119(f) statements, we observe that the en banc panel of this Court which decided Commonwealth v. Williams, supra, noted that our Supreme Court has held that “if the brief of the appellant in an appeal from the discretionary aspects of a sentence does not include a Rule 2119(f) statement, [the Superior Court] may quash the appeal, even though the opposing party has raised no objection to the absence of the statement, ‘if review may be significantly hampered by the lack of the concise statement.’ ” Id. 386 Pa.Super. at 327, 562 A.2d at 1388, quoting Commonwealth v. Gambal, 522 Pa. 280, 284, 561 A.2d 710, 713 (1989). The Williams Court also noted that the decision in Commonwealth v. Gambal, supra, was not dispositive of the case before it since, in Williams, the requisite (but fatally flawed) Rule 2119(f) statement had been provided, but opined that the decision in Commonwealth v. Gambal “serves to illustrate the importance to the reviewing court of the statement of reasons relied upon for allowance of appeal”. Id. 386 Pa.Super. at 327, 562 at A.2d 1388. We further note that the Gambal Court also opined that “ ‘[b]y having access to the concise statement required under Pa.R.A.P. 2119(f), the reviewing court may be aided in its determination of whether a substantial question exists, without having to make a post hoc determination after reviewing the entire brief’ ” Commonwealth v. Gambal, supra 522 Pa. at 285-86, 561 A.2d at 713, quoting Commonwealth v. Tuladziecki, 513 Pa. at 513, 522 A.2d at 19 (emphasis supplied). In light of the foregoing discussion, we exercise our discretion by declining Appellant’s invitation to inspect his entire brief to determine whether substantial questions exist concerning the discretionary aspects of his sentence, and therefore quash that portion of the appeal concerning allegations not contained in Appellant’s Rule 2119(f) statement.

Our review of Appellant’s Rule 2119(f) statement leads to the conclusion that a substantial question for our review exists concerning the sentence of a co-defendant. Appellant claims that the co-defendant’s sentence was extremely lenient (time served and probation) while he received seven to twenty years incarceration. The same conclusion is reached concerning the contention that the sentencing court focused solely and exclusively on the nature of the offenses involved, and ascribed unspecified and nebulous drug activity to Appellant when sentencing him.

Additionally, Appellant insists that the sentencing court ignored factors which support the fact that he had indeed earned only a sentence of probation. A similar factual scenario was recently presented to this Court en banc in Commonwealth v. Williams, supra, wherein the appellant petitioned for permission to appeal the discretionary aspects of her sentence. In her 2119(f) statement, the appellant argued that the sentencing court failed to consider her serious medical condition and the fact that she had maintained steady employment prior to her arrest despite her heart ailment. She contended that the trial court failed to consider the hardship created by imposing a prison sentence and that this sentence was imposed despite the fact that testimony was presented by outstanding members of the community who verified the fact that the appellant was making a sincere effort to change her lifestyle. This Court responded that although the appellant asserts that the sentencing court “failed to consider” various factors, her statement made it clear that the court was, in fact, provided with adequate information on which to base its sentencing decision. We concluded that “[i]t would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” (citation omitted) Id. 386 Pa.Super. at 326, 562 A.2d at 1388. Finding that the appellant failed to present a substantial question with respect to the appropriateness of her sentence, we denied her petition for permission to appeal.

Appellant in the case sub judice indicates the sentencing court was aware of the “myriad factors” which support a sentence of probation and of the fact that over fifty people made favorable statements on his behalf. Thus, from his Rule 2119(f) statement itself, it is clear that the trial court had ample information for its consideration in imposing sentence, applied it to the case at bar, and imposed a sentence which it deemed appropriate.

We will therefore review the two substantial questions raised by Appellant in his Rule 2119(f) statement: whether the trial court sentenced Appellant’s co-defendant to a more lenient sentence without setting forth its rationale for the difference in the sentencing, and, as Appellant stated in his brief, whether “in fashioning the sentence it did, the lower court focused solely on the nature of the offenses involved, and worse yet, even ascribed unspecified and debulous [sic] drug activity to Mr. Chilcote.” (Appellant’s brief at 14.)

