author: BECK, Judge:

text:
    454 A.2d 1134
    COMMONWEALTH of Pennsylvania v. David McCLAIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed Jan. 14, 1983.

      Alan Ira Lourie, Assistant Public Defender, West Chester, for appellant.
    Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

Appellant David McClain, whose motion for a mistrial was granted, now appeals the denial of his motion to quash information for a new trial on the grounds of double jeopardy.

On July 16, 1980 McClain was arrested for Criminal Attempt-homicide, Rape, Robbery, Burglary, Aggravated Assault, and related charges. On July 23, 1980, he was again arrested for these offenses. McClain was brought to a joint trial of both series of charges in October 1980.

During a suppression hearing held prior to trial, the prosecutor learned of an incriminating statement made by McClain to a certain Detective Worth, when McClain was being questioned in connection with yet another rape for which he was tried separately. This statement, in the file of the other case, included a reference to McClain’s whereabouts at the time of one of the rapes in the trial at bar. The prosecutor in McClain’s trial of October 1980 was an assistant district attorney with some five years experience who had only recently been assigned to McClain’s case as a replacement for another prosecutor who was ill. The replacement prosecutor had not been in charge of pretrial discovery in the case (Suppression Hearing, 39), and therefore had learned of the incriminating statement belatedly and had not informed either defense counsel or the court of the documented statement.

Upon the court’s learning of the existence of the statement in the other file, the following exchange took place (pp. 40-41):

THE COURT: ____Was this a written or oral statement?

MR. DUNCAN: This is oral, Your Honor.

THE COURT: Made a month after?

MR. DUNCAN: That’s correct. If Your Honor please, this statement was made in reference to an arrest involving an incident which took place in July of ’79 for which this defendant was rearrested for and that is his reason for being out here.

THE COURT: What does it have to do with this case?

MR. DUNCAN: If the Court please, in taking it, he rambles but he places himself at the scene on this particular incident.

THE COURT: Did you disclose that in the discovery •motion?

MR. DUNCAN: I will have to check.

THE COURT: Then we are not going to let it in if it has not been disclosed in the discovery motion. And, if it is rambling, I don’t want to hear it anyhow.

Defense counsel subsequently reiterated a question concerning the Commonwealth’s evidence which would be subject to Pa.R.Crim.P. 305 on mandatory disclosure (pp. 47-8):

MR. LOURIE: I’m asking the Court to ask the District Attorney if there is any additional mandatory discovery evidence under 305, I believe it is, that he intends to use at the trial of this case that has not yet been disclosed to me?

THE COURT: Do you want to ask him that?

MR. LOURIE: I will ask him that.

THE COURT: Then why don’t you ask him yourself.

MR. LOURIE: Okay, I’m asking the District Attorney myself.

MR. DUNCAN: It is my understanding that everything has been provided to Mr. Lourie. Mr. Reed was quite generous.

THE COURT: Well, anything not provided will not be admitted into evidence. How’s that?

MR. LOURIE: Fine.

THE COURT: All right, I will see you in about fifteen minutes, I guess. The jury is supposed to come in then. We’ll get started when they come in.

While this dialogue constitutes a clear understanding that the incriminating statement would not be introduced in the Commonwealth’s case, there was never any specific ruling by the trial judge that the statement could not be put before the jury for constitutional, procedural, or evidentiary reasons.

[11 At trial McClain took the stand in his own defense. Despite the pre-trial agreement, the prosecution’s attempted impeachment of McClain on cross-examination made reference to the defendant’s statement to Detective Worth. Thereupon the defense moved for a mistrial which the trial judge granted. A retrial was scheduled and McClain filed an application to quash informations on double jeopardy grounds. He appeals the denial of that motion.

The sole question for the Court is whether the prosecution’s wrongful introduction of the statement amounted to conduct which can be characterized as so deliberately or intentionally bad faith harassment that the defendant’s proper remedy is discharge rather than a new trial.

The Fifth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects a defendant in a criminal case against multiple prosecutions or punishments for the same offense. The same proscription, “No person shall, for the same offense, be twice put in jeopardy of life or limb” appears in Article 1 § 10 of the Pennsylvania constitution. This constitutional protection against double jeopardy is not absolute, however, and certain exceptions to the basic rule allow the repetition of a trial. Generally, the double jeopardy clause does not bar retrial of a defendant who makes his own affirmative motion for a mistrial, the theory being that the defendant, by virtue of his motion, assented to a new trial. If, however, the defendant’s motion was generated by underlying prosecutorial error “motivated by bad faith or undertaken to harass or prejudice,” the theory of the defendant’s consent to a new trial does not apply. Lee v. United States, 432 U.S. 23, 33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977). The United States Supreme Court, in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, recognized that retrial should be barred when the defendant’s mistrial motion is triggered by prosecutorial misconduct that is intended to abort the proceedings, so as to afford the state a more favorable opportunity to convict. Such prosecutorial “overreaching” will cause the constitutional guarantee against double jeopardy to protect the defendant from the ordeal of a second trial. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980).

We must now consider whether the prosecution’s violation of the pre-trial agreement in McClain’s case was sufficiently egregious to allow McClain to invoke the protection of the double jeopardy clause. In Commonwealth v. Clark, 287 Pa.Super. 380, 430 A.2d 655 (1981) we set guidelines to assist in the determination of whether prosecutorial misconduct is the result of bad faith intentional overreaching rather than simple error:

[W]e hold the following circumstances to be relevant in determining the existence of bad faith intent on the part of the prosecution: (1) the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant’s prospects for a fair trial after the misconduct occurred, (2) the absence of either abundant or convincing evidence of the defendant’s guilt, so that the prosecutor’s misconduct might reasonably be perceived as an attempt to rescue an inadequate prosecution, (3) the absence of misconduct causing serious and incurable prejudice to the defendant, (4) the absence of any neutral explanations, including inexperience, trial strategy, or inadvertence on the part of the government, to show that it did not, in fact, act purposely, (5) observations of the trial judge concerning the prosecutor’s motives, and (6) defiance by the prosecutor of any direct order or clear admonition by the trial court to refrain from specific conduct prejudicing the defendant’s prospects for acquittal. (287 Pa.Superior Ct. 392, 430 A.2d at 661)

A review of the record of the pre-trial suppression hearing, the trial itself, and the post-trial hearing on the defendant’s motion to quash for double jeopardy shows that McClain’s claim of deliberate prosecutorial overreaching in order to obtain a second opportunity to convict is without merit. When the mistrial was declared, the prosecution’s case was progressing successfully and McClain’s conviction seemed highly likely. The prosecution did not want a mistrial declared. On the contrary, the Commonwealth was ready and willing to proceed on the basis of ample evidence, including eye-witnesses who were ready to testify. The assistant district attorney who erroneously introduced the challenged statement, after he had promised not to do so, apparently believed that if he did not bring in the statement in his case in chief he was free to do so while impeaching McClain on cross-examination. This was clearly error on the prosecutor’s part. We accept the analysis and conclusions of the court below that the wrongful introduction of the statement arose from ignorance or negligence and does not rise to the level of intentional overreaching that would entitle appellant to a discharge.

McClain’s mistrial is easily distinguishable from Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981) where our Supreme Court dismissed the case for prosecutorial misconduct, holding that double jeopardy barred retrial. In Virtu, the prosecution called a witness who had made known his intention to exercise his Fifth Amendment rights, the prosecution had actual knowledge of the witness’s intentions, and deliberately made misrepresentations to the Court. We believe the facts of the instant. case more closely resemble those of Commonwealth v. Clark, supra. In Clark, the prosecutor asked an improper question, explicitly referring to a suppression hearing statement in a way that could convey to the jury, by reasonable inference, the existence of inculpatory evidence. Our Court declared that the resulting mistrial did not generate a double jeopardy bar to retrial.

Accordingly, the order of the lower court which denied appellant’s application to quash informations for double jeopardy is affirmed.

      . After a mistrial is declared, and prior to the commencement of the second trial, a defendant has a right to an interlocutory appeal from the denial of his pre-trial motion to dismiss on the grounds of double jeopardy. Com. v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981), Com. v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

      . For an analysis of when retrial is not barred by the Fifth Amendment see Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449 (1977).

      . The assistant district attorney testified that he was unaware of the Pennsylvania Supreme Court's holding in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) to the effect that any statement of a defendant which is declared inadmissable for any reason by a suppression court cannot be used to impeach the credibility of a defendant who testifies in his own behalf. Triplett was premised upon the Pennsylvania constitution, Article 1 § 9, and is distinguished from the United States Supreme Court’s ruling in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) which allowed the use of constitutionally infirm statements to impeach the credibility of a defendant’s trial testimony if the statement was obtained under circumstances that did not detract from the trustworthiness of the statement.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    454 A.2d 1138
    COMMONWEALTH of Pennsylvania v. Zachary O. SCALES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed Jan. 14, 1983.
    James Lee Goldsmith, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   PER CURIAM:

On October 16, 1979, a jury found appellant, Zachary 0. Scales, guilty of rape , involuntary deviate sexual intercourse , and simple assault. No post-trial motions were filed and no direct appeal was taken. Appellant was sentenced to a term of imprisonment.

On November 24, 1980, appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA). On April 2, 1981, court-appointed counsel filed a supplemental PCHA petition on behalf of appellant. The Commonwealth filed an answer on May 12, 1981, and, on the same day, the lower court denied appellant’s petition without a hearing. This appeal followed. Appellant’s sole contention is that a hearing should have been granted on the issues presented in his supplemental PCHA petition. We agree and, accordingly, reverse and remand for an evidentiary hearing.

In his petition, appellant alleges, inter alia, the ineffectiveness of trial counsel for failing to take a direct appeal. Appellant asserts that immediately after sentencing he wrote a letter to his attorney, William Naugle, requesting that Mr. Naugle appeal his case. The PCHA court, in denying appellant’s petition, adopted the Commonwealth’s answer as its opinion. In its answer, the Commonwealth stated that it had no independent knowledge of this letter. The Commonwealth pointed out that appellant did not offer any specifics as to the date when the alleged letter was written or what the contents would be, and that a copy was not attached. Furthermore, the Commonwealth argued that since appellant had waived his post-trial motions, “It seems incredible that the petitioner could now state that he requested trial counsel to appeal after the petitioner voluntarily limited all his appellate rights.”

In Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978), our Supreme Court held that “A PCHA petition may not be summarily dismissed as ‘patently frivolous’ when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968).” Id. 483 Pa. at 187, 394 A.2d at 974. Here, appellant’s assertion that he requested his trial counsel to file an appeal immediately after his conviction and sentence is uncontradicted. Although the Commonwealth’s position in regard to appellant’s waiver of his right to file post-trial motions is supported in the record, we cannot make a determination from the record that appellant did not request his counsel to appeal from judgment of sentence. Appellant’s petition alleged that the trial court abused its discretion in sentencing appellant and that trial counsel was ineffective for not taking action to challenge the sentence imposed. “[W]hen the issue involved is the effectiveness of counsel, a hearing must ordinarily be held to resolve the question.” Commonwealth v. Johnson, 231 Pa.Super. 30, 33, 331 A.2d 750, 751 (1974). We remand this case for a hearing on the issue of whether appellant’s right to appeal the propriety of his sentence was violated.

Remanded for proceedings consistent with this opinion. Jurisdiction is not retained by this court.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 2701.

      . 19 P.S. § 1180-1 etseq. (Supp. 1982-83).

      . This Court disapproves of the method which the PCHA court used to comply with 19 P.S. § 1180-10 which states that, "The order finally disposing of the petition shall state grounds on which the case was determined ____" The Pennsylvania Rules of Appellate Procedure require that a judge file at least a brief statement, in the form of an opinion, of the reasons for his order. Pa.R.A.P. 1925(a). The Commonwealth’s answer reflects the proper spirit of advocacy with which it was written. A judicial opinion should evidence the reasoning of an impartial decision maker.


text:
    454 A.2d 1139
    COMMONWEALTH of Pennsylvania v. Lynus PRICE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1982.
    Filed Jan. 14, 1983.
    Robert Neils Tarman, Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   PER CURIAM:

Lynus Price entered a plea of guilty to robbery and was sentenced to serve a term of imprisonment for not less than seven (7) nor more than twenty (20) years. A petition to reconsider sentence was filed and denied, but no direct appeal was taken. Thereafter, Price filed a P.C.H.A. petition. Counsel was appointed, and an amended P.C.H.A. petition was also prepared and filed. When it was denied without hearing, this appeal followed. We are constrained to reverse and remand for an evidentiary hearing.

The amended P.C.H.A. petition alleged, inter alia, that trial counsel had been ineffective (1) in misleading appellant about a promised sentence; (2) in failing to file a motion to withdraw the plea of guilty on grounds that it had been induced by an unfulfilled promise that appellant would receive a sentence of two to five years; and (3) in failing to protect and preserve appellant’s right of allocution at the time of sentencing. Because these averments were of arguable merit, they required an evidentiary hearing. It follows that the trial court erred when it dismissed appellant’s P.C.H.A. petition without a hearing.

Reversed and remanded for an evidentiary hearing.

      . With respect to the first and second issues, see Commonwealth v. Rusinko, 303 Pa.Super. 216, 449 A.2d 656; Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982); Commonwealth v. Peele, 291 Pa.Super. 84, 435 A.2d 231 (1981); Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Farnwalt, 286 Pa.Super. 559, 429 A.2d 664 (1981); Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979); Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978).
      With respect to the third issue, see Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Johnson, 282 Pa.Super. 21, 422 A.2d 655; Commonwealth v. Lowry, 260 Pa.Super. 454, 394 A.2d 1015 (1978).


author: SPAETH, Judge:

text:
    454 A.2d 1140
    COMMONWEALTH of Pennsylvania v. Robert S. STAUFFER.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1982.
    Decided Dec. 30, 1982.
    Petition for Allowance of Appeal Denied April 19, 1983.

      Robert C. Wise, Williamsport, for appellant.
    Kenneth D. Brown, District Attorney, Williamsport, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

Appellant, a former Director of the Pennsylvania Department of Agriculture, was convicted by a jury of unlawfully soliciting political contributions from classified civil service employees. On appeal from the judgment of sentence, he argues that: 1) the pre-trial judge erred in permitting the Commonwealth to amend the information to allege facts tolling the statute of limitations; 2) Section 905 of the Pennsylvania Civil Service Act, Act of August 5, 1941, P.L. 752, Art. IX, § 905, 71 P.S. § 741.905, is unconstitutional; 3) his prosecution was selective and discriminatory; 4) the trial judge erred in admitting into evidence testimony concerning count 12, which was barred by the statute of limitations; 5) the trial judge’s charge to the jury was inadequate; and 6) the trial judge abused his discretion by sentencing appellant to imprisonment rather than probation. We are not persuaded by any of these arguments, and therefore affirm.

-1-

Section 905 of the Pennsylvania Civil Service Act, supra, provides:

No person shall orally or by written or printed communication, directly or indirectly, demand, solicit, collect or receive or be in any manner concerned in demanding, soliciting, collecting or receiving any money or valuable thing or any assessment, subscription or contribution, whether voluntary or involuntary, from any officer or employe in the classified service for any political purpose whatever. No person in the classified service shall orally or by written or printed communication, directly or indirectly, demand, solicit, collect or receive or be in any manner concerned in demanding, soliciting, collecting or receiving any money or valuable thing for any political purpose whatever. No person in the service of the Commonwealth shall remove, suspend, furlough, demote or promote or in any manner change the official status or compensation of any other person in the classified service or promise or threaten to do so for withholding or neglecting to make any contribution of money or service or other valuable thing for any political purpose. No person shall take part in preparing any political assessment, subscription or contribution with the intent that the same shall be sent or presented to or collected from any person in the classified service, and no person shall knowingly send or present, directly or indirectly, in person or by letter, any political assessment, subscription or contribution to, or request its payment by, any person in the classified service.
71 P.S. § 741.905.

Section 903 of the Act provides that a wilful or culpably negligent violation of Section 905 is a misdemeanor. 71 P.S. § 741.903.

Several witnesses, all public employees, testified that appellant, who was their superior, requested political contributions from them, usually once or twice a year around the time of elections. The Commonwealth presented 26 checks representing political contributions that the witnesses gave to appellant or mailed to the Committee Headquarters at his request. The amount of the checks ranged from $10 to $150. The checks were issued in the years 1975 through 1978, except for one check, which was dated September 28, 1973. Each check was the basis of a separate count of unlawful solicitation of political contributions.

The original information charged that appellant did “unlawfully, while a classified civil service employee,” solicit political contributions from another officer or employee in the classified service. As thus alleged, 16 of the 26 counts were barred by the two year statute of limitations. 42 Pa.C.S.A. § 5552(a). Appellant, however, was not a classified civil service employee but a public officer. 42 Pa.C. S.A. § 5552(c)(2) provides that in the case of a public officer, prosecution may be commenced for

Accordingly, the Commonwealth asked, and was granted, leave to amend the information. In place of the phrase, “classified civil service employee,” the Commonwealth substituted the phrase, “while a public officer or employee in the course of or in connection with his office or employment.”

Pa.R.Crim.P. 229 provides:

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.

The purpose of an information is to give the defendant sufficient notice to enable him to prepare a defense and to insure that he is not tried twice for the same offense. Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d 763 (1979). Here, the original information notified appellant that he was being charged with soliciting political contributions from employees who were under his supervision. Appellant could not have misunderstood this charge. He knew that it concerned activity “in the course of or in connection with his office or employment.” He also knew that in describing him as a “classified civil service employee,” the information was mistaken. Thus, the amendment neither surprised appellant nor otherwise prejudiced him in his defense, and it did not charge an additional or different offense. We therefore hold that the lower court did not err in allowing the Commonwealth to amend the information. In Blackmun v. Commonwealth, 124 Pa. 578, 17 A. 194 (1889), the Court said:

As a general rule in criminal pleading the offence may be proved on any day prior to the one named in the indictment. In a case where the statute may be interposed, and the commonwealth alleges the defendant comes within the exception to the statute, the better practice is to aver in the indictment the facts relied upon to toll the statute. We do not regard this as essential, however, and we would be exceedingly loth to reverse for such a technical reason after a trial and conviction upon the merits.
Id., 124 Pa. at 581, 17 A. at 194-95.