Appellant raises the issue of his sentence being disproportional to that meted out to a co-defendant. However, we find that Appellant fails to make the distinction between a co-defendant and a co-actor. See, Commonwealth v. Todaro, 524 Pa. 64, n. 1, 569 A.2d 333, n. 1 (1990). While there is information in the record that another individual assisted the undercover State Police Officer in his purchase of controlled substances from Appellant, the record also clearly indicates that there was no co-defendant tried with Appellant. Moreover, the record before us is completely devoid of any information concerning Appellant’s co-actor other than his bald assertion that this person received a time-served and probationary sentence. We are not advised, for example, as to what charges were filed against this individual or when the co-actor was tried or convicted. As this assertion involves matters dehors the record, we cannot, and will not, consider the issue.

Appellant’s second contention is that the sentencing court focused solely and exclusively on the nature of the offenses involved when fashioning its sentence. Our careful review of the transcripts of the two sentencing hearings contradicts Appellant’s contention. Indeed, we note that the sentencing court addressed, in addition to the seriousness of the nature and circumstances of Appellant’s offenses, Appellant’s personal characteristics. The sentencing court further indicated that it was familiar with the contents of the presentencing report prepared in connection with Appellant and that it was also familiar with the reports prepared by Drs. Wawrose and Sadoff concerning Appellant. Overall, we find that the court fully explained the sentence imposed and carefully considered the background, character, attitude and crimes of Appellant in imposing its sentence.

Appellant’s final assertion concerning the discretionary aspects of his sentence is that the sentencing court held him responsible for nebulous and unspecified drug sales for which he was not charged or convicted. This claim is belied by the transcript of the sentencing proceedings. Contrary to Appellant’s assertions, the trial court merely reiterated statements made by Appellant during the compilation of his presentence report and in the course of his interviews with Drs. Wawrose and Sadoff. (N.T., 3/6/87, at 27-29.)

Our review of the sentencing proceedings leads to the conclusion that Appellant’s arguments do not warrant relief.

Appellant lastly argues that the trial court erred in refusing to grant a motion for recusal based on participation of the trial judge in plea negotiations in contravention of Pa.R.Crim.P. 319(b)(1). Appellant concedes that any claim of unfairness during the trial is waived, but that the trial court sitting at the sentencing hearing creates the appearance of bias and impropriety which the canons of judicial ethics seek to avoid. (Appellant’s brief at 27-28.) Appellant’s requested relief is that another judge preside at resentencing. As previously discussed, we find nothing inappropriate with Appellant’s sentence, thereby making it unnecessary for us to consider this contention further.

The judgment of sentence is affirmed; the appeal is quashed in part.

POPOVICH, J., files concurring opinion.

POPOVICH, Judge,

concurring.

I write separately to note my disagreement with the majority’s conclusion that “42 Pa.C.S.A. § 9781 does not clearly, palpably, and plainly violate our State Constitution.” (Opinion at 440) Rather, I am convinced that § 9781 violates the absolute right of a defendant to appeal his sentence pursuant to the Pennsylvania Constitution, Article 5, § 9 which provides:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

My opinion leads me to agree with my distinguished colleague, Judge Joseph Del Sole, who, in his concurring opinion in Commonwealth v. Barnes, 388 Pa.Super. 327, 333, 565 A.2d 777, 781 (1989), also concluded, “... 42 Pa.C.S.A. § 9781(b) violates Article 5, Section 9 of the Pennsylvania Constitution.” I adopt his analysis of the constitutional issue as set forth in Barnes, 565 A.2d at 780-781. See also Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989) (concurring opinion by Del Sole, J.).

I am further convinced that compliance with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) wastes valuable judicial resources by adding an additional tier to our analysis of a defendant’s attack on the discretionary aspects of his sentence.