-2-

In challenging the constitutionality of Section 905 of the Pennsylvania Civil Service Act, 71 P.S. § 741.905, appellant argues that the section is vague and overbroad and “infringe[s] on appellant’s first amendment rights of free speech, due process, and equal protection under both the Pennsylvania and U.S. Constitutions.” Brief for Appellant at 14. In appellant’s view, the section fails to distinguish between prohibited conduct and constitutionally permissible speech, thereby chilling his exercise of his right of free speech.

Without doubt, the government may place restrictions on the political activities of its employees in order to maintain their integrity and impartiality and thereby promote efficiency in the civil service. See C.S.C. v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Ex Parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882). In Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Court examined an Oklahoma statute very similar to Section 905 of the Pennsylvania act, and found it neither vague nor overbroad. Said the Court: “We have little doubt that [the statute] is ... not so vague that ‘men of common intelligence must necessarily guess at its meaning’---- Whatever other problems there are with [the statute], it is all but frivolous to suggest that the section fails to give adequate warning of what activity it proscribes or fails to set out ‘explicit standards’ for those who must apply it.” Id. at 607, 93 S.Ct. at 2913 (citations omitted). The Court also said: “Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.” Id. at 615, 93 S.Ct. at 2917-18. The Court concluded that the statute was valid insofar as it forbid classified employees from soliciting political contributions: “It is our view that [the statute] is not substantially over-broad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Id. at 615-16, 93 S.Ct. at 2918 (footnote omitted). On the facts before it, the Court found that the defendants’ conduct of actively engaging in partisan political activities (including the solicitation of money) fell squarely within the “hardcore” of the statute’s proscriptions. Id. at 608, 93 S.Ct. at 2914.

Given the similarity of the statutes involved, Broadrick is controlling. Moreover, we have already applied Broadrick, in upholding the “anti-macing” statute, in Commonwealth v. Tiberi, 239 Pa.Super. 152, 361 A.2d 318 (1976). There the statute read, in part: “It shall be unlawful for any ... public officer or employee ... directly or indirectly, to demand from any [person] engaged or employed in the service of the Commonwealth ... any assessment ... with the understanding, express or implied, that the same may be used or shall be used for political purposes.” 25 P.S. § 2374. We found these provisions neither vague nor over-broad. The appellant argued that the statute might “deter government employees from merely soliciting money for political purposes, since solicitations might be erroneously interpreted as a demand.” 239 Pa.Super. at 158, 361 A.2d at 321. We held, however, that even if the statute did have a chilling effect on solicitation, it was valid, for mere solicitation could also be prosecuted. Citing Broadrick, among other cases, we said: “[T]he Supreme Court has held that political fund raising among government workers is a proper area for legislative concern and regulation. In the instant case, since our legislature could have constitutionally prohibited all fund raising efforts among government workers, the anti-macing statute which, by proscribing demands for money, has only a chilling effect on solicitation and receipt is surely constitutional.” Id., 239 Pa.Superior Ct. at 160, 361 A.2d at 322 (emphasis in original).

The legislature has prohibited all political fund raising among government workers by enacting Section 905. In light of Broadrick and Tiberi, we hold that Section 905 is neither vague nor overbroad.

-3-

Appellant’s argument that his prosecution was selective and discriminatory is also without merit.

Selective and discriminatory prosecution is a violation of the fourteenth amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1885). Only purposeful discrimination is violative, however. Snowden v. Hughes 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943). “A purposeful discrimination must be shown and we cannot presume such discrimination.” Goodman v. Kennedy, 459 Pa. 313, 329 A.2d 224 (1974). We find nothing in the record indicating that appellant’s prosecution was the result of purposeful discrimination.

-4-

Throughout the trial, appellant’s counsel objected to any evidence on count 12 on the ground that prosecution on that count was barred by the statute of limitations. The trial judge, however, admitted the evidence, and the jury returned a verdict of guilty on all counts, including count 12. Count 12 arises from a check dated September 28, 1973, and signed by Robert J. Weidner. Weidner testified that he believed that appellant held up his promotion until he gave a $100 contribution, represented by the check, on September 28, 1973. Weidner also testified that each year appellant solicited a political contribution, saying, “Well, it’s about this time of year.” N.T. 41. Four other Commonwealth witnesses testified that they too were approached by appellant for contributions in the years 1975 through 1978. Weidner, however, was the only witness who claimed appellant had held up his promotion. Appellant argues that Weidner’s testimony concerning the promotion was prejudicial and should not have been admitted.

It is true that after the trial, the lower court decided that prosecution on count 12 was barred by the statute of limitations. It does not follow, however, that it was error to admit evidence on count 12.

Generally, evidence of other crimes is inadmissible to prove the crime for which the defendant is being tried. E.g., Commonwealth v. Stanley, 484 Pa. 2, 398 A.2d 631 (1979); Commonwealth v. Jones, 248 Pa.Super. 214, 375 A.2d 63 (1977). However, important exceptions exist, as, for example, where evidence of other crimes is relevant to prove motive, intent, absence of mistake or accident, a common scheme, plan or design, or identity. E.g., Commonwealth v. Stanley, supra; Commonwealth v. Peter son, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). The common basis of these exceptions is that there must be a logical connection between the prior crime and the crime charged, so that “proof of one will naturally tend to show that the accused is the person who committed the other.” Commonwealth v. Wable, supra, 382 Pa. at 84, 114 A.2d at 336. Weidner’s testimony fit into the exception of a common scheme, plan or design. By showing that it was appellant’s practice to solicit those under him, and that as part of that practice he was solicited, Weidner’s testimony corroborated the testimony on the other counts.

The fact that Weidner’s testimony was relevant was not enough to ensure its admissibility, for the need for the evidence had to be balanced against its prejudicial effect on appellant. Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978); Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978); Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977). The trial judge should exclude the “other crimes evidence, even when it has substantial independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial.” J. McCormick, Evidence § 190 at 453-54 (footnote omitted) (2d ed. 1972). See also Commonwealth v. Ulatoski, supra, 472 Pa. at 63 n. 11, 371 A.2d at 191 n. 11 (1977). We do not believe that Weidner’s testimony concerning the withholding of his promotion was of such a character as to interfere with a rational consideration by the jury of appellant’s guilt on the other counts.

-5-

Appellant’s argument that the charge did not adequately reflect the law on the element of intent is without merit. A charge must be read as a whole and will be upheld if it adequately reflects the law and is sufficient to guide the jury in its deliberations. Commonwealth v. Peterson, 271 Pa.Super. 92, 412 A.2d 590 (1979). Here the charge adequately instructed the jury that it could not find appellant guilty unless it found that he had acted with criminal intent. N.T. 145-46.

-6-

Appellant’s final argument is that the lower court abused its discretion in sentencing him to imprisonment rather than probation. This argument, however, has not been preserved for our review. Appellant filed a Motion for Modification of Sentence, but in that motion he did not argue that he should have been sentenced to probation; he only requested that the court suspend imposition of sentence pending disposition of this appeal, and in response, the court granted a supersedeas and ordered that appellant be continued on bail. Pa.R.Crim.P. 1410 requires the defendant to file a written motion for modification of sentence within ten days after imposition of sentence. “The purpose of this rule is to allow the sentencing court the first opportunity to modify its sentence.” Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981). Pa.R.App.P. 302(a) provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal.

The judgment of sentence is affirmed.

      . This check is the subject of count 12, which is barred by the statute of limitations.

      . The Act is sometimes called the “Little Hatch Act” because it is patterned after the federal Hatch Act, which prohibits political activity by certain federal employees. 5 U.S.C. § 1501-1508, 7321-7327.

      . No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.
      Okla.Stat.Ann., Tit. 74 § 818 (1965).

      . Section 904 of the statute, 75 P.S. § 741.904, which prohibits political activity (as opposed to Section 905's prohibition of political assessments) has also been held constitutional. See Farview State Hospital v. Urda, 23 Pa.Commw.Ct. 607, 353 A.2d 61 (1976). Section 904 contains a prohibition as expansive as any contained in Section 905, providing, inter alia, that "[n]o person in the classified service shall ... in any manner participate in or interfere with the conduct of any election...” 71 P.S. 741.904.


author: CERCONE, President Judge: WIEAND, Judge,

text:
    455 A.2d 112
    COMMONWEALTH of Pennsylvania v. Dennis GRADY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 10, 1982.
    Reargument En Banc Denied Feb. 16, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   CERCONE, President Judge:

Appellant, Dennis Grady, takes this appeal from the judgment of sentence entered following the revocation of his probation on charges of aggravated robbery and related offenses. Appellant raises but one issue in this appeal: Whether the sentence of two and one-half to eight years in prison entered by the court in its written judgment of sentence was a legal sentence because, as appellant contends, the judge’s oral pronouncement of sentence directed that appellant was only to receive a term of probation. We find appellant’s argument to have merit and we reverse.

On April 29, 1975, appellant pleaded guilty before the Philadelphia Court of Common Pleas to burglary (Indictment No. 1755, May Term, 1972), aggravated robbery (No. 1756), a second aggravated robbery charge (No. 1757), and aggravated assault (No. 1758). Soon thereafter, at a sentencing hearing held on May 28, 1975, the court orally sentenced appellant to a one to ten year term in prison on Indictment No. 1756 (aggravated robbery); on the remaining bills, the court sentenced appellant to five years probation to run concurrent with the sentence on Bill No. 1756. However, in the written sentence order the court did not include the sentence for No. 1756 but only wrote “And now sentence: five years reporting probation to run concurrently with Bill No. 1756.” Whereupon, that same day, the court called appellant before it and “reconsidered sentence.” This time, the court sentenced appellant on Bill No. 1756 to a prison term of eleven and one half to twenty-three months. On Bill No. 1757, the court ordered five years probation to run consecutively with the sentence on No. 1756. For the two remaining bills, Nos. 1755 and 1758, the court ordered three years probation to run concurrently with the probationary term ordered on Bill No. 1757. These sentences were correctly recited in the amended order of sentence.

Subsequently, on July 26, 1977, a hearing was held concerning appellant’s alleged violation of the terms of his probation, owing to appellant’s conviction for numerous crimes while on probation. The court found appellant to be in violation of his probation, whereupon, the following occurred on the record:

THE COURT: Probation is respectfully revoked. Defendant is sentenced on Bill Number 1756 to a term of four to ten years in the Eastern State Penitentiary, the sentence to run concurrent with [other sentences appellant was then serving]. The same sentence on all other bills, to run concurrent.
Would you be good enough to advise your client of his appellate rights, please.
DEFENSE COUNSEL: I am just wondering if the aggravated assault and battery rises sufficiently to run to four to ten.
THE COURT: I think aggravated assault does. To the extent that you have an assault bill, just drop that down, if it is aggravated assault.
DEFENSE COUNSEL: The way I am reading the summary, it is assault and battery and aggravated assault and battery. What I would suggest, your Honor, is that you consider suspending sentencing on all other bills, since you already have him on the four to ten.
THE COURT: What I will do is put him on probation on the other bills for a period of three years.
MR. FIELDS [Probation and Parole Agent]: Your Hon- or, will that probation be concurrent with the sentences that he is serving?
THE COURT: No, that is to run consecutive to 1756.
MR. FIELDS: In other words, that would be effective on the date of his parole?
THE COURT: That is correct. I will have a big tail on him.
DEFENSE COUNSEL: Sir, your probation has been revoked. The Court has sentenced you on Bill 1756 to a period of four to ten years.
THE COURT: Incidentally, the defendant is to have whatever drug therapy is available.

Following this hearing, the court’s written judgment of sentence was entered on the docket. It directed that appellant was to serve a term of four to ten years in prison on Bill No. 1756 (aggravated robbery) with a concurrent term of four to ten years on Bill No. 1757 (also aggravated robbery). On Bills Nos. 1755 and 1758, (burglary and aggravated assault), appellant received three years probation to run consecutively with Bill No. 1756. - Appellant timely appealed from this judgment.

A few months later, the Commonwealth and defense counsel filed a joint petition before the Superior Court asking for return of the record for clarification of the sentence and on October 23, 1978 we granted this petition ;per curiam. The basis for this clarification was that the sentence on Bill No. 1756 (aggravated robbery) was illegal because at the time of sentencing on this indictment, appellant’s term of parole had already expired. Whereupon, on December 14, 1978, the court entered an order on the docket directing that appellant was to serve a sentence of 4 to 10 years in prison on Bill No. 1757. (This was on the second aggravated robbery charge). On Bills No. 1755 and 1758, appellant received three years probation to begin at the expiration of the sentence for No. 1757. Once again, appellant timely appealed from the judgment of sentence. A few months later, appellant withdrew and discontinued his appeal. Thereafter, the lower court agreed to reconsider sentence on Indictment No. 1757. On April 26, 1979, the court held a hearing and changed the sentence on Bill No. 1757 to two and one-half to eight years incarceration. Appellant takes an appeal from the judgment of sentence on Bill No. 1757 (aggravated robbery).

The question now for our consideration is whether the judge at the probation revocation hearing of July 26, 1977, orally sentenced appellant to three years probation on Bill No. 1757 and whether that alleged oral pronouncement is binding on the court despite the subsequent written order to the contrary. Our review of the record in the instant case convinces us that both questions must be answered in the affirmative.

Regardless of what the sentencing judge intended to say, what he did say at the July 26, 1977 hearing was that appellant was to receive a sentence of four to ten years in prison on Bill No. 1756 (aggravated robbery) with “probation on the other bills [second aggravated robbery, burglary, aggravated assault] for a period of three years.” In Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506, 508 (1974), the Supreme Court, citing its decisions in Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), and Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971), said “that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind.” (footnote omitted)

In Commonwealth v. Hosendorf, 214 Pa.Superior Ct. 525, 257 A.2d 281 (1969) (per curiam), Judge Hoffman in a dissenting opinion collected various cases which examined conflicts between sentences as written and as orally pronounced. Judge Hoffman pointed out that the only cases addressing the issue at that time were all cases initiated by a habeas corpus petition, and not by direct appeal. In particular, Judge Hoffman quoted from the United States Supreme Court’s decision in Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283, 1286 (1935) (footnotes omitted) where, in a habeas corpus action, the court wrote:

The only sentence known to the law is the sentence or judgment entered upon the records of the court. If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. But the judgment imparts verity when collaterally assailed. Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebutable presumption. In any collateral inquiry, a court will close its ears to a suggestion that the sentence entered in the minutes is something other than the authentic expression of the sentence of the judge.

Judge Hoffman then argued in his dissent that the Hill case, as did the other cases collected in his opinion, contemplated that a variance between the sentence as written and as orally pronounced may be questioned in an appropriate direct proceeding: only in such a proceeding, as contrasted with habeas corpus petitions, may the sentence as orally pronounced be found to be controlling. On appeal, the Pennsylvania Supreme Court reversed the conviction in Hosendorf. However, the decision was by a plurality of the Court, and not a clear majority. Commonwealth v. Hosendorf 437 Pa. 219, 263 A.2d 439 (1970) (plurality).

In Commonwealth v. Silverman, 217 Pa.Superior Ct. 68, 266 A.2d 794 (1970) the defendant was convicted on one count of possession of heroin. In due course, the defendant was called before the court for sentencing, whereupon the judge orally sentenced appellant to a prison term. However, the court immediately added “This sentence is to be suspended upon condition that the federal authorities will commit you to ... the program for the rehabilitation of narcotic users ... for a period of seven months and then paroled for a period of three years....” This sentence was not recorded on the docket. The very next day, the court again called the defendant before it and amended sentence. The sentencing judge referred to the initial sentence as “tentative” and indicated that he had some “second thoughts” on the matter upon learning that the defendant had a number of other charges pending against him. The court then ordered that the defendant was to serve two to five years in prison. This latter sentence was recorded on the docket. On appeal, this Court affirmed per curiam; however, Judge Hoffman wrote a lengthy dissent in which this writer joined. Judge Hoffman noted that previously it was the rule that a sentencing judge could increase a sentence as long as the judge acted within the term of court. However, the dissent argued that the old rule was no longer viable in view of mandate of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) holding that the double jeopardy clause to the U.S. Constitution was binding upon the states. The Pennsylvania Supreme Court agreed with this dissent and reversed, Commonwealth v. Silverman, supra, citing the decisions in Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873) and United States v. Benz, 282 U.S. 304, 306, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). In part, Silverman quoted the following language from Benz, 282 U.S. at 306, 51 S.Ct. at 114.

The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ This is the basis of the decision in Ex parte Lange, supra. [Emphasis by the Court.]

Commonwealth v. Silverman, supra, 442 Pa. at 216, 275 A.2d at 311. Although our Pennsylvania Supreme Court found the above quoted language from Benz to be dictum, the Court nevertheless found it to be “the strongest kind of dictum” and ruled:

Therefore, even if it were assumed that the Act of 1959[] ... intended to give a court the power to increase a sentence imposed on a criminal defendant provided such were effectuated within thirty days, this, in our view, would be inconsistent with the federal constitutional prohibition against double jeopardy.
* * * * * *
Herein, on February 21st, the day the second sentence was imposed, the trial judge indicated that the sentence imposed on February 20th was a “tentative” one. While it is true that the suspension of the February 20th sentence was conditioned upon Silverman’s acceptance to the Lexington rehabilitative hospital, the sentence, as recorded [in the transcript], indicates the imposition of no other conditions, or that it was “tentative” in any sense, except for the condition before noted, and we are bound by the record [of the proceedings].

Commonwealth v. Silverman, supra, 442 Pa. at 217-218, 275 A.2d at 311-312 (footnotes omitted).

Finally, the Silverman Court eschewed the approach used in Hosendorf, noting that Hosendorf was a plurality opinion and saying: “Unlike the situation in Hosendorf the record of the proceedings ... in the instant case leaves no doubt as to the sentence then imposed.” 442 Pa. at 218, 275 A.2d at 312. The Hosendorf Court had given the defendant the lesser sentence because the Court saw no way to resolve the confusion surrounding the “true intentions” of the sentencing judge.

We find appellant’s case to be controlled by the Silver-man decision. As in Silverman, the sentencing judge initially orally pronounced one sentence only to later increase it after the sentencing hearing was completed. We conclude that this violates the interpretation of the double jeopardy clause pronounced by the Supreme Court in Silverman. As the Court said some years ago: In the matter of sentencing a convicted defendant, a court may not toy with him by purporting to exercise its power to sentence and then later attempting to change the sentence or add a new one.” Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 216, 82 A.2d 244 (1951). Accordingly, we reverse.