We should simply address appellant’s sentencing issues. I have reviewed appellant’s attack on the discretionary aspects of his sentence and have found no abuse of discretion by the sentencing court. The sentencing judge complied with the requirements of the sentencing code, the sentence is well within the statutory maximum and minimums, the court had an extensive presentence investigation at its disposal, and the court stated adequate reasons for the sentence imposed on the record. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Accordingly, I concur in the result reached by the majority.

      . 35 P.S. § 780-113(a)(30).

      . We note that the second motion to modify was denied on April 6, 1987 after a notice of appeal had been filed with this Court.

      . 1972, April 14, P.L. 233, No. 64, § 18, eff. June 14, 1972. As amended 1972, Oct. 26, P.L. 1048, No. 263, § 1, imd. effective.

      . Effective December 31, 1987, Pa.R.Crim.P. 1100 was amended so that Pa.R.Crim.P. 1100(a)(2) now states that a trial in a court case in which a written complaint is filed against the defendant, where the defendant is incarcerated, shall commence no later than 180 days from the date on which the complaint is filed. Pa.R.Crim.P. 1100(a)(3) now mandates that a trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.

      . This mandate is now contained in Pa.R.Crim.P. 1100(c)(3)(i).

      .
      6 C.A., 1982
      (Complaint filed December 23, 1981)
      Month: Days Available for Trial:
      December, 1981 8
      January, 1982 31
      February, 1982 28
      March, 1982 31

        April, 1982 (Pre-trial motion filed 4/22/82) 22
      April 22, 1982—September 7, 1982 when motion denied 0
      September 7, 1982—September 10, 1982 when appellate process began 3
      September 10, 1982—May 3, 1985 (Appeal period) 0
      May 3, 1985 (Record remanded to trial court on 5/3/85)—July 15, 1985 (Date of commencement of trial) 0
      Total days from filing of Complaint until Commencement of Trial 123

      .
      141 C.A., 1982
      (Complaint filed March 24, 1982)
      Month: Days Available for Trial:
      March, 1982 7
      April, 1982 (Pre-trial motion filed 4/22/82) 22
      April 22, 1982—September 7, 1982 when motion denied 0
      September 7, 1982—September 10, 1982 when appellate process began 3
      September 10, 1982—May 3, 1985 (Appeal Period) 0
      May 3, 1985 (Record remanded to trial court on 5/3/85)—July 15, 1985 (Date of commencement of trial) 0
      Total Days from filing of Complaint until Commencement of Trial 32

      . Appellant’s argument is limited to his pre-trial motion for disposition in lieu of trial or criminal punishment.

      . The Commonwealth does not brief this issue; instead, it simply argues that "the record does not raise a substantial question as to [the] propriety [of the sentences.]" (Commonwealth’s brief at 9.)

      . Appellant argues only that § 9781 conflicts with art. V, § 9. Without greater specificity, we can only assume that the gravamen of Appellant’s argument at this point is the language contained in 42 Pa.C.S.A. § 9781(b), Allowance of Appeal.

      . Parenthetically, we note that if all the allegations contained in the statement of questions involved on appeal had been included in Appellant’s 2119(f) statement, we would be compelled to conclude that they do not present substantial questions regarding the appropriateness of his sentence. The reasons cited by Appellant as justifying allowance of appeal, which were omitted from his 2119(f) statement, are "boilerplate” allegations lacking any specific, articulable reasons why his sentence raises doubts that the sentencing scheme as a whole has been compromised. Appellant would have this Court substitute its judgment for that of the sentencing court regarding the appropriate sentence. We are without authority to do so. Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989).

      . We believe this issue raises the possibility that a co-defendant of Appellant received a much lesser sentence and that the sentencing judge’s rationale for the difference in sentencing was not made part of the record as required by Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983).

      . Note, almost eight full pages of the majority’s slip opinion is devoted to the determination of whether appellant presented any substantial questions concerning the propriety of his sentence and then addressing on the merits the two substantial questions raised.