Reversed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. My review of the record persuades me that the sentencing court imposed two concurrent sentences of four (4) to ten (10) years on indictments # 1756 and # 1757. Any ambiguity subsequently created by the colloquy with defense counsel concerning the sentences to be imposed on additional convictions for assault and battery and aggravated assault and battery was removed by the written, signed judgments of sentence entered on the docket following the sentencing hearing. I find no conflict between the oral and written judgments of sentence.

Moreover, this Court has repeatedly held that “ ‘[o]ral statements made by the judge in passing sentence, but not incorporated in the written judgment signed by him, are no part of the judgment of sentence.’ ” Commonwealth v, Hodge, 246 Pa.Super. 71, 82, 369 A.2d 815, 820 (1977), quoting Commonwealth v. Foster, 229 Pa.Super. 269, 271, 324 A.2d 538, 539 (1974). Accord: Commonwealth v. Perkins, 302 Pa.Super. 12, 18-19, 448 A.2d 70, 73 (1982); Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982); Commonwealth v. Evans, 254 Pa.Super. 93, 96, 385 A.2d 540, 542 (1978); Commonwealth v. Green, 232 Pa.Super. 555, 557-558, 335 A.2d 392, 393 (1975); See also: Commonwealth v. Thomas, 219 Pa.Super. 22, 28, 280 A.2d 651, 654 (1971).

In the instant case, the sentencing judge initially pronounced concurrent judgments of sentence of imprisonment of four (4) to ten (10) years on all bills. After defense counsel suggested that the sentences as imposed on the convictions for assault and battery and aggravated assault and battery were in excess of the statutory máximums, the sentencing judge agreed to “put [appellant] on probation on the other bills for a period of three years.” The judgments of sentence as entered on the record and signed by the trial judge confirm that sentences of imprisonment of four (4) to ten (10) years were imposed on indictments # 1756 and # 1757, while sentences of probation were imposed on the bills for assault and battery and aggravated assault and battery. Thus, when the sentence on bill # 1756 was found to be illegal and was vacated, the sentence on bill # 1757 remained to be served. Subsequently, the court modified the sentence on bill # 1757 to not less than two and one-half (2V2) nor more than eight (8) years.

Appellant’s argument that the two and one-half (2V2) to eight (8) year sentence on indictment # 1757 violated principles of double jeopardy is based on an assumption that the sentencing judge intended to include the conviction for aggravated robbery (# 1757) among “the other bills” on which sentences of probation were imposed. However, a contrary intent by the sentencing court is evidenced by the sentencing colloquy, the written judgments of sentence as entered on the indictments and recorded by the clerk, and by the opinions filed by the sentencing judge on January 13, 1978 and June 27, 1980.

I would affirm the judgment of sentence.

      . The defendant in Brown initially was sentenced to serve eight and one-half to ten years in prison and he was returned to prison with a commitment order. Three days later, the court amended this sentence, increasing the maximum term to twenty years, because the sentence, as originally imposed, was illegal under the existing statute since the minimum sentence was more than one half of the maximum. Act of September 26, 1951, P.L. 1460, § 1, 19 P.S. § 1057. The Brown Court held that the method of correcting such an illegality is not to increase the maximum until the sentence comports with the statute but rather, is to reduce the minimum term until there is statutory compliance.

      . The facts in Hosendorf were that the sentencing judge at the hearing at first orally announced a sentence of five to twenty years but later in the proceeding stated that the sentence was five to ten years. The bill of indictment signed by the judge stated that the sentence was five to twenty. By its plurality opinion, the Supreme Court ordered that appellant’s legal sentence was five to ten.

      . The Act of June 1, 1959, P.L. 342 § 1, 12 P.S. § 1032 (Supp.1970) pertinently provides:
      In any civil, criminal or equitable proceeding in which the court has heretofore been vested with the power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, any order, decree, judgment, or sentence, was entered of record the court in addition to such power, jurisdiction and authority shall hereafter have the same power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind the order, decree, judgment or sentence for a period of thirty days subsequent to the date of entering of record the order, decree, judgment or sentence in any instance where the term of court shall terminate prior to such thirty day period; Provided, That all parties in interest including the district attorney in criminal cases, are notified in advance of such proposed alteration, modification, suspension, reinstatement, termination, amendment or rescission.

      . See also Commonwealth v. Tomlin, 232 Pa.Superior Ct. 147, 336 A.2d 407 (1975); Commonwealth v. Davy, 218 Pa.Superior Ct. 355, 280 A.2d 407 (1971); Commonwealth v. Jackson, 218 Pa.Superior Ct. 357, 280 A.2d 422 (1971).


author: JOHNSON, Judge:

text:
    455 A.2d 117
    BOROUGH OF BROOKHAVEN, Appellant v. Peter A. DeFEO and P.A.D. Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1982.
    Filed Dec. 10, 1982.
    Reargument Denied Feb. 16, 1983.
    Petition for Allowance of Appeal Denied May 12, 1983.

      James P. Gannon, Media, for appellant.
    Richard C. Slama, Media, for appellees.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   JOHNSON, Judge:

Does the owner of a lot laid out and designated as a street on a plot plan have a private contractual right to maintain said lot for public use as a street, even though the municipality in which the lot is situated has refused to accept dedication of the said street?

The trial court found that an owner has such a right and we affirm.

The instant equity action was commenced by Appellant Borough in 1973 and requested injunctive relief. Appellant Borough sought to enjoin Appellees Peter A. DeFeo (De-Feo) and P.A.D. Corporation (P.A.D.) from violating certain Borough ordinances requiring permits for the grading and laying of pipeline.

The property in question was purchased by DeFeo in 1965. It is located at the boundary between the Boroughs of Brookhaven and Parkside, in the Borough of Brookhaven. The property was laid out and designated as a street, known as Gibson Boulevard, south of Meadowbrook Lane, in a subdivision listed as Brookhaven Park.

Appellant Borough had passed an ordinance in 1964 vacating Gibson Boulevard, south of Meadowbrook Lane, and striking it from the Borough plan as a street. It was stipulated by the parties that DeFeo purchased the property in Brookhaven to serve as an alternate means of ingress and egress between Brookhaven Park and the property owned by P.A.D. in the adjacent Borough.

Appellant Borough was granted injunctive relief and De-Feo subsequently obtained the proper permits. However, in 1979, DeFeo filed a counterclaim to the original complaint, requesting injunctive relief to restrain Appellant Borough from maintaining a fence which the said Borough had erected across Gibson Boulevard on the southern border of Meadowbrook Lane. The counterclaim alleged unlawful interference with DeFeo’s private contractual right to use of, and access to, all streets within Brookhaven Park from the lot owned by DeFeo.

The trial court granted DeFeo’s motion for summary judgment and enjoined Appellant Borough from maintaining the fence in question. This appeal followed.

When dedication of a street in a plot plan is either expressly or impliedly rejected by a municipality, the independent right of the public to use of that street is terminated. See Stozenski v. Borough of Forty Fort, Luzerne County, 456 Pa. 5, 317 A.2d 602 (1974); Bieber v. Zellner, 421 Pa. 444, 220 A.2d 17 (1966).

However, the trial court held that DeFeo, as a property owner within the plot plan, had a legal and equitable right to personal and public use of Gibson Boulevard, south of Meadowbrook Lane. The court in its opinion cited Drusedum v. Guernaccini, 251 Pa.Super. 504, 380 A.2d 894 (1977), for support.

In Drusedum the street in question had not been dedicated or accepted for public use within the 21-year period designated by the statute. The plaintiffs in Drusedum were property owners within the same plan as the defendant, who had erected a fence to prevent the plaintiffs and others within the plan from using defendant’s street for ingress and egress. Our court cited a century-old “well settled principle of law” that when, in a sale of property, reference is made to a map or plot that designates certain streets, “this constitutes a dedication of these ways to the use of purchasers as public ways____” Id., 251 Pa.Super. at 508-09, 380 A.2d at 896. Based upon the aforesaid principle, our court held:

The fact that a street may not in fact be open (Ferguson’s Appeal, supra [117 Pa. 426], at p. 451, 11 A. 885) or that there is no acceptance by the municipality of the street as a public road does not affect the continuing private contractual rights of property owners within the plan to use the streets: Stozenski v. Borough of Forty Fort, 456 Pa. 5, 10-15, 317 A.2d 602 (1974); Brodt v. Brown, 404 Pa. 391, 393, 172 A.2d 152 (1961); Rahn v. Hess, 378 Pa. 264, 271, 106 A.2d 461 (1954).

Id., 251 Pa.Super. at 509, 380 A.2d at 896. Our court proceeded to explain that the property owners (appellants) “have a similar right on behalf of any member of the public who desires to move to or from appellants’ property.” Id., 251 Pa.Super. at 511, 380 A.2d at 897.

Although the public (i.e. P.A.D.) can no longer enforce its independent right to use of the DeFeo’s street for access to the remainder of Brookhaven Park because of Appellant Borough’s vacation of the said street, DeFeo clearly retains his private contractual right as a property owner in Brook-haven Park to (1) retain personal unrestricted access between Brookhaven Park and his street, as well as (2) allow the public (including P.A.D.) unrestricted access to and from the DeFeo property.

The fact that a benefit has been given to P.A.D., a party unable to enforce the rights of property owners within the plot plan, is immaterial. DeFeo has enforceable contractual rights as a property owner within the plot plan and, therefore, the trial court did not err in its determination.

The Order dated May 28, 1981 is affirmed.

      . It appears from the trial court’s opinion that P.A.D. Corporation is controlled by Appellee DeFeo.

      . 53 Pa.S.A. § 46724.


author: HESTER, Judge:

text:
    455 A.2d 119
    DIETRICH INDUSTRIES, INC., Appellant, v. David ABRAMS, Esquire.
    Superior Court of Pennsylvania.
    Submitted April 12, 1982.
    Filed Dec. 30, 1982.

      Maurice A. Nernberg, Pittsburgh, for appellant.
    David Abrams, Monroeville, appellee, in pro. per.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant filed a complaint against appellee, Attorney David Abrams, who represented Jonnet Corporation in a series of legal actions against appellant. In its five-count complaint, appellant alleges malicious use of process and/or abuse of process with respect to three separate actions instituted by appellee. Preliminary objections and demurrers to each count were filed and sustained by the trial court and the complaint was dismissed without leave to amend. This appeal followed.

To properly analyze appellant’s claims, it is necessary to outline the procedural history of the three actions in question. These actions were filed by appellee’s client in response to two lawsuits filed by appellant. Appellant’s lawsuits, which were later consolidated for trial, attempted to break a lease agreement between appellant as lessee and Jonnet as lessor. In the first action challenged herein, Jonnet confessed judgment in the amount of $158,626.00 based upon appellant’s default of the lease. Contemporaneously, Jonnet procured a Writ of Execution, which was served upon Mellon Bank as garnishee. A stay of said judgment and all other proceedings subsequently was entered and, two years later, the judgment was stricken.

The second proceeding which appellant attacks involved an action in receivership against appellant. Said action was predicated upon the judgment which had been confessed and upon which the stay order had been issued. The receivership action was eventually dismissed.

The third action was directed against Mellon Bank, N.A., and was allegedly an attempt to secure privileged information about appellant in contravention of the stay order which barred further discovery. A protective order was issued to Mellon Bank, N.A., and the venture at discovery was eventually non prossed.

Appellant’s complaint alleged in five counts:

(1) That appellee caused the receivership action to be initiated while he was aware that insufficient grounds existed to sustain said action;
(2) That appellee caused a Writ of Execution to be served and instituted garnishment proceedings against appellant’s financial institution, Mellon Bank, N.A., while he was aware that insufficient grounds existed to sustain said action;
(3) That appellee caused an action in equity to be filed against Mellon Bank, N.A., to obtain confidential information about appellant in violation of both the National Banking Act and the stay entered by the trial judge.
(4) That appellee caused a judgment to be improperly confessed against appellant; and
(5) That appellee knowingly filed untrue responses to interrogatories and pretrial statements indicating his client’s losses were significantly higher than they were so as to acquire a greater lien on appellant’s property.

Appellant contends that the above actions were instituted for reasons other than as set forth in the pleadings, inter alia, to create great distress, inconvenience, and expense in defending against these actions so as to force appellant to pay amounts which were the subject of other litigation.

Appellee filed preliminary objections to the above complaint, contending that the complaint failed to set forth: (1) that he acted other than as counsel for Jonnet, and (2) elements of a cause of action for trespass. The trial court found that appellant’s complaint attempted to set forth several causes of action for malicious use of process. However, that court ruled that the complaint failed to allege the required elements of that cause of action and consequently was fatally flawed.

Appellant asserts in this appeal that the lower court erred in improperly sustaining appellee’s demurrers. In the alternative, appellant argues that it should have been permitted to amend its complaint.

The tort known as malicious use of process is often confused with another tort of a deceptively similar name, abuse of process. Abuse of process occurs when the legal process is utilized for some unlawful purpose, and not for which it was intended. Triester v. 191 Tenants Ass’n., 272 Pa.Super. 271, 279, 415 A.2d 698, 702 (1979); DiSante v. Russ Financial Co., 251 Pa.Super. 184, 380 A.2d 439 (1977); Casa DiSardi, Inc. v. Alpha Motors, Inc., 227 Pa.Super. 415, 323 A.2d 288 (1974); Morphy v. Shipley, 351 Pa. 425, 41 A.2d 671 (1945). Malicious use of process is a separate and distinct tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. Triester v. 191 Tenants Ass’n., supra; Dumont Television & Radio Corp. v. Franklin Electric Co., 397 Pa. 274, 154 A.2d 585 (1959).

In order to successfully pursue a cause of action for malicious use of process: (1) a party must obtain a favorable termination of the wrongfully instituted action, DeSalle v. Penn Central Transportation Co., 263 Pa.Super. 485, 398 A.2d 680 (1979); (2) the legal process must have been used with malice and without probable cause, DeSalle v. Penn Central Transportation Co., supra; Hugee v. Pennsylvania Railroad Co., 376 Pa. 286, 101 A.2d 740 (1954); Simpson v. Montgomery Ward Co., 354 Pa. 87, 46 A.2d 674 (1946); and (3) a seizure of property or, if the underlying action were a criminal prosecution, an arrest of the person must have occurred, Blumenfeld v. R.M. Shoemaker Co., 286 Pa.Super. 540, 429 A.2d 654 (1981); Triester v. 191 Tenants Ass’n., supra; Garcia v. Wall & Ochs, Inc., 256 Pa.Super. 74, 389 A.2d 607 (1978); DeLeo v. Munley, 261 Pa.Super. 90, 395 A.2d 957 (1978).

As the reviewing court of an order sustaining preliminary objections in the nature of a demurrer to a complaint, we are required to view the allegations in appellant’s complaint as true and accord them all inferences reasonably deducible therefrom. Interstate Traveller Services, Inc. v. Commonwealth, Department of Environmental Resources, 486 Pa. 536, 406 A.2d 1020 (1979); Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); Higbee Corp. v. Kennedy, 286 Pa.Super. 101, 428 A.2d 592 (1981).

In so doing, we are inclined to agree with the trial court that appellant has failed to meet the requirements of an action for malicious use of process. Appellant is correct in its belief that appellee is not invulnerable to allegations merely because he was counsel to the party of record. An attorney who knowingly prosecutes a groundless action to accomplish a malicious purpose may be held accountable in an action for malicious use of process. See Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15 (1938); Haggerty v. Moyerman, 321 Pa. 555, 184 A. 654 (1936); Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963). However, a close scrutiny of appellant’s complaint reveals that appellant has simply failed to state a claim upon which relief can be granted.

With respect to the first action, the Writ of Execution issued subsequent to the confession of judgment, appellant argues that said writ and subsequent garnishment proceedings instituted against its funds in Mellon Bank, N.A., constituted a seizure. Appellant contends that this attachment of its funds provided the requisite seizure to support an action of malicious use of process. The trial court ruled as a matter of law that appellant’s claim of interference with its property was insufficient to satisfy this criterion for malicious use of process. We must disagree.

A Writ of Execution was served upon Mellon Bank, N.A., as garnishee of appellant’s funds therein. Service of the writ upon the garnishee operates to attach all property of the defendant which is in the possession of the garnishee. Such an action constitutes constructive seizure of appellant’s property.

In Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1943), the Supreme Court held that an action for maliciously causing judgments to be entered on judgment notes would not lie where the defendants stopped with entry of judgments and took no further action against plaintiff’s property. We also refused to allow recovery for malicious use of process in Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969), when appellant therein alleged malicious use of process by appellee for charging him with certain violations of the Real Estate Brokers License Act of 1929, 63 P.S. § 431 et seq. A review of appellant’s complaint in that case uncovered “no allegations that [appellant’s] property was seized by attachment or otherwise, or even that his license was suspended pending disposition of the charges against him.” Id., 214 Pa.Super. at 224, 251 A.2d at 801-802.

However, in the case at bar, appellee did not stop at the entry of a judgment. Instead, appellant suffered interference with its property when appellee caused the Writ of Execution to be served upon Mellon Bank, N.A. Consequently, the requisite element of seizure was present.

Nonetheless, appellant will not prevail because its complaint was deficient in another regard. Appellant failed to prove in Count II of its complaint that appellee acted without probable cause. Appellant only states that “the action was without foundation and without cause.” It is true that issues of “[mjalice, intent, knowledge, and other conditions of mind may be averred generally”, according to Pa.R.C.P. 1019(b). Consequently, the existence of probable cause would only need to be averred generally in a complaint. However, “[wjhat constitutes probable cause and whether it exists under an admitted or clearly established set of facts are questions of law for the court to determine.” Morphy v. Shipley, supra, 351 Pa. at 431, 41 A.2d at 674. See also, Byers v. Ward, 368 Pa. 416, 421, 84 A.2d 307, 310 (1951). When sufficient material facts operate to disprove the averment of want of probable cause, the cause of action must fail. Such is the situation presently before us.

Appellant does not deny that the Writ of Execution was based upon a lease agreement which it was attempting to have declared null and void. In light of appellant’s conduct, appellee did have probable cause to believe that the confession of judgment and Writ of Execution were necessary steps to be taken to zealously defend his client’s interests. With the exception of its allegations, appellant’s complaint lacks any evidence that appellee acted without probable cause.

Moreover, the fact that the judgment upon which execution was issued was ultimately striken does not prove lack of probable cause. Nor does it serve to characterize the execution as illegal. As stated above, the Writ of Execution was regularly issued upon a valid judgment. Not only does appellant not show want of probable cause, but its averments and proof establish the contrary. See Morphy v. Shipley, supra.

Appellant next contends that its complaint stated a statutory cause of action for wrongly instituting a receivership action. Insolvency proceedings in Pennsylvania are subject to statutory requirements as found in 39 P.S. § 1 et seq. Section 34 provides:

“Any person, without foundation, maliciously invoking the action of the court under this section shall be liable for a sum equal to double the injury actually sustained by the alleged insolvent.”

Reading the allegations in appellant’s complaint as true and according them all reasonable inferences, we must again rule that the preliminary objections were properly sustained. Appellant does not deny that the judgment which had been confessed was still valid on its face during the time period in which appellee caused the receivership action to be initiated. Therefore, appellee cannot be accused of acting without foundation.

Here, appellant’s statutory claim requires that appellee’s action be without foundation. The existence of the confessed judgment serves as evidence of probable cause for the receivership action, regardless of the fact that the receivership was later dismissed as meritless. Thus, this claim is likewise devoid of merit.

Appellant also argues that appellee is liable for abuse of process by initiating the receivership action in the face of a court-ordered stay. As stated previously, an action for abuse of process lies in those instances where the legal process is utilized for some purpose other than that for which it was intended. In Triester v. 191 Tenants Ass’n., supra, an example of an abuse of process was outlined as “the initiation of a civil proceeding to coerce the payment of a claim completely unrelated to the cause of action sued upon.” Id., 272 Pa.Super. at 279, 415 A.2d at 702. Thus, the original action is somehow perverted so as to achieve an unrelated result.

It is obvious that an application of the above law to the facts in this case simply does not generate a valid claim for abuse of process. By filing a petition for an appointment of a receiver, appellee was attempting to recover a debt owed to his client. The purpose which appellee sought to fulfill was exactly that purpose for which the insolvency proceedings were intended. If appellee’s actions violated the lower court’s order, it is the duty of the lower court to seek redress for conduct which it believes to be contumacious. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968).

Appellant next contends that appellee committed abuse of process when he confessed judgment in a sum greatly in excess of that actually recovered by his client at trial. The illegal purpose which appellee attempted to accomplish, according to appellant, was to maintain as large a lien as possible against appellant’s property. Again, we must uphold the trial court’s characterization of this count as an attempted cause of action for malicious use of process, and not a cause of action for abuse of process. To establish a cause of action for abuse of process:

“ ‘[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.’ Prosser, Torts § 100, at 669 (2d ed. 1955).”

Di Sanie v. Russ Financial Company, supra 251 Pa.Super. at 189, 380 A.2d at 441. Appellant does not contend that the amount upon which judgment was confessed was not the amount agreed upon in the cognovit clause of the lease agreement. Clearly, then, appellee’s objective in confessing judgment was a legitimate use of process.

Appellant’s argument likewise will not sustain an action for malicious use of process. As we have reiterated above, this contention fails because appellee acted with probable cause by confessing judgment on a lease agreement to which appellant admittedly was a party. That the judgment was eventually striken cannot be viewed in isolation from the fact that, at trial on the lease agreement, appellee’s client was awarded a sum in excess of $20,000.

Finally, appellant argues that the court below erred in failing to permit an amendment of the complaint. Pa.R.C.P. 1028(c) grants a party the right to “file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections,” Appellant chose not to take advantage of this right and file an amended pleading. It is true that a liberal right of amendment is afforded all litigants pursuant to Pa.R.C.P. 1033, and concededly, appellant sought leave to amend its complaint in a timely fashion. If there exists a reasonable possibility that a cause of action may be stated, the right to amend will not be withheld. Mace v. Senior Adult Activities Center of Montgomery County, 282 Pa.Super. 566, 423 A.2d 390 (1980). Concomitantly, if it is apparent that a defective complaint cannot be cured, the proper response is a dismissal of the action. The Supreme Court observed:

“liberality of pleading does not encompass a duty in the courts to allow successive amendments when the initial pleading indicates that the claim asserted cannot be established.”

Behrend v. Yellow Cab Company, 441 Pa. 105, 110, 271 A.2d 241, 243 (1970); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974).

A review of the pleadings in the case at bar convinces us that further attempts by appellant to establish a cause of action against appellee would be unavailing. Appellant’s complaint is not fraught with minor defects or technical errors subject to easy amendment. Rather, appellant has admitted material facts which bar future efforts at any claims upon appellee with respect to the actions discussed herein.

Order affirmed.

      . When the lower court sustains a demurrer, dismisses the complaint and denies leave to amend, the Order is final and appealable. Brown v. Kleinfelter, 267 Pa.Super. 144, 406 A.2d 560 (1979). Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978).

      . At trial, Jonnet was awarded a sum of $25,663.42 in a directed verdict against appellant. That judgment is the subject of a separate appeal before this Court at Nos. 13, 1222, 1223, 1224, and 1225 Pittsburgh, 1980.

      . This cause of action is known as malicious prosecution when it is founded upon wrongfully instituted criminal proceedings.

      . This final requirement to sustain a cause of action for malicious use of process was specifically abrogated by the legislation in 42 Pa.C.S.A. § 8351. That statute provides:
      Wrongful use of civil proceedings
      (a) Elements of action.—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
      (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
      (2) The proceedings have terminated in favor of the person against whom they are brought.
      (b) Arrest or seizure of person or property not required.—The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.
      1980, Dec. 19, P.L. 1296, No. 232, § 1, effective in 60 days. This statute was promulgated subsequent to the accrual of the cause of action in the case at bar. Consequently, appellant must still establish the element of seizure of property to support its claim. Blumenfeld v. R.M. Shoemaker Co., 286 Pa.Super. 540, 429 A.2d 654 (1981).

      . Appellant also alleges that the preliminary objections failed to assert that the complaint lacked a seizure of property as required by a cause of action for malicious use of process. Appellant argues that the trial court raised this issue on its own motion. However, appellant misreads the preliminary objections which clearly state under paragraph 8:

        "The mere filing of a lawsuit, however, malicious or unfounded, cannot be made the ground for an action for damages if property is not seized.”
      Thus, the trial court addressed this issue as it was properly raised in appellee’s preliminary objections.

      . Pa.R.C.P. 3111(b) provides:
      “Service of the writ upon the garnishee shall attach all property of the defendant which may be attached under these rules which is in the possession of the garnishee. It shall also attach all property of the defendant which may be attached under these rules and which comes into the garnishee’s possession thereafter until judgment against him even though no such property of the defendant was in his possession at the time of service.”

      . Although the trial judge dismissed this claim for failing to prove the seizure element for malicious use of process, we can affirm his decision on any basis. Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981); Woodward Heating & Air Conditioning Co. v. American Arbitration Association, 259 Pa.Super. 460, 393 A.2d 917 (1978).


text:
    455 A.2d 126
    COMMONWEALTH of Pennsylvania v. Robert J. CAMPBELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Jan. 7, 1983.
    Petition for Allowance of Appeal Denied March 22, 1983.

      Howard K. Hilner, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   HESTER, Judge:

On March 13, 1972, the appellant, Robert J. Campbell, entered the retail jewelry store of Lebuskes and Sons, Jewelers, in the Borough of Swissvale, Allegheny County, Pennsylvania, with an accomplice and armed with a shotgun. Bernard Lebuskes and his mother, Ann Lebuskes, were in the store at that time.

Both the appellant and accomplice attempted to forcibly remove a box of rings from Ann Lebuskes’s grasp. Ann Lebuskes refused to release the box; consequently, the appellant struck her arm with the shotgun thereby forcing her to release it. Having gained possession of the box, the two men then directed both victims to the rear of the store. Mrs. Lebuskes was ordered to sit on the floor and submit to the taping of her hands behind her back; Bernard Lebuskes was ordered to lie on the floor, and submit to the taping of his hands and feet. The appellant and accomplice then rifled the safe lock and removed the contents of the safe. The personal property removed by the appellant and his accomplice included nine trays of assorted diamond rings and mountings, an undetermined number of birthstone rings, twenty-four Bulova watches, five Accutron watches, and one-hundred dollars in United States currency. The total value of these items was in excess of $9,000.00.

Immediately after the two men left the premises, a young man, who was cleaning the back area of the store and went undetected, emerged and helped the victims to free themselves. Bernard Lebuskes promptly notified the police.

Bernard Lebuskes positively identified the appellant among several men composing a line-up organized by the Allegheny County Detective Bureau. Appellant was thereafter taken into custody and charged with one count of armed robbery and one count of receiving stolen goods.

On September 14, 1972, before the Court of Common Pleas of Allegheny County, the appellant entered a plea of guilty to both charges. Following a court-conducted guilty plea colloquy, the appellant was sentenced to a total term of imprisonment of ten to twenty years. Neither post trial motions nor an appeal was filed by the appellant. Instead, on February 5, 1981, the appellant filed a motion to withdraw his guilty plea nunc pro tunc. In response to this motion, the Court of Common Pleas of Allegheny County issued a rule to show cause upon the Commonwealth asking why a hearing should not be held on the appellant’s motion to withdraw. The Commonwealth filed a timely answer to the motion and the appellant responded by filing an amended motion to withdraw said plea. On April 21, 1981, after due consideration of appellant’s original and amended motions to withdraw and the Commonwealth’s timely answer, the lower court ruled that the appellant’s motion to withdraw his plea was meritless as well as untimely, discharged the rule to show cause and denied the motion to withdraw. It is from that Order that appellant appeals.

The appellant attacks the validity of the guilty plea colloquy conducted by the lower court. Specifically, he maintains its inadequacy due to the court’s alleged failure to include a thorough description of the elements of the two charges brought against him, of the elements involved in a jury trial, and of his right to file a petition to withdraw within 10 days after the plea was accepted. Following a review of the law and of the guilty plea colloquy transcript, we find these arguments to be without merit and affirm the lower court.

In an attempt to inform the appellant of the precise nature of the charges to which he was pleading guilty, the lower court made the following statement:

“I want you to know that you are charged in this indictment at No. 4407 May, 1972, in two counts, one count of armed robbery, and the second count of receiving stolen goods, and the Indictment says that on March 13, 1972, you then and there, accompanied by an unidentified male accomplice, armed with an offensive weapon, a shotgun, in and upon the body of Bernard Lebuskes, then and there trading and doing business under the name of Lebuskes Jewelry Store, and Ann Lebuskes, did make an assault, beat, strike, violence to them with intent to commit the crime of robbery, and the goods which were the subject of the robbery are described as nine trays of assorted diamond rings and mountings, an undetermined amount of birthstone rings, twenty-four Bulova watches, five Accutron watches, an the aggregate value of which is placed in the amount of $9,000.00, and a sum of one-hundred dollars cash. I ask you now if you understand the nature of the charges that are against you as they are contained in the indictment?”

It is the appellant’s contention that the above description of the elements of the charges does not satisfy the standard established in the well-known case of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). We agree with the appellant that a guilty plea is valid only if the defendant understands the nature of the charges brought against him. Furthermore, we agree with the appellant that Ingram, supra, holds that a mere reading of those charges will not suffice in guaranteeing that the defendant understands the nature of the charges; the court or counsel must conduct a detailed colloquy that includes a disclosure and explanation of the elements of the crimes charged in understandable terms. We do not agree, however, as recent developments in the law indicate, that Ingram, supra, provides the only means by which an accused’s understanding of the charges can be assured. See Commonwealth v. Siebert, 305 Pa.Super. 321, 451 A.2d 552 (1982); Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982); Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982), for findings of valid guilty plea colloques despite the lower court’s failure to utilize specific words and phrases.

At the outset, we must recognize two standards of review when determining the propriety of the lower court’s refusal to permit the withdrawal of a guilty plea. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), established the standard that must be employed when reviewing the withdrawal of the guilty plea prior to sentencing. Under those circumstances, a court may allow the defendant to withdraw his guilty plea where he demonstrates “fair and just reason” for the withdrawal. Where, however, the prosecution substantially relies upon the plea to its detriment, irrespective of the presence of a fair and just reason, the withdrawal must still be denied. In those cases where the petition to withdraw is submitted to the lower court after sentencing, the appellant must demonstrate prejudice in the nature of “manifest injustice”, before the withdrawal is granted. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). Here, the appellant filed his motion to withdraw some 8V2 years following sentencing; accordingly, we are bound by the more severe standard of review of manifest injustice espoused in Starr, supra. To tolerate a lesser standard of review would undermine the finality of the sentencing order; to readily permit the withdrawal of the guilty plea after sentencing would accommodate those who are merely testing the severity of the sentence. Commonwealth v. Starr, supra.

A defendant incurs manifest injustice upon the court’s denial of his motion to withdraw and where the plea was entered either involuntarily or without knowledge of those charges filed against him. See the Standards Relating to the Pleas of Guilty (Second Edition, 1980), Standard 14-2.1(b)(ii)(C). The actual question becomes, then, under what conditions will the entry of a guilty plea be considered involuntary or without knowledge of the elements of the crime. As alluded to earlier, we recognize that there is a series of decisional law holding that a guilty plea can be deemed voluntarily entered only where, inter alia, there is a detailed on-the-record explanation in layman’s terms of the legal elements of the crimes charged. Ingram, supra; Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). We find it more prudent, however, to follow recent developments in the law that view the “totality of the circumstances,” rather than the compliance with rigid colloquy guidelines, in determination of the voluntariness of a guilty plea. In Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the appellant filed an appeal from the lower court’s denial of his petition to withdraw a plea of guilty to the charges of third degree murder, carrying a firearm without a license, and committing a crime with a firearm. Similarly, the appellant filed his petition to withdraw his guilty plea after sentencing; consequently, the appellate court was likewise bound by the “manifest injustice” standard of review. The Shaffer court agreed that the lower court was somewhat remiss in failing to explain the elements of the crime to which the defendant was pleading guilty; nevertheless, it refused to consider that alone as the dispositive defect. Instead, the court chose to establish a new test when analyzing the voluntariness of the guilty plea; therefore, the “totality of circumstances” standard was inaugurated. The Shaffer court turned to the following undeniable facts: the defendant had entered his plea of guilty after the Commonwealth had presented its entire case; the defendant, having listened to evidence of guilt, was fully apprised of the magnitude of the charges brought against him; the defendant was primarily concerned with securing a reduction in guilt of murder of the first degree to murder of the second degree and thereby incurring a lesser sentence; had the defendant been fully apprised of each and every element of the crime for which he was charged, it would have made no difference to his decision to enter a plea of guilty. The Shaffer court, then, was solely concerned with whether or not the defendant understood the “nature of the charges” to which he pleaded guilty. An understanding of the “nature of the charges” is more properly accomplished by a review of the “totality of the circumstances” than by compliance with the per se rules of Ingram, supra.

We must admit, unlike here, that the defendant in Shaffer, supra, sat through an entire presentation of the Commonwealth’s case, thereby permitting the court to reasonably presume that he was fully aware of the precise nature of the charges brought against him. We are not deterred by that fact, however. We still find the “totality of the circumstances” standard to be satisfied, as evidenced by the following facts: the appellant never asserted that the court’s failure to explain in detail the elements of the charges brought against him caused his entry of the plea; he likewise never asserted that his guilty plea was not voluntarily entered; in spite of the lower court’s failure to specifically enumerate the elements of the charges of armed robbery and theft by receiving stolen property, those elements were indeed covered in the court’s detailed account, in the presence and hearing of the appellant, of the criminal action committed by the appellant on March 13, 1972; finally, the appellant has not convinced us that he was not primarily interested in securing a more lenient sentence than that likely to be imposed after a trial verdict of guilty.

The appellant’s second contention is that the guilty plea colloquy was inadequate due to the court’s failure to fully inform him of his rights pursuant to a jury trial. The appellant directs our attention to the Supreme Court decision in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), wherein the court analyzed the validity of a jury trial waiver colloquy. The Williams court was primarily concerned with whether the jury trial was waived knowingly and intelligently under Rule 1101 of the Pennsylvania Rules of Criminal Procedure. The court mandated the disclosure of three elements before a defendant’s understanding of his constitutional right to a jury trial could be assumed. The three enumerated elements are: the jury must be selected from members of the community within which the defendant lives; the verdict of guilt or innocence must be unanimously decided upon, and the accused himself has the right to participate in the selection of his peers to serve on his jury panel. The appellant proceeds to reason that a guilty plea colloquy necessarily subsumes a waiver of a jury trial; consequently, the court must follow the Williams’ standard by specifically discussing with the appellant those elements leading to an understanding of a jury trial proceeding.

At the guilty plea colloquy, the lower court discussed the right to a jury trial as follows:

“Now, do you understand that you have a right to have your case tried by a jury of twelve persons who would have to agree unanimously upon a verdict before you can be convicted?”

The appellant proceeds to argue that this discussion satisfies only one of the elements required by the Williams’ court in determining the voluntariness of the waiver of a jury trial; the court failed to inform the appellant that he had the right to participate in the selection of the jury panel and that they must be among his peers in the surrounding communities. As our earlier discussion shows, we find sufficient precedent to ignore the rigid guidelines of Williams, supra, when determining the voluntariness of a guilty plea. We need only look to the appellant’s extensive criminal record, in conformity with the “totality of circumstances” standard, to come to a sound conclusion that he fully understood the nature of his constitutional right to be tried by a jury. Over the years, the appellant has been convicted of larceny, burglary, aggravated assault and battery, second degree murder, robbery and conspiracy. Having been exposed to the criminal process on numerous occasions in the past, we find it difficult to accept that he was ignorant of the nature and extent of a jury trial at his most recent criminal proceeding. See Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (1981).

We do not wish to indicate that we are lessening the impact of Ingram, supra, and Williams, supra, and their progeny. We believe that those two decisions set forth the proper conduct of the court in conducting a guilty plea colloquy. However, we refuse to find that a colloquy that does not satisfy their standards is automatically determined inadequate and defective. Non-compliance with Ingram, supra, and Williams, supra, could render a plea involuntary where the “totality of circumstances” does not reflect any evidence to the contrary.

Having reviewed the appellant’s two contentions for the withdrawal of his guilty plea, it becomes unnecessary to address the waiver issue. Furthermore, since these same two contentions do not warrant a finding of an invalid plea, defense counsel’s failure to raise them as an objection during the lower court proceeding is not a basis for a finding of ineffectiveness of counsel. Counsel cannot be deemed ineffective for choosing not to pursue a meritless claim. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979).

Order affirmed.